JANARDAN MAHADEV DHURU Vs. VIJAYNATH MORESHWAR DHURU

JUDGEMENT

(1.) This suit concerns the partition of immovable property situate at Mahim, Bombay, belonging to a joint family. One Laxman, who died long back, left behind 3 sons. Mahadeo, one of his sons, dies in 1970 and left behind the first plaintiff, a son. The second plaintiff is the first plaintiff's wife and the third and fourth plaintiff's wife and the third and fourth plaintiff's wife and the third and fourth plaintiffs are their daughter. A second son, Moreshwar, died in 1962 leaving behind four sons and a widow. The widow died during the pendency of the suit. The son and their families are defendants, represented by Mr. Bariava, learned counsel. Moreshwar also left behind four daughters, who are defendants 14, 15, 16 and 17, Defendant 17 has not chosen to appear though she is represented. Against defendants 14, 15 and 16 the suit was dismissed upon the application of Mr. Phadkar, learned counsel for the plaintiffs. A third son of Laxman, Kesharinath, died in 1945 leaving behind a widow and son. The widow, the son and the sons's wife are defendants, represented by Mr. Devitre, learned counsel.

(2.) The joint family is admitted. It is admitted that the suit property is joint family property. There is DZ/DZ/B692/82/HR/RSK no dispute that the joint family owns property other than the suit property.

(3.) In para 5 of the plaint the plaintiffs claim a partition of the suit property and their 1/3rd share therein. It is there averred that the suit property cannot be divided by metes and bounds, and it is submitted that is should be sold and the net sale proceeds divided amongst the branches in accordance with their respective shares. By prayer (a) of the plaint a declaration is sought, "if necessary" that the plaintiffs, as representing the branch of Mahadeo, have a 1/3rd shard in the joint Hindu family. By prayer (b) the plaintiffs ask "that the suit property be sold by and under the direction of the Hon'ble Court, with liberty to the plaintiffs to bid at sale and the 1/3rd of the net sale proceeds may be handed over to the plaintiffs........."