SHAHAJI KISAN ASME Vs. SITARAM KONDI

JUDGEMENT

(1.) Second Appeal is filed by the original plaintiffs being aggrieved by refusal of shares to them in the property of their grandparents.

(2.) Before dealing with the question of law raised in this Appeal, it will be useful to state the facts in brief. Defendant No. 1 - Sitaram had two sons namely, Kisan and defendant No. 2 - Ramchandra. Defendant Nos. 4, 5 and 6 are the daughters of Sitaram. His son Kisan died in 1968, leaving behind his first wife Bhagirathibai, who is defendant No. 7, second wife Vimal, who is plaintiff No. 4 and three sons, who are plaintiff Nos. 1 to 3 and a daughter, who is defendant No. 3. They are children from his second wife Vimal. The plaintiffs i.e. the sons and the second wife of Kisan, filed Regular Civil Suit No. 215 of 1978 seeking partition and separate possession of the joint family property. According to them, defendant No. 2 Ramchandra was given in adoption to one Gangaram Pawar and, therefore, he did not have any right, title or interest in the suit properties which are ancestral and joint family properties in the hands of Sitaram and other members of the joint family. The defendant No. 2, who is the main contesting defendant, denied that he was given in adoption. According to him, said Gangaram Pawar is his maternal grandfather and therefore he could not have been lawfully given in adoption to said Gangaram Pawar. He also contended that some of the suit properties are his self-acquired property and his father Sitaram had bequeathed his share in the remaining property to him under a Will. He also contended that the plaintiff No. 4 was not lawfully wedded wife of Kisan and the plaintiff Nos. 1 to 3 and defendant No. 3 are not the legitimate children of Kisan. Therefore, they cannot claim any share in the ancestral property of the joint family.

(3.) Several issues were framed by the trial Court. After hearing the evidence led by the parties, the trial Court came to conclusion that plaintiff No. 4 Vimal was not lawfully wedded wife of Kishan because his first marriage with defendant No. 7 Bhagirathibai was subsisting when he married plaintiff No. 4. As a result of this, plaintiff No. 4 could not claim any share in the property and the plaintiff Nos. 1 to 3 and defendant No. 3 being the illegitimate children of deceased Sitaram and plaintiff No. 4 Vimal, they can claim share only in the share of deceased Kisan, but not in the joint family property. The trial Court also held that the plaintiffs had failed to prove that defendant No. 2 was given in adoption. The trial Court held that the defendant No. 1 had bequeathed his estate in favour of defendant No. 2 by Will. The claim of defendant No. 2 that some properties were self-acquired was also accepted. The trial Court came to conclusion that in the notional partition of the joint family property, on death of Kisan in 1968, his l/4th share would be inherited by succession by the plaintiff Nos. 1 to 3 and defendant Nos. 3 and 7, his mother Draupadabai. Accordingly, the trial Court granted l/24th share in the property to each of the plaintiff Nos. 1 to 3 and defendant No. 3. Draupadabai, wife of defendant No. 1 and mother of deceased Kisan and defendant No. 2 Ramchandra, died in 1976. However, the trial Court held that the plaintiff Nos. 1 to 3 and defendant No. 3, being the legitimate children of Kisan, cannot get any share in the estate of their grandmother Draupadabai on her death.