GULABCHAND NANULAL Vs. FULCHAND HIRACHAND

JUDGEMENT

(1.) THIS application is made by Sampatlal under S. 151 of the Civil Procedure Code for the rehearing of First Appeal No. 39 of 1946 decided by a Division Bench of the then High Court at Nagpur on 30-12-1954. Though it is not so stated in the application, Shri Halve who appears before us for Sampatlal contends that the decision of the Nagpur High Court and the decree made in that appeal were null and void on account of a procedural defect.

(2.) IT is necessary to set out certain facts in detail. The suit out of which this appeal arises is between the members of two branches of the family which at one time were joint. The following family tree would disclose their relationship;

(3.) IT would be seen that the present applicant was Plaintiff No. 5 to the original suit. It is not disputed before us that Dulichand, Punam-chand, Gulabchand, Mangalchand and Sampatlal formed a joint Hindu family of which Dulichand was the karta during his lifetime. These members of the joint family instituted a suit against the male members of the other branch for the recovery of certain property which was alleged to have been left behind by Jadao Bai. The plaintiffs' case was that after the death of Jadao Bai Nanhoolal succeeded to that property. That property however was kept by Nanhoolal in deposit with Fulchand. After Nanhoolal's death, the plaintiffs succeeded to that property and demanded its return from Ful chand. But as Fulchand refused to hand over pos session of the property they instituted this suit for obtaining possession thereof. In the suit Duli chand acted as a next friend of the present applicant Sampatlal. Sampatlal was at that time said to be about 7 years old. The suit was instituted in the year 1944. It failed in the trial court and was dismissed on 12-11-1945. An appeal was preferred to the Nagpur High Court by the Plaintiffs against <FRM>JUDGEMENT_71_TLMHH0_1959Html1.htm</FRM> the judgment and decree of the trial court. Dulichand at that time was alive and acted as a next friend of Sampatlal in the appeal. It appears that both Dulichand and Punamchand, original Plain tiff's Nos. 1 and 2, died some time prior to 1954. We should have mentioned earlier that the appeal was presented by Shri A. L. Halve on behalf of all the Plaintiffs.