JUDGMENT
Ravi R. Tripathi, J.
1. The present First Appeal is filed by the heirs of the deceased Chhaganlal Kanjibhai, two of whom are his sons arid the third one is his minor daughter. The First Appeal is filed being aggrieved of the judgment and preliminary decree dated 3rd April. 1999 passed by the learned 7th Joint Civil Judge (S.D.) in Regular Civil
Suit. No. 6 of 1997. It is declared by the judgment that the plaintiffs have their undivided 1/2 share in five immovable properties and two moveable properties, mentioned in the preliminary decree, of Joint Hindu Family of deceased Chhaganlal Kanjibhai Harnesha (father) and Kanjibhai Mavjibhai Harnesha (grandfather) and they are entitled to division and partition of the undivided share and have occupation, possession and ownership thereof.
2. The plaint was accompanied by a schedule of properties in which self acquired properties of the father of the plaintiffs were also included. Though it was mentioned in the schedule that particular properties were self acquired properties of the father of the plaintiffs, the learned Judge, while passing the judgment and decree, discarded that fact and along with the properties, which were ancestral properties, so mentioned in the schedule, which alone were required to be partitioned, ordered for partition of all the properties mentioned in the schedule. Being aggrieved of that, the present First Appeal is preferred.
3. This case is having very unfortunate facts, which justify the saying that, ‘the facts are stranger than fiction’. It so happened that the father of the present appellants-original plaintiffs was implicated for the alleged murder of the mother of the plaintiffs and was imprisoned. At the time of sessions trial, the plaintiffs were minor and, therefore, respondent No. 1 uncle of these plaintiffs was in the management of not only the ancestral properties, but also the self acquired properties of the father of the plaintiffs (as the plaintiffs were minor). The misfortune devolved on the family in the form of implication of father in the alleged murder of the mother did not end with the completion of the sessions trial in which the father of the plaintiffs was acquitted of the charge. After the father was out of Jail on being acquitted by the Sessions Court, he could not withstand the unbearable pressure brought by the society accusing him of murder of his wife and, therefore, he committed suicide. As after the acquittal, the father was not in proper frame of mind and was not able to look after his children or his property, which was with respondent No. 1 uncle, the present plaintiffs had filed Civil Suit No. 6 of 1997 seeking maintenance as one of the reliefs. In that suit, uncle, respondent No. 1 herein, father of the plaintiffs, State Bank of Saurashtra and Pos! Master General were impleaded as defendant Nos. 1, 2, 3 and 4 respectively. As some deposits were made with the State Bank of Saurashtra and Post Master General, they were impleaded as defendants in that suit.
4. It is required to be noted (hat the uncle, that is, respondent No. 1, who was in the management of all the properties i.e.. not only ancestral, but also self acquired properties of the father of the plaintiffs, did not contest the suit and remained away from the trial all through out. The postal authorities did file their appearance before the trial Court, but then, they did not file any reply because, as such, they were not the contesting party and they were to abide by the orders of the Court. Before this Court also. the postal authorities are represented by Mr. Sandeep N. Bhatt, learned Advocate appearing for the Central Government. He submitted that the postal authorities have nothing to contest in the matter and will abide by the orders of the Court. The postal authorities have certain deposits made by the grandfather of the plaintiffs, who had nominated the father of the plaintiffs and the uncle as joint nominees. Under the Rules, when one nominee expires, the survivor is to get the deposits. In the present case, the uncle will get the entire amount of deposit as a surviving nominee. The uncle has never taken care of the plaintiffs and has tried to render the suit of the plaintiffs infructuous by remaining absent, not only in the trial Court, but also before this Court. In such circumstances, if the uncle is allowed to take the whole of the deposit, then the plaintiffs will have to undergo another round of agony by filing appropriate proceedings against uncle so as to see that he parts with 1/2 share of the father of the plaintiffs. Therefore. Mr. Dagli, learned Advocate appearing for the appellants, submitted that necessary directions be given to the effect that the whole of the amount of the deposit be not paid to the uncle, that, respondent No. 1, and half of the amount to be given to the plaintiffs be issued to the postal authorities.
5. It will not be an unwarranted repetition of the phrase, “misfortune continued to devolve on this family” because one of the plaintiffs also committed suicide on 20th May, 2002. It is also pointed out at this stage by the learned Advocate for the appellants that minor sister is totally blind and she is admitted to a blind school, and the plaintiffs were looked after by the maternal uncle of the plaintiffs.
6. This First Appeal was filed on 14th June, 1999. On 8th July, 1999, office was directed to call for record and proceedings so as to reach before 16th July, 1999 and the matter was adjourned to 19th July, 999. Thereafter, the matter was adjourned from time to time and on 27th January, 2000. the First Appeal was admitted. Though the process of ‘admission’ of the First Appeal is served upon respondent No. I, he has chosen to remain away from the proceedings, possibly with a view to remain away from any solution being suggested to him, to which he might have to agree or at least he might have to start paying some amount towards maintenance. The respondents including respondent No. 1 were served, once again in the year 2000, when Civil Application No. 6134 of 2000 was filed praying that respondents be directed to maintain status quo as the applicant-appellants, original plaintiffs, apprehended that respondent No. 1 is likely to dispose of the property. Though the respondent No. 1. the main and the only contesting party, was served in that Civil Application, he did not appear before this Court and later on, the said Civil Application came to be allowed.
7. This First Appeal had come up before this Court on a note being filed by the learned Advocate for the appellants stating that though one of the appellant has expired, no heirs are required to be brought on record as the surviving heirs-legal representatives of the expired appellant are already on record. Recently, in the year 2002, the appellants learnt that the respondent No. 1-uncle, though served of the process of the First Appeal and thereafter, process of the Civil Application, is likely to dispose of one of the properties mentioned in the schedule, which is residential in character. The appellants were, therefore, constrained to file Civil Application No. 5310 of 2002 praying that respondent No. 1 be restrained from disposing of in any manner the property, which is part of the decree and residential in character, till the disposal of the appeal and that respondent No. 1 be further directed to file an undertaking/affidavit before this Court that he will not dispose of the properties in any manner.
In this Civil Application, Rule was issued on 8th August, 2002 and though the same is served, respondent No. 1 has not appeared before this Court. It is in this background that the present first appeal is taken up for final hearing today.
8. Taking into consideration the facts of the case that the properties, which are mentioned in the schedule to the plaint did include, self acquired properties of the father of the plaintiffs, the learned Judge has erred in including those properties (self acquired properties) of the father of the plaintiffs) in the preliminary decree. To that extent, the preliminary decree is required to be modified and the same is modified to the effect that the properties described at Serial Nos. 1 and 2 in the preliminary decree shall not be partitioned and the same should be handed over to plaintiffs.
So far as respondent No. 3 i.e. the Postal Authorities are concerned, Mr. Prakash Purohit for Mr. Sandeep Bhatt, learned Advocate for the respondent No. 3, has fairly stated that the Postal Authorities are formal parties in the present proceedings and they are not the contesting party. They arc to abide by the order of this Court. In view of the fact that deposits were made with the Postal Authorities by the grandfather of the plaintiffs and the grandfather had mentioned name of his two sons as nominees, of whom, one son i.e. father of the plaintiffs, has expired. The Postal Authorities are directed to pay 1/2 of the amount to the plaintiffs within 4 weeks from the date of receipt of writ of this Court.
Taking into consideration the unusual facts of the case, the respondent No. 1 is directed to pay Rs. 2000.00 towards maintenance from the date of filing of the suit till the realisation with 9% interest within 10 weeks from the date of receipt of the order of this Court. The First Appeal is allowed.
9. In view of the above order passed in the main First Appeal, there shall be no orders in Civil Application No. 5310 of 2002. The same is accordingly disposed of. Rule is discharged. No order as tb costs.