BALIRAM ATMARAM KELAPURE Vs. INDIRABAI

JUDGEMENT

(1.) Leave granted. Heard learned counsel for both the parties.

(2.) Second defendant is the appellant. Suit for partition, separate possession and profits instituted by the plaintiff-first respondent has been decree by the Appellant Court with the following shares:Plaintiff 1/12, first defendant 5/12 and second defendant 6/12. The High Court has modified the said shares in the following manner:Plaintiff 1/12, first defendant 7/12 and second defendant 4/12. Since his shares has been reduced by the High Court, the present appeal has been preferred by the second defendant.

(3.) One Atma Ram, who died on January 23, 1971, had two wives-Janki Bai and Rama Bai. Plaintiff Indira Bai and the 4th defendant Tatya are the children by Janaki Bai. Whereas first defendant Krishana and second defendant Baliram are the sons through Rama Bai. Rama Bai was alive when the suit was instituted and she was impleaded as the third defendant. Pending the suit Rama Bai died and defendants 1 and 2 - her sons - have been impleaded as her legal representatives. This was done notwithstanding the plea of the first defendant Krishna that Rama Bai has executed a will bequeathing her entire interest in his favour alone. In this appeal we are not concerned with Tatya but only with the shares of the plaintiff and defendants 1 and 2. Here again the plaintiffs share at 1/12 is not in dispute. The dispute really is between defendant 1 and 2. The appellate Court had determined the shares of defendant 1 and defendant 2, keeping aside the Will relied upon the first defendant. On the other hand, the High Court has accepted the Will as true and accordingly modified the shares of these two defendants as 2/12 and 4/12 respectively.