RATANBAI CHENA MALI Vs. BASANTBAI CHENA

JUDGEMENT

(1.) THIS is defendants' second appeal in a suit for declaration and partition with possession. Appellants have lost in both the Courts below.

(2.) BRIEF but necessary facts, as found by the Courts below and which are relevant for this appeal, are as under. Respondent Nos. 1 to 3 herein instituted aforesaid suit on allegation that the appellant No. 1 and respondent No. 1 to 4 are real sisters. They had inherited suit property; agriculture holdings situated in village Nandri, more particularly described in plaint from their father Cheanaji upon his death in the year 1988 and had equal share in the suit property along with their mother Mangibai. Taking advantage of old age of Mangibai, appellant no. 2, who is the husband of appellant No. 1 obtained a sale deed dated 27-11-1990 in his favour behind the back of plaintiff without any consideration. This fact came to their knowledge, when Mangibai died on 20-8-1991 and plaintiffs' asked for the partition of the estate of Cheanaji. Since appellants resisted the demand and claimed exclusive ownership rights by virtue of the sale deed as aforesaid, that compelled plaintiff's to file the suit for declaration that sale deed was not binding upon them and they are entitled to obtain possession upon partition of the suit property in equal l/5th share.

(3.) APPELLANTS resisted claim for partition on the strength of registered sale deed in favour of appellant No. 1 which led to filing suit for declaration that sale deed executed by Mangibai was not binding upon them and they were entitled to obtain possession of their respective l/5th share upon partition. Upon refusal of agriculture holdings more particularly described in the plaint as suit property situated in village Nandri, were ancestral property, wherein they along with appellant No. 1 and respondent No. 4 had equal share along with their mother Late mangibai. In the written statement, appellants denied all material allegations of fact, but admitted that suit property was inherited upon death of Cheanaji who died in the year 1960 and not in the year 1988 as claimed by the plaintiff. Although respondents No. 5 and 6, who are the -son and widow of Balaji, elder brother of cheanaji, herein were not necessary party and no relief was claimed against them, but they were joined as defendants to avoid non-joinder of parties. In their written statement they also denied plaintiffs' claim and set up an altogether different story but no counter-claim was lodged by them. With these pleadings parties went to trial and appellants and respondents No. 1 to 3 only adduced evidence.