KISHORI PADMAKAR MAHAJAN Vs. PADMAKAR NARAYANRAO MAHAJAN

JUDGEMENT

(1.) This appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, the Code) has been filed by the original plaintiff who is aggrieved by the dismissal of the suit filed by her for partition and separate possession. The facts in brief are that the dispute relates to house property bearing No.1172/A. According to the plaintiff she is the grand daughter of one Narayanrao. Said Narayanrao had a brother Madhav. In a partition between Narayanrao and Madhav the suit property fell to the share of Narayanrao. Said Narayanrao expired in the year 1983. He left behind his widow and two sons, Padmakar and Diwakar. In the year 1993-94 the plaintiff's father Padmakar and his brother Diwakar partitioned the suit property and southern portion of the said house was allotted to the plaintiff's father Padmakar. According to the plaintiff her father did not earn much in his professional career. He had taken to various vices and for satisfying the same he sold the house property to defendant Nos.3 and 4. This sale was in absence of any legal necessity and with a view to harass the plaintiff's mother. The suit property was ancestral in nature and the plaintiff as well as defendant Nos.1 and 2 had a right in the same since birth. The alienation was therefore valid only to the extent of 1/3rd share of her father-defendant No.1. The defendant Nos.3 and 4 were not bonafide purchasers and they had no right to the suit property. On that basis the plaintiff on 12/10/1998 filed suit for partition seeking her share in the suit property.

(2.) Written statement was filed by defendant No.1 at Exhibit-71. It was pleaded that the mother of the plaintiff and the defendant No.2 had executed a document conveying their no objection on 26/01/1995 and on the basis of that document the suit property was sold. Other allegations came to be denied. Defendant No.2 who was the son of defendant No.1 supported the claim of the plaintiff by filing written statement at Exhibit-23. The defendant Nos.3 and 4 filed their written statement at Exhibit-44. It was denied that the plaintiff and the defendant Nos.1 and 2 had any right by birth in the suit property. The sale executed by defendant No.1 was to satisfy legal obligations and hence the alienation was justified. In the alternate it was pleaded that the sale was binding on th share of defendant No.1.

(3.) The trial Court after considering the evidence on record held the suit property to be ancestral in nature and that the defendant No.1 had sold the same for the legal necessity of the family. The sale-deed executed in favour of defendant Nos.3 and 4 was held to be valid and the suit was accordingly dismissed. The plaintiff filed an appeal and the appellate Court reversed the finding that the suit property was ancestral in nature. It further held that the plaintiff did not have any right by birth in the suit house. The same was sold for the necessity of the family and hence the appellate Court proceeded to dismiss the appeal.