ANANDA KRISHNA TATE Vs. DRAUPADIBAI KRISHNA TATE

JUDGEMENT

(1.) This second appeal is filed by the original defendant No.1 who suffers a decree for partition and separate possession as well as setting aside alienation. [The parties shall be hereinafter referred to as the Plaintiffs and Defendants]. Few facts giving rise to this appeal are as under :

(2.) Respondent No.1 Plaintiff instituted a suit for partition and separate possession. It is her case that the suit property belongs to her husband. Her husband died in the year 1959 leaving behind him, his widow the Plaintiff, Defendant Nos.1 to 5 as his sons, Defendant Nos.6 to 13 as the heirs of his another son by name Ganpati. After the death of Plaintiff's husband Krishna, name of Defendant No.1, being the eldest son, came to be recorded as a manager of the joint family in the revenue record. One of the sons of the Plaintiff and Krishna died in the year 1974 and Defendant Nos. 6 to 13 are his heirs. It is the contention of the Plaintiff that the Defendant Nos.2, 3, 4 and 5 have no avocation and they are addicted to vices, and therefore, they are not living in the joint family while Defendant No.2 has been living with the Plaintiff. It is the contention of the Plaintiff that the parties owned C.T.S. No.245. The Defendant Nos.1 to 6 have, however, sold their shares out of the said house to one Bhau Dattatraye Nerlekar. Rest of the portion in the said house is in occupation of the Plaintiff and Defendant No.2 and, no partition is sought for in respect of the said house since other sharers have already sold their shares. It is further contended that the suit land is an irrigated land and it was giving sufficient income to maintain the family. Yet the Defendant No.1 had executed a sale deed with a condition to repurchase in favour of the Defendant No.17. Further the Defendant No.1 has purchased shares of Defendant Nos.3, 4 and 5 and he had purchased those shares out of the income of joint family itself and, therefore, although those shares have been sold to the Defendant No.1, that property is too liable for partition. The Plaintiff contends that she is entitled to a share in the suit property and it should be divided and she should be put in separate possession thereof.

(3.) Except Defendant No.1 all other defendants have admitted the claim of the Plaintiff.