ACHUT SITARAM PATWARDHAN Vs. SHIVAJIRAO KRISHNARAO GAIKWAD

JUDGEMENT

(1.) THIS suit is concerned with the estate of a wealthy family in Poona called Gaikwad family. The common ancestor of the family was one Limbaji. He settled at Indore and enjoyed the favour of the ruler. He as well as other members of the family were employed in the State in various capacities and received from the ruler large gifts in the shape of jewels, cash and other property as a mark of their personal favour. The family thus amassed a large fortune, which they invested in the purchase of immovable property at Poona and Satara Districts. Limbaji died in 1892. About 1897 or 1898, the family seems to have incurred the displeasure of the ruler, in consequence of which their property at Indore was confiscated, and they had to leave the State. The family then came and settled in Poona. Limbaji had three sons,Gangaram, Gopal and Balwant. Of these, Gopal was the manager of the family. Gopal died in 1906, leaving a widow Laxmibai and a minor son Krishnarao. Gangaram had a son called Yadav; and Balwant, who died in 1893, left him surviving a son named Baburao. After the death of Gopal, his widow obtained a certificate of guardianship under Act VIII Ag. of 1890. No notices were issued to the other members of the family, nor was the whole of the family property disclosed in those proceedings. Thereafter, in 1907, she purchased in the name of her minor son Krishnarao aneight-anna share from one Rajguru family in two inam villages of the name of Chandori and Atit situate in the districts of Poona and Satara respectively. She died in 1910. On her death Krishnarao, who had just attained majority, took charge of the entire property and began to manage it. THIS led to disputes between the members of the family, as a result of which in 1911, Baburao filed a suit for partition, being suit No. 733 of 1911, against Krishnarao in the Bombay High Court. Neither Gangaram nor Yadav were joined in this suit on the allegation that in 1908 Gangaram had passed a release in favour of the other coparceners and had gone out of the family, and that in the family property Baburao and Krishnarao had an equal half share. In September, 1911, the High Court returned the plaint for want of jurisdiction. On October 11, 1911, Baburao instituted another suit for partition, being suit No. 410 of 1911, against Krishnarao in the District Court, Poona. On or about October 7, 1911, Baburao mortgaged his share in the joint family estate to one Bolton for Rs. 40,000. Krishnarao, who by that time had commenced to squander the moveable property, began to alienate immoveable property in his possession, and on August 26, 1912, he sold the two villages, or his right, title and interest in them, for one Patwardhan, the father of the defendant-appellant. On September 24, 1912, Gangaram and Yadav brought a suit for partition, being suit No. 359 of 1912, against Krishnarao and Baburao in the District Court at Poona. On March 14, 1913, Baburao sold a fraction of his share in the joint family estate to one Gazdar, and sold another fraction of his share to one Bahadurji on May 1, 1913. There was an order for further particulars as to the property in suit No. 359, and the plaint was accordingly amended. It is not necessary to refer to this order. In 1914 Bolton brought a suit on his mortgage against Baburao; and, on February 24, 1915, he as well as Gazdar and Bahadurji were added on their application as party-defendants to suit No. 359 as defendants Nos. 3, 4 and 5 respectively. Gangaram compromised his claim with Krishnarao in suit No. 359, as the result of which he obtained an inam village and informed the Court that he did not wish to proceed with the suit. Thereupon, the Court held that that suit had abated in spite of the opposition of defendants Nos. 2 to 5 and struck it out of the file in 1916. Defendants Nos. 2 to 5 appealed against that order successfully; and in 1919, the order of abatement was set aside, and it was held by this Court that the suit must proceed as regards the rights and claims of defendants Nos. 2 to 5 for partition. Thereafter the suit was restored to the file in the Poona Court. It appears that Baburao died in June, 1913, and his widow Sonubai was brought on record in his place. Krishnarao also died pending suit No. 359, and his minor son Shivajirao was made a party in his place represented by his mother as guardian in the first instance, and after her death by his maternal uncle Umedsing. It appears that after the institution of suit No. 359 Gangaram had applied for the appointment of a receiver for the entire joint family property. The application was opposed by Krishnarao and was rejected by the Court. When Bolton was joined as a party defendant, he renewed the application which met with the same fate, but in appeal from that order Bolton himself was appointed receiver of the entire joint family property on proper security being taken from him. In 1917 Bolton obtained a decree on his mortgage in his suit. Suit No. 359 was then brought to a trial. Apparently nobody seems to have thought of the earlier suit, No. 410, at the time. It is possible, as the learned Judge points out, that as all the persons who were interested in the family property were parties to the second suit, No. 359 of 1912, it was not considered necessary to proceed with the earlier suit, No. 410 of 1911. The fact remains, however, that no order consolidating the two suits was at any time made. Suit No. 359 was decided on April 19, 1920, and a decree made. It was held that all the properties in the suit including properties now in dispute were joint, that the members of the family who were parties to the suit were members of a joint Hindu family, and each branch had a one-third share in it, and it was directed that defendants Nos. 3, 4 and 5 should be at liberty to realize their claims in respect of the alienations made in their favour by Baburao out of the one-third share allotted to Baburao or his branch. Krishnarao's son Shivajirao was declared to be the owner of one-third share. There was an appeal from this decree to this Court, and the decree of the lower Court was confirmed in January, 1923. It appears that all this time Yadav, the son of Gangaram, had remained idle, and in 1923 he brought another suit, being suit No. 734 of 1923, for a declaration that he was not bound by the compromise made by his father and for the ascertainment of his share in the joint family estate and recovery thereof by partition. He succeeded in getting a decree, which declared that he was entitled to one-twelfth share. After the decree in suit No. 359 was confirmed by the High Court, on the application of Sonubai, the widow of Baburao, suit No. 410 was taken up; and it appears that the Judge mainly relied on the decree made in suit No. 359 and awarded one-third share in the joint family estate on April 18, 1923, in her favour. In 1924, Bolton brought the present suit against Patwardhan, and it is from the decree in that suit that the present appeal is made. The object of the suit was to set aside the sale by Krishnarao in favour of the defendant's father and to recover possession of the property sold to him.

(2.) IT would be convenient to refer to the pleadings here in view of the contentions taken in the appeal.

(3.) TO the application for amendment the defendant put in a reply, in which he denied the facts alleged in the application and contended that the plaintiff was not entitled to bring the present suit under Section 52, and there was no Its pendens. He denied that the plaintiff was appointed receiver in suit No. 359 and pleaded that the decree in suit No. 410 was contrary to Section 11 of the Civil Procedure Code. He further pleaded that the plaintiff was not a party to suit No. 410. The fact remains, however, that the defendant did not specifically object to the proposed amendment but only pleaded to the facts mentioned therein, and, when the application was heard, the defendant, as the order made on the plaintiff's application shows, did not object to the amendment, which was allowed by the learned Judge in March, 1926.