PUNJABRAO DEORAO Vs. SHESHRAO

JUDGEMENT

(1.) THIS is a plaintiff's appeal. It arises out of a suit for partition of immovable property mentioned in schedule 1 and movable property mentioned in schedule 2 of the plaint. In appeal the claim relating to all the items of the movable property mentioned in schedule 2 is not pressed but it is restricted to those items which are admitted by the defendants 1 and 2 in their written statement. Immovable property mentioned in schedule 1 of the plaint consists of 800 acres and 34 gunthas of agricultural land situate at villages Gonapur, Dapura, Navkhed, Mailapur and Waki, taluq and district Akola, a house and gaiwada in village Gonapur, and an open site in village Waki. The claim of the plaintiff is founded on an alleged adoption by Kausalyabai on 16-9-1947. Following facts are not in dispute in appeal. The genealogical tree of the parties is as follows: kadtaji (died)Zabuji (d. 1923)/baburao (deft. 1)/deorao (d. 9-7-35)=kausalyabai Sheshrao (d. 6-5-1949) (d. 1945)/ rambhau (deft. 2)/ramesh (deft. 5)/punjabrao (Plff.) (Alleged to be adopted) (deft. 3)/vishwasrao Nilkanth (deft. 4 ). Interest of defendants 3 and 4 is looked after by their guardian-ad-litem maternal grandfather Atmaram and the interest of defendant 5 is looked after by his guardian-ad-litem Baburao (deft. 1 ). Baburao also died during the pendency of this appeal and is now represented by his legal representatives respondents 6 to 11, besides those who were already on record.

(2.) AFTER the death of Deorao, Kausalya had made applications that her name be mutated in place of her deceased husband Beorao. Her aforesaid claim was contested by Baburao, defendant No. 1 and ultimately a compromise was arrived at between them on 14-4-1936 and was reduced to writing in the form of a deed of maintenance (ex. 1-D-7) executed by Banurao in favour of Kausalya whereunder he agreed to give her a sum of Rs. 450/- per year; ill case of default the deed further creates a charge over certain property mentioned in the deed, a kararnama was also executed by Kausalya in favour of Baburao on the same day (Ex. 1-D-21 ). Material part of this kararnama for the purposes of this appeal is that thereunder Kausalya agreed not to adopt without the permission of Baburao. Kausalya then left the village Gonapur where the family was staying and went to stay with he father and mother at Sindi, then went to her maternal uncle's place at Neri but after 4 or 5 years' stay there again returned to Sindi, stayed for a little while in the house of one Bhaurao, a cousin of the plaintiff, stayed with him for a year or so and then purchased a house for herself and stayed in that house separately till her death. For a certain length of time her mother Anusuya (1-5 D. W. 7) stayed with her. The plaintiff is a resident of village Sindi and is staying there with his mother Sarja and his brothers. His name in the natural family was Shanka and his father's name was Zinguji. At the material time the plaintiff's father was not alive but his mother Sarja was alive.

(3.) ON 15-9-1947 an agreement was executed by the plaintiff as Shankar son of Zinguji in favour of Kausalya whereunder he agreed to the terms proposed by Kausalya that in the event he was adopted by her he will lay claim only to 1/3rd of the property, that 2/3rd property would belong exclusively to Kausalya and she shall be at liberty to dispose it of in any manner she liked. This deed was presented by Kausalya for registration at Anjangaon in the Sub-Registrar's officer on 27-9-1947. It appears that it was not properly stamped and therefore it was impounded on that day and thereafter on realisation of stamp duty and penalty it was validated on 25-8-1948 and was then registered on 15-9-1948 (Exhibit A-1 ).