TANI Vs. KRISHNAPPA

JUDGEMENT

(1.) JACKSON , A.J.C. 1. This appeal arises from a suit for partition of the Nim Jagir village of mouza Pardi, Tahsil Kelapur. The family to which the appellants belong owns a half share in this village, and the Question I have to decide is whether the appellants are entitled to half of that share.

(2.) THE first appellant Tani is the widow of Kesho, who, with his brother Baghunath and Bighunath's sons, formed a joint family owning the whole half share. Kesho diedt according to the finding of the lower Court, in a state of jointness, without issue, but after the institution of the suit out of which this appeal arises, Tani adopted: to him the second appellant, Wasanta. The lower Court has held that this adoption is invalid.

(3.) IT was decided in a case before the Munsif, Kelapur, that Kesho did separate from the rest of the family; but the judgment in that case, Ex. 6 D 3, does not operate as res judicata. The fact that Tani's name has been entered in the revenue records in place of Kesheo's does not prove partition, and I agree with the lower Court's view of the statement made by Shivappa then a youth of 18, in the proceedings relating to mutation of names after Kesho's death. Great reliance is, however, placed on the application, of which 6 D 3 is a copy, made by Kesho's mother on 9th April 1918, in which she asks to have a 4-anna share of mouza Pardi and an 8-anna share of mouza Palsi, which belonged entirely to the family, entered in the name of her son Kesho, who was then a minor. This application is not an unequivocal declaration of an intention to separate from the rest of the family. It makes no mention of the alleged separation in 1917, and its object is clearly to have it recorded that Kesho is entitled to a 4-anna share and not to an equal share with each of his nephews, Righunath's sons. It does not prove that partition had already taken place, nor does it operate to effect partition.