Manraj Mahton vs Nathuni Mahton on 14 September, 1876

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Calcutta High Court
Manraj Mahton vs Nathuni Mahton on 14 September, 1876
Equivalent citations: (1877) ILR 2 Cal 150
Author: R Garth
Bench: R Garth, R Mitter


Richard Garth, C.J.

1. We think that, having regard to the evidence, the lower Court has rightly held that the family of the plaintiff is still joint, and that there has been no partition of there family property as alleged in the plaint.

2. That being so, it only remains for us to decide the question of law raised by the defendant, viz., that the present suit is not maintainable, and should be dismissed upon that ground.

3. We think that this contention is well founded, and we find that the question has been settled by several authorities–Rajaram Tewari v. Lachman Pershad 4 B.L.R. A.C. 118 Sheo Churn Narain Sing v. Chukraree Pershad Narain Sing 15 W.R. 436 and Cheyt Narain Sing v. Bunwaree Sing 23 W.R. 395.

4. The decision referred to by the lower Court does not support the view which the Subordinate Judge takes; in fact, it rather supports the contrary view, because it decides that one out of several members of a joint Hindu family is entitled to recover the whole of the joint property in a suit in which all the members are parties. It does not decide, as has been erroneously supposed by the lower Court, that a single member of a joint Hindu family governed by the Mitakshara law can recover a fractional share of the family property, which would on partition fall to his lot. That decision further points out the mode in which the joint property should be partitioned and the divided shares disposed of, but with that question we are not concerned in this case.

5. For the reasons given above, we think the plaintiff’s suit should be dismissed, upon the ground that he, still being a member of a joint Hindu family, consisting of himself, his father, and his brother, cannot maintain this suit for the recovery of a two-third share of the joint family property.

6. Upon this ground, the decree of the lower Court must be reversed with costs.

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