KONDIRAM BHIKU KIRDAT Vs. KRISHNA BHIKU KIRDAT

JUDGEMENT

(1.) - Unsuccessful defendant No.1, Kondiba, is the appellant before us. The original plaintiff, Krishna,the appellant's real brother laid Suit No. 135 of 1976 in the trial court, namely, Civil Judge, Senior Division, Satara for partition of the properties by metes and bounds in equal share and for separate possession thereof. The trial court decreed the suit only in respect of two items, namely,the land bearing Surveys Nos. 131/3 and 218/7-B while declaring that ltems 1;3 and 6 have already been partitioned between the defendant and Krishna, the original plaintiff .On appeal, at the instance of Krishna, the appellate court, on evaluation of evidence recorded the finding in paragraphs 12 and 13 of the judgment (pages82-85 of the paper book) thus:

(2.) Consequently it directed partition of suit properties described at serial Nos. 1 to 4 in para 1 A of the plaint and at serial Nos. 1 to 8 in para 1B of the plaint subject to Krishna or thereafter his legal representative depositing a sum of Rs. 1,250/- towards their contribution of the price of consideration of Rs. 2,500/-made by the defendant for purchasing lands mentioned at serial Nos. 5,7 and 8 in para 1B of the plaint under sale-deed Exh. 131. Accordingly directed the partition by metes and bounds by appointing Court, Commissioner etc. Thus this appeal by special leave.

(3.) It is contended by Mr.Vishwanatha Iyer, learned senior counsel for the appellant that having entered into military service and after his discharge, the appellant continued to contribute for the acquisition of the properties in his own name and, therefore, items except items at serial Nos. 1,3 and 6, which were already partitioned, remained to be his self-acquired properties. Therefore, there is no joint family nucleus for acquisition of these properties and accordingly the trial court was right in declining partition of the items except those mentioned in the preliminary decree granted by the trial court . We find no force in the contention. It is seen that Kondiba and Krishna were in military service. While they were in service, their father was enjoying the properties and acquired other properties individually and collectively of the appellant and Krishna and that properties remained to be joint. Admittedly, both the appellant and Krishna were discharged in 1948 from the military service. Since Krishna had suffered disability of hearing, he remained in the family and the finding of the appellate court is that he continued to cultivate not only the properties acquired by them but also tenanted properties. Thereafter Krishna continued to remain in joint possession along with the appellant of all the properties till he sold the properties to the appellant by registered sale deed on November 10, 1964. Thus it can be seen that till the date of severance in status there is no individual enjoyment of the properties or assertion of their rights in respect of any specified item of the property. It is seen that during the life time of the father, both the brothers remained joint and after the demise of the father, by which date both the brothers were discharged from military service, Krishna continued to maintain properties not acquired only by them but also tenanted land. Therefore, it is clear that they had joint family nucleus and continued to acquire the respective properties. So they must be deemed to be joint family properties as found by the appellate court. After the severance in status, admittedly, the appellant had purchased Items 5,7 and 8 of para 1B of the plaint in his own individual names. Therefore, though the appellate court has clubbed those properties also into the joint family properties, it was not right in treating those properties to be joint family properties. Accordingly only Items5, 7 and 8 mentioned in paragraph 1B of the plaint shall be declared to be self-acquired properties of the appellant. All other properties are joint family properties and liable to be partitioned in equal moiety between the appellant and Krishna and the legal representatives of Krishna would take half share in the properties. The decree of the appellate court is modified accordingly to that extent. Since Items 5,7 and 8 of para 1B of the plaint are declared to be self-acquired properties of the appellant, the question of respondents' contribution of Rs. 1250/-does not arise. The decree of the appellate court is accordingly modified. In other respect it is confirmed. The appeal is partly allowed. No costs.