PURSHOTTAM WAMAN GABALE Vs. SHRIPAD RAMCHANDRA PARGAONKAR

JUDGEMENT

(1.) These two appeals, one by defendants Nos. 1 to 4 and the other by defendant No. 5, arise out of a suit brought by the original plaintiff Bhimabai (who died during the tendency of these appeals and whose two sons have been brought on record as her heirs) to recover possession of two house properties situate in the city of Kolhapur. One of these bears City Survey No. 18/1-2 and the other bears City Survey Nos. 131/1 to 3. In City Survey No. 18/1-2 Bhimabai claimed one-half share. In regard to City Survey No. 131/1 to 3, she claimed possession of the entire house. City Survey No. 18/1-2 is the property involved in First Appeal No. 450 of 1968 where the appellant is defendant No. 5. City Survey No. 18/1-2 is an possession of defendants Nos. 1 to 4. city Survey No. 131/1 to 3 is not in actual physical possession of defendant No. 5. A portion of it is in possession of defendants Nos. 6 to 9, who are brothers, as tenants. Another portion of the house is in possession of defendants Nos. 10 to 12, who are also brothers, as tenants. The third portion comprising a room near the entrance door is in possession of defendant No. 13. Defendant No. 5 claims to be in possession of these three portions of City Survey Nos. 131/1 to 3 symbolically as the owner through his tenants or sub-tenants. One more relief was claimed by Bhimabai in the suit, namely, rent in respect of a land situate at Bachani. Defendant No. 14 was concerned with this relief. Bhimabai, however, gave up that claim so far as the present suit was concerned and nothing, therefore, need be said so far as defendant No. 14 is concerned.

(2.) In order to understand the relationship between Bhimabai and defendants Nos. 1 to 5, the following genealogy is relevant:- (See Genealogy Table on Next Page) Vishnu was the common ancestor. He had two wives, Sita and Rama. From Sita he had three sons and two daughters: Rangopant, Waman and Shankar as sons and Bhimabai and Ganga as daughters. Ganga died long ago. Thereafter, Shankar died in 1920. Waman died in 1947. Rangopant died in 1949. Defendants Nos. 1 to 4 are the sons of Waman. Defendant No. 5 Rajaram is the son of Rangopant. Parvati was the wife of Shankar and she died on 16th August 1958. The plaintiff is the sister of Shankar. Amongst the children of Vishnu from Rama, Savitri and Kamala died long ago. Vasudeo died in 1944. Pandurang was alive when Parvati died on 16th August 1958 and he was also alive till the filing of the suit.

(3.) During the lifetime of Vishnu, the family was joint and owned extensive moveable and immovable properties. In 1903, after the death of Vishnu, the five sons, Rangopant, Waman, Shankar, Vasudeo and Pandurang, effected a partition of the joint family properties. Shankar was a minor at that time and he was represented in the partition by his elder brother Waman. It appears that some disputes had arisen among the brothers and, therefore, one Antaji Narayan Moghe was appointed an arbitrator to partition the properties. He brought about the partition and gave separate awards, one each in favour of each of the five brothers. The awards were filed in Court and decrees were passed under which each of the five brothers got the property of his share in the partition.