SUBHADRABAI KACHARI KHANDAGALE Vs. BALWANTA NARAYAN JADHAV

JUDGEMENT

(1.) HEARD. The present second appeal has been preferred by the appellant/original plaintiff, against the judgment and decree dated 06-02-1990, passed by the 2nd Additional District Judge, Buldhana, in regular Civil Appeal No. 89/1986, whereby the appeal was allowed and the judgment and decree of the trial Court granting decree in favour of the appellant against the defendants by holding that the appellants have 1/3rd share to the extent of her father's share i. e. in house property and field was set aside, therefore, this second appeal.

(2.) THIS second appeal was admitted on 8-4-1991, on the Points No. 2 and 3, as mentioned in the memo of appeal. Those points are as follows: "2. Whether the property in the hands of Ananda i. e. plaintiffs father was a separate property in view of his being the sole surviving member of the co parcener after separation/partition from his brothers? If yes, whether by way of succession the plaintiff being the only legal heir of the deceased Ananda is entitled to inherit the said property of Ananda by way of another mode of succession or whether such property devolves on the plaintiff/appellant by way of succession? 3. Whether the lower Appellate Court and the trial Court has omitted to frame issue irrespective of the pleadings of parties i. e. "whether deceased Ananda was mad/in sane from the beginning and because of which he was disable or not entitled to any share in the ancestral property? If yes, whether the omission to frame this issue has affected the decision on merit?

(3.) THE plaintiff/ appellant herein, is the daughter of deceased Ananda. One narayan who's legal heirs/representatives, are original defendants and the respondent herein, contesting the main suit. As per the appellant, Narayan, ananda and Hari were the brothers and they had joint family. The ancestral property, including the suit property, bearing Survey No. 69/3, ad measuring 4 acres 30 gunthas, and two house properties situated at village Hatadi, Taluq and District Buldhana, involved in the suit. These properties were originally owned by one Kacharu. All these three brothers were the dependent of said kacharu. Appellant is daughter of deceased Ananda s/o Kacharu. As asserted, the said property was jointly owned by Narayan, Ananda and Hari. Later on Ananda and Hari purchase the share of Narayan, and continued joint cultivation amongst themselves. After the death of Ananda, the appellant continued joint possession till her marriage. This properties are thereafter in the joint possession of the respondents. The appellant, thereafter, had filed a suit for partition and separate possession of her on share. She claimed ? share in the suit property. As ascertained, inherited from the Ananda. The said Ananda, father of the appellant died some time in the year 1940. The alleged executed deed is not on the record. The suit in question was filed on 2-11-1985. The respondents however, resisted the said case by filling their written statement dated 29-1-1986. Subhadrabai i. e. the appellant herein, has examined herself in support of her case. One Balwanta was examined on behalf of the defendants/respondents to support of their defence.