SHANKAR ANANDRAO KHATAKE Vs. LAXMIBAI DAJI KHATAKE

JUDGEMENT

(1.) The question in this appeal is whether, as held by the lower Court, the plaintiff-respondent, Lakshmibai, widow of Daji, is entitled to recover possession, with mesne profits of the lands in suit.

(2.) It is common ground that it has been the custom of the family for these lands to go with the patilki watan which is again to go to the eldest member of the family (i.e., vadil). The common ancestor Babaji had three sons : Daji, husband of Plaintiff-Respondent No. 1; Vithu, father of Defendant No. 1; and Eamchandra grandfather of Defendant No. 3, appellant. Daji was the officiating patiwatandar and admittedly had possession and was in enjoyment of the lands until February 28, 1886. Upon his death the Plaintiff-Respondent No. 1, with the consent of the representatives of the other two branches, was, as the widow of the last male holder, appointed as the representative Watandar Patil by Government under Section 2 of Bombay Act V of 1886. The plaintiff's case is that she took over possession of the lands in suit but, having to discharge the duties of a patil, appointed as deputies first Ramchandra and then the father of Defendant No. 3 to manage the lands for her and that in 1916 the defendants sought to assert their own rights.

(3.) The appellant resisted the claim on two grounds : firstly, the plaintiff- respondent No. 1 being a woman could not take advantage of the custom of the family which applied solely to males; and secondly, the appellant had been in adverse possession of the lands in suit for over the statutory period. Reliance was placed on the case of Raja Rup Singh V/s. Rani Baisni [1885] 7 All. 1 and it was argued that it was for the plaintiff-respondent to prove that she came within the custom although a woman, and not for the Defendant No. 3, appellant, to prove that she was outside it.