MAHADEO GOPAL MONE Vs. RAMESHWAR SADASHIV MONE

JUDGEMENT

(1.) This is a second appeal by the widow of the plaintiff who succeeded substantially in the trial court but lost to some extent in the appellate court. The short facts necessary for the disposal of the appeal are as follows

(2.) One Damodar died in 1918 leaving behind him his widow Laxmibai, two sons Sadashiv and Gopal and 5 daughters Vatsalabai, defendant No. 1, is the widow of Gopal: Sadashiv left two sons Rameshwar defendant No. 2 and Laxman; Laxman died in 1941 leaving behind him his son Sureshchandra, defendant No. 4. Mahadeo is the adopted son of Vatsalabai, defendant No. 1, and he is the present plaintiff. The record shows that Sadashiv separated from his father Damodar on April 21, 1914 and thereafter Damodar and his son Gopal continued in 1918 as stated earlier. As there was no male member in the family, apparently Rameshwar and Laxman succeeded to the property of Damodar as found by the learned Judges below, and Laxmibai and Vatsalabai had only rights of maintenance in the property. Rameshwar and Laxman partitioned the property which they obtained as heirs of Damodar by metes and bounds somewhere about 1937. At this time, in respect of the house. Schedule A, Rameshwar obtained Laxman's share by payment of sum of Rs. 1100/-. Since then, Rameshwar effected improvements in the house, and his case that he did so at a cost of Rs. 7200/-. Vatsalabai, widow of Gopal, adopted the plaintiff, as stated above, on December 21, 1954. Immediately after his adoption, he filed the present suit on September 12, 1955 for recovery of the estate of Damodar in the hands of Rameshwar and defendants 3 and 4 who succeeded Laxman after his death in 1941.

(3.) The suit was resisted by Rameshwar and defendants 3 and 4 on the ground that the property had already passed out of the hands of the widow and as defendants 3 and 4 succeeded the heir Laxman, the sole coparcener on his death in 1941, the plaintiff could not divest them. They also claimed the costs of the improvements. Rameshwar contended that he had improved the property at a cost of Rs. 7200/- and in any event he was entitled to be compensated for the improvements. He further contended that he had purchased half share of Laxman and therefore he was entitled to keep that half share as an alienee of the last surviving coparcener. The learned trial Judge made a decree against these defendants in favour of the plaintiff, decreeing to him the property, i.e. the suit house, Schedule A and the suit lands at Wadghar and Chinchwali and the suit lands Survey Nos. 31 to 38, 42, 45, 51 and 52 at Lakhale as per Schedule C. He directed the property at Mur to be partitioned by the Collector awarding the plaintiff his half share. He also made a decree for mesne profits to be determined later on. Defendant No. 2 Rameshwar only appealed. In the appeal, the learned District Judge held that Rameshwar had purchased half share of Laxman in the house Schedule A at the time of the partition and, therefore, he was in the position of an alienee of that portion of the property and as such entitled to keep the property as against the plaintiff. He further held that Rameshwar had made improvements in the house at his own cost and since the adopted son was entitled to the property as at the date of the death of his grandfather he must reimburse him for the improvements made by him or take the price of the property and leave the property to him. This appeal is now filed by the plaintiff claiming that the decree made by the learned appellate Judge is erroneous.