NATHU S/O BAKARAM NIMKAR Vs. YAMUNABAI @ GUNABAI

JUDGEMENT

(1.) THIS Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short 'CPC') has been filed by the present appellant dissatisfied with the judgment and decree dated 23.10.1981 passed by Assistant Judge, Nagpur in Civil Appeal No. 130/80, Nathu and 2 others u. Yamunabai and another, whereby he confirmed the judgment and decree passed by Civil Judge, Junior Division, Katol on 5.4,1980 in Civil Suit No. 87/74, Yamunabai and another v. Nathu and 2 others. The Civil Judge, Junior Division, Katol, by its judgment and preliminary decree dated 5.4. i960 decreed the respondent (hereinafter referred to as 'plaintiffs') suit for partition of the property described in Schedule C attached with the plaint against the appellants (hereinafter referred to as 'defendants') and the said Court declared that plaintiff No. 1,. defendant No. 1 and defendant No. 2 are entitled to 3/ 10th share each, while plaintiff No. 2 and defendant No. 3 are entitled to 21 /20th share each in the property described in Schedule C attached with the plaint. This preliminary decree was challenged by the defendants in the Court of Assistant Judge, Nagpur and vide the judgment and decree dated 23.10.1981 the appellate Court concurred with the judgment and decree passed by the trial Court referred to hereinabove.

(2.) THE only substantial question of law which arises in the present Second Appeal and which has been pressed by the learned Counsel for the appellants/defendants is whether the two Courts below erred in law in not including in partition, the properties mentioned in the Deed of Settlement dated 30.9.1966 (Ex. 27) whereby the late Bakaram Nimkar only gave the properties mentioned in the Deed of Settlement dated 30.9.1966 (Ex. 27) to the plaintiff No. 1 Yamunabai for her life time or in other words the question is whether the properties mentioned in the Deed of Settlement dated 30.9.1966 executed by deceased Bakaram Nimkar in favour of plaintiff No. 1 Yamunabai which were given to her for her maintenance became her absolute property, and therefore was not available for the partition between the parties.

(3.) IT appears that on 16.11.1967 a partition deed was executed which is Ex. 28 on record between Bakaram and defendants Nos. 1 to 3. In the said partition deed, the properties which were given to the plaintiff No. 1 for her maintenance vide Deed of Settlement Ex, 27 were also included. The plaintiff No. 1 and the plaintiff No. 2 were not the parties to the said document of partition dated 16.11.1967 (Ex. 28).