First Appeal Nos. 155, 294 of 1940. Case: Sitaram Vinayak Hasabnis Vs Narayan Shankarrao Hasabnis. High Court of Bombay (India)
| Case Number | First Appeal Nos. 155, 294 of 1940 |
| Judges | Broomfield and Macklin, JJ. |
| Issue | Indian Limitation Act (IX of 1908) - Articles 62, 89, 120 |
| Citation | AIR 1943 Bom 216, 1943 (45) BomLR 424 |
| Judgement Date | August 07, 1942 |
| Court | High Court of Bombay (India) |
Judgment:
Macklin, J.
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The plaintiffs sued for the partition and separate possession of a share amounting to eight annas and ten and half pies in some properties known as the Shankar Khar and Shankar Wadi, and also for a declaration of their right to receive a similar share in half the revenues of the village of Sape. They also sued for an account of the recoveries made by defendant No. 1, who admittedly has been in possession of these properties; and by a purshis they dated their claim to an account from the year 1927. They have been given a preliminary decree for partition of the Shankar Wadi and Shankar Khar and also' a declaration of their right to receive the assessment claimed of the village of Sape, and the preliminary decree ordered accounts to be taken of the plaintiffs' share in the income received by the defendants from the year 1927. The Commissioner found a sum of Rs. 6,139-0-1 1/2 to be due to the plaintiffs on accounts, and by a final decree that sum was ordered to be paid by the defendants together with costs and future interest at six per cent. from the date of the suit on the principal sum of Rs. 6,139. The defendants have appealed both against the preliminary decree (First Appeal 155 of 1940) and against the final decree (First Appeal 294 of 1940).
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Most of the defences raised to the suit have been abandoned in these appeals, and it is not necessary to do more than state the facts in very brief outline. It is not disputed that in 1862 three brothers, Trimbak, Ganesh, and Shankar, all sons of one Vinayak (the first two by his first wife and the last by his second wife) separated. The right of Shankar to a share of six annas and six pies was recognised, and Trimbak and Ganesh between them were given a share of nine annas and six pies. Some of the property was divided; but some of it was kept joint, including the property in the present suit. But it is not disputed that from that date the three brothers ceased to be members of a joint family and became tenants-in-common. Trimbak died in 1875, and on his son's death in 1879 no male member remained in his family. His widow Gangabai died in 1918. Ganesh died in 1871, and his widow adopted defendant No. 1 in 1883. Plaintiff No. 1 is the son of Shankar, who died in 1896; the other defendants Nos. 2, 3 and 4 are the sons of defendant No. 1 and plaintiffs Nos. 2, 3 and 4 are the sons of plaintiff No. 1. Defendants Nos. 5 and 6 are alienees.
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In 1883 defendant No. 1 on adoption brought a suit with respect to some of the properties of the family, and as the result of that suit the vahivat of the property as provided for in the arrangement of 1862 was confirmed. In 1913 there was more litigation, and on the death of Gangabai in 1918 further litigation arose as to the rights of the plaintiffs' branch or the defendants' branch as reversioners. Pending that litigation an arrangement was made in 1926 between the plaintiffs and the defendants by which it was provided that defendant No. 1 should manage the property and pay an eight annas share to the plaintiff. But in the following year plaintiff No. 1 sued for possession of the property himself on the basis of the agreement having been broken by defendant No. 1. When the litigation as to the reversion was over, it was decided that the defendants and the plaintiffs each had a half share in the share to which Trimbak was entitled, Trimbak's share being half of nine annas and six pies. The plaintiff therefore claims to be entitled to eight annas and ten and half pies in the property in suit; and it is conceded that if he is entitled to anything at all, that is the share to which he is entitled. The only questions for decision in these' appeals are whether the plaintiffs are entitled to bring the present suit against the defendants for partition and possession of the property of which the defendants are in possession without at the same time bringing into hotchpot certain properties of which the plaintiffs are admittedly in possession, and secondly whether they can recover anything (and if SO, what) by way of mesne profits on accounts being taken. No other point has been pressed in the appeals.
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The written statement of the defendants mentioned certain property in the possession of the plaintiffs and stated that it was necessary to bring these properties into hotchpot before the plaintiffs could be given any relief. In his reply to the written statement the plaintiff pointed out that some of these properties were watan properties, and according to the report of the Collector could not be made the subject of a partition; and they also said that one of the properties was theirs exclusively. There is probably a good deal of substance in these contentions of the plaintiff; but it is not necessary to decide the point, since in our view the plaintiffs are not bound to bring these properties into hotchpot at All The ordinary rule applicable to suits for...
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RFA (OS) 5/1982. Case: Radhey Shyam Bagla Vs Ratni Devi Kahnani. High Court of Delhi (India)
... ... S. Ravindra Bhat, J ... 1. This appeal is directed against the judgment of the learned ... The appellant, Shri Radhey Shyam Bagla (first defendant in Suit No. 446/1967, since deceased ... appeals filed against the judgement in suit Nos.32/1969 and 31/1969 really do not survive. It is ... v. Siddegowda alias Montegowda, 1994 (4) SCC 294 and submitted that the general rule against the ... 31. Long ago, in Sitaram Vinayak Hasabnis v. Narayan Shankarrao Hasabnis ... 32. The view expressed by the Bombay High Court in Hasabnis (supra) was rooted in an ... ...
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RFA (OS) 5/1982. Case: Radhey Shyam Bagla Vs Ratni Devi Kahnani. High Court of Delhi (India)
... ... S. Ravindra Bhat, J ... 1. This appeal is directed against the judgment of the learned ... The appellant, Shri Radhey Shyam Bagla (first defendant in Suit No. 446/1967, since deceased ... appeals filed against the judgement in suit Nos.32/1969 and 31/1969 really do not survive. It is ... v. Siddegowda alias Montegowda, 1994 (4) SCC 294 and submitted that the general rule against the ... 31. Long ago, in Sitaram Vinayak Hasabnis v. Narayan Shankarrao Hasabnis ... 32. The view expressed by the Bombay High Court in Hasabnis (supra) was rooted in an ... ...