GANGADHARRAO GOPALRAO Vs. RAMCHANDRA

JUDGEMENT

(1.) These two appeals arise out of a suit filed by the plaintiff to recover a moiety of the properties described in the plaint at serial Nos. 1 to 30 after a partition by metes and bounds, and also for exclusive possession of the properties described at serial Nos. 31, 32 and 33. The plaintiff also asks for a declaration that he is entitled to the moveable property allotted to the share of the deceased Keshavrao, and that he is entitled to receive the judi amount specified in the plaint.

(2.) The plaintiff Gangadharrao had three brothers, Sheshagirirao, Annarao and Keshavrao, and they formed a joint Hindu family. Sheshagirirao died without leaving a widow or any issue, and thereafter Annarao, Keshavrao and Gangadharrao lived in union. Defendant No. 1 Shreepad is Annarao's son, and defendant No. 5, Rindabai, is Annarao's daughter. Defendants Nos. 2, 3 and 4 are Shreepad's sons. After Annarao's death, defendant No. 1, Keshavrao and the plaintiff lived as members of a joint Hindu family. In 1917 defendant No. 1 Shreepad, who was then a student, executed a general power of attorney in favour of his uncles Keshavrao and Gangadharrao, as they were managing the joint family estate. After he completed his education, defend ant No. 1 gave a notice to his uncles on September 19, 1921, cancelling the power of attorney and demanding his one-third share in the joint family properties. Besides the ancestral joint family property, Keshavrao had inherited three lands, described in serial Nos. 31, 32 and 33 in the plaint, from his wife.

(3.) It appears that, although Shreepad gave a notice to Keshavarao and Gangadharrao, he did not immediately file any suit to obtain possession of his one-third share in the family property. On February 27, 1923, Keshavarao and defendant No. 1, Shreepad, filed suit No. 92 of 1923 against the plaintiff Gangadharrao and his son Dattatraya to recover their two-thirds share in the ancestral joint family property by metes and bounds. Defendant No. 1 claimed therein certain property for himself as jesthamsha (elder's share) on the ground that he belonged to the eldest branch of the family. The suit resulted in a compromise decree on July 15, 1926, whereby Shreepad and Keshavrao were awarded two-thirds share in the joint family property. It appears from the decree that the property claimed by Shreepad for jesthamsha was not given to him. The property was subsequently divided, and defendant No. 1 and Keshavarao were given possession of two-thirds share in the family property. In the compromise application it was stated that the property which Keshavrao had inherited from his wife belonged to him exclusively; but, as that property was not the subject-matter of the suit, this was not embodied in the decree.