SANTOSHCHANDRA Vs. GYANSUNDARBAI

JUDGEMENT

(1.) THIS case had been referred for opinion to this Full Bench on the assumption that there appears to be a conflict of views between the Special Bench case of baldeo Singh v. Gopal Singh, 1967 MPLJ 242 = (AIR 1967 Madh Pra 221) (SB) on the one hand and the other earlier Division Bench cases, namely, Dattaji parashramji Patil v. Mst. Bhagirathi, ILR (1939) Nag 373 = (AIR 1938 Nag 183), ratansingh v. Raghuraisingh, ILR (1945) Nag 975 = (AIR 1946 Nag 30), Dipchand balchand v. State of M. P. , 1957 MPLJ 46, Badrilal Bholaram v. State of M. P. 1963 mplj 717 = (AIR 1964 Madh Pra 9) and Komalata Dutta v. Ishwar Industries Ltd. , 1964 MPLJ 553 = (AIR 1966 Madh Pra 169 ). At the outset we may observe that there is no such conflict of views and the Special Bench case of 1967 MPLJ 242 = (AIR 1967 Madh Pra 221) (SB) (supra) is distinguishable on facts. However, we propose to answer the question of court-fees that arises for consideration in the present case.

(2.) THE Division Bench has not framed any question on which our opinion is sought. We would frame the question later. The necessary facts in order to appreciate the question are as follows: One Jethmal, who owned the suit property which was his exclusive and self-acquired property, died on 3-3-1947 leaving behind his widow -Mst. Jhannobai, who herself having been one of the defendants, died during the pendency of the suit. Jethmal had adopted Tekchand alias Chandmal as a son during his lifetime. In addition Jethmal left behind a daughter, by name, Smt. Gyansundarbai. Tekchand's wife, Mst. Tarabai, was also impleaded as a party. These three persons are defendant-respondents, Smt. Gyansundarbai having been impleaded in place of her mother, Mst. Jhannobai. During Jethmal's lifetime he had made a family arrangement whereby an amount of Rs. 12,000/- was paid to her and the rest of the property was given to Tekchand and the three sons of tekchand, who are defendant No. 2 and plaintiff-appellants.

(3.) THE further facts are that as there were disputes between the adopted son, tekchand and the adoptive mother, Mst. Jhannobai, she filed Civil Suit No. 34-A of 1959 for partition and separate possession of her share despite the fact that jethmal during his lifetime had made a family arrangement. A preliminary decree was passed in her favour on 27-3-1962 and subsequently it was made final on 1911-1962. It is not disputed that the said decree has been executed fully and Smt. Jhannobai and Tekchand have been placed in possession of their respective shares.