CHAMPAKLAL CHIMANLAL Vs. AMUBHAI DAHYABHAI SODAGAR

JUDGEMENT

(1.) This is an appeal by defendants 7 to 11 in a suit for partition. The parties to the suit were the sons, grandsons and the widow of one Dahyabhai Sodagar who died in 1906 leaving eight sons. The eldest son Mohanbhai died in 1923. One of the other sons, Chimanlal, died on 20th September 1934, leaving five sons. The plaintiff in the suit is Amubhai, one of the sons of Dahyabhai. Defendants 1, 2, 3 and 4 are his brothers Hirabhai, Bholabhai, Manilal and Lalbhai. Defendant 5 was Shantilal who died on 10 April 1936, after the present suit was filed on 8th November 1935. Defendant 6 was Dahyabhai's widow, Bai Mangu, who died pending the suit and defendants 7 to 11 are the sons of deceased Chimanlal. The family had moveable as well as immovable properties at Ahmedabad. There is no dispute with regard to immovable property. The only disputes between the parties with which we are concerned relate to the money value of a broker's card in the Native Share and Stock Brokers Association of Bombay, and family ornaments which were alleged to have been in possession of Dahyabhai's widow Mangu but disappeared after her death. It appears that in 1911 three of the brothers, i.e. the plaintiff Amubhai, Manilal and Chimanlal came to Bombay for business and service. They were all members of a joint Hindu family and the family was doing business as, share brokers at Ahmedabad where they had two cards in the Ahmedabad Stock Exchange. The plaintiff's case was that in the year 1911 a card was taken in the Bombay Stock Exchange in the name of deceased Chimanlal. The business on that card was done for and on behalf of the joint family and the profits and losses also, were shared by it. Another card was thereafter taken by the family in the name of Manilal, defendant 3, in 1924, but it was kept silent for? several years. The family seems to have got into financial difficulties on account of losses incurred by some of the brothers, and as a result, some of the Ahmedabad properties had to be sold to liquidate the debts. Thereafter, on 20 January 1933, the plaintiff gave a formal notice for partition to all the brothers, and since then severance has taken place between the members of the family. On 20 September 1934, Chimanlal died, and thereafter on 8 November 1935, the present suit was filed by the plaintiff. After Chimanlal's death no broker's business was done on his card till December 1935, when under its rules the board of the Stock Exchange accepted the nomination of his eldest son, defendant 7, for membership, and since then the business on that card has been done by defendant 7 alone. The plaintiff's case was that all the four cards, the two cards in Ahmedabad as well as the two cards in Bombay, were taken on behalf of the joint family, that the profits and losses were also shared by the joint family, that the cards had a money value in the stock exchange and that therefore their value should be divided among the members of the family although the cards themselves cannot be divided. With regard to the. ornaments, the plaintiffs case was that there were ornaments worth about Hs. 5,000 in possession of the r her and that they must also be brought into hotchpot by those members who might be found to be in their possession.

(2.) About the Ahmedabad cards there is no dispute and it is conceded that their value belongs to the joint family. But with regard to the Bombay card, which stood in the name of deceased Chimanlal, his sons, defendants 7 to 11, contended that that card was purchased with the private moneys of Chimanlal by incurring a debt of his own, and that therefore the joint family had no concern with it and the business done with that card was his personal business. It was further urged that in any case the card represented only a personal right of membership and it was not property in any sense which could be divided and partitioned. As regards the family ornaments, they contended that they were in possession of Bai Mangu, who was living with defendant 1, and therefore, the latter must be deemed to be in their possession. Defendant 3, who held the other Bombay card, admitted in his written statement that it was purchased out of the joint family moneys but contended that that card created only a personal rigkt and that, therefore, its value was not divisible. With regard to the ornaments, he supported the case of defendants 7 to 11. Bai Mangu had filed a written statement to the effect that her sons the deceased Chimanlal and Lalbhai, defendant 4, had taken away some of the ornaments from her. She, however, died after filing the written statement and therefore could not be examined in the suit. Defendant 4 and the other defendants support the plaintiff in his case for partition of the value of the cards. Defendant 1 denied his possession of any ornaments.

(3.) The material issues framed by the lower Court were whether the broker's cards in Bombay were the joint family property or the separate property of the defendants claiming them as their own and whether they were divisible in partition, and if not, what equitable order should for passed if they were held to be purchased for the joint family. The issue with regard to the ornaments was as to which of the parties was in possession of the ornaments. As regards the card, the learned Judge held on the evidence that both the Bombay cards were purchased with moneys belonging to the joint family, and the broker's business, which was done with the aid of the two cards, was also treated as joint family business. He further held that although the cards may not be regarded as property in the legal sense of the term, their value was divisible in the partition, and that the brothers who would get the benefit of the cards in their names must account for an equivalent amount of their value in the partition of the joint family property. As regards their value the learned Judge fixed it at Rs. 16,000 each in 1940 when the evidence was taken and he directed that defendant 3 as well as defendants 7 to 11, should be debited Rs. 16,000 each as the price or value of the cards in the accounts. As to the ornaments, the learned Judge held that it was not proved that the ornaments in possession of Bai Mangu were worth Rs. 5000 and that, at the most they might be worth RS. 3000. He further held, relying on the evidence -of defendant 1, that ornaments worth about Rs. 1700 were taken away by defendant 4 Lalbhai from his mother for an alleged claim which he had for the palla ornaments of his wife in possession of the family, and that Chimanlal had taken away ornaments worth about RS. 1300 from the mother. The learned Judge, therefore, directed that as Lalbhai had taken away those ornaments for the palla debt, that debt did not exist at the date of the suit, and should not be taken into account, and that defendants 7 to 11 should account for Rs. 1300, i.e., the value of the ornaments taken away by their father.