Appeal No 1988 of 1968
Appeal by Special Leave from the Judgment and Decree dated 2122 3 1968 of the Gujarat High Court in First Appeal No 76060
ST Desai I N Shroff and HS Parihar for the Appel lants
J B Nagarsett and A G Ratnaparkhi for the Respondents
The Judgment of the Court was delivered by KAILASAM J
This appeal is by the legal representa tives of the defendant in the suit by special leave against the judgment and decree of the High Court of Gujarat
The suit was filed by Manilal Lallubhai and his widow Bai Mani against Nanabhai Fakirchand for partition and allotment of one half share of the suit house and the moveable properties mentioned in the plaint
One Fakirchand had three sons Nathubhai Lallubhai and Nanabhai
Nanabhai is the defend ant whose legal representatives are the present appellants in this Court
Lallubhai s son Manilal was the first plaintiff and his mother and widow of LaIIubhai Bai Mani was the second plaintiff
The second plaintiff is since dead and his legal representatives are respondents 2b and 2c in this appeal
Nathubhai Lallubhai and Nanabhai were originally the members of a joint Hindu family
The case of the plaintiffs respondents in this appeal is that the three brothers Nathubhai Lallubhai and Nanab hai were members of a joint undivided Hindu family and when they were joint in the year 1940 Nathubhai died leaving his widow Bai Kashi
Subsequently in the year 1942 Lallubhai died
On 24th January 1956 Bai Kashi the widow of Nathubhai died while the family continued to be a joint undivided Hindu family
According to the respondents the properties were never partitioned though the three brothers were staying and messing separately and each branch carried on its business separately
The family immoveable and moveable properties were never divided
The respondents also questioned the validity of a sale deed executed by Bai Kashi on 25th April 1955 in favour of the appellants of her share in the immoveable property as it was not for legal necessity
In the written statement the appellants denied that the three brothers were members of a joint family
They pleaded that the brothers were separated and each branch used to do its own business keeping their earnings separately and messing separately
So far as the suit house was concerned it was divided though not by metes and bounds and the 922 brothers lived in separate portions of the house
The appellants claimed that they were entitled to 23 share in the house as Bai Kashi the widow of Nathubhai had sold her share by registered deed 25th April 1955 to the appellants
On these pleadings 9 issues were framed of which three are relevant for the purpose of this appeal
They are 1 Does the defendant prove that he and his two brothers Nathubhai and Lallubhai had separated and the suit house was also divided through not by metes and bounds at the time of the
death of Nathubhai  2 Does he further prove that the sale deed executed by Bai Kashi in respect of the one third share of the suit house was for legal necessity anti to satisfy her debts  and 3 Do the plaintiffs prove that after Bai Kashi s death they become entitled to
a one half share in the whole of the suithouse  The trial court found that the three brothers had become separate in status before the deaths of Nathubhai and Lallubhai
It also found that the defendant and his broth ers had separated and the suit house was also divided as alleged by the defendant and recorded the finding in favour of the defendant
Regarding the second issue it found that the defendant had failed to prove that there was legal necessity for Bai Kashi to sell away the share in the suit house
On the third issue the trial court recorded a find ing that after Bai Kashi s death the respondents became entitled to 12 share in the whole of the suit house
On appeal the High Court confirmed the findings or the trial court on three issues and dismissed the appeal
The findings of both the courts below that the defendant and his two brothers had separated and the suit house was also divided by metes and bounds was not challenged before us by the counsel for the respondents
So also the finding that the sale deed executed by Bai Kashi in respect of her 13 share of the suit house was not proved to have been for legal necessity
The only point that was raised by the counsel for the appellants is that the respondents  plea that the three brothers were joint and the share of Bai Kashi was inherited by the remaining two branches by survi vorship having been negatived by the courts below the suit ought to have been dismissed and that the courts erred in finding a new case of succession to the property of Bai Kashi without the necessary pleadings
It may be observed that on the accepted finding of the courts below that the sale in favour of the appellants by Bai Kashi is not sup ported by legal necessity if on the death of Bai Kashi the other two branches ie that of the appellants and the respondents are entitled to share equally the decree grant ed by courts below would be right even though the claim to the 12 share is not based on succession
The contention of the counsel for the appellants is that the courts below have found an entirely new case on the basis of succession which is contrary to the claim made in the plaint
The averment in the plaint is that on 24th January 1956 Bai Kashi the widow of Nathubhai died and Nanabhai continued as the member of the joint Hindu family
923 There is no alternate claim that in the event of the parti tion being negatived the plaintiff would be entitled to 12 share of Bai Kashi by succession
The 3rd issue that was raised was whether on Bai Kashi s death the appellants became entitled to 12 share in the whole suit house
The trial court on that issue found that Bai Kashi became enti tled to 12 share of her husband in the suit house under the Hindu Women s Rights to Property Act 1937
As her interest was only a limited interest known as Hindu Women s Estate when Bai Kashi died in January 1956 she had not become the full owner of the share under the 
On this basis the trial court was of the view that on the death of Bai Kashi her share would go to the reversion ers
On the question as to who the heirs of Nathubhai are at the time of the death of Bai Kashi the trial court held that as the parties were in Gujarat the Mayukh school will govern the inheritance and in Gujarat the Mayukh school overrules the Mitakshara school and therefore full broth ers inherit along with sons of full brothers who are dead and therefore after the death of Bai Kashi the defendant and plaintiff No 1 would inherit together to the share of Nathubhai
The court held that the claim of the plaintiff for 12 share should be decreed though there is no specific claim on the plea of separation and heirship
The defend ant present appellants in their appeal to the High Court submitted that the trial Judge erred in saying that the Kashi had only a widow s estate when she died and that the trial court failed to appreciate that no issue was framed as to who were the heirs of the deceased Bai Kashi and that the parties to the suit had not gone to the trial on the basis of the succession
The High Court has not dealt with this issue satisfactorily
The High Court after referring to the pleadings observed that the plaintiffs claimed 12 share in the suit properties on the ground of survivorship and that at the time of the arguments it was contended before the trial court that even if the brothers had separated the defendant and the plaintiff No 1 inherited together to Nathubhai after Bai Kashi s death and therefore the plain tiff would be entitled to 13 share
After making these observations the High Court has referred to the plea in the written statement that the three brothers were separated and has observed that the trial Judge had framed the issue as to whether the defendant proves that he and his two brothers Nathubhai and Lallubhai had separated and the suit house was divided and concluded that this issue which was raised by the learned trial Judge clearly arose out of the contention which was raised by the defendant to the plaintiff s suit and a specific issue was raised on that point by the learned trial Judge and therefore there is no prejudice to any of the parties because the issue was framed and evidence was led by both the parties on that point
This reference we are afraid does not relate to issue No 3 which is about the succession to Bai Kashi s share after her death
In the Memorandum of Grounds in the appeal to the High Court as well as in the special leave petition the ground that is taken specifically is that the plaintiff has not proved how he became entitled to the share of Bai Kashi
In fact the contention is that on the death of Nathubhai his widow Bai Kashi inherited under the Mayukh law Nathub hai s 13 share in the suit house absolutely
It was also contended before the High Court that the trial Judge was in error in saying that Mayukh school of Hindu law would 11 206SCI77 the Mitakshara school in Gujarat
We find that the question 924 that arose mainly whether the respondents are entitled to succeed to Bai Kashi s 12 share on her death has not been satisfactorily dealt with by the High Court especially when the point was specifically raised on behalf of the appel lants
While we agree with the concurrent finding of the trial court and the High Court that the family became separated and that the sale deed by Bai Kashi in favour of the appellants is not for legal necessity we are satisfied that the claim of the respondents for partition and allot ment of 13 share by metes and bounds cannot be resisted
Though the brothers became separate admittedly there was no division by metes and bounds
There is also no dispute that the respondents are entitled to
13 share in the house
Therefore though they became separated in status the suit house was not divided by metes and bounds and therefore they will be entitled to division and separate possession of 13 share in the house
To this extent the decree of the courts below will be modified
But so far as the 13 share of Bai Kashi is concerned as the courts below have not considered the appellants  plea that the respondents are not entitled to succeed to Bai Kashi s 12 share the question is remitted to the High Court for consideration
The High Court will consider as to
whether the respondents are entitled to succeed to 12 of the 13 share of Bai Kashi and pass a decree accordingly
To this extent the appeal is allowed and the decree of the trial court and the High Court modified
The parties will bear their own costs in this appeal
PHP Appeal allowed


Summary:
The respondent plaintiffs filed a suit for partition and allotment of one half share of the suit house and the move able properties
One Faqir Chand had 3 sons Nathubhai Lallubhai and Nanabhai
Nanabhai was the defendant in the suit whose legal representatives are appellants
Lallub hai s heirs are the plaintiffs
According to the plain tiffs the three brothers were members of a Joint Undivided Hindu Family
According to the respondents the properties were never partitioned though the three brothers were stay ing and messing separately and each branch carried on its business separately
The respondents also challenged the validity of the sale deed executed by Bai Kashi the widow of Nathubhai in favour of the appellants on the ground that the sale was not for legal necessity
The appellants contended that the three brothers were separate and each branch used to do its business separately
That as far as the suit house was concerned it was divided though not by metes and bounds and that the brothers lived in separate portions of the house
The appellants claimed that they were entitled to 23 share on the house
The Trial Court found that the 3 brothers had separated before the deaths of Nathubhai and Lallubhai
It also found that the defendant and his broth ers had separated and the suit house was also divided as alleged by the defendant
It came to the conclusion that the defendant had failed to prove that there was any legal necessity for Bai Kashi to sell the share in the suit house and that after Bai Kashi s death the respondent was entitled to one half share in the suit house
The Trial Court found that Bai Kashi became entitled to one  half share of her husband in the suit house under the Hindu Women s Rights to Property Act 1937
As her interest was only a limited interest known as Hindu Women s Estate when Bai Kashi died in January 1956 she had not become the full owner of the share under the 
The court was of the view that on the death of Bai Kashi her share would go to the reversioners
The court held that the parties were governed by Mayukh school which over rules the Mitakshara school and therefore after the death of Bai Kashi the defendant and plaintiff No 1 would inherit together to the share of Nathubhai
The court held that the claim of the plaintiff for one half share should be decreed though there was no specific claim on the plea of separation and heir ship
The High Court dismissed the appeal and confirmed the findings of the Trial Court
In an appeal by Special Leave the appellants contended that the respondents  plea that the 3 brothers were joint and the share of Bai Kashi was inherited by the remaining two branches by survivorship having been negatived by the courts below the suit ought to have been dismissed and that the court erred in making out a new case of succession to the property of Bai Kashi without necessary pleadings
Allowing the appeal partly HELD 1
On the question whether the respondents are entitled to one half share on her death has not been dealt with by the High Court
This Court agreed with the concur rent findings of the Trial Court and the High Court that the family was separate and that the sale deed by Bai Kashi in favour of the appellants was not for legal necessity
However the claim of the respondent for partition and allotment of 13 share by metes and bounds 921 cannot be resisted
Though the brothers became separate admittedly there was no division by metes and bounds
There is also no dispute that the respondents are entitled to 13 share in the house
924 A C 2
The High Court did not deal satisfactorily with the contention of the defendant that the Trial Judge erred in saying that Bai Kashi had only a widow s estate when she died in the absence of any issue as to who were heirs of the deceased Bai Kashi
On the question whether respondents are entitled to succeed to Bai Kashis 12 share the Court remitted the matter to the High Court for consideration
924 C D