NANURAM AIDEN MAHEAND Vs. RADHABAI W/O. KISON

JUDGEMENT

(1.) THIS judgment will also cover Second Appeal No. 80 of 1938. That appeal was filed subsequently, but the hearing was accelerated so that the two appeals should be heard together. In the trial Court the judgments in the two suits out of which these two appeals arise were delivered on the same day and so were the appellate judgments in the lower Appellate Court. The plaintiffs, who are the respondents before me, were the same in each case, but the defendants were different, and the claim in each case was one for joint possession of certain immovable property. One Kisan Shende had two wives, Radhabai and Gopikabai. He had a son by each of them, namely Pundlik and Namdeo and it is the plaintiffs' case that on the 21st May 1924 there was a partition in the family at the instance of the sons, whereby the property was divided into five shares and the sons each took their one-fifth share and enjoyed it separately, and the plaintiffs received each a fifth share in lieu of maintenance and they continued to live with their husband. It is admitted that their shares were not separated by metes and bounds from their husband's share. The husband Kisan died in 1933; and before his death he had disposed of some of the property to the defendants in these two suits. The contention is that in addition to disposing of property which fell within his own separate share, Kisan without authority had disposed also of property included in the widows' shares which since they all three were tenants-in-common, he had no right to do. The suits were accordingly brought for joint possession of the property thus alienated, with the alienees.

(2.) IT is to be noted that in the case out of which Second Appeal No. 674 of 1937 arises there was an application that among others all the subsequent alienees of Kisan should be joined in the suit. The trial Court held this to be unnecessary as the suit was not one for partition, but one for joint possession. The other alienees were made defendants in the other suit, and as the suits were heard together, the object of the defendants was substantially achieved. Indeed so far as the arguments on points of law are concerned, the two trial judgments and the two appellate judgments are largely replicas of each other, and the judgments differ only in considering the evidence advanced on behalf of the respective alienees and their position in view of the pleas raised by them that they were purchasers in good faith, having made due enquiry from an alleged ostensible owner of the property. In the suit out of which Second Appeal No. 80 of 1938 arises, there were originally two defendants. The plaintiffs have succeeded in both the Courts below, and only one of the defendants preferred an appeal, which he lost. He alone has appealed in Second Appeal No. 80 of 1938, and he alone will be considered as there has been no appeal against the decree of the Courts declaring the two widows to be entitled to joint possession in respect of the alienation made by Kisan in favour of the non-appealing defendant Kisan Shrawan. We are thus concerned, in considering the two appeals, with the alienee Govinda Zamuji in Second Appeal No. 80 of 1938 and Nanuram and his nephews in Second Appeal No. 674 of 1937. The alienation in favour of Govinda consists of the sale of a field on 1st March 1927 following a loan borrowed by Kisan Shende on 22nd May 1924, that is to say the day after the partition. The alienation in respect of the defendant Nanuram was a mortgage by Kisan Shende on 8th April 1929 on which the defendants brought a suit and obtained a preliminary and then a final decree, the date of the latter being 7th December 1933.

(3.) IN second appeal the factum of the partition of 1924 is not disputed, but it is contended that the position of the wives as the result of that partition has not been properly appreciated. The subsidiary pleas, which have been correctly characterized in both the Courts below as inconsistent and mutually destructive, in respect of Kisan's alleged position as manager of joint family, as agent for his wives and as ostensible owner, are again taken before me; and although it is comprehensible that the defendants should take as many pleas as possible in defending the suit and resisting the plaintiffs' claim, the learned Counsel for the appellants necessarily finds himself embarrassed by the multiplicity of grounds urged and professes himself unable to say on which of them he really relies. It is clear that they are mutually destructive and inconsistent, as is also the added argument that as the result of partition Kisan was the sole owner of the three-fifths share which remained after each of the sons had taken a one-fifth share. It is not now denied that there was a partition in 1924. That is a finding of fact, and the evidence in the Courts below by which it was attempted to show that there had in fact been no partition, was thoroughly discredited. But as to the position of the plaintiffs-respondents as the result of this partition, two alternatives are set up; firstly, that as the result of the partition the father became the exclusive owner of a three-fifths share and that the wives obtained no share at all in the partition, and, alternatively, that if the wives did obtain a share each, then as a consequence of their continuing to live with their husband, they constituted a joint family with their husband as manager of their property with the consequent powers of alienation such as a manager has.