A decision noting that in a suit for partition, the heads of all the branches are necessary parties was pronounced by the Bombay High Court through Justice Mangesh S. Patil in the case of Late Gumansing Shivram Patil v. Abhiman Gumansing Patil (SECOND APPEAL NO.249 OF 1992)
FACTS OF THE CASE:
Respondents brought an action for partition and separate possession of the suit property against the appellants’ predecessor, Mr Gumansing, demanding a one-half portion of the suit property.
It was said that the respondents were Harising’s wife and children, who opposed the action in writing and admitted that the suit property was ancestral property. Furthermore, he had filed a previous partition plea around 70 years ago but conceded that the suit property remained joint, and he claimed to be the only owner of the suit property and to be in possession. The trial court determined that the suit property was ancestral and joint family property, but refused any part due to the non-joinder of all coparceners. Despite the fact that the District Court annulled and set aside the trial Court’s ruling and partially decreed the claim.
According to the requirements of the Hindu Succession Act, the suit property was inherited simultaneously by Shivam and Totaram, who were true brothers, and each would be entitled to half part.
Furthermore, even if all of Shivaram and Totaram’s sons were not covered by Order XLI Rule 33 of the Code of Civil Procedure, having determined that there was a due representation of both branches and that there could not have been any dispute as to the equal share of each of these two branches, the interest of justice was met by decreeing the suit partially and directing the suit property to be divided into two halves only.
The Bench determined that the District Court had not instructed a further division among the coparceners inter se from each of the branches. As a result, the High Court addressed the substantive questions in favor of the respondents, and the Second Appeal must be dismissed. There was no proof that the respondents were fully prohibited from collecting any produce from the suit property, and that the appellant was enjoying the entire usufructs to their exclusion. In light of the foregoing, the civil application was disposed of.
JUDGEMENT REVIEWED BY REETI SHETTY