BAI NANI & OTHERS versus MANILAL LALLUBHAI & ORS.

Citation: [1977] 2 S.C.R. 920 · Decided: 07-02-1977 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Case Partly allowed

Judgment (excerpt)

A 
B 
c 
D 
F 
G 
H 
921 
BAI MANI & OTHERS 
II. 
MANILAL LALLUBHAI & ORS. 
February 7, 1977 
[S. MURTAZA FAZAL ALI AND P. S . .KAILASAM, JJ.] 
Hindu Succession Act-Hindu Women's Rig/zt to Property Act 1937-
Whether vartition bv metes and bounds-Whether new 
case can be made out 
in the absence of issue. 
The respondent-plaintiffs filed a suit for partition and allotment of one half 
share of the suit house and the moveab'.c properties. 
One Faqir Cll'.nd b:td 
3 sons, N athubhai, Lallubhai and N anabhai. N anabhai was the defendant in 
the suit whose legal representatives are appellants. 
Lallubhai's heirs are 
the 
plaintiffs. 
According to the plaintiffs the three \Jroth.,ro were 
m~mbers of a 
Joint Undivided Hindu Family. According to the respondents the properties 
were never partitioned thoug~ the three brothers were staying and messing 
separntely and each branch carried on its business se,parately. 
The respon~­
dents also challenged the validity of the sale deed executed by Bai Kashi the 
widow of Nathubhai in favour of the appellants on the ground that the sale 
.was not for legal neces~ity. The appellants contended that the three brothers 
were ~eparate and each branch used to do its business separately. 
That as 
far as the suit house was concerned it was divided though not by metes and 
bounds and that the brothers lived in separate portions of the house. 
The 
appellants claimed that they were entitled to 2/3 share on the house. 
The 
Trial Court found that the 3 brothers had separated before the deaths 
of 
Nathubhai and Lallubhai. 
It also found that the defendant and his brothers 
had separated and the suit house wiis also divided as alleged by the defendant. 
It came to the conclusion that the defendant had failed to prove th"t there 
was any legal necessity for Bai Kashi to sell the share in the suit house and 
that after Bai Kashi's death the respondent was entitled to one half share in 
the suit house. The Trial Court found that Bai Kashi became entitled to one 
half share of her husband in the suit house under the Hindu Women's Rights 
to Property Act, 1937. 
As her interest was only ~ limited interest known as 
Hindu Women's Estate when Bai Kashi died in January 1956, she had not 
become the full owner of the share under the Hindu ·succession Act, 1956. 
The court was of the view that on the death of Bai Kashi her share would 
go to ·the reversioners. 
The court held that the parties were governed 
by 
Mayukh school which over-rules the Mitakshara school and, therefore, after 
the de&th of Bai Kashi the defendant and plaintiff No. 1 would inherit to-
gether to the share of Nathubhai. The court held that the claim of the 
plaintiff for one half share should be decreed though there was no specific 
claim on the plea cf separation and heirship. The High Court dismissed the 
appeal and confirmed the findings of the Trial Court. 
In an appeal by Special Leave the appellants contended that the respon-
dents' plea that the 3 brothers were joint and the share of Bai Kashi 
was 
inherited by the remaining two branches by survivorship having been negatived 
by the courts below the suit ought to have been dismissed and that the court 
erred in making out a new case of succession to the property of Bai 
Kashi 
without necessary pleadings. 
Allowing the appeal partly, 
HELD : 1. On the question whether the respondents are entitled to one 
half share on her death has not been dealt with by the High Court. This 
Court agreed with the concurrent findings of the Trial Court and the High 
Court that the family was separate and that the sale deed by Bai Kashi in 
favour of the appellants was not for legal necessity. However, the claim of 
the respondent for partition and allotment of 1 /3 share' by metes and bounds 
' , 
• 
... -
,., ' . 
.. 
BAI NANI v. MANILAL LALLUBHAI (Kailasam, J.) 
921 
cannot be resisted. 
Though the brothers became separate 
admittedly 
there 
A 
was no division by metes and bounds. There is also no dispute that the res-
pondents are entitled to 1/3 share in the house. (924 A-Cl 
2. The High Court did not deal satisfactorily with the contention of the 
defendant that the Trial Judge erred in saying that Bai Kashi had only a 
widow's estate when she died in the absence of any issue as to who were 
heirs of the deceased Bai Kashi. On the question whether respondents are 
entitled to succeed to Bai Kashi's 1/2 share, the Court remitted the matter 
to the High Court for consideration. [924 C

Excerpt shown. Read the full judgment & AI analysis in Lexace.