HARILAL NATHALAL TALATI Vs. BHAILAL PRANLAL SHAH

JUDGEMENT

(1.) THIS is an appeal from the decision of the First Class Subordinate Judge at Nadiad dismissing the plaintiff's suit in which the plaintiff prayed (a) for a declaration that he is entitled to a half share in the joint family property which would come to the share of the defendant after the date of the award, (b) for a permanent injunction restraining the defendant from disposing of any property of his share either by sale, mortgage, gift, will, or otherwise, (c) for an order directing the defendant to pay to him Rs. 40 per year in future out of the sum of Rs. 900 which the defendant has been getting every year by virtue of the award, and (d) for recovery from the defendant of Rs. 80 for a period of two years from January 24, 1931, to January 24, 1933.

(2.) THE facts giving rise to this case are that one Pranlal, who had inherited property from his father Premchand, died leaving three sons : Bhailal the defendant in this case a son by his first wife, the other two being Natvarlal and Sumantlal a minor aged two years at the date of his father's death on January 18, 1929. After the death of Pranlal the property was being managed by Kamala his widow, the present defendant's step-mother, and his maternal uncle Maneklal Chhotalal. After some time the defendant appears to have written a letter to his uncle asking him to cease managing the property and to give him his share. As this, it is, alleged, met with no response, legal proceedings were threatened. THE plaintiff in this case persuaded the defendant to enter into an agreement on October 5, 1930, which is exhibit 2/1 wherein the defendant recites : Whereas I have no money or means to bring) a suit with regard to the said property 1 pass this karar to you. (1) That I pass this agreement to give you eight annas share from my share in return for bringing a suit with regard to the moveable and immoveable property of my said father and my ancestors and for all the trouble you may undergo and for all the expenses you may incur in filing and conducting the suit. (2) You have to incur all the expenses for fighting out the suit and I have to give you a share stated above out of the property which I might get either by a private settlement or by the decision1 of the Court. (3) Even if I have not to file a suit or if I go over to and ally myself with them from to-day or if there is a private settlement or if there is no partition at all I shall give you according to the terms of this karar from the share that I might receive from the moveable and immoveable property of my father and ancestors. . . I bind myself to pass a pacca karar on a stamp piaper about this matter. This karar shall be considered to take effect from to-day. Dated October 5, 1930. If I ally myself with any one else or in Court all my contentions shall be null and void.

(3.) THE plaint in this case alleges that this arbitration was brought about by the efforts of the plaintiff in this case in pursuance of the karars executed by the defendant in his favour and that his cause of action arose on January 24, 1931, as the judgment on, the award decree was delivered on that day. THE plaintiff claims a money decree for Rs. 80 at Rs. 40 per year for the past two years out of the Rs. 450 to which he would have been entitled strictly under the terms of his karar. He seeks a declaration that it should be declared that he is entitled to a half share in the property which the defendant might get as a result of the arbitration award and that the plaintiff should get Rs. 40 a year from the allowance of Rs. 75 a month which the defendant would get as a result of that award.