GANGARAM BALKRISHNA SAWANT Vs. VASUDEO DATTATRAYA KIRLOSKAR

JUDGEMENT

(1.) The plaintiff filed this suit for partition of property alleged to be joint family property, claiming one-tenth share therein. The property originally no doubt was the joint family property of the Kirloskars. The pedigree of the family appears at p. 23 of the print. It shows that several generations back the family had been split up into two branches, and undoubtedly, for years, various members of each branch have been alienating portions of the family property as if they were separately owned. Apparently the allegation of the defendants who contest the plaintiff's suit is that there was a partition of the family property so far back as 1823. The evidence shows that the whole of the family property has got into the hands of strangers. The plaintiff seeks to set aside the alienations made by various members of the family, and to get back one-tenth of what was originally the family property on the ground that the property is still joint, and that he is entitled, in spite of those alienations, to his proper share therein. The first issue, the main issue in the suit, was whether the plaint property was the joint property of the parties, Kirloskars. That issue was found in the negative. Both the lower Courts have come to the conclusion that very many years ago there had been a partition certainly between the two branches, and the plaintiff's branch had nothing to do with the other branch. The plaintiff , however, relies upon the principle of res judicata, as estopping the defendants from contesting his claim to partition.

(2.) The plaintiff's contention has been disallowed in both the lower Courts, and has been fully argued by the appellant's counsel in this Court. The plaintiff relies upon the proceedings in Suit No. 345 of 1890. That was a suit filed by Sakharam, one of the five sharers of Rama's branch in the pedigree at p. 23. The plaint is drawn in a very ambiguous manner. It stated that "certain lands and the whole village of Kirloo formed the undivided joint ancestral property of the plaintiff and defendants 1-4 and 10-21, the share of the plaintiff and defendants 1-4 being half and that of defendants 2-21 half, that these latter held separate property as their share from a long time, the plaintiff's share in his own branch is one-fifth and not the whole property one-tenth, that if defendants 10-21 confirm the old private partition the plaintiff should be awarded one-fifth of such property as is held by his own branch or otherwise one-tenth in the entire property." Owing to various alienations whioh had already been then made, the only contesting defendant in that it was defendant No. 5 who set up a mortgage by other members of Sakharam's branch. Sakharam contended that that mortgag was not binding on his share. That contention prevailed. It is quite true that the decree seemed to have directed that the plaintiff was entitled to one-tenth of the whole property, but a direction in the decree is given that if the plaintiff's share in the Khasgi lands held by his own branch consisting of himself and his own brothers can be made up from other lands held by that branch of similar quality then in that case the lands mortgaged to defendant No. 5 should in partition be allotted to the shares of defendants Nos. 1-4 and continued in the possession of defendant No. 5.

(3.) There is no evidence to show how that decree was carried out or whether in execution the plaintiff obtained any properties that were in the possession of members of the other branch or their alienees.