VASUDEO GANESH KULKARNI Vs. VISHWANATH SHRIPAD KULKARNI

JUDGEMENT

(1.) The plaintiff's suit for partition has been dismissed, and he comes to this Court in appeal. The Maln ground of the dismissal was that the plaintiff had failed to produce any evidence to explain how it was that in 1924 he relinquished his rights to the property in suit; and a further ground was that, even on the assumption that some of the property claimed in the suit was the self-acquired property of his father, nevertheless the plaintiff would not be entitled to any share in that property, since the circumstances of the relinquishment amounted to a separation of the plaintiff from the rest of the family, and on the authorities a separated son does not stand on the same footing as sons who are joint with their father with reference to their father's self-acquired property. Both these reasons for the decision are contested in this appeal.

(2.) It is beyond dispute that in the year 1924 the plaintiff executed in favour of one of his elder brothers (Vinayak) a deed of settlement, as a result of which he took an allowance in substitution of his right to share in the joint family property. That brother died in 1933; and in 1937 (13 years after the deed of settlement) the plaintiff brought a suit to enforce the deed on the allegation that the allowance was not being paid. This suit resulted in a consent decree in 1938 by which a further adjustment was made. The plaintiff's father Ganesh died in 1940, and the present suit was brought in 1941. Issues were framed covering all the questions in dispute, in particular the question as to the plaintiff being bound by the deed of settlement or by the consent decree in his former suit, and the question of the self-acquisition of some of the property in suit. But certain issues (including the issues as to the plaintiff being bound by the deed of settlement or the consent decree) were treated as preliminary issues; and on the day fixed for the hearing of the preliminary issues the plaintiff came to Court, announced that his senior pleader had failed him, though he had all the important documents in his charge, and asked for an adjournment of the case. The adjournment was refused. Two days later the plaintiff repeated his request and asked that the order rejecting the adjournment be set aside, and that application also was rejected. In the absence of any evidence by the plaintiff to show why he was not bound by his deed of settlement and the compromise, the Court decided in favour of the defendants.

(3.) On behalf of the plaintiff Mr. Desai argues that the learned Judge rejected the plaintiff's application for an adjournment largely because he had that day engaged another pleader to take the place of the pleader who had absented himself, and ignored the plaintiff's allegation in his application that the absent pleader was in possession of important papers. But we do not think that this is a fair description of the situation. We have only to glance at the plaintiff's application to sec how vague it is. It is not supported by any affidavit. It does not say that the plaintiff has been taken by surprise by any sudden defection of his pleader. It does not state what papers were in possession of the pleader, or how he got them, since presumably they were produced with the plaint as documents on which the plaintiff relied; and, in short, he does not give any particulars which would justify the Court in granting his application for an adjournment. There is not even any explanation of his failure to get back these important papers from his pleader, assuming that the pleader ever had them. We cannot criticise the learned Judge for his refusal to grant an adjournment and for his consequent finding in favour of the defendants that the plaintiff could get no share in the joint family property.