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1952 Supreme(Nagpur) 106
HIGH COURT OF NAGPUR
Choudhuri
LALCHAND DEOCHAND DALAL – Appellant
Versus
VINAYAKRAO GOPALRAO AND ORS – Respondent
Second Appeal No. 65 of 1947
Decided on : 30-09-1952
P K Tare, P R Padhye, Advocates
In a partition suit by a receiver representing an insolvent, the sons of the insolvent are not necessary parties if their interests are represented in the suit by their father.
Headnote:
PARTITION - INSOLVENCY - SHARE OF INSOLVENT - VESTING IN RECEIVER - PARTITION SUIT BY RECEIVER - SONS OF INSOLVENT - WHETHER NECESSARY PARTIES.
Fact of the Case:
The Plaintiff, as the receiver appointed in an insolvency case, claimed partition and separate possession of 1/3rd share of insolvent Govindrao in a house named "The Patwariwali Dharamshala" at Burhanpur. The Defendants contested the claim, alleging that the Dharmashala was dedicated to the Hindus of Burhanpur and that no share in the house vested in the receiver as the insolvent Govindrao had none in it.
Finding of the Court:
The trial Court found that the house in suit was used as a private "Dharmashala" in which Govindrao had 1/3rd share. The trial Court also held that Govindrao and his three sons had 1/3rd share in the same, and that they did not act as managers on behalf of the Hindus of Burhanpur and were not divested of their ownership. The lower appellate Court reversed the finding of the trial Court and held that the Dharmashala is an endowment created for a religious and charitable purpose. The lower appellate Court further held that the sons of Govindrao were necessary parties as their share could not be represented by the receiver. The Plaintiff's suit was, therefore, dismissed with costs.
Issues: 1. Whether the house in suit was an endowment created for a religious and charitable purpose? 2. Whether the sons of Govindrao were necessary parties to the suit for partition?
Ratio Decidendi: 1. To establish a charitable endowment, there must be evidence of divesting of ownership. The fact that the Dharmashala was used by the Hindu community would not necessarily mean that the owner intended to divest himself of the ownership over the property. 2. In a partition suit, all the coparceners must be before the Court either as Plaintiffs or as Defendants. However, where the partition is claimed as between branches of the family only, the heads of all the branches alone need be made parties.
Final Decision: The appeal was allowed with costs throughout. The judgment and decree of the lower appellate Court were set aside and that of the original Court restored.
Choudhuri, J—This is an appeal filed by the Plaintiff Shri Lalchand Dalal against the judgment and decree passed by the District Judge, Nimar, in Civil Appeal No. 22-A of 1946 decided on 7-10-1946, arising out of Civil Suit No. 35-A of 1944 of the Court of the First Civil Judge, Class II, Burhanpur.
2. The Plaintiff in his capacity as the receiver appointed in Insolvency Case No. 251 of 1931 of the Court of Civil Judge, Class I, Khandwa, claimed partition and separate possession of 1/3rd share of insolvent Govindrao in a house named "The Patwariwali Dharamshala" at Burhanpur.
3. The relation of the insolvent Govindrao with some of the contesting Defendants will be clear from the following genealogy:
Bapuji Patwari | ----------------------------------------------- | | | Balabhau Laxmanrao (dead) Bamchandra (dead) | | | Nanaji Dinker Govindrao (dead) (dead) (deft. No. 2) (insolvent) | | ------------------------------- | | | | | Madhorao Vishnu Prabhakar | (deft. No. 3) (deft. No. 4) (deft. No. 5) | ------------------------------ | | | Nathopant Baghunath Pandit
4. It is not disputed that Balabhau, Laxman-rao and Ramchandra were sons of one Bapuji Patwari. They are all dead. Defendant No. 2 is the son of Laxmanrao. Nanaji was the son of Balabhau. He is dead. Defendants Nos. 3, 4 and 5 are the sorfs of Nanaji. Govindrao was the sori of Ramchandra. Govindrao was adjudged insolvent in the insolvency case mentioned above on 10-8-1932. He died on 29-10-1932. His three sons Nathopant, Raghunath and Pandit were brought on record and the insolvency proceedings continued. They have not been made parties to the present suit for partition and separate possession of the 1/3rd share of their father Govindrao.
5. The Plaintiff was appointed receiver in the insolvency case. He attached 1/3rd share of Govindrao in the Dharmashala on 15-12-1935 on the ground that the share of the insolvent vested in him. Shri Vinayakrao Vipat, Defendant No. 1, and Shri Vasudeorao Nene, both pleaders of Burhanpur, filed an objection against the attachment on the ground that the Dharmashala was dedicated to the Hindus of Burhanpur and to those visiting the place and that no share in the house vested in the receiver as the insolvent Govindrao had none in it. On the 27-8-1936 the insolvency Court released the property from attachment and without taking recourse to Section 4, Provincial Insolvency Act, ordered the receiver to get the insolvent's title decided by a Civil Court. Accordingly the receiver instituted the suit for partition and separate possession of Govindrao's share in the Court of Civil Judge, Class II, Burhanpur.
6. The case for the Plaintiff is that the house in suit was the ancestral property in the hands of Govindrao and his two brothers, and that Govindrao and his three sons had 1/3rd share in it, the remaining 2/3rds being owned by Defendants Nos. 2 to 5. It was also alleged by the Plaintiff that on the date of the order of adjudication, the 1/3rd share of Govindrao and his three sons in the Dharmashala vested in the Court or the receiver. The Plaintiff denied that the Dharmashala was dedicated by the Patwari family to the Hindu public of Burhanpur or to persons visiting Burhanpur or that Govindrao and his brothers and their heirs divested themselves of the ownership in the said property. Defendants Nos. 1 and 6 to 11 are sued as representatives of the Hindu public of Burhanpur under Order 1, Rule 8, of the Code of Civil Procedure. The Plaintiff claimed that the Hindus have no right, title or interest in the said property, and that the right to claim partition and separate possession of Govindrao's 1/3rd share vests in him.
7. The case of the Defendants was that there was dedication of the Dharmashala to the public and that the Hindus have been using the house as Dharmashala for a very long time. They denied that Govindrao and his sons had any interest in the property and alleged that acts, if any, by the members of the Patwari family were done b
