GULAB FAKIRJI KHODASKAR Vs. VITHAL BAPURAO SHINGARWADE

JUDGEMENT

(1.) THIS appeal has been admitted only on the substantial question of law as contained in Ground No. (3)which is to the effect :

(2.) THE relevant facts are not even in dispute. Fakiraji and Narayan were brothers. Narayan predeceased Fakiraji and janabai was his widow. The dispute is in respect of the suit house described in the plaint with sufficient clarity in para No. 1. Janabai was plaintiff No. 3 in the suit and it was her contention that 1/3rd portion of the suit house was given to her in partition effected between her and her husband s brother Fakiraji in 1938. After coming into force of Hindu Succession Act by virtue of section 14 (1) she had become absolute owner of the said portion of the house in which she was residing since before the partition deed and on 20-5-1965 she had executed the registered gift deed of the same in favour of plaintiffs Nos. 1 and 2. So far as the other property gifted by her to plaintiffs Nos. 1 and 2, there is no dispute between the parties.

(3.) PLAINTIFFS Nos. 1 and 2 got their names recorded in the Municipal record and, therefore, a declaration was sought that the particular resolution of the Municipal council, Warud bearing No. 14 passed in the meeting of 13th august, 1976 be also cancelled. The partition between fakiraji and Janabai-widow of deceased Narayan was by a registered partition deed dated 28th June, 1938. Defendants nos. 2 and 3 are the sons of Fakiraji. They resisted the suit contending that in partition between Fakiraji and janabai the entire plot of land on which the house stands as well as the house were allotted to the share of Fakiraji. Therefore, Janabai had no right to execute gift deed in respect of any portion of the house. Plaintiff No. 3 Janabai had only right of residence in 1/3rd eastern portion of the house during her lifetime. The trial court passed the decree in favour of plaintiffs which has been confirmed by the 1st appellate Court.