Case: Bai Nani and Others Vs. Manilal Lallubhai and Others

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. Lallubhais son, Manilal, was the first plaintiff and his mother and widow of Lallubhai, Bai Mani, was the second plaintiff. The second plaintiff is since dead and his legal representatives are respondents 2(b) and 2(c) in this appeal. Nathubhai, Lallubhai and Nanabhai were originally the members of a joint Hinducase of the plaintiffs, respondents in this appeal, is that the three brothers Nathubhai, Lallubhai and Nanabhai 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 legalthe 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 us ed 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 brothers lived in separate portions of the house. The appellants claimed that they were entitled to 2/3 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 Kashis 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 brothers 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 suithouse. On the third issue the trial court recorded a finding that after Bai Kashis death the respondents became entitled to 1/2 share in the whole of the suit-house.On appeal the High Court confirmed the findings or the tria

Reasoning: 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 supported by legal necessity if on the death of Bai Kashi the other two branches i.e. that of the appellants and the respondents, are entitled to share equally the decree granted by courts below would be right even though the claim to the 1/2 share is not based onreference, we are afraid, does not relate to issue No. 3 which is about the succession to Bai Kashis 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 Nathubhais 1/3 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--206SCI/77 the Mitakshara school in Gujarat. We find that the question that arose mainly whether the respondents are entitled to succeed to Bai Kashis 1/2 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 appellants. 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 allotment of 1/3 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. 1/3 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 1/3 share in the house. To this extent the decree of the courts below will be modified.But so far as the 1/3 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 Kashis 1/2 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 1 /2 of the 1/3 share of Bai Kashi and pass a decree accordingly.