NAMDEO GOVIND Vs. MUMTAZ BEGUM

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by the plaintiff as the alienee from one of tie coparceners against the coparceners and the members of the joint Hindu family for general partition. The material tacts are set out below: Govinda nad a wife Kashibai and four sons, saknaram, Namdeo, Hanmant and Bhanuaas. On 20-3-1940, Govinda passed a sale- deed in respect of house No. 101 in tavour of the plaintiff tor a sum of Rs. 795/ -. Tne four sons of Govinfla filed a suit, (Civil Suit No. 94-A of 1951), against the original plaintiff for possession of the sun house alter setting aside the alienation effected by the father. Govinsa was a party to the suit. The suit was decreed on 3-5-1951 and the plaintiff preferred civil appeal No. 51-A of 1951. Tne appeal came to be dismissed on 6-9-1952. Exhibit P-1 is a copy of tha judgment in that appeal. While dismissing the appeal am appellate court allowed four months time to the plaintiff for vacating the premises. The appellate Court suggested that, in tne meantime, the plaintiff may the a suit tor general partition which was the only way of obtaining the property purchased from one of the coparceners. Accordingly, on 3-11-53 the plaintiff filed a suit tor general partition which has given rise to this appeal. It may be mentioned that Govinda died on 8-11-1952, that is to say, prior to the institution of tne suit tor general partition. Sakharam, the eldest son, had predeceased Govlnda, tie having died on 21-3-1952. The remaining three sons were added as defendants Nos. 1, 2 and 3 and the mother Kashibai was added as defendant No. 4 to the suit. Defendant No. 5 was a purchaser or another item of the joint family property, that is, nouse Ho. 33. Defendant No. 6 is a transferee trom defendant No. 4 in respect of the suit house, that is, house No. 101, sold by Govinda to the plaintiff. The sale deed in favour of defendant No. 6 was executed on 24-1955 pending the suit and defendant No. 6 Laxman was added as a party after his purchase; The plaintiff had prayed that the entire suit house should be allotted to the share of Govinda in me general partition and tne defendants be compensated by being awarded other items of joint family property. It is on that aasis that the plaiutiff asked tar possession or the suit house in its entirety although the plaintiff would be entitled to a fraction of interest in the property, that is to say, the share which belonged to Govinda which would have to be determined in the present litigation.

(2.) THE defendants resisted the plaintiff's claim for the allotment of the house to the share of Govinda in the general partition as an equitable measure. This was, in fact, the principal defence raised by the defendant. The second defence put forward on behalf of the defendant was that the plaintiff was entitled to 1/5th share. Finally they suggested that since the plaintiff has been in enjoyment or tne property for about 14 years, no equities arise in her favour and, therefore she should not be awarded the retier of partition even in respect of 1/5th share of Govinda.

(3.) THE trial Court came to the conclusion that it was necessary for adjusting the equities between the parties to allot the entire house to the share of sovinoa. it further held that since the house could be allotted to the share of Govinda, the plaintiff would be entitled to claim'possession of the entire house. Consequently, it decreed tne plaintiff's suit and awarded possessien of the same to her. It is against that judgmant that defendants Nos. 1 to 3 have come up in appeal.