SIDDAPPA NAGAPPA DIVATE Vs. VISHVANATHSA RAMCHANDRASA KABADI

JUDGEMENT

(1.) THE suit out of which this appeal arises was filed by the plaintiff Siddappa for the partition of, and possession of his half share in, the family house at Gadag on the ground that it had been excluded from the partition effected by the award decree in suit No.11 of 1928 by reason of the fraud of his father Nagappa and his elder brother Shidramappa. That suit was filed by the plaintiff Shiddappa against Nagappa and Shidramappa for recovering by partition his one-third share in the joint family property. During the pendency of the suit the dispute was referred to arbitration, and when the arbitrators made the award, a decree was passed in terms of that award. That decree did not include the house in suit, and it is alleged that the plaintiff himself, who is a resident of Hubli, was not aware of the joint family house at Gadag and that his father and brother who gave the necessary information to the arbitrators designedly and fraudulently omitted to give information about the suit house. By that award decree the plaintiff was given his one-third share and Nagappa and his elder son Shidramappa, were given a joint two-thirds share. Nagappa died in March, 1934, and Shidramappa in August, 1935. Defendants Nos. 1, 4, 5 and 6 are Shidramappa's sons and defendants Nos. 2 and 3 are the sons of defendant No.1. Defendant No.1, to whose share the house in suit was allotted, sold it on behalf of himself and his two minor sons to defendant No.7 for Rs. 2,500 on September 13, 1937, and it is now in his possession. He contended inter alia that the house in suit was the self-acquired property of Nagappa, that the plaintiff had no interest in it, that no fraud was practised upon him by his father or brother at the time of the partition, that the plaintiff's claim was time-barred under Article 95 or 96 of the first schedule to the Indian Limitation Act, 1908, that the plaintiff was not entitled to one-half share in the house and that, as he was a bona fide purchaser for value, the plaintiff's claim was barred under Section 41 of the Transfer of Property Act, 1882.

(2.) THE trial Court held that the house in suit was excluded from partition in 1928 by reason of its fraudulent concealment by Nagappa and Shidramappa, that it was not Nagappa's self-acquired property but the joint family property, that the plaintiff was entitled to a share in it, that his claim was not barred under Section 41 of the Transfer of Property Act, as defendant No.7, though a purchaser for value, had not made proper inquiry before purchasing the house from defendant No.1, and that plaintiff's claim was in time. THE plaintiff was, therefore, given a decree for one-half share in the house in suit together with future mesne profits and costs.

(3.) IN Isap Ahmed v. Abhramji Ahmadji (1917) I.L.R. 41 Bom. 588 : S.C. 19 Bom. L.R. 579, F.B., in giving the decision of the full bench, Scott C.J. pointed out that "joint family" in Article 127 must be read as a compound adjective and the expression "joint family property" must be read as property appertaining to a joint family. The award decree of 1928 effected a severance of the joint family status, and, as observed by Crump J. in Dagadu Govind v. Sakhubai (1923) I.L.R. 47 Bom. 773 : S.C. 25 Bom. L.R. 806 (p. 777) : Once it is held that there has been partition (between members of a joint Hindu family), I should myself be inclined to hold that the presumption must be that as regards that portion of the estate which remained undivided, the members of the family would hold as tenants-in-common unless and until a special agreement to hold as joint tenants is proved.