Decided on April 17,1963



M.R.MODY - (1.) This is an appeal filed by the appellant-plaintiff from a judgment and order of the Joint Civil Judge ( Senior Division ) Surat dismissing a suit being Civil Suit No. 5 of 1957 filed by him in the Court of the Civil Judge ( Senior Division ) at Surat.
(2.) To appreciate the points arising for determination in this appeal it is necessary to state a few facts. The suit related to the properties of the family of one Vallabhbhai Khandubhai. Vallabhbhai Khandubhai had three sons and several grand-children and great-grand-children. At one time this family was a joint and undivided Hindu family. This family acquired diverse movable and immovable properties and ventured upon several businesses in several commodities. The plaintiff is one of the great-grand-children of Vallabhbhai Khandubhai. On January 22 1957 the plaintiff filed the above mentioned suit against his grand-father his father his uncles his grand-uncles cousins and others. At present we will merely describe this suit as a suit for a partition of the properties belonging to this family because the nature of this suit is in dispute between the parties the dispute being that on the one hand it is contended by the plaintiff that this is a suit for partition of the family properties by metes and bounds only whereas on the other hand it is contended by the contesting defendants that this is a suit both for severance of status and a partition by metes and bounds of the movable and immovable properties belonging to this family.
(3.) After the filing of the suit a number of written statements were filed. One of the contentions raised in the written statements was that it being an undisputed position that the parties are governed by the Mayukha sub-school of Mitakshara school of Hindu Law and this being a suit for partition and the plaintiff having not obtained the consent of his father for filing this suit this suit was liable to be dismissed in limine as it was not maintainable. On December 4 1958 defendant No. 1 made an application to the Court referring to this defence raised in the written statement and he submitted that a preliminary issue should be raised as set out in the application. The issue suggested by defendant No. 1 was Whether the plaintiff has a right to sue for general partition against his grand-father and others in the lifetime of his father ? The learned advocate for the plaintiff made an endorsement on this application to the effect that he had no objection to the raising of a preliminary issue but that the form in which it was raised was not proper. He suggested that the words in the lifetime of his father should be deleted from the issue. On this application the learned judge made an order on the same day raising the following preliminary issue: Whether the plaintiff has a right to sue for general partition against his grandfather and others on what is alleged in the plaint?;

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