SAMBHAJI VISHNU KHARAT Vs. SARJERAO SHANKAR KHARAT

JUDGEMENT

(1.) Heard learned Counsel for the parties.

(2.) This second appeal challenges concurrent judgments and decrees passed by two courts below in a suit for partition filed by the Respondents (original plaintiffs).

(3.) The plaintiffs' suit was on the footing that the suit properties described in the plaint were all joint family properties. One Pira, who was a common ancestor of the parties, had two sons by the names of Pandu and Vithu. Pandu died issueless, whilst Vithu had two sons by the names of Sambhaji and Shankar. The plaintiffs are children of Shankar, whereas the original defendant no.1 Sambhaji (since deceased), has been survived by the Appellants herein, children of Sambhaji. It was claimed in the suit that the suit properties were joint properties of Vithu and, thereafter, succeeded to by Shankar and Sambhaji. It was submitted that Shankar died on 11 November 1975 having predeceased Vithu, who died on 26 August 1978. It was submitted that there was no partition amongst the plaintiffs or their father on the one hand and Sambhaji or his descendants at any point of time and they continued to be in joint possession of the suit properties. It was submitted that defendant no.1, who was the main contesting defendant and who is Appellant No.1 to the present appeal (since deceased and now represented by Appellant Nos. 2 to 5), got his name entered in the revenue record of a part of the suit properties on the basis of a fabricated will, whilst through an invalid gift deed and allotment, others of the suit properties were sought to be transferred to the other defendants. It was submitted that Vithu himself, who is the purported testator of the will or executor of the gift deed and allotment, was not entitled to bequeath or gift away or allot the suit properties, the properties being ancestral in his hands. The defendants contested the suit claiming that the suit properties were exclusively owned by Vithu and Shankar was not concerned with the ownership of the properties. They claimed that Shankar had accepted some cash from Vithu and, thereafter, he and his family resided separately and did not pay anything to Vithu. The defendants relied on the will as well as gift deed and allotment executed by Vithu in support of their claim to the suit properties.