WATSALABAI Vs. BABUTAI

JUDGEMENT

(1.) One Wamanrao Ingle was possessed of considerable property, He filed Special Civil Suit No. 6-A of 1958 in the Court of the Civil Judge. Senior Division Amravati. This suit was mainly for a declaration that the respondents Nos. 2 to 5 in their turn filed another suit against Wamanrao and others for partition. They claimed to be the legitimate sons of Wamanrao and claimed that the properties involved in that suit were joint family properties. In the capacity of the sons of Wamanrao they claimed shares in the joint family properties. In their suit their allegation was that there were a number of alienation's made by Wamanrao to various defendants which were not supported by legal necessity. Some of the transactions were also challenged as being not supported by any consideration. These suits were disposed of by the Civil Judge, Senior Division. Amravati by a common judgment . Special Civil suit No. 6-A of 1958 which was filed by Wamanrao was decreed where as Special Civil Judge. Senior Division .Amravati by a common judgment. Special Civil suit No. 6-A of 1958 which was filed by Wamanrao was decreed, where as Special Civil Suit No 11 of 1960 which was filed by the respondents Nos. 2 to 5 came to be dismissed. The common finding in these two suits was the respondents Nos. 2 to 5 were not the legitimate sons of Wamanrao and consequent on this finding it was held in Special Civil Suit No. 6-A of 1958 which was filed by Wamanrao was decreed, whereas Special Civil Suit No 11 of 1960 which was filed by the respondents Nos. 2 to 5 were not the legitimate sons of Wamanrao, and consequent on this finding it was held in Special Civil Suit No. 6-A of 1958 that Wamanrao was entitled to a declaration prayed for by him in that suit. The suit for partition by the respondents Nos. 2 to 5 came to be dismissed as it was found that they had no title to the joint family properties on account of the finding of legitimacy going against them.

(2.) Against these decrees two first appeals were filed in this Court. First Appeal No. 52 of 1962 was filed against the decree in Special Civil Suit No. 6-A of 1958 was directed against the decision in Special Civil suit No. 11 of 1960. These two appeals came up for hearing before a bench of this Court and were disposed of on 23-7-1971. It was found by the Division n Bench of this Court that the respondent Nos. 2 to 5 were the legitimate sons of Wamanrao. on account of this finding, Special Civil Suit No. 6--A of 1958 which was filed by Wamanrao came to be dismissed and the appeal filed in that behalf i.e. First Appeal No. 52 of 1962 was allowed. Consequent upon the finding about legitimacy the Division Bench felt that it was necessary to decide the other issues involved in Special Civil Suit No. 11 of 1960. The Division Bench, therefore, made an order of remand. In that suit, the Division Bench set aside the finding on issues Nos. 5 and 6 which were framed in the trial Court and held that the properties involved in that suit were joint family properties. It also felt that it was necessary to record findings with regard to some of the transactions made in favour of the defendants Nos. 7,8,9,22 and 23 in Special Civil Suit No. 11 of 1960. It, therefore remanded the matter to the trial Court for a decision in respect of those transfers.

(3.) After the matter was remanded to the trial Court the transaction of the defendant No. 22 was not challenged. The learned trial Judge framed two issues and those issues were: "(1) Whether the defendants Nos. 7,8,9 and 23 prove that the transfers were without consideration ?" On account of those two issues there was a further trial in the Court of the Civil Judge. Senior Division. Amravati, and ultimately on 30-4-1973 findings were recorded by him against the defendants Nos. 7,8,9 and 23. These findings were certified to this Court and the Division Bench by its judgment dated 18th/26th September 1974, confirmed those findings, and accordingly passed a decree in consonance with the previous judgment of the High Court and the findings recorded after the remand.