CHHOTTALAL ADITRAM TRAVADI Vs. BAI MAHAKORE

JUDGEMENT

(1.) The plaintiff sued to recover possession of certain property, Survey Nos. 535 and 545, and to have a perpetual injunction restraining defendant No. 2 from taking possession of Survey No. 544 and from using the water of the well alleging that his father left two brothers out of whom one Chhaganlal died in 1897 leaving no issue, while the other brother died in union with him, the plaintiff, in 1905, that defendant No. 3 and he were heirs in joint undivided property under Hindu Law, and that defendant No. 1, the widow of Girdharlal, the uncle who died in 1905, had only a right of maintenance, and he sought to set aside a sale which had been made in favour of defendant No. 2 by defendant No. 1, Girdharlal s widow.

(2.) The plaintiff s case, therefore, rested upon an allegation that the property in suit was the property of an undivided Hindu family. Now with regard to Survey No. 535, there is evidence, which both the Courts have found to be conclusive, that Girdharlal was in exclusive possession from some date long prior to 1899, therefore, apparently Girdharlal was in enjoyment of it as his own separate property.

(3.) Then with regard to plots Nos. 545 and 544, there is evidence on the record that arbitration proceedings took place under a reference on the 27th September 1899, the parties being Girdharlal the husband of the first defendant, Amratlal Aditram his nephew on behalf of himself and as guardian of his minor brother Chhotalal, and Ruxmani as guardian of her minor son Manilal. Chhotalal is the present plaintiff. The reference was in these terms:-- "We, the undersigned, pass an agreement in writing that we have appointed Pandya Ramchandra Parjaram of Dakore and Tarwadi Bhogilal Valavram of Thasra arbitrators to settle about the partition, moveable and immoveable property, debts and ontstandings, lands, trees, etc., belonging to our brother and uncle Chhaganlal Sevakram who is dead and of the joint undivided lands." Chhaganlal was the brother of Girdharlal and the uncle of Amratlal and Chhotalal. Upon that reference an award was made from which it appears that Survey No. 445 and two Koss share in the well in Survey No. 544 had belonged to Chhaganlal, and these were assigned to Girdharlal. The first defendant claims title both as widow of Girdharlal and as his devisee under his Will, and the second defendant claims title as assignee from her both as widow and devisee.