GHELABHAI BHIKHABHAI Vs. BAI JAVER

JUDGEMENT

(1.) The suit was brought by the plaintiff, who is the appellant, to recover possession of the property in dispute on the allegation that it belonged to him and his uncle Vithal as members of a joint Hindu family, and that on the death of Vithal he, i. e. the plaintiff, as the surviving coparcener, became exclusively entitled to it.

(2.) The respondent Bai Javer against whom the suit was brought is the daughter of Vithal, and she contested the claim of the plaintiff upon the ground that the property was the separate property of her father, and that she was on his death heir according to Hindu law. The plaintiff challenged the defendant s right to the property as Vithal s heir upon several the principal of which tried in both the Courts be was the ground of res judicata.

(3.) That question of res judicata arose under the circumstances : On the death of Vithal his widow, i.e., the present respondent s mother, brought a suit to recover possession of the property on the allegation that it was the separate property of her husband. That suit was brought against the present appellant, plaintiff in the suit, which has led to the present second appeal. The principal issue in that suit was whether the property was the joint property of Vithal and his brother, the present plaintiff s father, or whether it was his separate property. The Court held upon the evidence that it was the joint property of the two brothers, but that the widow of Vithal was entitled to remain in possession during her lifetime in virtue of her right to maintenance as the widow of a deceased coparcener.