GODAVARIBEN HIMATLAL Vs. PARIKH SOMALAL ALIAS NATVARLAL HIMMATLAL

JUDGEMENT

(1.) One Himatlal Narottamdas died leaving behind him four sons and two daughters viz (1) Govindlal (2) Somalal alias Natvarlal who is plaintiff No. 1 (3) Shankerlal who is plaintiff No. 2 (4) Ambalal (5) Bai Jethi and (6) Bai Godavari who is defendant No. 2. Bai Jethi was married to one Keshavlal who is defendant No. 2/1 and they had one son Indravadan through that marriage who is defendant No. 2/2. The eldest son Govindbhai died in 1966 leaving behind him one son Vipinchandra who is defendant No. 2/4. Bai Jethi died on 25th September 1969 during the pendancy of the present suit and therefore her husband Keshavlal and her son Indravadan have been brought as defendants in her place. A partition was effected on March 2 1933 between the aforesaid four sons of Himatlal Narottamdas which is placed on the record at Ex. 31. According to this partition deed it was agreed that the land of old S. No. 621 situated within revenue limits of village Manjarol within Baroda district should not be divided and should be kept Joined and the income from the said land was reserved for the maintenance of Bai Jethi and Godavari for their life time and in their absence for their descendants and in case no descendants surviving the property was to be divided amongst the four brothers. According to the deed of partition Govindbhai was to manage the said land and disburse the income thereof between the aforesaid two sisters and their heirs in their absence. On April 2 1934 the 4th son Ambalal relinquished his share in favour of the three brothers. After the demise of Govindbhai in the year 1966 his son Vipinchandra was managing the affairs. As Vipinchandra in collusion with the two sisters Bai Jethi and Bai Godavari asserted claims to the prejudice of the aforesaid three brothers namely (1) Govindbhai (2) Somabhai and (3) Shankerbhai and when the possession was taken over by the sisters from Vipinchandra Somabhai and Shankerbhai who are respondents Nos. 1 and 2 before me filed the present suit in the Court of Civil Judge (J. D.) Sankheda being Regular Civil Suit No. 200 of 1969 for declaration that they were owners of the land of S. No. 621 and for possession on the ground that the sisters were the life tenants of the income of the land of S. No. 621 and in their absence their heirs were the life tenants and they had no interest in the corpus of the land.

(2.) At the time of hearing of the suit Keshavlal and Indravadan who were original defendants Nos. 2(i) and 2(ii) remained absent and the proceedings continued exparte against them. The case of Bai Godavari and Vipinchandra who were respectively original defendants Nos. 1 and 2 (iii) was that the suit was time barred and in any case they have become the owners of the land by adverse possession. They also claimed that they were in possession and enjoyment of the land in their own right under the partition deed. They also contended that the plaintiffs were not entitled to relief for possession as there was a tenant of the land in question in respect of which the tenancy proceedings were pending.

(3.) On these pleadings the learned trial Judge raised the necessary issues. On appreciation of the evidence oral as well as documentary the learned Judge found that the sisters were not entitled to have any right title or interest in the corpus of the property but they were merely the life tenants for the usufruct thereof. He therefore passed a decree as prayed for by the plaintiffs granting the declaration sought and also directed the defendants to hand over the possession of the land in question to the plaintiffs.