(1.) This is a Second Appeal at the instance of defendant against whom decree was passed by the first appellate Court for declaration and possession. The parties hereinafter shall be referred to as plaintiff and defendant.
(2.) The facts giving rise to the appeal are as follows: Plaintiff and defendant are real brothers. The suit property was their ancestral property. The property came in the hands of their father Dattatraya. Thereafter Dattatraya died in the year 1947 leaving behind him three sons i.e. plaintiff, defendant and one Awadhut and widow Parvatibai. He also left behind him large property. There was a partition between the plaintiff, defendant their mother Parvatibai and brother in the year 1966. Each of the parties was given a separate share. Some property was allotted to Parvatibai the mother. It was agreed between the parties that upon death of Parvatibai the property held by her would go to the plaintiff and his two brothers. It is contended that after this partition there was yet another partition which came to be effected on 26.05.1968. According to this partition the property which fell to the share of Parvatibai was to revert back to plaintiff alone after her death. This had happened only because of the fact that plaintiff had surrendered his share in the house. The plaintiff's mother died on 16.09.1986. The plaintiff, therefore, asked the defendant to deliver back the possession of the suit property to the plaintiff. The defendant refused, hence this suit for possession of the property described in the suit.
(3.) Defendant resisted the suit by filing Written Statement. He does not dispute that the suit property belonged to the joint family. He also does not dispute that there was a partition in the year 1966 and after 1966 there was a re-partition of the entire property of the family. He also does not dispute that the suit property was allotted to the share of Parvatibai. It is the contention of the defendant that Parvatibai was exclusive owner of the suit property and she had therefore every right to dispose of the property according to her wishes. There could be no restriction on her right to dispose of the property by virtue of provisions contained in Section 14 of the Hindu Succession Act. Further the defendant contended in para 9 of the Written Statement that Parvatibai had expressed her will at the time of execution of the said partition deed. The defendant submits that since that was the will she had every right to revoke the same and cancel the same. It is his contention that Parvatibai had executed a gift deed in his favour and as such under the said gift deed he has become the exclusive owner of the suit property. Thus defendant submits that plaintiff is not entitled to possession of the suit property.