1981 Supreme(MP) 449

A. R. Navkar, J.
Pyarelal v. Nandlat
S. A. No. 271 of 1970 (G); Decided on 19-8-1981.

Headnote:(1) Hindu Law-partition -- properly joint-suit for possession and injunction not maintainable-only remedy is to file suit far partition and accounts.

        (2) Specific Relief Act, 1963 -- S. 38 -- injunction-suit is not maintainable when filed by one member of joint Hindu family against the other-proper remedy is suit for partition.

        The brief facts of the case are that the plaintiff and the defendant are real brothers, being sons of one Dhudilal and it is admitted that the plaintiff and the defendant alongwith their father DhudiIal constituted a joint Hindu family. The case of the plaintiff is that the family is still joint and the defendant is receiving incomes from the joint Hindu Family Property after the death of his father Dhudilal and he is not paying the share of his brother and he is keeping it to himself. It was further alleged in the plaint that the defendant is threatening to squander away the property and also refusing to give correct account of the income from the bus business, which belongs to the joint Hindu Family. The business is under the supervision of the defendant.

        The defendant denied the allegations made in the plaint and alleged that there was a severance of the joint Hindu Family and the shares of the plaintiff and defendant were separate and partitioned. Bus No. 3252 and its business has come to the share of the defendant and the defendant has purchased another Bus No. 4703 in June, 1963. In the alternative, it was alleged that even if the partition could not be proved, the defendant alleged that he is the Karta of the family and hence the suit for injunction is not competent.

        After taking the evidence, the learned trial Court decreed the suit. Against that an appeal was preferred. The Appellate Court ordered as under :-

        "The status of the plaintiff and the defendant in respect of the joint property becomes that the tenants-in-common and not that of co-parceners and joint tenants, that being so the plaintiff could ask for possession and deLi"Very of his share of the common property and the suit is, therefore, not tenable."

        Saying this, the appellate Court allowed the appeal and dismissed the suit. Against that, the present appeal is filed.

        Held: When the Appellate Court has found that the plaintiff and the defendant are members of a joint Hindu family and that there is no partition as alleged by the parties, the only remedy which will be proper, is to file a suit for partition and for accounts and the present suit is not maintainable. Unless a decree for partition is passed in favour of the plaintiff and against the defendant and separate possession is given of the property, each party can claim to be the owner of the whole of the property which is not divided amongst them. That being the case, the finding and the judgment of the Appellate Court are legal and I do not see any reason to interfere with the judgment passed by the learned Appellate Court. Appeal dismissed.