CHOKHU RAOJI MAHAR Vs. TATYA NAMA MAHAR

JUDGEMENT

(1.) THE plaintiffs sued for partition and possession of their halt share in the plaint property. THE learned Assistant Judge reversed the decree of the lower Court in favour of the plaintiffs and dismissed the plaintiffs suit with costs. THE learned Judge said "the only issue in appeal was whether the property was joint property of Nama, Vithoba and Raoji, the ancestor of the plaintiffs". He came to the conclusion that it was not. That, as far as we are concerned, is a finding of fact. But an entirely new point of law has been raised in second appeal, namely, that assuming that the property had been joint and then lost, on account of its being sold for arrears of revenue but afterwards recovered by one of the members of the family, other than Raoji, out of his own means, then the text of the Mitakshara applies, which says that when family property has been lost and then re-acquired by one of the members of the family, that member is entitled to keep a quarter to himself, while the remaining three-quarters must go back into the family. That text and others were discussed in Bajaba v. Trimbak Vishvanath (1909) I. L. R. 34 Bom. 106 : 11 Bom. L. R. 1122. THEre the learned Judges say, "though there is no explicit rule which enables a member of a united family purchasing a portion of the patrimony, formerly sold, out of his separate means, to enjoy it, as in the case of another acquisition, free from Claims to partition by his coparceners, yet neither is any express limit set to such enjoyment, and it would probably now be held that such property stands on the same footing as any other purchased property of his separate estate. A contention to the contrary was abandoned in the case of Gooroo Pershad Roy v. Debee Perahad Tewarte (1866) 6 W.R. 58. THEn the judgment refers to the case of Visalatchi Ammal v. Annasamy Sastry (18(sic)0) M.H.C.R. 150, 157, which said : "THE language both of the texts and the commentaries seems to us at present to indicate that the rule was intended to apply strictly to hereditary property of which the members of the family had been violently or wrongfully dispossessed or adversely kept out of possession for a length of time property unjustly detained which could not be recovered before is the import of the ordinance of Manu, Chapter IX, Sl. 209".

(2.) THIS is not a case of a family being violently or wrongfully dispossessed or adversely kept out of possession of the suit property. What happened was that it was put up for sale by the revenue authorities on account of arrears of revenue and was purchased by one of the members of the family. Therefore, unless it can be shown that it was purchased out of the joint family purse or was thrown back into the joint family property, it became the private property of the purchaser. The judgment of the Court below must be confirmed and the appeal dismissed with costs.