DULICHAND Vs. NANDIBAI

JUDGEMENT

(1.) This appeal arises out of a suit for partition filed by Plaintiff Dulichand against his brother's widow Nandibai.

(2.) The Plaintiff alleged that Kanaji was his grandfather. Kanaji had two sons Hira and Dayaram. Hira was the first to die leaving behind him his widow Kashibai. Dayaram had two sons Rupchand and Plaintiff Dulichand. After Hira's death the land which had been recorded in the name of Hiraji and Dayaram was recorded in the name of Hira's widow Kashibai in Hira's place. Subsequently sometime in 1937 38 Dayaram died. In place of Dayaram the names of his two sons Dulichand and Rupchand were recorded. Kashibai's name cotinued as before. Rupchand then died an year or two subsequent to the death of Dayaram leaving Nandibai as his heir. Nandibai's name was recorded in his place. Kashibai then died some time in February or March 1955. She left movable property worth Rs. 585/- and agricultural land and house. The Plaintiff claimed the entire property as her reversioner. In spite of this, it is said, the Defendant Nandibai sought her name to be mutated in place of deceased over the land standing in her name. The Revenue Court directed the names of both the Plaintiff and the Defendant to be mutated and it was held that each of them was entitled to half share. According to Plaintiff be was in possession of land measuring 89 Bighas and 5 \Biswas and the rest was in the possession of the Defendant. According to him he is entitled to Annas -/12/-in a rupee while the Defendant was entitled to Annas -/4/- only since the land and the house were in existence from the time of Kanaji. He therefore prayed for partition and separate possession of 3/4th share of the property.

(3.) The Defendant in her written statement contended that her husband was adopted by Hiraji. She denied that the land and the house was the ancestral property existing from the time of Kanaji. She denied knowledge about the dates of death of Hiraji and Dayaram. It was asserted that on the death of Hiraji the names of Kashibai and Rupchand were mutated. In Samvat Year 1995 Rupchand gave away half share from his land to Dulichand and Dayaram and on that occasion there had been it is said, a writing between Rupchand on the one hand and Dayaram and Dulichand on the other in which Dayaram had admitted Rupchand as the adopted son of Hiraji. The Plaintiff got possession of some property in pursuance of this family arrangement and the remaining property is in the possession of the Defendant. The parties as also Kashibai had become separate even from the days of Rupchand and Dayaram but the patta was joint. The Defendant and Kashibai tried to secure separate and exclusive pattas but as the Revenue Court had limited power of mutation they filed a suit for partition against the Plaintiff. This suit was decided against the Plaintiff. The property alleged by the Plaintiff to belong to deceased Kashibai in fact was hers. She also contended that in pursuance of partition arrangement of Samvat Year 1995 she was in exclusive possession of the property and there could not be any partition a second time. She pleaded res judicata limitation, estoppel and alto raised the question of court fees.