TUKARAM NIRAJI PATIL Vs. HANMANTRAO VITHALRAO PATIL

JUDGEMENT

(1.) This is a plaintiff's first appeal involving an important question regarding the effect of a clause in a partition deed, under which the suit properties were kept joint and it was agreed that they should be sold and the sale proceeds should be divided, on the right of a party to that partition deed to file a suit for partition and possession of his share in the properties so kept joint. As the suit filed by the plaintiff for partition and separate possession of his 1/4 share in the suit properties is dismissed only on the ground that such a clause in the partition deed rendered the suit for partition premature, it is not necessary to set out all the facts of this case or summarise the pleadings in detail. The partition between the plaintiff and the defendants with regard to most of their joint family properties was made under a partition deed dated February 26, 1953, which is at exh. 60 on the record. The material clause in the partition deed, as a result of the interpretation of which the plaintiff was non -suited by the lower Court, is as follows:

(2.) The suit was resisted by defendants Nos. 1 and 2 by filing their written statement, exh. 33, inter alia, on the ground set out in para. 5 of the written statement, which is translated as follows:

(3.) At this stage, we are not concerned with the various other contentions which were raised by the defendants, as the learned Second Joint Civil Judge, who had framed as many as 11 issues on the basis of such contentions, dismissed the plaintiff's suit after trying only issue No. 3, which was: