YASHODI Vs. CHANDRABHAN

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. This is a second appeal by the defendants. The genealogical tree of the parties is as under: (1) Parwati Chandrabhan Sitaram =(2) Yashodi (Plff. 1) | (Daft. 1) Mahadu Maroti (Plff. 2) (Deft. 2)

(2.) SITARAM died on 24th April 1923, and after his death disputes arose between the parties as regards possession of a field S. No. 4 pot hissa No. 3 of monza Kothadi which was ultimately attached by the criminal Court. The present suit was, therefore, filed by the respondents for a declaration that the said field is theirs and that the appellants have no right over it. The plaintiffs' case was that Sitaram died as a member of a joint family consisting of himself and the plaintiffs, and therefore after Sitaram's death the latter became owners of the field, in dispute by right of survivorship and that the adoption, if any, of the second by the first defendant was invalid because defendant 1 was the junior widow of Sitaram and was not authorized by him to make the adoption. The defence was that Sitaram separated in estate from the plaintiff in 1921, that the field in dispute came to him at the partition, and that the adoption was made and was valid because it was authorized by Sitaram, The trial Court found for the defendants and dismissed the plaintiffs' suit, but on appeal by the plaintiffs the Additional District Judge, Akola, held that the partition set up by the defendants was not established, and that the adoption of defendant 2, though made, was invalid in law as neither the authority of Sitaram nor the consent of the coparceners was proved. The lower appellate Court therefore set aside the trial Court's decree and decreed the plaintiffs' claim with all costs.

(3.) BECAUSE the documentary evidence was not correctly appreciated by the lower appellate Court, it was suggested that its appreciation of the oral evidence was also biased and, therefore, Mr. Bobde took me through the entire oral evidence which bore on the question of partition and argued that it supported the plea of partition. To my mind no Court of justice would consider the type of oral evidence furnished in the present case by the appellants as sufficient to controvert the ordinary presumption of Hindu Law that a family is joint until the contrary is proved. I accept the analysis and criticisms of this evidence given by the lower appellate Court in paras. 6 and of its judgment and concur with it in holding that the partition set up between the plaintiffs and Sitaram has not been established.