LAXMAPPA GONEPPA Vs. BHIMAPPA GONEPPA

JUDGEMENT

(1.) THE appellant is defendant No. 1 against whom a suit in ejectment was brought by respondent No. 1, the suit also being against defendants Nos. 2 and 3, the sons of defendant No. 1.

(2.) THE plaintiff's case was that defendant No. 1 was his elder brother, that the property in suit, which is a house, was part of his ancestral property, that there was a partition between him and defendant No. 1 on October 7, 1925, when the house in suit and other properties were allotted to him, defendant No. 1 getting a smaller house to the south of his house, but that defendant No. 1 was allowed to remain in the house in suit because he wanted to celebrate the marriage of his sons and promised to give it up on constructing a new house. He brought the suit practically on the last date of the period of limitation from the date of the partition. Defendant No. 1 denied that there was a partition in 1925, but he alleged that there was a partition in 1926 in which the house in suit fell to his own share. He also denied the other allegations of the plaintiff.

(3.) THE plaintiff stated in his deposition that he himself executed a document (presumably similar to exhibit 31/1) in favour of defendant No. 1 in respect of the property that fell to his share. He further stated that the lands were divided in the morning, that the houses were divided at 3 p. m. and exhibit 31/1 was executed by defendant No. 1 at 4 p. m. on October 7, 1925. THE lower appellate Court came to the conclusion that exhibit 31/1 had been properly admitted in evidence, following the decision in Sakharam Krishnaji v. Madan Krishnaji (1881) I. L. R. 5 Bom. 232. In its opinion defendant No. 1's signature to the said document was taken "by way of acknowledgment of the partition already effected and in order to put it out of his power to deny the fact of it". It came to the conclusion that it was not a document of the type referred to in Ramchandra v. Dinkar (1900) 2 Bom. L. R. 800 and that though Nilkanth Bhimaji v. Hanmant (1920) I. L. R. 44 Bom. 881: S. C. 22 Bom. L. R. 992 would at first sight seem to support the contention of the defendants, viz. that the document required registration, that decision did not really support their case.