BHIWARA Vs. MT. RENUKA

JUDGEMENT

(1.) THE plaintiffs Abhiman and his sons filed a suit for partition and separate possession of their ⅓rd share against the defendants Bajirao, Duryodhan, and his sons. The wives of Bajirao were not joined as parties to the suit originally. The contention of the defendants was that the plaintiffs Abhiman and his sons were entitled only to one-fifth share in the property and not to one-third as claimed by them as the wives of Bajirao were also entitled to one-fifth share each. Bajirao died during the pendency of the suit and his widows were brought on record. The trial Court passed a decree for partition holding that the plaintiffs were entitled to one fifth share in the property and that each of the widows of Bajirao was also entitled to one-fifth share. Against this decision the plaintiffs preferred a first appeal, which is First Appeal No. 5 of 1942. The defendants also preferred an appeal against the decree, and that is First Appeal No. 90 of 1941.

(2.) DURING the pendency of these appeals the plaintiffs applied to the Court that the contending defendants in the case had agreed to give to the plaintiffs one-fifth share of the profits every year during the pendency of the suit and thus avoid the appointment of a receiver, but that the defendants failed to fulfil their promise and that it was therefore necessary that the plaintiffs-appellants should be given their share of the profits as per defendants' promise, failing which a receiver should be appointed for the property in dispute, in which the plaintiffs have admittedly a share and which share was being refused to them.

(3.) AS there were two applications in which the orders were passed, two appeals have been filed under Clause 10, Letters Patent, of this High Court.