MAHADEO Vs. GANESHRAM

JUDGEMENT

(1.) 1. It is expedient to set out the following genealogical table explaining the relationship of the parties to the suit for partition giving rise to this appeal. Madhoji (died in 1916) | ----------------- | | Ramji Krishnaji Deft. 1 wife Yashoda deft. 9 | ---------------------------------------------------------- | | | | | | | Mahadeo Daulat Shamrao Balwantrao Nana Gulab Ajab deft. 6 by the died in (Plff. 1) (deft. 2) (deft. 3) (defts. 4 and 5) | 1898(by | (first wife) the first Bhaorao minor | wife (plff. 2) Janrao deft. 8

(2.) THE only subject-matter of this second appeal consists of two fields cos. 1/1 and 13/1, situated in the village Mahimapur in Chandur Taluq. These two fields are in possession of defendant 6, Mahadeo, the step brother of plaintiff 1 and defendants 2, 3, 4 and 5, and they are mortgaged by him to defendant 12, Ganeshram. Defendant 6, Mahadeo, claimed the two fields as his self-acquired property. It seems that some time after the death of the mother of defendant 6, Mahadeo and his real brother Daulat, his grand-father Madhoji executed a will on 7th June 1897, whereby he bequeathed the aforesaid two fields to his two motherless grandsons, Mahadeo and Daalat. The will was attested by both the sons of Madhoji viz., Ramji and Krishnaji. On the death of Madhoji in the year 1916 the fields were mutated in the name of defendant 6, Mahadeo. It was alleged on behalf of defendant 6 whose defence was adopted by defendant 12 his mortgagee that the two fields in question were the self-acquired property of the testator, Madhoji, and that he was competent to dispose of them by will. It was urged in the alternative that even if t he said fields be held to be joint family property, the will was consented to by the then adult members of the family, and was hence binding on the plaintiffs. Defendant 6 also set up adverse possession for the statutory period of twelve years. For the purposes of this appeal it is unnecessary to refer to the pleadings of parties respecting the other properties involved in the suit. The trial Court recorded the following findings in regard to the two fields in question, and passed a preliminary decree on 31st January 1927:

(3.) FROM the decree of the lower appellate Court, two appeals have been preferred in this Court one by defendant 6, Mahadeo, and the other by defendant 12, Ganeshram. The former is numbered 393-B of 1927, and the latter is numbered 33-B of 1928. This judgment will govern the disposal of both these appeals.