ASHARAM RAMGOPAL Vs. SARJUBAI RAMGOPAL

JUDGEMENT

(1.) Asharam Ramgopal, the plaintiff, has filed this appeal against the judgment and decree passed by Kania J. dismissing his suit for a declaration that his step mother, Defendant No. 1, got a restricted estate in the moveable and immovable properties coming to her share as a result of the partition and that she was entitled to only. a life interest n the said moveable and immovable properties. By the plaint also. injunction was claimed against defendant No. 1 restraining her, servants and agents from selling, alienating, encumbering or otherwise dealing with or despising of the said moveable and immovable properties. There is no controversy as regards the facts of the case. One Ramgopal Jagannath deed on or about May 21, 1950, leaving behind him his widow Sarjubai, Defendant No. 1 and three sons, Asharam Ramgopal plaintiff by his first wife and Nandkshore Ramgopal and Chandmal Ramgopal, both minors at the time of his death, by his wife Sarjubai. At the time of Ramgopal's death, they were the members of a joint and undivided Hindu family owning moveable and immovable properties and also carrying on business in the name and style of Messrs. Jagannath Ramgopal. Besides the plaintiff and the defendants, Ramgopal also left two unmarried daughters by name Pushpaba and Shantiba. After the death of Ramgopal, disputes and differences arose between the parties and as a result of the mutual intervention of friends and relatives, as agreement was arrived at for partitioning the joint family properties on August 18, 1955. The terms of this agreement will be referred to a little later. Under Hs agreement, so far as the joint family business was concerned, it was to be divided with effect from November 14, 1955 and thereafter was to be cared on in partnership between plaintiff and defendant No. 1 and defendants 2 and 3 who were then minors were to be admitted to the benefits of partnership. Even what happened on November 14, 1955 has been recorded in an agreement between the parties. On June 17, 1956, the Hindu Succession Act, 1956 [hereinafter referred to as the 'Act'] came into force. After the Act came into force, on September 13, 1956, a declaration was made by the plaintiff and defendant. No. 1 executing the said declaration not only on behalf of herself --- defendant NO. 1, but as the natural guardian of the two minor sons --- defendants 2 and 3. On February 23, 1968, and plaintiff filed the present suit alleging that under the agreement dated August 18, 1955 and writing dated November 14, 1955, defendant NO. 1 obtained only a restricted interest in the moveable and immovable properties coming to her share as a result of the partition; that by the said declaration dated September 13, 1956, she declared on oath that the would hold the said moveable and immovable properties as a limited owner; that upon he death the said moveable and immovable properties would belong to and be divided between the plaintiff and defendants 2 and 3 in equal shares; and that the said moveable and immovable properties was not enlarged by reason of the provision of Section 14[1]of the Act. It was also alleged by the plaintiff and defendant 2 and 3 have vested interest n the corpus of the moveable and moveable properties coming to the share of defendant No. 1 and that she was making an adverse claim to the corpus of the properties, and as she was denying the 1/3 right of the plaintiff therein, it become necessary for the plaintiff to file the soot for the possession and injunction as aforesaid. The suit was resisted by defendant No. 1 and material issues that arose for consideration in this case were whether the estate of defendant NO. 1 in the moveable properties and immovable properties described n the annexes to the plaint allotted to her share was not enlarged by reason of the provision of Section 14[1] of the Act of whether defendant No. 1 got full ownership of the said moveable and immovable properties after the commencement of the Act n view of the provision of Section 14 thereof? This question was answered n favour of Defendant No. 1 and the soot was dismissed by the learned Judge. It is against this judgment and decree passed by the learned Judge, that plaintiff has come in appeal before us.

(2.) Mr. Mehta on behalf of the plaintiff, contended that as a result of the agreement dated August 18, 1955, the writing dated November 14, 1955 and the declaration dated September 13, 1956, defendant No. 1 merely continued to have a restricted interest in the property allotted to her on partition of the moveable and immovable properties belonging to the family; that such restricted interest allotted to her was less than limited ownership contemplated under the Hindu Law; that under these document, it is clearly provided that she would have no right of alienation whatsoever in respect of the moveable or immovable properties allotted to her; that in view of these circumstances, even having regard to the provision of Section 14 of the Act, the moveable and immovable properties allotted to her as a result of this partition were not converted into full ownership and that she was not entitled to the rights of an absolute owner or right to alienate, encumber or dispose of the same.

(3.) Before dealing with the provisions of Section 14 of the Act, it will be necessary to refer to the three documents on which the submission s based by Mr. Mehta. It is not disputed that when Ramgopal died on May 21, 1950, he the plaintiff and the defendants were the member of a joint and undivided Hindu family and apart from the plaintiff and the defendants, he died leaving him surviving his unmarried daughters. The property owned by the family including the business of M/s Jagannath Ramgopal was a joint family business. After the disputes and differences arose between the parties, the properties belonging to the family, both moveable and immovable including cash, golden and silver ornaments, house-hold utensils and other moveable properties were partitioned and the terms of the partition were subsequently recorded in an agreement dated August 18, 1955. In this agreements, it is decided that so far as the joint family business of Jagannath Ramgopal was concerned, it would be partitioned with effect from November 14, 1955 on the basis that the plaintiff and the defendants will be each entitled to 1/4th are thereof. So far as the house-hold articles and things were concerned, the mother agreed to relinquish her interest in the property and the same were to the divided equally only between the plaintiff and defendants 2 and 3. The rest of the properties, both moveable and immovable, belonging to the family were to be divided equally between the parties. There is no controversy that plaintiff and defendants 2 and 3 under this agreement became the absolute owners of the respective 4 Anna share in the properties allotted to them under partition. So far as the share that was allotted to defendant No. 1 was concerned, the agreement provided as under:---