HARI NARAYAN KHEDHAR Vs. SWARKABAI PANDURANG KHEDKAR

JUDGEMENT

(1.) THIS is a second appeal filed by the original defendants. The original plaintiffs filed a suit for partition in respect of an area admeasuring 2 acres and 7 gunthas which was in possession of the appellant/defendant no. 1. The case of the plaintiffs is that the plaintiffs and the defendant No. 1 are the real brothers whereas defendant No. 2 was the proposed purchaser of the suit land. On 15-2-1968 there was a partition whereby three brothers and narayan each were allotted I/4th share in respect of the total property as well each one was in possession of 3 acres and 7 gunthas.

(2.) IT is the further case of the plaintiffs that Narayan disposed of one acre land to the appellant/defendant No. 1 during his life time. Remaining land admeasuring 2 acres and 7 gunthas remained in possession of Narayan till his death. The original plaintiff, respondent No. 1 herein Pandurang and brother vithhal after the death of Narayan claimed 1/3rd share in the said 2 acres and 7 gunthas land. Accordingly, the appellant/defendant No. 1 was served with the notice on 1-7-1978 to partition this land and to allot l/3rd share to the original plaintiff. According to the plaintiff and the defendant No. 2, each was entitled to claim 0. 29 gunthas of land as their share.

(3.) THE appellant/defendant No. 1 filed his written statement and he admitted that the suit property was ancestral property. He also admitted that there was a partition by Narayan on 15-2-1968 and each coparcener was allotted a share of 3 acres and 7 gunthas. It was his case, however, that narayan executed a Will on the basis of which he bequeathed the suit property in his favour. The case of the appellant was that after the death of Narayan, the property and its ownership vested in him under the Will dated 20-7-1970. He also claimed alternatively that if the plaintiffs' claim regarding his share to the extent of 0. 29 gunthas is accepted, then the property cannot be partitioned since it was constituted a fragment under the Fragmentation Act.