Court Rules Joint Family Properties Subject to Partition, No Settlement in 1942.

The court held that the properties were joint family properties amenable for partition as they were acquired through joint family efforts. It ruled that there was no settlement or partition in 1942 as claimed by the defendants due to inconsistencies in evidence. The suit was not barred by limitation as there was no evidence of exclusion of plaintiffs from joint family properties. Properties in plaint 'B' and 'C' schedules were deemed joint family properties, entitling the plaintiffs and the 9th defendant to shares. A preliminary decree for partition was granted, and both appeals were allowed with costs.

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Issues Involved:

1. Whether the suit properties are joint family properties of Purandas and his four sons.
2. Whether there was a settlement or partition as alleged by the defendants in the year 1942.
3. Whether the suit is barred by limitation.
4. What are the properties available for partition.

Detailed Analysis:

Issue 1: Whether the suit properties are joint family properties of Purandas and his four sons.

The plaintiffs contended that the business was started by Purandas and developed by the joint efforts of Purandas and his sons, thus making the properties joint family properties. The defendants argued that the business was self-acquired by Purandas without any ancestral property nucleus, and merely working with the father does not make it joint family property. The court examined evidence, including testimonies from P.W.1, P.W.2, and D.W.1, and concluded that the business was indeed started by Purandas and developed with the joint efforts of the family. The court cited several precedents, including Haridas v. Devkuvarbai and Lachmi Narain v. Musaddi Lal, which established that properties acquired by joint family efforts are joint family properties. Thus, the court held that the properties are joint family properties amenable for partition.

Issue 2: Whether there was a settlement or partition as alleged by the defendants in the year 1942.

The plaintiffs denied any partition or settlement, while the defendants claimed a settlement in 1942, formalized in a 1957 settlement deed. The court scrutinized the evidence, including Ex. B-3 (the settlement deed) and Ex. B-4 (a will), and found inconsistencies and contradictions in the defendants' claims. The court noted the absence of independent witnesses to corroborate the settlement deed and the lack of mention of the 1942 settlement in the defendants' initial reply notice. The court also found that the alleged settlement deed did not see the light of day until the written statement was filed. Consequently, the court held that there was no settlement or partition as alleged by the defendants.

Issue 3: Whether the suit is barred by limitation.

The defendants argued that the suit was time-barred, claiming that the business was carried on independently long before 1943. However, the court noted that there was no specific plea of exclusion of the plaintiffs from the joint family properties. The court cited the principle that exclusion must be to the knowledge of the person excluded and supported by sufficient material. The court also referenced the Privy Council's decision in Radhobav. Aburao, which emphasized the necessity of proving an intention to exclude. Since no issue of exclusion was raised before the trial court, and the plaintiffs were paid maintenance from the joint family business, the court held that the suit was not barred by limitation.

Issue 4: What are the properties available for partition.

The court examined the evidence regarding the properties listed in the plaint schedules. The defendants claimed that the properties were self-acquired, but the court found no supporting evidence, such as sale deeds or witness testimonies, to substantiate this claim. The court noted that the properties were purchased from the income of the joint family business and held that the properties covered by the plaint 'B' and 'C' schedules are joint family properties. However, the court found no evidence to prove the existence of properties in the plaint 'D' schedule and thus excluded them from partition.

Conclusion:

The court set aside the trial court's judgment and declared that the plaintiffs are entitled to one-fifth share, while the 9th defendant is entitled to one-fifth share in the one-fifth share of late Purandas in the joint family properties covered by the plaint 'B' and 'C' schedules. A preliminary decree for partition was ordered, and both appeals were allowed with costs.

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