Govardhan Shriram Khandelwal vs Shivnarayan Shriram Khandelwal

P.S. Patankar, J.—The two properties regarding which the dispute survives in this Appeals is CST No. 121, Bhawani Peth, Satara and 6 gold ornaments.

The Appellant herein filed the suit for partition and separate possession. The suit came to be decreed and he was granted half share in all the properties which are mentioned at Exhs. A, B and C to the plaint, except house No. 289 and share certificates.

Both the parties filed the Appeals. Appeal filed by the Appellant came to be dismissed. However, appeal filed by Respondent came to be partly allowed i.e. with respect to the shop premises i.e. CTS No. 121, Bhawani Peth, and 6 gold ornaments.

The learned Counsel appearing for the Appellant first submitted that the learned Judge ought to have granted half share in the property i.e. CTS No. 121, Bhawani Peth, Satara. For that purpose he relied upon partition deed dated 17.11.1957. It is first to be noted that said premises were taken on rent and father was running a general stores known as Khandel wal Stores. Admittedly in 1957 the said store was stopped. Respondent herein started electrical shop and was exclusively running it since then. The suit was filed in the year 1980. The learned Counsel for the Appellant tried to submit that the electrical shop was run jointly. However, admittedly this was not even the case in the plaint, and the same cannot be accepted. So called partition which was dated 19th November 1957 shows that shop premises were given to the Appellant and Respondent. However, the Appellant did not run the same and the business was exclusively run by the Respondent. Therefore, Appellant cannot claim any right in that respect. The reliance placed by the learned Counsel for Appellant on para 234 of the Hindu Law of Mulla (16th Edition) is of no help to him in the facts and circumstances of the case. It deals with ancestral business and its incidents. It shows that ancestral business is heritable and heirs are entitled to get the share. However, in the present case merely partition deed was prepared in November 1957, but the Appellant did not run the business at any time and there after the electrical business was run by the Respondent. The learned Counsel for the Appellant then submitted that their father died on 8.3.1957. The shop was originally started by their father and therefore the Appellant was entitled to get the share. However, the Appellant will be required to file a suit claiming right u/s 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 and this cannot be taken into consideration in this suit, as he shall be required to show that he qualifies under the said provision. Therefore, the Appellate Court was right in rejecting the claim of the Appellant in respect of the said property.

The learned Counsel for the Appellant then pointed out that learned Judge has committed an error in not granting the decree in respect of the gold ornaments except 3 and 8 as mentioned in Schedule B to the plaint. I find that the learned Judge has declined to grant the said decree in respect of other ornaments in respect of item Nos. 3 and 8 before the Court. However, the other ornaments were not produced before the Court and hence no decree was granted. This raises a substantial question of law - can decree for partition in respect of ancestral moveable property be refused on the ground that the said property is not produced before the Court or available ? I find that learned Counsel for the Appellant is right in pointing out that there was no dispute that these ornaments were ancestral and the Appellant was entitled to get a share therein. Therefore the Appellate Court ought to have valued this and granted money decree in respect thereof. He is also right in pointing out that the gold ornaments were of 25 tolas and excluding gold ornaments at Sr. Nos. 3 and 8, the other gold ornaments were weighing 20 tolas. Total ornaments were valued in the plaint at Rs. 30,000/- and hence value of 20 tolas gold ornaments would come to Rs. 24,000/-. The Appellant shall be entitled to get Rs. 12,000/- in respect of the same (half share). The learned Advocate for the Respondent did not dispute this position.

However, the learned Counsel for the Appellant on instructions stated that Appellant is not interested in prosecuting another litigation claiming share as heir in the shop at Satara and his claim in respect of the 6 gold ornaments if he is given a lump sum amount. On instructions he submitted that if the Appellant is paid Rs. 30,000/- then he would forego completely his claim in respect of shop premises at CTS No. 121, Bhawani Peth, Satara and also in respect of the 6 gold ornaments. In any opinion, the offer made by the learned Counsel for the Appellant is very fair and just and learned Counsel for the Respondent cannot dispute this, as the Appellant shall be entitled to get. interest on his claim for gold ornaments. In view of this I pass the following order.

(a) The impugned judgment and decree dated 8.11.1989 passed by the Additional District Judge, Satara is partly modified. So far as it relates to the claim of the Appellant for half share in respect of house bearing CTS No. 290. Somwar Pelh, Satara, half share in the golden ornaments except at St. Nos. 3 and 8 (Schedule B to the plaint) and half share in the property shown in Schedule C and the directions regarding effecting partition are confirmed. However, in addition the Appellant would be entitled to recover an amount of Rs. 30,000/- from the Respondent. The Respondent is directed to pay the said amount within a period of 3 months from to-day. If the Respondent fails to a pay the said amount within 3 months then the Appellant shall be at liberty to recover the said amount with 12% p. a. from the date of this order till payment.

(b) Appeal allowed to that extent and decree modified.

In the facts and circumstances of the case, there shall be no order as to costs.