KHANDU ALIAS KANDERAO RAMCHANDA GODE Vs. CHANDRABHAGABAI RAJARAM

JUDGEMENT

(1.) The appellants have preferred this appeal against the judgment and order passed by 2nd Addl. District Judge, nasik decreeing the plaintiffs' suit by order dated 25th October, 1985 for partition and separate possession of respective shares of the property by modifying the decree passed by the trial court dated 31st July, 1981.

(2.) I have heard the learned counsel tor both the parties. Perused the record.

(3.) The Plaintiff No. 1 chandrabhagabai filed the suit for herself and for her minor children claiming she was married to Rajaram after the death of his first wife. This marriage had taken place about 15/20 years ago. The plaintiff did not give any particulars about the year or date of marriage. 11 was submitted that the marriage had taken place in presence and at the hands of priest in a Gandharva From. After the marriage she gave birth to Respondent nos. 2 to 4 who were begotten from the said marriage. Rajaram was serving as a Police Constable, who died in april. 1969. The defendant no. 2 Vasant is the son ot Rajaram begotten from his first wife. Defendant no. 1 Khandu is the uncle of deeeased Rajaram. Rajaram's father Trimbak died long back in the year 1927-28. However, left behind a widow Manjulabai i. e. mother of rajaram. Manjulabai who was original defendant no. 5 had died during the pendency of appeal and her legal representatives are, according to the plaintiffs, defendant no. 2 and all the plaintiffs. According to the plaintiff, she married with Rajaram in a Gandharva form and family was joint family having agricultural land houses etc. at village Sindwad in Taluka dindori and also at Tasgaon in Tal. Dindori. Family also owned movables like agricultural implements, cattle, including bullocks etc. The property belonging to the joint family. After the death of Rajaram, the property was mutated jointly in the name of Defendant no. l and plantiff as well as defendant no. 2. Thus the property continued to be jointly recorded. However, after the death of Rajaram, the defendant nos. 1 and 2 started troubling the plaintiffs by some means or other and did not allow them to reside at Sindwad. The income of the joint family property was also not allowed to be taken by the plaintiffs proportionately to their share. This resulted in plaintiffs not getting any income and therefore, the plaintiff no. 1 took her children and shifted to her father's house at village Dindori in Tal. Niphad. It is also contended that mango trees and Babhul trees belonging to the joint family were sold to third party. When it was learnt that she came to the conclusion that it was against her interest and hence decided to file the suit. The plaintiff has claimed the declaration that the sale deed executed by defendants with regard to the properties in question were not binding on her as the plaintiff had never consented to the same. According to the plaintiffs, they had 4/5 share in the suit properties and therefore, they have filed the suit for partition and separate shares and possession thereof. The defendants contested the suit, inter alia, denying the plaintiffs' claim and submitted that the entire suit property had come to their share after partitions were effected. They also challenged the legal status of plaintiff no. l as legally wedded wife of rajaram and stated that she had no right, title and interest in the suit property. Defendant no. 5 was joined subsequently in the suit, who contended that Rajaram had first married with a woman by name Chandrabhaga and said chandrabhaga died soon after the marriage. Thereafter, Rajaram married another woman, who was named as Chandrabhaga after her marriage. Defendant no. 2 was born to this chandrabhaga. This Chandrabhaga died due to disease of T. B. Thereafter, deceased rajaram never married with anybody and therefore, plaintiff no. 1 claims that she was legally wedded wife of Rajaram was denied and as such suit was sought to be dismissed.