HARIDAS LALJI Vs. NAROTAM RAGHAVJI

JUDGEMENT

(1.) This is a suit by the plaintiff to enforce partition of what he alleges to be joint family property in the hands of the defendant No. 1, his undivided uncle, and to have an account of all moneys received as joint family property by the said defendant No. 1 from some time, (it has never been very clearly stated by learned Counsel for the plaintiff), before the death of Raghovji, the father of the defendant No. 1 and grandfather of the plaintiff. The defendant No. 2 who is the widow of Lalji, a predeceased son of Raghovji and the step-mother of the plaintiff, has been impleaded as having a charge upon the whole joint family property for maintenance. In the alternative the plaintiff asks that the suit may be treated as a common administration suit of the estate of the deceased Raghovji.

(2.) It is well to recall some of the incidents which mark the earlier stages of this litigation.

(3.) Within about a month after the death of Raghovji, the plaintiff who is a minor, four years of age, was made to file a suit by his next friend Vallabhdas, for the administration of his grandfather s estate. Simultaneously an urgent motion was made before me for the appointment of a receiver to take possession of the defendant No. 1 s shop, books of accounts, papers, and all his stock in trade. As soon as. the defendant could be heard, it was made to appear to me very clearly that that Interim Order for the appointment of a receiver had been obtained upon wholly inadequate grounds, and the whole proceeding bore the imprint of malice and oppression. I had no hesitation whatever in setting aside the order and discharging the receiver. Then there was an appeal but the parties settled the matter before the appellate Court on terms of defendant No. 1 himself being appointed receiver. It is noteworthy that up to this time it does not appear to have occurred to the plaintiff to suggest that the estate of the deceased Raghovji was joint family property between himself and the defendant No. 1. When the hearing of this case commenced, I was told by the learned Counsel for the plaintiff that the Interim Order for a receiver, which I had been induced to make, had materially contributed to justice and the elucidation of the truth. I wish I could bring myself to believe that that were really so. But considering that upon the most important question in issue between the parties, the plaintiff s chief evidence has been that of Hirji Topan, who is clearly on intimate terms with the next friend Vallabhdas of the minor, it is certainly strange that the original plaint should have been framed as it was and that it was only at a later stage and upon the discovery of certain papers, which the plaintiff alleges first gave grounds for this contention, that it was converted into its present form embodying a prayer for partition upon the footing that the whole property was joint family property and further the particularly oppressive prayer, which has really been the cause of this case having been fought out so bitterly, that the defendant No. 1 should be called upon to account as manager of the joint family for all moneys received over a period of many years during which Raghovji, his father and the plaintiff s grand-father, was still alive. There can, I think, be no doubt that the change in the character of the suit is attributable to the discovery of the fact that two life-policies aggregating in value some Rs. 10,000, had been assigned by Raghovji to defendant No. 1 and further to the desire, by menacing the defendant No. 1 with responsibility to account for very large sums of money, to bring pressure to bear upon him, to cripple him in the conduct of his business and, if successful, very likely to compass his complete ruin. I have felt very little doubt throughout the progress of the hearing about the true nature of the plaintiff s claim and the true motives of his next friend. Defendant No. 1 has contended throughout that this is not an honest litigation, that it has been set on foot by a rival in trade for interested reasons and also to make costs; and at the conclusion of the case I have no doubt that these contentions are substantially true. But for the plaintiff s insistence upon the defendant s liability to account as manager long before the death of his father Raghovji I do not think that there would have been any difficulty in settling the case without the need of protracting the hearing over many days. For so far as the question whether the family property was joint family property or not reaches, the rights of the plaintiff and the defendant No. 1 appear to me to be substantially the same and unaffected except touching the two policies, whether that question be answered in the affirmative or negative. And once or twice during the hearing defendant s counsel offered to give up the policies in satisfaction of the debts left by his father provided the plaintiff would withdraw his claim to any account prior to the death of Raghovji. That suggestion was not accepted and the result has been that the case has been fought out with great bitterness and, what I cannot help thinking, disproportionate expenditure of time and money.