DADU NEMISHA BALWAN Vs. SADIK MALIKSO BARGIR

JUDGEMENT

(1.) On 18th June, 1998, the Second Appeal came to be admitted on the following two questions of law:

(2.) On receipt of record and proceedings, the appeal is heard.

(3.) The original plaintiff- Sadik Bargir filed a suit for partition and possession in the Court of Civil Judge, Junior Division, Kurundwad and it came to be registered as Regular Civil Suit No.31 of 1986. The suit revolved around an agricultural land admeasuring 3 Acres and 24 Gunthas situated at village Kurundwad, Taluka Shirol, District Kolhapur. According to the plaintiff, the suit property is joint property owned by him and Shri Shahabuddin Bargir (defendant No.1) who is his elder brother. The case pleaded was that the suit property was purchased by the father of the plaintiff and defendant No.1, Shri Maliksaheb on 27th June, 1966 for their welfare, in consideration of Rs.8,000/-. At the time of purchase of the property, since the plaintiff and defendant No.1 were minor, the document included the name of defendant No.2- Smt.Salima, the mother as a guardian of the two minors. On 6th March, 1976, Maliksaheb met with an accident and succumbed to the same. It is specific case pleaded in the plaint that defendant No.2 and defendant No.1, on attaining majority, executed two Sale Deeds on 31st October, 1980 and 2nd February, 1981 in favour of defendant Nos.3 and 4. The plaintiff allege that this was done in collusion of defendant Nos.1 and 2. On attaining majority, the plaintiff sought his share in partition, which was declined and he allege that the sale transaction between defendant Nos.1 and 2 on one hand and defendant Nos.3 and 4 on other hand, is illegal, void abinitio and, therefore, instead of seeking declaration, he sought partition and possession since the transaction is not binding on him as far as his one half share is concerned.