SHRINIWAS DEORAO Vs. CHANDRABHAGABAI

JUDGEMENT

(1.) THIS is a Letters Patent appeal from a judgment of Mr. Justice Mudholkar dismissing the appeal of the plaintiffs which they had filed from a judgment of the First Additional District Judge, East Berar Division, Amravati, in Civil Appeal No. 23-A of 1946. The said Civil Appeal No. 23-A of 1946 was filed by the plaintiffs from a judgment and decree passed by the learned Additional Civil Judge, Class II, Wun, in Civil Suit No. 1-A of 1945. By the said judgment and decree the learned Judge dismissed the suit of the plaintiffs for possession of certain properties mentioned in schedule A to the plaint and also for possession of certain other properties mentioned in schedules B and C to the plaint.

(2.) NOW, a few facts leading up to the present litigation may be briefly stated, One Deorao had two wives. The names of both the wives happened to be the same. Both were called Chandrabhaga. For convenience, therefore, we shall refer to the first wife of Deorao as Chandrabhaga I and the second wife as Chandrabhaga II. Deorao died on 10th January, 1933. His first wife Chandrabhaga had died on 18th August, 1927. Through his first wife, Deorao had a son, Shriniwas, and this Shriniwas is plaintiff No. 1 in the present litigation. Plaintiffs Nos. 2, 3 and 4 are the sons of Shriniwas. On 28th September, 1929 Deorao married his second wife. This was, as I have just stated above, about two years after the death of his first wife. The plaintiff's case is that the property which is the subject-matter in the suit was the joint family property of Deorao and his son Shriniwas during their life-time. When Shriniwas discovered that his father desired to marry a second wife after the death of his mother who was Deorao's first wife, he did not appreciate the idea. This led to embitterment of feelings between the father and the son and the embitterment led to a severance of status between the father and the son. This, say the plaintiffs, took place in January, 1928. It may be noted at this stage that in January, 1928 Deorao had not yet married his second wife. It is the plaintiffs' contention that although the severance of status between the father and the son took place in the year 1928, the actual division of the property by metes and bounds had not taken place in that year, but had taken place in the year 1930 when the suit property was physically delivered into the possession of Deorao. Certain other properties of equal value were delivered into the possession of Shriniwas. This, according to the plaintiffs' case, took place on 10th March, 1930. As I have mentioned above, Deorao died on 10th January, 1933 and the plaintiffs say that ever since then the suit property has been in possession of Deorao's second wife Chandrabhaga and her daughters, Kamal and Wasanti, who are defendants 2 and 3 respectively in the suit. Deorao's second wife Chandrabhaga is defendant No. 1 in this litigation. The suit is filed within 12 years of the date of Deorao's death and therefore, say the plaintiffs, it is within time. In this suit, the plaintiffs have asked for recovering possession of the properties which are mentioned in the various schedules to the plaint.

(3.) THE suit is resisted by the defendants. Their contention is that what happened on 10th March, 1930 was a family arrangement between Deorao and Shriniwas. It was one of the terms of the document which was drawn up on that date that the property which was allotted to the share of Deorao was to devolve, upon the death of Deorao, on the issues of Deorao born of his second wife. It was to devolve upon these issues as full owners thereof. In case no issues were born to the second wife of Deorao from Deorao, the property which on 10th March, 1930 was allotted to the share of Deorao, was to devolve upon his second wife Chandrabhaga after his death. This was one of the terms of the document dated 10th March, 1930. The next relevant term of the document was that neither Shriniwas nor his issues born in future would assert any right to, or raise any objection in respect of, or claim any right of inheritance to, the property allotted to Deorao. It was provided that the property which was allotted to Deorao and whose possession was delivered over to Deorao on 10th March, 1930 was to be regarded as the self-acquired property of Deorao's second wife Chandrabhaga. These were the important terms of the document which was drawn up on 10th March, 1930. It is a registered document.