JAN MAHOMED ABDULLA DATU Vs. DATU JAFFAR

JUDGEMENT

(1.) In this suit the plaintiffs, who are the sons of Abdulla Datu, a Khoja, pray that it be declared that the properties mentioned in the plaint and the business referred to therein are the properties and business of a joint and undivided family. That the rights of the plaintiffs and the other defendants therein, be ascertained and declared. That the said properties be partitioned between the plaintiffs and the defendants, in accordance with their interests so ascertained and declared. That for these purposes all necessary directions be given, enquiries made, and accounts taken. That in the meantime a Receiver be appointed. That the defendants 1 and 2 be restrained by an order and injunction of this Court from alienating or otherwise disposing of the same. That it may be declared that the release referred to in the plaint is not valid and binding on the plaintiffs and defendant 3, or in the events that have happened it is inoperative against the plaintiffs and defendant 3. That the deed of gift dated 8th October 1902, in favour of the defendant 2, is void and of no effect" as against the interests of the plaintiffs and the other members of the said joint family. And other, for the present immaterial, prayers.

(2.) The written statement of the defendant 1 sets up limitation, want of jurisdiction, and without prejudice to those defences pleads on the merits, adopting the written statement of the defendant 2, that the release was not obtained by fraud etc., but that it was a perfectly fair and valid transaction and has been acted on ever since. The defendant 2 in his written statement says that in or about 1878 the defendant 3 and plaintiff 1, who was then his only son, separated from the joint family. The separation was recorded in the release Ex. 1 in this case. At that time the joint family only owned a small shop wherein groceries and cloth were retailed. In or about 1887 this defendant began to deal in those commodities on his own account. The properties mentioned in Schedule A were all bought after the aforesaid partition, except a small house at Malad which came to the share of the defendant 1 on the partition, while the only other immoveable property of the family was allotted to the first plaintiff on the same. Most of the said properties belong exclusively to this defendant. Denies that since the death of Jaffir and the partition in 1878 the defendant 3 or the plaintiff 1 lived with the first defendant or himself as members of a joint and undivided family or as such acquired any immoveable property or carried on any business. At the date of the said partition this defendant was a minor, and the family then owned no immoveable property in Bombay. Denies fraud, undue influence etc. Denies that the plaintiffs and their mother Ratanbai were maintained out of the joint family property or continued to live as members of the joint family after the release. Admits the performance of certain ceremonies but denies that the expenses were defrayed out of joint family funds. The release was acted upon and the defendant 3 is still living in the house given under it to the plaintiff I. Denies that this defendant induced the defendant 1 to execute the deed of gift of 1902. Says that the defendant 3 and the plaintiff I have been living separate from the joint family ever since the release and have had nothing to do with the Bombay business and denies that the properties claimed were acquired by him for the joint family as benamidar but were his own self acquisitions. Says that he employed the plaintiff 2 in his shop but had to get rid of him as he was useless. The plaintiffs then set on foot rumours that they were interested in the properties now claimed in consequence of which these defendants had to file the suit in the Thana Court. This defendant separated in estate from the defendant 1 in 1885 but has continued to live with him. Sets out his self acquisitions. Pleads limitation. And want of jurisdiction.

(3.) A perusal of these pleadings is instructive as showing how deeply this community has, under the pressure of judicial decisions, become tinged with the peculiar notions of the Hindu Law of the Joint family. In order to understand at the outset what is substantially in controversy it may be well to state one or two of the salient facts.