Judgment:
Tatia, J.
1. This appeal is against the judgment and decree dated 12.4.1979 passed by the court of District Judge, Banswara in Civil Original Suit No. 2/76 by which the court below passed the preliminary decree and also partly allowed the counter claim of the defendant.
2. The plaintiff Smt. Rukmani, mother of the appellant along with Smt. Heera Mani, Smt. Bharat Kishori, Smt. Jai Laxmi and Smt. Renuka, who are the daughters of the plaintiff No. 1 and sisters of defendant No. 1 (appellant) filed the suit for partition of the joint family property alleging that the properties described in the schedule attached to the plaint are the joint family property of the plaintiff and defendant No. 1. Dhoori Lal was the husband of plaintiff No. 1 and father of the rest of the plaintiffs and defendant No. 1. In the life time of Dhoorilal, the relationship between Dhoorilal and his son defendant-appellant were not good and the defendant had to leave the house. Dhoorilal died on 5.11.1972. Before the death of Dhoorilal, plaintiff Nos. 2 and 3 married and after the death of Dhoorilal, plaintiff No. 1 got plaintiff No. 4 married on 13.5.1975. It is stated in the plaint that because of the immoral and terrorising activities of defendant No. 1, plaintiffs in the protection of the police have to leave the residential house of the plaintiffs in which they were residing since last 40 years and they have to take house on rent on 28.3.1974. The plaintiff submitted that all the immovable properties in Schedule- 'Ka', 'Kha', 'Ga' and 'Gha' are joint family properties in the joint possession of the plaintiffs and the defendant No. 1. The plaintiff requested for partition of the properties but the partition was not effected, therefore, suit for partition was, filed claiming 1/3 + 1/18 share by plaintiff No. 1, 1/18 share each by plaintiffs No. 2, 3 and 4 and 1/18 by plaintiff No. 5 which may be separated and given to the plaintiffs and it was prayed that in case it is not possible to divide the property then they may be awarded amount in cash.
3. In the Schedule attached to the plaintiff Items 'Ka', 'Kha', and 'Ga' are shown to be the shops and it is stated that the shop No. 1 is in possession of one tenant and plaintiff No. 1 is receiving rent at the rate of Rs. 130/- per month from 13.5.1973. In the shop described in Part 'Kha', there is a tenant who is also paying Rs. 25/- per month to the plaintiff No. 1 from 19.2.1973. The shop 'Ga' is in possession of the tenant and plaintiff No. 1 is receiving rent Rs. 30/- per month from 23.3.1975. The property 'Gha' has been shown as a residential house and it was stated that since 28.3.1974, the defendant is living in this house, There is one more property 'Cha' bearing plot Nos. 22, 23 and 24 and it is alleged that this properly is in possession of the Municipal Board, Banswara and some portion of the property in front of property 'Ka' was acquired by the Municipal Board for which compensation is to be given by the Municipal Board in which plaintiffs are entitled for the compensation from the Municipal Board as per their share in the properly.
4. The defendant submitted the written statement and counter claim and stated that as per the Mitakshra Law, at the time of division of the property between father and son, the mother's share stands extinguished and mother is only entitled for the maintenance. It is further alleged that before 5.11.1972 only defendant No. 1 and his father Dhoorilal were co-parceners and with the death of Dhoori Lal on 5.11.1972, the joint family came to an end. The plaintiff Nos. 1, 4 and 5 were entitled for maintenance only and plaintiff Nos. 2 and 3 are not members of the family and they are the members of the family of their husband.
5. Defendant No. 1, in his written statement, specifically admitted that his relationship with his father was not good and defendant No. 1 alleged that his lather was having not a good life and he spent his life by misutilising the ancestral property causing loss to the defendant No. 1. It was admitted by the defendant No. 1 that till 5.11.1972 the property was in the control of the deceased Dhoorilal and after death of father, of defendant No. 1, the property was in the control of plaintiff No. 1. 11 is also stated that defendant No. 1 was residing separately from his father since last 12 to 13 years from the date of death of his father. The defendant submitted that at the time of death of father, defendant No. 1 started living in the ancestral house since 5.11.1972. Not only this, the father of the plaintiff filed Civil Suit No. 45/70 against defendant No. 1 for injunction to restrain him from interfering in the family property in which there was injunction order against defendant No. 1 that he should not get vacated the shops from the tenants. It is alleged that one of the tenants in the shop, Harish Chandra and sub-tenant Harjasmal took the benefit of situation and took the plaintiff No. 1 at the house of Harjasmal and started initiating proceedings against defendant No. 1.
6. The defendant also pleaded that in case of partition, movable and immovable both properties should have been included and the plaintiffs had not given details of the immovable properties like ornaments and utensils, therefore, the suit is incomplete and cannot be maintained till immovables are included in it.
7. In addition to above, the defendant specifically pleaded that one property 'Raman Mansion' shown in the Schedule as 'Ka' is the personal property of defendant No. 1 and therefore, the plaintiffs are not entitled to any share in this property. The defendant also denied the share as claimed by plaintiff No. 1.
8. In para 14 of the written statement, defendant No. 1 stated that he has not accepting the share of the plaintiffs but the property may be divided including movable and immovable properties otherwise the suit be dismissed. The defendant No. 1 claimed that the defendant is entitled for the mesne profits and in counter claim, the defendant claimed that defendant's share may be determined and separate possession be given to defendant No. 1.
9. The court below by its order dated 30. 8. 1976 permitted reply to para No. 7 and 8 of the written statement of the defendant by the plaintiff.
10. The trial court framed the issue to the effect whether the property described in the schedule annexed to the plaint is joint family property and whether the plaintiff No. 1 is entitled for 7/18 share and the rest of the plaintiff were entitled for 1/18 share in the property, and issue with respect to the plea taken by defendant No. 1 that whether the property shown in Schedule 8 at item No. 7 'A' and 'B' and of Schedule 8 at item No. 8 are in possession of the plaintiff No. 1 which should be included in partition and whether the suit is not maintainable as filed with respect to the immovable properties and issue with respect to the claim of the defendant that because of the difficult situation, the defendant No. 1 had to live in a separate house since last 12 to 13 years, therefore, the defendant No. 1 is entitled for the accounts from plaintiff No. 1. Additional issues were framed by the trial court that as per the custom whether the property stands divided before the death of Dhoorilal and, therefore, plaintiff No. 1 cannot claim any share and since plaintiff No. 1 received the Stridhan, therefore, defendant No. 1 is entitled to deduction of that amount from the notional share of plaintiff No. 1 and whether the expenses incurred for the marriage of the daughters is to be given account for.
11. Plaintiff No. 1 gave her statement as PW-1. The witnesses, PW-2 Amba Shanker, PW-3 Magan Lal s/o Mukund Lal, PW-4 Smt. Bharat Kishori (plaintiff), PW-5 Renuka Shan (plaintiff), PW-6 Smt. Jai Laxmi (plaintiff), PW-7 Devilal, PW-8 Harjasmal, PW-9 Harish Chandra, PW-10 Karu Lal, PW-11 Bhagwan Das, PW-12 Manak Lal and PW-I3 Suresh Chandra were examined by the plaintiff and the defendant appeared as DW-1 & DW-2 Tejkaran, DW-3 Purushottam, DW-4 Magan Lal s/o Kodarji, DW-5 Chiranji Lal, DW-6 Magan Lal s/o Lunji, DW-7 Mogaji, DW-8 Magan Lal s/o Dali Chand, DW-9 Bhagwat Puri, DW-10 Sumali Lal, DW-11 Ganpat Lal, DW-12 Saheb Lal, DW-13 Magan Lal s/o Pran Lal & DW-14 Bhagwati Lal Doshi were examined by the defendant.
12. The court below after hearing both the parties, decreed the suit as stated above on 12. 4. 1979, against which the defendant No. 1 has preferred this appeal.
13. The learned counsel for the appellant challenged the finding recorded on issue No. 1 and, more particularly, the finding recorded by the court below for disputed property known as 'Raman Mansion'. It is submitted by the learned counsel for the appellant that the appellant (defendant No. 1) is the owner of the property of 'Raman Mansion' for which the appellant has categorically stated in para No. 9 of his written statement that plots Nos. 22, 23 and 24 situated at Mohan Colony, Banswara were the personal property of defendant No. 1 and further stated that the building 'Shah Raman Mansion' was having one piece of land in front of it which was acquired by the Municipal Board, Banswara and, in compensation, above plots were proposed to be given. In Schedule-5 attached to the written statement in para 'Cha, the defendant stated that plots No. 22, 23 and 24 were allotted in compensation against the acquisition of the land of 'Raman Mansion' and for this defendant No. 1 submitted that these plots are personal properties of defendant No. 1 and, in the same sequence, defendant No. 1 stated that the building 'Shah Raman Mansion' described in Schedule 1 (Ka) filed by the plaintiff along with plaint is the property of defendant No. 1. That the above property was constructed by defendant's grand-father Nana Lal for defendant No. 1 and before constructing the above 'Shah Raman Mansion', an amount was gifted to defendant No. 1 and, thereafter, name of defendant No. 1 was engrossed at two places over the building and defendant No. 1 was receiving income from the above building and defendant No. 1 even exercising his right of owner, filed Civil Original Suit No. 20/67 which was decreed on 14.10.1968. It is also alleged that the tenant of the property Harish Chand by collusion inducted sub-tenant Harjasmal and by collusion started making payment of the rent after decree to his father Dhoorilal and plaintiff No. 1. Therefore, according to the learned counsel for the appellant, the court below committed illegality in including 'Raman Mansion' in the joint family property of the plaintiff and the defendant. The learned counsel for the appellant could not dispute rest of the properties as joint family properties in view of the evidence available on record.
14. l considered the rival submissions and perused the record.
15. The learned court below while deciding issue No. 1, considered the evidence of the parties. It was an admitted case of the parties that the disputed properties except 'Raman Mansion' are the joint family properties and, admittedly, the properties were not partitioned. The contention raised by the defendant was that, as per the provisions of Mitakshra Law, the property stands divided a day before the death of father of the defendant No. 1, the defendant No. 1 was the sole surviving male member and, therefore, status of joint family came to an end and with the death of defendant No. 1's father. As per the customs, the mother of defendant No. 1 was not entitled for any share in the property.
16. First of all it will be relevant to quote Section 6 of the Hindu Succession Act 1956.
17. Proviso to Section 6 of the Hindu Succession Act, 1956 provides as under:-
'Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenery property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1. - For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the , property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2. - Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenery before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. '
18. Therefore, it is clear that in case when a female heir is left behind of the deceased then the property devolves in case of instestate succession under the Act and not by survivorship.
19. Section 8 of the Hindu Succession Act provides for property of male Hindu dying intestate shall devolve according to the provisions of Chapter-11 of the Act and firstly upon the heirs, specified in Class I of the Schedule. Plaintiff No. 1 being widow of deceased Dhoorilal and plaintiffs No. 2 to 5 daughters are members of Class 1 heirs along with defendant No. 1, therefore, there is no substance in the submission of the defendant that plaintiff No. 1 had only right of maintenance and also has no substance in the submission that status of joint family has come to an end with death of father of defendant No. 1 and also there is no substance in the submission that plaintiffs No. 2, 3 and 4 since married are not entitled for share. The defendant (DW-1) himself in his statement before the court below admitted that the family of the plaintiff and the defendant is joint Hindu family and no partition took place and there is no substance in the submission of the defendant No. 1 that after death of father of defendant No. 1, all properties became his personal properties in view of the Sections 6 and 8 of the Act of 1956, but it is true that shares are calculated as per the provisions of Hindu Succession Act.
20. So far as question of title of 'Raman Mansion' is concerned, the plaintiff stated that this property was the property of deceased Dhoorilal and was the part of the undivided joint Hindu family. PW-1 Smt. Rukmani was the mother of defendant No. 1, stated on oath that in one house name of defendant No. 1 Ramanlal was written because he was the only son of Dhoorilal but Dhoorilal was receiving rent and, thereafter, plaintiff No. 1 was receiving the rent. In cross-examination, PW-1 Smt. Rukmani denied the suggestion that 'Raman Mansion' was constructed by Nana Lal and also denied that the property was gifted to Ramanlal by Nana Lal. The other plaintiff PW-4 Smt. Bharat Kishori stated in cross-examination that the defendant No. 1 Raman Lal is not the owner of 'Raman Mansion' and stated in her statement that all the properties are joint properties. PW-5 Renuka Shah (plaintiff) and who is daughter of Dhoorilal, also stated that the property was joint property and denied that 'Raman Mansion' is the personal property of Ramanlal and also denied the suggestion that his father even said that the property will remain of Ramanlal. PW-6 Jai Laxmi, one of the plaintiffs, categorically stated that 'Shah Raman Mansion' is property of deceased Dhoorilal and since defendant No. 1 was the only mate issue, therefore his name was written over the property. She also stated that she had no knowledge when 'Raman Mansion' was constructed and how it was constructed. There is no suggestion in cross-examination by defendant No. 1 to any of the above mentioned witnesses that any amount was gifted to Ramanlal by Nanalal as given in Schedule-1 (Ka) attached to the written statement of the defendant No. 1.
21. When the plaintiff on oath stated that the property is joint family property of the plaintiffs and defendant No. 1 as it was left by deceased Dhoorilal then it was for the defendant No. 1 to prove by positive evidence that the title of 'Raman Mansion' is in his own name for which a bare look at the statement of DW-1 Ramanlal before the court below shows that there is no documentary evidence in support of his case that the above property was originally self-acquired property of his grand-father Nana Lal and it was gifted to defendant No. 1. He stated that some portion of the plot from the property 'Raman Mansion' was acquired by the Municipal Council, Banswara and compensation was given to defendant No. 1 and he stated tha. t he is owner of 'Raman Mansion. ' He further stated that there is a board of 'Raman Mansion' over the building but he stated that he was not aware to whom the rent is being paid by the tenant of 'Raman Mansion' but admitted that tenant Harish Chandra is not paying the rent of 'Raman Mansion' to defendant No. 1. Defendant No. 1 shown is ignorance whether the rent is being paid to the plaintiff No. 1 or not. He stated that his grand-father Nana Lal expired in Samvat Year 2007 and his father Dhoorilal expired in the year 1972. He admitted in which house he (defendant No. 1) is now residing, was from the time of his grand-father Nana Lal and all are owners of the above house. Plaintiff No. 1 voluntarily left the house and, therefore, she is not the owner of the property. Defendant No. 1 further admitted that he withdrawn the compensation from the Municipal Council, Banswara against the acquisition of the land of 'Raman Mansion' by giving written undertaking that in case any dispute will be raised by his sisters and mother then defendant No. 1 will be responsible and categorically admitted in his statement that above amount was withdrawn by defendant No. 1 as Manager of the joint family. The defendant No. 1 in his statement shown his ignorance with respect to whether his father Dhoorifal mortgaged 'Raman Mansion' with Manak Lal Mahajan for Rs. 5000/-.
22. A bare perusal of the above statement of defendant No. 1 Ramanlal if seen in the light of the written statement submitted by defendant No. 1 then it is clear that there is no evidence with respect to the pleading of defendant No. 1 that Nana Lal gifted some amount to Raman Lal and there is no documentary evidence with respect to the title of the property vesting in Nana Lal or defendant No. 1. There is no material particular in pleading with respect to the alleged gift. There is no date, month and year of the alleged gift of 'Raman Mansion'. The pleadings are quite vague. In Schedule-1 (Ka) submitted with written statement by the defendant, defendant No. 1 stated that 'Raman Mansion' was constructed by his grand-father Nana Lal and before constructing 'Raman Mansion', some amount was gifted to defendant No. 1. It leads nowhere. Whether the amount was gifted to defendant No. 1 was utilised for constructing 'Raman Mansion' or it was independent transaction. If the amount was gifted to Ramanlal then the property must have been acquired in the name of Ramanlal defendant No. 1 himself. The facts have not been pleaded by the defendant No. 1. So far as the fact of gift of 'Raman Mansion' is concerned, admittedly, there is no gift-deed in favour of defendant No. 1. There is no pleading that gift was accepted by defendant No. 1 and no reason has been given for giving 'Shah Raman Mansion' to defendant No. 1 by Nana Lal grand-father of defendant No. 1 and not giving to Dhoorilal the father of defendant No. 1.
23. It is further relevant to mention here that the lower court observed that at the alleged time of gift the defendant himself was a boy of 13-14 years only. If seen in the light of statement of defendant No. 1 himself wherein he stated that his grand-father Nana Lal died in the Samvat Year 2007. 'Raman Mansion' was constructed in the Samvat Year, 2005, as stated by the defendant in his statement then his age comes to only 13 years. The evidence of defendant No. 1 with respect to the gift of 'Raman Mansion' or Rs. 25,000/- given gift to the defendant which was not pleaded in the written statement, should have been discarded but if considered then also these are not sufficient proof of gift of property to defendant Ramanlal by Nana Lal. The court below observed that as per Section 122 Transfer of Property Act, the gift is completed only when there is an acceptance of the gift also and at the time of alleged gift even defendant was not competent to accept the gift and it is not the case of defendant No. 1 that any body else accepted the gift on behalf of defendant No. 1. The gift-deed is required to be registered and must have been attested by two witnesses as per Section 123 of the Transfer of Property Act but, here in this case, there is no gift-deed.
24. The other witnesses have also given statements in favour of the defendant like, DW-2 Tej Karan. The statement of DW-2 Tej Karan is not worth reliance as the source of his knowledge itself is not proved. Tej Karan in his cross-examination even stated that Ramanlat and Dhoorilal were living together till death of Dhoorilal which appears to be absolutely false statement and contrary to the case of even defendant. He also stated that he has no knowledge about the fact whether Nana Lal was having any other property or not except 'Raman Mansion'. Not only this but he categorically denied suggestion that Ramanlal was living separate from Dhoorilal since last 10-12 years from the time of death of Dhoorilal. The defendant No. 1 is real brother-in-law (Tej Karan's sister's husband) and, therefore, it appears that he is more interested to see that the property be given to his brother-in-law defendant No. 1 and for that purpose even he tried to improve the case of defendant No. 1 by saying that Raman Lal and Dhoori Lal were living together and also stated that Raman Lal never lived in a rented house. It is also stated by Tej Karan that Dhoorilal and Nana Lal were having good relations. Therefore, his evidence with respect to the alleged gift by Nana Lal to defendant No. 1 deserves to be rejected.
25. The witness DW-3 Purushottam even stated that in the Samvat Year 2005, Ramanlal looked after the construction of 'Raman Mansion' and also incurred expenses of construction and he was of the age of 15 to 20 years. He stated that he was engaged for completing wood work in the building of Dhoori Lal. He further stated that since Dhoori Lal was taking opium and, therefore, Nana Lal thought that Dhoorilal will destroy the property and hence Rs. 20-25,000/- was given by Nana Lal to Ramanlal. This statement is also not worth reliance in view of the fact that it is not the case of even defendant No. 1 that he himself constructed the building by supervising himself and also he himself incurred the cost of the construction. Taking of opium by Dhoorilal was also not even pleaded by defendant No. 1.
26. The statement of Magan Lal (DW-4) is not with respect to 'Raman Mansion' but he stated in cross-examination that there was no dispute with Ramanlal and his mother which is admittedly a wrong statement.
27. The witness DW-5 Chiranji Lal stated that Nana Lal constructed 'Raman Mansion' by spending Rs. 25,000/- and gave il to Ramanlal. He admitted in cross-examination that he appeared as witness in 15 cases of Ramanlal but subsequently he stated that he gave evidence in 3-4 cases of Ramanlal in 15 years. His statement with respect to 'Raman Mansion' is only that the property was constructed by Nana Lal by incurring expenses of Rs. 25,000/-.
28. The other witnesses DW-6 Maganlal s7o Lunaji, DW-7 Mogaji, DW-8 Magan lal s7o Dali Chand, DW-9 Bhagwat Puri, DW-10 Sumati Lal, DW-11 Ganpat Lal, DW-12 Saheb Lal, DW-13 Magan Lal s7o Pran Lal and DW-14 Bhagwati Lal Doshi were also examined and their statements are also not reliable with respect to the fact of either raising construction of 'Raman Mansion' by Nana Lal or by defendant No. 1 Ramanlal or giving Rs. 20,000/- or 25,000/- to Ramanlal and by this amount constructing 'Raman Mansion. '
29. The statement of DW-8 Magan Lal is very important. He in his examination-in-chief stated that 'Raman Mansion' was constructed by all three Nana Lal, his son Dhoori Lal and Ramanlal (defendant No. 1) which makes the 'Raman Mansion' as joint property only and not as personal property of defendant No. 1. Evidence of this witness DW-8 Magan Lal is contrary to the even case of defendant No. 1, therefore, his statement also deserves to be rejected.
30. Therefore, it is clear that there is no reliable evidence in support of claim that property 'Raman Mansion' was gifted to Ramanlal defendant No. 1 (appellant) nor there is sufficient pleading. Because of this gift only the defendant No. 1 is claiming exclusive ownership right over 'Raman Mansion' otherwise there is no other case except of ancestral joint property and, admittedly, the joint property has not been divided as admitted even by defendant No. 1 himself in his statement before the court below, therefore, it is held that the disputed property 'Raman Mansion' is joint family property of the plaintiff and defendant No. 1 and there is no illegality in arriving at a decision on issue No. 1 by the court below with very cogent reasons given in the, impugned judgment.
31. The learned counsel for the appellant tried to assail the finding on issue No. 1 which deals claim of adverse possession by the defendant No. 1 but could not point out any evidence of ouster of the plaintiffs so as to establish title by adverse possession in himself.
32. The learned court below, after considering the arguments and after careful consideration of the legal position held that possession of one of the co-sharers is the possession of all co-sharers and it is relevant to mention here that in joint family property ouster is required to be very specifically pleaded and proved but, here in this case, ouster has not been clearly pleaded and proved by evidence. The entire case of the defendant No. 1 was that he was the owner of 'Shah Raman Mansion' which was found to be not correct and the defendant No. 1 himself submitted the affidavit for withdrawing the compensation which also shows that he was not asserting the title in himself. In his cross-examination, DW-1 Ramanlal admitted that he withdrawn the compensation in the capacity of Manager of joint Hindu family but, thereafter, stated that this fact was wrong but since the court passed the order that he is Manager of joint Hindu family, therefore, he withdrawn the amount as Manager of joint family. In the Schedule-1 (Ka) attached to the written statement, defendant No. 1 alleged that before filing of the present suit, the rent was being received by his father from the tenant and also by plaintiff No. 1 though it is stated that that is illegal act of the father and mother of defendant No. 1. It is admitted case that father of defendant No. 1 died on 5.11.1972 whereas present suit was filed in the year 1976. Therefore, even before 1972, the rent of the property was received by the predecessors of plaintiff and defendant No. 1. Therefore, there is no case of ouster of the co-sharers and the detailed reasonings given by the trial court are also in accordance with the facts of the case and based on the appreciation of entire evidence and the settled proposition of law. Therefore, there is no substance in this plea also.
33. The learned counsel for the appellant for the first time raised a legal plea that in view of Section 23 of the Hindu Succession Act, 1956. The plaintiffs are female heirs whereas defendant No. 1 is the male heir of deceased Dhoorilal. The house described in column 'Gha' in the schedule attached to the plaint is dwelling house and was wholly occupied by the members of the family, therefore, the suit for partition by female heir is not maintainable and, in the alternative, it was submitted that if the suit for partition is maintainable then this house cannot be partitioned as per Section 23 of the Hindu Succession Act, 1956. According to the learned counsel for the appellant, the plaintiffs themselves admitted categorically in their plaint itself that the above house is dwelling house and, according to the plaint allegations, if taken as it is as given in para 6 read with facts mentioned in 'Gha' of the schedule annexed to the plaint, there is an admitted case that the house in dispute is a dwelling house and also proves that it was wholly occupied by the members of the family and, therefore, this house cannot be put to partition if there is a share of female heir in view of statutory bar of Section 23 of the Hindu Succession Act.
34. The learned counsel for the respondents vehemently opposed the above submissions on the ground that it was not the defence of the appellant in the pleading. There was no issue framed on this point in the trial court. There is no evidence on this point of any of the parties even there is no ground raised in the memo of appeal by the appellant on the basis of defence under Section 23 of the Hindu Succession Act.
35. The learned counsel for the respondents relied upon the judgment of the Hon'ble Apex Court delivered in : Kalyanpur Lime Works Ltd. v. State of Bihar and Anr. (1). In above cited case, the Hon'ble Apex Court considered Rule 8 of Order 6 C. P. C., which is relevant to quoted here. Rule 8 of Order 6, C. P. C. reads as under:
'6. Condition precedent. Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be; and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading. '
and also considered Rule 2 of Order 8, C. P. C., which is also quoted here, which reads as under:
'2. New facts must be specially pleaded. - The defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality. '
and, thereafter, Hon'ble the Apex Court held as under:
'These provisions leave no doubt that the party denying merely the factum of the contract and not alleging its unenforceability in law must be held bound by the pleadings and be precluded from raising the legality or validity of the contract. '
36. In the above case, it was alleged that the point was not raised in the pleading before the trial court and it was also not raised in the memo appeal before the High Court but raised for the first time in the arguments before the High Court. The Hon'ble Apex Court then held as under:
'It is urged on behalf of the plaintiff, and in our opinion rightly, that the objection founded on Section 30 involves investigation into the fact whether the draft leases bore the signature of the appropriate authority on behalf of the Government and the plaintiff had no opportunity to adduce necessary evidence in the trial court to meet the point. '
37. The Hon'ble Apex Court, thereafter, held that 'the High Court was not justified in allowing the question to be raised at the time of arguments when the plaintiff had no opportunity to adduce evidence upon the question of fact whether the leases were signed on behalf of the Government' and further observed that 'there were best efforts of the plaintiff and the Government withhold the production of the other leases', therefore, the Hon'ble Apex Court held that 'The Court was wrong in permitting to raise the plea founded on Section 30 of the Government of India Act'.
38. The learned counsel for the respondents further relief upon the judgment, delivered in : Ambalal Bhawaniram vs. Bhura Nathu (2). This Court held that since the point No. 2 and 4 were not taken in the written statement by the appellant which was his duty and, therefore, no issue was framed and the grounds were not taken in the memo of appeal and, therefore, this Court refused permission to raise the grounds in the above case. Grounds No. 2 & 4 maybe relevant to quote here which reads as under:
'(ii) The plaintiff having not set up any claim previous to the suit, the suit was not maintainable.
(iv) The appellant having spent a good deal of money over repairs to gel the cost of repairs. '
39. That ground No. 2 in the above case is with respect to a fact that whether the plaintiff had not set up any claim previous to the suit, therefore, the suit was not maintainable and ground No. 4 that the appellant spent a good deal of money over repairs ought to get the cost of the repairs. Both these points were based upon the fact whether the plaintiff set up any claim prior to filing of the suit or whether the appellant spent money for repairs and, if so, naturally how much.
40. Another judgment which is relevant is delivered in : Bhagwati Prasad vs. Chandramaul (3), wherein Hon'ble the Apex Court held that if a party asked for a relief on a clear and specific ground in the issues or at the trial, no other ground is covered either directly or by necessary implication. The Hon'ble Apex Court further held in para 10 of the judgment which reads as under:
'But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot over-ride the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter Was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider the dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence would introduce considerations of prejudice and in doing justice to one party, the Court cannot be injustice to another. '
41. Another judgment relied upon by the learned counsel for. the respondents is judgment of this Court delivered in : Ramesh Chand Ardawativa v. Anil Panjwani (4), wherein this Court held that new question of law cannot be permitted to be raised which the party did not chose to plead and it was also held in the above case that in absence of specific plea in the written statement, application by the defendant in the appellate court under Order 41 Rule 27, C. P. C. is not maintainable and it is not even the domain of the High Court under Section 100, C. P. C. to investigate the grounds on which the findings were arrived at by the court below.
42. The learned counsel for the appellant submitted that a bare look at the plaint itself and the Schedule attached to the plaint, when the fact is an admitted fact and, in view of the specific provision of Section 23 of the Hindu Succession Act, 1956, it was for the plaintiff to plead and prove his case and foundation of his right to relief which was the duty of the plaintiff. According to the learned counsel for the appellant, the suit is not maintainable even as per the plaint allegations then the defendant can certainly raise the grounds of non- maintainability of the suit at any stage even if it was not specifically pleaded as defence to the suit before the trial court or there is no specific mention of plea in the memo of appeal. According to the learned counsel for the appellant, the plaintiffs-respondents were fully aware with respect to the point in controversy and the plea specifically mentioned the facts with respect to the use of the property and persons occupying the property and, therefore, according to the learned counsel for the appellant this plea can be raised by the appellant during course of arguments. It is further submitted that in view of the admission in the plaint itself, there could not have been any evidence contrary to the admission of the plaintiffs themselves and the defendant is relying upon the admission of the plaintiffs in the plaint. The learned counsel further submitted that even in case when no objection is raised but law prohibits grant of relief then it is the duty of the court also to deny the relief and the court should not grant relief against the statute.
43. Learned counsel for the appellant relied upon the judgment of Hon'ble the Apex Court delivered in Udhav Singh v. Madhav Rao Shindia (5).
44. In the judgment delivered in Udhav Singh v. Madhav Rao Shindia (supra) the Hon'ble Apex Court considered Rule 2 of Order 8, C. P. C. While interpreting Rule 2 of Order 8, C. P. C., the Hon'ble Apex Court gave emphasis and held that the key-words are 'all such grounds of defence as if not raised would be likely to take the opposite party by surprise. ' The Hon'ble Apex Court, after considering the above provisions of law, held as under:
'If the plea or grounds of defence raises an issue arising out of what is alleged or admitted in the plaint, or is otherwise apparent from the plaint, itself, no question of prejudice or surprise to the plaintiff arises. Nothing in the Rule compels the defendant to plead such a ground, nor debars him from setting it up at a later stage of the case, particularly when it does not depend on evidence but raises a pure question of law turning on a construction of the plaint. '
45. The Hon'ble Apex Court in the above case held that 'an objection on the ground of non-compliance with the requirement of Section 82(b) is a plea of this category' and further held that 'it arises out of allegations made in the petition itself and, in such a case, such a plea raises a pure question of law depending on a construction of the allegations in the petition and does not require evidence for its determination and such a plea, therefore, can be raised at any time even without formal amendment of the written statement. Not only this, the Hon'ble Apex Court further observed that 'even inaction, laches or delay on the part of the respondent in pointing out the lethal defect of non-joinder cannot relieve the Court of the statutory obligation cast on it by Section 86 of the Representation of the People Act, 1951' and held that 'as soon as the non compliance with Section 82(b) comes or is brought to the notice of the Court, no matter in what manner and at what stage, during the pendency of the petition, it is bound to dismiss the petition in unstincted obedience to the command of Section 86.
46. It is true that the above judgment of the Hon'ble Apex Court was delivered in case of Representation of People Act and there was a statutory provision for dismissal of election petition for non-compliance of Section 82 of the Above Act of 1951 in want of compliance of Section 82(2) of the Act of 1951.
47. In view of the above decision, a look at Section 23 of the Hindu Succession Act, 1956 which is quoted hereunder:
'23. Special provisions respecting dwelling-houses. -Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein: Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or is a widow. '
48. It appears that this is a special provision respecting the dwelling houses which is clear from even heading of this section. This Section 23 of the Hindu Succession Act, 1956 says that 'the right of any such female heir to claim partition of the dwelling- house shall not arise until.. .. 'Therefore, a bare perusal of Section 23 , it is clear that the claim of the partition by the female arises for dwelling house in the given circumstances as in Section 23 and which contains following requirements; (1) A Hindu died Intestate, (2) left surviving male and female heirs specified in Class 1 of the Schedule, (3) deceased's property includes a dwelling house and (4) the dwelling house must be wholly occupied by members of his or her family. Then right to claim partition of the dwelling house shall not arise : (1) till male heirs chose to divide their respective shares.
49. The female heirs though included in the Schedule-1 of the Hindu Succession Act and the plaintiffs are also Class-1 heirs, therefore, they are entitled for the share but to maintain the suit for partition for the dwelling house, Section 23 affects and defers their right to claim and when there is a deferment or affect over the right to claim partition by statute then the female heirs, if chose to file suit for partition, they are required to specifically plead that though they are female heirs of the deceased but are not barred under Section 23 to claim partition. The cause of action itself is required to be shown by the plaintiff, then it was the duty of the plaintiffs to plead that they are entitled for the partition of the property.
50. In the light of the above, a look at the pleadings clearly reveals in para 6 of the plaint that the plaintiff No. 1 very specifically stated that she was living in the residential house since last 14 years till 28.3.1974 and in para 'Ka' of the schedule annexed to the plaint, there is categorical admission of the plaintiffs that the house is dwelling house (Rihayasi Makan) and it is stated that defendant No. 1 is alone residing in this house from 28.3.1974 and in the note against para 'Gha' of the schedule annexed to the plaint, it is specifically mentioned that the above house is in actual possession of the defendant and defendant No. 1 is residing in this house.
51. A meaningful reading of the entire plaint shows that there is only one residential house of the plaintiffs and the defendant, there is admission of residence in this house and, that too, admission of residence since last 40 years till it was vacated by plaintiff No. 1 and occupied by defendant No. 1 for the purpose of residence and there is a specific admission that in this house defendant No. 1 is residing all alone from 28.3.1974. Therefore, in view of the fact that this is only a residential house shown in the schedule and rest of the properties are shops, it comes from the plaint itself that this was a dwelling house and it was wholly occupied for the purpose of residence of the members of the family of the deceased. Therefore, when it comes from the plaint itself, then it is a case of construction of the plaintiff only and the ground of defence is based upon the apparent facts in the plaint itself then such type of pleas are permissible as per the decision of the Hon'ble Apex Court delivered in Udhav Singh's case (supra) while interpreting Rule 2 Order 8 C. P. C. It is also clear from the above facts that the admitted facts in the plaint could not be said to be a surprise for the plaintiffs themselves. As said above, though it was the duty of the plaintiff to show accrual of cause of action for seeking partition of dwelling house but if it has not been shown then their right to seek partition for dwelling house can be if looked into then even in absence of defence in written statement or in the memo of appeal and, particularly when defence has been taken by the defendant in the arguments in the first appeal on the basis of the admission in the plaint, then the court is bound to look into the provision of law before granting relief to the plaintiff. The plaintiff cannot say ignore the law because it was not pleaded by the defendant. The judgment cited by the learned counsel for the respondent has no application on the facts of this case.
52. The learned counsel for the respondents tried to submit that since the appellant has not raised grounds in the memo of appeal and, therefore, the appellant cannot be permitted to raise this ground as per Rule 2 Order 41, C. P. C. The Rule 2 Order 41, C. P. C. provides for grant of permission to the appellant by the court if ground has not been taken in the memo of appeal. In view of the fact of this case and in view of the admission of the plaintiff in the plaint and in view of the bar of Section 23 , a question based upon the interpretation of the plaintiff can be permitted then I deem it proper to permit the appellant to raise this ground which will not cause any prejudice to the respondent the defendant in his written statement has not denied the house as a residential house but by necessary implication admitted it, therefore, it is an undisputed fact that the above house is dwelling-house of the parties wholly occupied for residence. The plaintiff in his schedule attached to the plaint, specifically mentioned the details of the tenants who were occupying the other property but this house was shown to be in actual possession of the plaintiff since last 40 years of the date of filing of the suit. The plaintiff herself, in her statement, stated that before three years she was residing in her husband's house and thereafter defendant No. 1 dispossessed the plaintiff No. 1. Therefore, the property was used as dwelling house continuously since before 40 years and at the time of death of ancestor Dhoorilal and at the time of filing suit by the plaintiffs.
53. The learned counsel for the respondents submitted that the respondent-plaintiffs had no opportunity to meet with the defence of the defendant based upon Section 23 of the Hindu Succession Act and this was a question of fact whether the above house was dwelling unit or not and whether it was wholly occupied for residential purpose or not by the members of the family. The above submission of the learned counsel for the respondents, if seen in the light of the decisions of the Hon'ble Apex Court, as mentioned above, cannot be sustained in view of the fact of admission in the plaint itself has no basis as discussed above. If the plaintiff wanted to succeed then the plaintiffs were required to plead the facts constituting the cause of action and also when it arose as per Sub-clause (c) of Rule 1 of Order 7, C. P. C. Not only this, Rule 5 of Order 7, C. P. C. further provides that the plaintiff is required to show that the defendant is liable to be called upon the answer the plaintiff's demand. Therefore, it was the duty of the plaintiffs to plead that despite the provisions of Section 23 of the Hindu Succession Act, the plaintiffs are entitled for the relief and the defendant is not entitled to raise this plea.
54. The rule of pleading as applied to the defendant for taking defence in the written statement is equally applied to the plaintiffs that they should disclose their clear right to sue and, if there is a special provision like Section 23 of the Act then their cause of action specifically how and when it arose, so that the defendant may meet with the case of the plaintiff and it may not be surprise for the defendant that the plaintiff may try to back-out from the admission in the plaint.
55. Therefore, here in this case, there is no question of even prejudice to the plaintiffs in view of the admission in the plaint by the plaintiffs.
56. The learned counsel for the respondents submitted that in case when defendant No. 1 is the sole surviving co-parcener male member left behind Dhoorilal and there is no chance of seeking partition by defendant No. 1 or until the sole male heir chooses to divide the share in the property then in this situation, the provisions of Section 23 has no application. According to the learned counsel for the appellants, provisions of Section 23 applies when there are more than one male heirs as Section 23 provides that only the male heirs choose to divide and when the word 'heirs' has been used which applies to more than one heir then this benefit is not available to one heir of the deceased.
57. The learned counsel for the respondents relied upon the judgment delivered in : Vidyaben v. Jagdishchandra Nandshankar Bhatt and Ors. (6), and the Division Bench Judgment of Orissa High Court delivered in : Hemalata Dei v. Umashankari Moharna and Ors. (7), wherein it was held that when there is only one male heir then there is no bar under Section 23 of the Hindu Succession Act, 1956.
58. The learned counsel for the appellant relied upon the judgment of the Hon'ble Apex Court in answer to the above objections of the learned counsel for the respondents delivered in : Narashimaha Murthy v. Susheelabai (Smt. ) and Ors. (8), wherein Hon'ble the Apex Court held that the bar of Section 23 applies even in case when there is a single male heir. Hon'ble the Apex Court also held that it can be said to be a dwelling house and held that:
'That a dwelling house is that house which is in actual, physical, inhabited possession of one or the other members of the family in stricto sensu, and if some are absent due to exigencies of service or vocations, the dwelling house remains available for them to re-enter without any obstruction or hindrance and on that premise enabling the female heir to assert a right of entry and residence therein. '
and further observed that:
'The emphasis on the section is to preserve a dwelling house as long as it is wholly occupied by some or all members of the intestate's family which includes male or males. '
59. Thereafier, held that the language in plural with reference to male heirs would have to be read in singular with the aid of the provisions of the General Clauses Act. Again, it will be useful to quote what has been held by the Hon'ble Apex Court, which reads as under;
'Understood in this manner, the language in plural with reference to male heirs would have to be read in singular with the aid of the provisions of the General Clauses Act. It would thus read to mean that when there is a single male heir, unless he chooses to take out his share from the dwelling house, the female heirs cannot claim partition against him. It cannot be forgotten that in the Hindu male-oriented society, where begetting of a son was a religious obligation, for the fulfilment of which Hindus have even been resorting to adoptions, it could not be visualised that it was intended that the single male heir should be worse off, unless he had a supportive second male as a Class I heir. The provision would have to be interpreted in such manner that it carrier forward the spirit behind it. The second question would thus have to be answered in favour of the proposition holding that where a Hindu intestate leaves surviving him a single male heir and one or more female heirs specified in Class 1 of the Schedule, the provisions of Section 23 keep attracted to maintain the dwelling house impartible as in the case of more than one male heir, subject to the right of re- entry and residence of the female heirs so entitled, till such time the single male heir chooses to separate his share; this right of his being personal to him, neither transferable nor heritable. '
60. The Hon'ble Apex Court in the judgment of Narashimaha Murthy (supra) considered several judgments and commentaries on the Hindu Law and considered the various aspects of the situations in which the meaning of the dwelling house and how it is created, how it comes to an end and what should be the intention of the parties with respect to keeping the house as dwelling house, were considered. The Hon'ble Apex Court observed as under:
'The section protects only a dwelling house, which means a housewholly inhabited by one or more members of the family of theintestate, where some or all of the family members, even if absentfor some temporary reason, have the animus revertendi'.
and further observed that 'tenanted house is not a dwelling house in the sense in which the word is used in Section 23. '
61. It may be relevant to mention here that there may arise situation when the dwelling house is being used by the female heirs themselves and they filed the suit for partition whether the defence under Section 23 available to the male members who are not residing in the dwelling house, may give rise an anomalous situation but, here in this case, admittedly, the female heir, the plaintiff No. 1, who was residing in the same dwelling house in which now the defendant No. 1 is residing, therefore, on facts this question does not arise in this appeal as the person who is taking defence of Section 23 is in occupation of the house itself.
62. Another situation may arise wherein just to defeat the claim of partition of the female heir if the male heir occupies the joint family house forcibly or otherwise from the female heir and started living in that house then whether that male member can take defence of his protection under Section 23 of the Hindu Succession Act even when the male member may be a wrong-doer and whether the male member can take benefit of forceful occupation of the house. Here in this case also it was alleged that the plaintiff had to leave her residential house but the fact remains that it was in use as dwelling unit by the family members, may it be by plaintiff No. 1 or may it be by defendant No. 1. The house was in use as dwelling-house continuously and there is no pleading that it was not intended to be used for residence of family member and there is no material and evidence to prove forcible dispossession of plaintiff No. 1. Therefore, also the house in dispute is proved to be a dwelling unit occupied by the family members.
63. In view of the decision of the Hon'ble Apex Court the point whether the bar of Section 23 applies in case of male heir to the deceased stands concluded and it applies in case when there is only one male heir along with other female heirs. Therefore, the plaintiffs cannot seek partition of dwelling house mentioned in the plaint in para 'cha' of the Schedule though they are having shares as determined by the trial court.
64. The next contention of the learned Senior counsel Shri Shishodia is that in view of fact of residence of dwelling-house of the member of the family, the bar of Section 23 of the Act of 1956 bars the suit as a whole and suit for partition is not maintainable for even rest of the properties.
65. The above submission is devoid of force in view of the fact that Section 23 of the Act of 1956 very clearly and specifically bars partition of dwelling-house only. Underlying object as discussed by Hon'ble the Apex Court in case of Narashimaha Murthy (supra), made it clear that dwelling-house is to be kept inpartitioned. Partial partition is also not totally prohibited, therefore, the suit for partition for rest of the properties is maintained.
66. The learned counsel for the appellant tried to assail determination of shares of the parties but, in view of the judgment of the Hon'ble Apex Court delivered in : Smt. Raj Rani v. The Chief Settlement Commissioner, Delhi (9), it is clear that the court below has rightly determined the shares of the parties.
67. Therefore, the decree so far as partition of the house 'cha' of the schedule annexed to the plaint cannot be allowed to stand and is hereby set aside but declaration of the shares in the above house as declared by the court below is sustained.
68. The next question submitted by the learned counsel for the appellant is with respect to two fold claims; one is that since partition has been sought only for immovable properties and there are movable properties as shown by the defendant No. 1 in the written statement and the schedules attached to the written statement and no partition has been sought by the plaintiffs for movable properties, therefore, suit for partial partition is not maintainable and another objection of the appellant-defendant No. 1 is that, in the alternative, the movable properties may also be taken into account and plaintiff No. 1 be directed to give account qf the movable properties or, in the alternative, the amount of rent which was received by plaintiff No. 1 be also partitioned.
69. To look into the above objections, the learned lower court in its judgment considered this aspect while deciding issue No. 3(1) and (2) and with respect to the mesne profits while deciding issue No. 4. According to defendant, the property mentioned in Schedule 7 and 8 annexed to the written statement are the properties which are joint Hindu properties and are in possession of plaintiff No. 1 for which defendant produced one 'Bahi' which was marked as Ex. A. 25 and defendant No. 1 stated that above goods were with his father and list was prepared by his father in presence of defendant No. 1 and this was prepared when defendant No. 1 started living separate. In support of it, witness DW-4 Magan Lal stated that about 10 to 12 years ago, above list was prepared containing 190 Tolas of gold ornaments and also stated that the above ornaments were not verified before him and the amount mentioned is as per the gross assessment. The defendant also stated that deceased Dhoorilal made it clear that after the death of Dhoorilal, all the ornaments will be of defendant- appellant.
70. The court below did not believe the above case set up by the defendant and observed that the reasons for preparation of such list and reasons for not giving above ornaments to defendant No. 1 at that very time have not been explained and the reason for saying that the above ornaments will be given to Ramanlal appellant-defendant, is also not shown, particularly, in view of the fact that, admittedly father and son had relations so bad that the father either compelled the defendant to live separate or the defendant could, not adjust with his father, even when he was the only son of the father and had to leave the house of the father. It is also relevant that, at that time, no body including the defendant, either claimed share or partition then what was the reason for expelling the son and showing him the ornaments to be given to the defendant also has not been explained.
71. DW-5 Chirahji Lal is also a witness in support of the claim of having 190 Tolas of ornaments and preparation of the list of the ornaments but there are contradictions in his statement as well as of Raman Lal and Maganlal. Ramanlal stated that list was prepared by Dhoorilal and he was all alone at that time but DW-5 Chiranjilal stated that the list was prepared in his presence. The witness Magan Lal also stated that list was prepared in his presence. The presence of Magan Lal and Chiranji Lal itself is doubtful in view of the fact that Chiranji Lal stated that the ornaments were weighed whereas Magan Lal stated that the costs of the ornaments were taken by assessment only. The evidence of DW-8 Magan Lal s/o Dali Chand is also not worth reliance. DW-8 Magan Lal stated that at the lime of death when Magan Lal visited the house for condolence, at that time he saw Ramanlal and his mother plaintiff No. 1 looking the gold ornaments which were 200 Tolas and the ornaments were with Smt. Rukmani (plaintiff No. 1) and in the same way DW-14 Bhagwati Lal also stated that when he visited for condolence, on the death of Dhoorilal, plaintiff No. 1 stated to defendant No. 1 that in case he will spend money for last rites of Dhoorilal, all the gold ornaments will be given to defendant No. 1 and the plaintiff No. 1 shown the bag of the ornaments to Ramanlal and at that time he saw the gold ornaments of 180 to 190 Tolas.
72. The statements of all the above witnesses are not reliable as they are against the normal human conduct. It is again relevant to mention here that, admittedly, the defendant No. 1 had no good relations with his family members and there are allegations of plaintiff No. 1 that because of terrorising activities of defendant No. 1 she had to even leave her only residential house in police protection. Therefore, in these circumstances, it is virtually impossible to believed that the events will happen as stated by the witnesses of the defendant of showing ornaments by plaintiff No. 1 to defendant No. 1 and giving assurance by plaintiff No. 1 that these ornaments will be given to you and the saying of DhoorUal that the above ornaments will be given to defendant Ramanlal after death of Dhoorilal. These statements are absolutely unbelievable and there are material contradictions in the statements of the witnesses and the defendant's statement. The learned lower court rightly held that the list prepared as Ex. A25 is even not worth accepting evidence under Section 34 of the Indian Evidence Act. There was no reason given for not having signatures of Dhoorilal over it. It is further relevant to mention that in the written statement it is stated that there was 119 Tolas of gold ornaments whereas evidence produced are with respect to having 190 Tolas of the ornaments. Therefore, in view of the evidence available on record, the learned court below was fully justified in holding that the defendant failed to prove above gold ornaments.
73. The defendant also submitted that there were utensils as given in Schedule-8. The court below held that the defendant has not proved the list of the utensils by evidence and the case of the defendant is that the list of the ornaments and list of the utensils were prepared simultaneously. When the list of ornaments was not found to be prepared as stated by the defendant then there arises no question of holding that list of utensils was prepared.
74. The learned counsel for the appellant vehemently submitted that the family of the appellant was a rich family of the area and had huge immovable properties and if there is a case of family having not immovable properties even then the court can certainly presume that the family is having utensils and that the immovable properties are required to be divided if the family is partitioned.
75. It was also submitted by the learned counsel for the appellant that it was the duty of the plaintiffs to disclose the above movable properties and it should have been offered by the plaintiff No. 1 herself for partition. It is true that some presumptions are required to be drawn and, particularly in this case when there are, admittedly, number of immovable properties in existence then it is just and proper to presume that there were movable properties at least like utensils. Supposing that the ornaments, if were there, they were either of 'Stridhan' of the female heirs or were kept for female heirs or given to the females for their personal use even before partition. The court can certainly presume that the family must have utensils but, at the same time, in a suit for partition when there are immovable properties and when they are in large number, it cannot be presumed that utensils must have in proportion to the immovable properties. Admittedly, the family of the plaintiff and defendant No. 1 was consisting of only two male members-deceased Dhoorilal and his son defendant No. 1, the females were the widow of Dhoorilal plaintiff No. 1 and other plaintiffs' daughters. Therefore, utensils if it is presumed then there can be only for a small family. In this situation, it was the duty of the defendant No. 1 himself to prove by evidence that the utensils were of such value that it may have at least slight bearing in value affecting the share-of-any-of the parties person who is being deprived of the utensils. Suppose if, there is a immovable property worth Rs. 25,00,000/- and the utensils presumed for the family are of only few thousands then if such property is not included in partition of the family property, it will not make much material effect because of more than one reason including the reason that in partition there are possibilities of dividing shares on the basis of assessments of the value of the properties and in that assessment also there may be difference of such slight nature while allotting the properties to the parties. Therefore, in these circumstances, it was the duty of defendant No. 1 to prove, as a matter of fact, that the alleged movable properties, utensils etc. are of such value that it would have affected his share if taken into account to plaintiff No. 1. Therefore, simply because of only presumption of necessary utensils in existence, the relief of partition cannot be denied to the parties if they are otherwise entitled for partition of the immovable properties. It is further relevant to mention here that it is not the law that partial partition is not permissible at all and, therefore, also, the suit of the plaintiff is maintainable.
76. The learned counsel for the respondents vehemently submitted that the claim of mesne profit is based upon the facts mentioned in the plaint itself only. The plaintiff No. 1 admitted in her plaint itself by giving details of the mesne profits which she was receiving. The plaintiff No. 1 was receiving rent of Rs. 130/- per month from 30. 6. 1973 from the property 'Ka' of schedule, Rs. 25/- from 19. 2. 1973 from the property 'Kha' of the schedule and Rs. 30/- from the property 'Ga' shown in the schedule. Therefore, the defendant No. 1 appellant is entitled for the share in the above income, for which the learned counsel for the respondents submitted that the defendant has not asked this relief even in his counter claim and, therefore, he is not entitled for the above relief. As held above, in the situation given above, the defendant can certainly take benefit of admission in the plaint with respect to the fact admitted in the plaint which will not cause prejudice to the plaintiff because of lack of specific plea. Therefore, the above objection of the learned counsel for the respondents of right of raising plea is not available to defendant No. 1 cannot be allowed to be sustained but, at the same time, for seeking claim from income of joint family property, the claimants are required to prove something more than showing that what was the income of the family property. Even there are number of cases wherein it was alleged that the Manager of the joint Hindu family property is not liable to account for the income of the properly.
77. The learned counsel for the respondents relied upon paras 238 from the commentary on Hindu Law by Mulla (Principles of Hindu Law, Fifteenth Edition, wherein it is said that 'in the absence of proof of misappropriation or fraudulent and improper conversion by the manager of a joint family estate he is liable to account on partition only for assets which he has received not for what he ought or might have received if the family money had been profitably dealt with. ' It was also said that 'in absence of any such proof, a co-parcener seeking partition is not entitled to require the manager to account for his past dealings with the family property and all that he is entitled to is an account of the family property as it exists at the time he demands a partition. ' Not only this it was also observed that 'the institution of a suit for partition amounts to a severance of joint status, the manager is, from and after the date of such a suit, strictly bound to account for all receipts and expenses, and can take credit only for such expenses as to have been incurred for the benefit or necessity of the estate, and the net income after deducting such expenses is to be divided among the coparceners according to their shares. '
78. Here in this case, the facts are relevant. The defendant No. 1 admitted that the properties were in the control and supervision of deceased Dhoorilal who was the eldest member of the family and he died on 5. 11. 1972, therefore, the plaintiff No. 1 cannot account for, for the period before 5. 11. 1972. The amount which was admitted by plaintiff No. 1 which she was receiving is total rent of Rs. 185/- per month, that too, from the year 1973 and even from the year 1975. The present suit was filed for partition on 2. 1. 1976. The defendant filed the counterclaim and paid the court-fee for counter claim on 4. 4. 1979. therefore, at the most it can be said that defendant No. 1 was entitled for the share in the mesne profit from January, 1976. Plaintiff No. 1 Rukmani Devi died on 2. 1. 1984.
79. What has been claimed by the defendant in his written statement is that defendant No. 1 was deprived of enjoyment of movable and immovable properties since last 12 to 13 years and, therefore, the defendant is entitled for the mesne profits. The defendant has not claimed accounts from any of the plaintiffs for the income in the form of rent received by plaintiff No. 1 but he has confined his claim only on the ground that he is entitled for the mesne profits because he was being deprived of use of movable and immovable properties. The plaintiff has also not sought relief for remission of the accounts for income from the family property. The plaintiffs in their plaint stated that because of the immoral and terrorising activities, plaintiff No. 1 had to leave her 40 years old residential house on 28.3.1974 and she is living in rented house. Whereas, defendant in his written statement stated that plaintiff No. 1 has not left the house on 28.3.1974 but she left the house even before that. In para 5 (Gha), the defendant stated that because of some dispute, the defendant No. 1 left the ancestral house and started living on rent. In his statement, he stated that he started living separate from his father and mother. This cannot be said to be total deprivation of the enjoyment of the property but it can be said to be merely adjustment for living and, therefore, defendant No. 1 cannot claim any mesne profit which he did not chose to claim since 1963 to 1972 till the death of his father nor he himself treated his ouster from the joint family property. If the admission in the plaint of the plaintiff, particularly of plaintiff No. 1 is accepted with respect to the income from joint family property then it is also required to be accepted that the plaintiff No. 1 was living in rented house from 28.3.1974, which is according to the plaintiff but according to the defendant it was even prior to it, then naturally, plaintiff No. 1 was entitled for the rent from the joint family property as she was entitled for the right of maintenance including the right of residence which she was deprived of.
80. Therefore, in this peculiar situation and, in view of the lack of material pleadings of the defendant and evidence of defendant No. 1, the defendant No. 1 is not entitled for relief of remission of accounts which has not been sought in the written statement nor is entitled for any amount of mesne profits sought on the ground of his living away from his family for the last 12 to 13 years. Hence it is held that that defendant No. 1 failed to prove his case and also failed to prove any effect on the maintainability of the suit on account of the value of utensils nor he is entitled for mesne profits.
81. The judgment cited by the learned counsel for the appellant, delivered in Hira Lal and Ors. v. Pyare Lal (10), has no application to the facts of this case as the defendant- appellant failed to prove his exclusion from the enjoyment of the family property. At the cost of repetition it may be stated that exclusion from the enjoyment of the family property is something different than living separately.
82. In view of the above discussion, this appeal is partly allowed and it is held that the plaintiffs are entitled for decree for partition for the properties mentioned in the schedule attached to the plaint except property mentioned in 'Gha' dwelling house but their shares including in dwelling-house declared by the learned court below in all the immovable properties shall remain as declared by the court below in view of discussion above on issue No. 1. The rest of the decree passed by the court below is maintained.