JAMNADAS KASHIDAS Vs. VALLABHDAS KASHIDAS

JUDGEMENT

(1.) The subject matter of this litigation so far as concerns the appeal before us is the house described as "House B." Kashidas and his two sons plaintiff and defendant formed a joint Hindu family and this house was joint family property. In 1913 these three coparceners made a partition with the aid of four arbitrators. Exhibit 17 is the award. It appears from this document that there had been a previous partition and that therefore the joint status of the parties had already terminated. What the arbitrators purported to do was to correct the inequalities of the previous partition. Para 2(a) of this document deals with "House B". It is first stated that Rs. 100 baa to be paid every year to the temple of Balkrishnaji at Surat for certain religious ceremonies. The document then proceeds as follows: For that out of the immoveable properties of Kashidas Bhaidas House No. 1 [here follows the description] has been set apart for being given in Krishnarpan to the said temple so that the right share or claim of house can prevail against the said house. Kashidas Bhaidas may himself carry on the management thereof during his life-time, or cause it to be managed by any one he likes and pay the said Rs. 100 to the temple every year out of the rent of the said house and therefrom the said "Manoratha" shall continue to be celebrated every year. After the death of Kashidas Bhaidas whoever is in management of the said house should give it in Krishnarpan to the said temple, so that the Manoratha may be continued to be celebrated every ye-r as above stated.

(2.) It has been found as a fact by the lower appellate Court that the parties at the time accepted this award and though some argument was addressed to us on this point, and though it appears that at a later stage the parties were inclined to dispute its validity, it must (in my opinion) be taken to be binding upon the parties to this litigation.

(3.) After the award Kashidas handed over the management to the defendant. Kashidas died in 1914 and defendant continued in management, and did not make over the property to the temple. In 1916 a suit was filed on behalf of the temple against defendant requiring him to deliver possession of the house and to execute a conveyance. That suit resulted in a compromise whereby defendant paid Rs. 2,125 to the temple, and retained possession of the house.