SURESH Vs. NAGABAI

JUDGEMENT

(1.) THE appellants No.1 to 8 are the legal heirs of original defendant No.1, deceased Gadibabu and appellant No.9 is the original defendant No.2. Original respondent No.1 Smt. Nagabai wd/o Janbaji Bhambal (deleted) and original respondent No.2 deceased Baburao s/o Janbaji Bhambal (through legal heirs) are the original plaintiffs No.1 and 2. For the sake of convenience, parties to the appeal are hereinafter referred to as plaintiffs and defendants in the order in which they were arrayed in the suit.

(2.) PLAINTIFFS had filed a suit for partition, separate possession and damages against the defendants. It was their case that plaintiff No.1 was the mother of plaintiff No.2 and Janbaji, the husband of plaintiff No. 1 and father of plaintiff No.2, was the younger brother of defendant No. 1. Defendant No.2 was the son of defendant No.1. Janbaji and Gadibabu (defendant No.1) were the sons of Bagaji Bhambal. They had inherited a land and one house situated at Mouza Katol. These properties and other acquisitions have been particularly described in ScheduleA and ScheduleB to the plaint.

(3.) ACCORDING to the plaintiffs, two brothers Janbaji and Gadibabu were joint in estate, residence and earning. Janbaji died on 05.02.1979 at Katol, leaving behind him the plaintiffs who inherited undivided interest of Janbaji in the joint Hindu family properties as mentioned in the schedules annexed to the plaint. They submitted that till the death of Janbaji, there was no partition of joint family and he was living at Katol in ancestral house along with defendant No.1. They submitted that Janbaji, being the younger brother of defendant No.1, focused his attention only on agriculture and defendant No.1 being educated, looked after outwardly business of the joint family and other family affairs. They submitted that there was an agricultural field bearing Survey No.250, area 8.27 acres, inherited by the family of said two brothers. It was sold by the brothers to one Kisan Domaji Shimpi vide registered sale deed for a valuable consideration. They submitted that in the sale deed, name of one Zunya s/o Bagaji Dhangar has been shown as executant of the sale deed though, it was not necessary to do so, as he was not the son of Bagaji Bhambal but one Janaji Bobde, the first husband of Kalawati, with whom Bagaji Bhambal had performed a marriage. They submitted that Thakubai was the first wife of Bagaji Bhambal and since she did not bear any children, Bagaji Bhambal, after the death of husband of Kalawati, married with her under the Gandharva form of marriage and this Kalawati, then brought her two sons from her first marriage namely Zunya and Sadya with her and since that time they were residing with Bagaji Bhambal. Thye submitted that Zunya had no right, title or interest in the property of Bagaji Bhambal and therefore, it was not necessary to show him as executant of the sale deed by which the ancestral property, field Survey No.250, was sold away in the year 1946.