GOVARDHAN SHRIRAM KHANDELWAL Vs. SHIVNARAYAN SHRIRAM KHANDELWAL

JUDGEMENT

(1.) THE two properties regarding which the dispute survives in this Appeal is CTS No.121, Bhawani Peth, Satara and 6 gold ornaments.

(2.) THE Appellant herein filed the suit for partition and separate possession. The suit came to be decreed and he was granted half share in all the properties which are mentioned at Exhs A, B and C to the plaint, except house No.289 and share certificates.

(3.) THE learned Counsel appearing for the Appellant first submitted that the learned Judge ought to have granted half share in the property i.e. CTS No.121, Bhawani Peth, Satara. For that purpose he relied upon partition deed dated 17-11-1957. It is first to be noted that said premises were taken on rent and father was running a general stores known as Khandelwal Stores. Admittedly in 1957 the said store was stopped. Respondent herein started electrical shop and was exclusively running it since then. The suit was filed in the year 1980. The learned Counsel for the Appellant tried to submit that the electrical shop was run jointly. However, admittedly this was not even the case in the plaint, and the same cannot be accepted. So called partition which was dated 19th of November 1957 shows that shop premises were given to the Appellant and Respondent. However, the Appellant did not run the same and the business was exclusively run by the Respondent. Therefore, Appellant cannot claim any right in that respect. The reliance place by the learned Counsel for Appellant on para 234 of the Hindu Law of Mulla (16th Edition) is of no help to him in the facts and circumstances of the case. It deals with ancestral business and its incidents. It shows that ancestral business is heritable and heirs are entitled to get the share. However, in the present case merely partition deed was prepared in November 1957, but the Appellant did not run the business at any time and there after the electrical business was run by the Respondent. The learned Counsel for the Appellant then submitted that their father died on 8-3-1957. The shop was originally started by their father and therefore the Appellant was entitled to get the share. However, the Appellant will be required to file a suit claiming right under Section 5(11) (c) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 and this cannot taken into consideration in this suit, as he shall be required to show that the qualifies under the said provision. Therefore, the Appellate Court was right in rejecting the claim of the Appellant in respect of the said property.