BAPUJI NARSO KULKARNI Vs. DATTA ANTAJI KULKARNI

JUDGEMENT

(1.) The plaintiff sued to recover possession as owner of the suit lands from the defendants. The lands originally belonged to one Bhimaji, who was the only brother of the first defendant Dattu. He was adopted into the other branch of the family, whose pedigree appears at p. 4 of the print, by Appaji. He died in 1905 leaving a son Baburao, who admittedly at that time was a lunatic. Bhimaji, before his death, executed a malkipatra in favour of the first defendant, and I gather from the record that Bhimaji, who must have been aware of his son's lunacy, executed the document in favour of the first defendant on the understanding that he should undertake to look after Baburao.

(2.) In 1906, plaintiff filed a suit in the Athni Court against Dattu, claiming as the person entitled to succeed to the property of Bhimaji after the death of Baburao, who he alleged had recently become a lunatic, to obtain a declaration that the malkipatra alleged to have been executed by Bhimaji in favour of defendant No. 1 on July 10, 1905 was a forgery. The defendant contended that the plaintiff could not maintain the suit as he was not the heir of Bhimaji. The first issue was-Is the plaintiff entitled to maintain the suit? Now, as in the plaint it was alleged that Baburao was the son of Bhimaji, he would be the only heir under Hindu law, and it was not alleged by the plaintiff that Baburao was incapable of succeeding on account of insanity. It is obvious, therefore, on the face of the plaint, that the plaintiff could not possibly succeed, as he had no interest whatever in the property, except as a possible reversioner after Baburao died without leaving an heir. The defendant in his written statement pleaded that according to law the plaintiff J could never become the nearest heir of the deceased Bhimaji under Hindu religion and Shastras. He could not become the nearer heir than the defendant himself. In paragraph 7 he pleaded that the plaintiffs suit could not go on unless plaintiff's brother Ramkrishna Narso, and deceased Bhimaji's son Baburao and daughter's sons Bhimaji alias Sarjerao and Balaji Datto Kulkarni were made parties. That was perfectly correct as an answer to the plaintiff's suit, because, according to the plaintiff himself, Baburao would certainly be concerned in disputing the document set up by the defendant.

(3.) Baburao died in 1917, and plaintiff! brought this suit on April 10, 1918. His main point was that Baburao, unless he was a congenital idiot, was not debarred from succession on the death of Bhimaji, and, therefore, Baburao succeeded to Bhimaji's property, and succession opened only on Baburao's death.