MULAM CHAND CHHOTEYLALL MODI Vs. KANCHHENDILALL BHAIYALAL

JUDGEMENT

(1.) THIS is plaintiff's appeal from the decree in civil suit No. 5-A of 1948 of the Court of First Additional District Judge, Sagar, dismissing his claim for partition.

(2.) THE following pedigree discloses the relationship between the parties. BALLE (d. before 1888) ___________________________________________|____________________ | | | | | mulchand Sukkelal Nanhelal Ramkishan Bhaiyalal (d. 1891) (d. 17-4-1915) (d. after 1888) (d. 1906) (d. 31-1-1946)| | | | _______|__________ ___________|__________ Damrulal | | | | | | _________________|________ tantilal Manmohan Sandhani Ranjitbabulal | | Kanchhedilal Chhotelal (deft. 1) (d. 1932) _____________________________________________|______ | | | | | mulamchand Komalchand Shikharchand Prakashchand Subhashchand (Plaintiff) (deft. 2) (deft. 3) (deft. 4) (deft. 5) It was not disputed in the pleadings that Balle and his sons formed a joint Hindu family from which Nanhulal separated in 1888 A. D. , Tantilal Manmohan and Sandhani, in 1908 A. D. and Damrulal In 1939 A. D. It was also not disputed that the plaintiff was born on 26th September, 1929 and attained majority on 26th September, 1947. The suit was instituted on 8th May, 1948 within 3 years of his attaining majority.

(3.) THE case of the plaintiff was that Balle left behind considerable property which devolved on his sons on his death. The family continued joint in spite of the separation or Nanhulal and sons of Mulchand, namely Tantilal, Manmohan and Sandhani. After the death of Sukhalal in 1915, the family consisted of Damrulal and Bhaiyalal. On Damrulal's separation in 1939 A. D. , Bhaiyalal continued joint with his son Kanchhedilal, defendant No. 1, and his grandson, the plaintiff. On the death of Bhaiyalal, the plaintiff demanded partition from Kanchhedilal by a notice, dated 27-10-1947. In reply to this notice, Kanchhedilal alleged that there was already a partition between him and the plaintiff on 21st January, 1946. The plaintiff contended that the alleged partition was not binding upon him firstly because it was not effected by his guardian, namely mother Mst. Maharani, and secondly because Bhaiyalal had lost his power of understanding on account of senile decay. He, therefore, claimed partition of the entire property in the hands of Kanchhedilal and his sons.