TMI Blog1989 (2) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged to be self-acquired properties of the plaintiff. 3. The main defence in the suit has been based on an alleged partition in the family in the year 1914. Admittedly a suit was filed in 1947 by the present defendants No. 1 to 4 against the present plaintiff, wherein title to certain lands was in dispute. The suit was numbered as Special Suit No. 36 of 1947 and the case of the plaintiffs in that suit (that is, the present defendants No. 1 to 4) is set out in the decree, Ext. 86 (at page 289 of the paper book). It was placated that Shankarrao had been given in adoption to a stranger in 1907 and he, therefore, resided at Gwalior to manage the properties of his adoptive father since then. Soon before the filing of the suit in 1947, it is further stated, Shankarrao came and duped Ganpatrao, his elder brother, in signing certain documents on the basis of which he had been claiming the lands which were the subject-matter of that suit. In the alternative there was a prayer for partition and possession of 2/3 share in the properties. Shankarrao, who was the first defendant in that suit, filed his written statement, Ext. 106, denying the alleged adoption and further stating that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case establishes the plaintiff's case. 6. We have been taken through the judgment Ext. 74 and we are in complete agreement with the High Court that no finding on the question of alleged partition was recorded therein so as to be binding on the parties in the present case. The relevant portion from the judgment Ext. 74 has been quoted in paragraph 8 of the impugned judgment, and it is clear therefrom that the conclusion of the High Court is correct. The High Court in Ext. 74 had observed that, ...it is impossible merely on the strength of the yadi standing as it is, to come to any conclusion in regard to a partition having taken place between these two branches of the family. The High Court had thereafter proceeded to point out the other infirmities in the case of the plaintiffs in that suit (present defendants) leading to the dismissal of the suit. As has been rightly pointed out in the impugned judgment, the earlier suit had been filed for certain items of property which were the subject-matter of a deed executed by Ganpatrao in favour of Shankarrao, and the suit was not concerned with other properties. The claim of 2/3 share in the alternative was made in that suit no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Lonikand, Taluka Haveli District Poona and a house, which is still joint and undivided. The proceedings of suit should not be continued, till this property is included in suit for purpose of partition. That defendant No. 1 will produce extracts of record of rights of this property at the next date of hearing. We are unable to agree with the learned counsel. The unambiguous and express statement in paragraph 4 of Ext. 106 about a partition having taken place in the family in 1914 is not Contradicted by the statement in paragraph 11. In paragraph 11 Shankarrao was merely trying to say that some lands belonging to the family were not partitioned by metes and bonds in 1914 and this plea was consistent with his unequivocal assertion about 1914 partition we cannot, score. 9. On behalf of the appellant it was next urged that while Shankarrao has changed his stand in the present case from that which he took in 1947 suit, the present respondents who were plaintiffs in that suit are also guilty of a similar change in their stand, and the admission of the appellant must be considered to have been neutralised by the admission of the other side. This argument also does not appear to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atrao by postal money order and sometimes he also paid in cash and the amounts were utilised by Ganpatrao for the joint family. Thus certain lands purchased by Ganpatrao in the names of his relations actually belong to joint family and are liable to be partitioned. Sometimes Ganpatrao utilised the amounts sent by the plaintiff in purchasing fodder for the cattle and in constructing or repairing the family house. The money order receipts do show that money was sent by Shankarrao to his brother. Ext. 119 is dated 10.7.1912, Ext. 118 4.3.1915, Ext. 117 17.12.1915, Ext. 116 26.12.1919, Ext. 115 14.4.1921, Ext. 114 30.3.1921 and Ext. 113 22.3.1922. So far as the post cards are concerned, Exts. 123, 124 and 125 all bear the date 12.10.1923, and letters Ext. 126 and 127 are respectively of 29.11.1923 and 20.2.1921. They purport to have been written by Ganpatrao to the plaintiff and carried the news in regard to the prospects of harvest and the condition of the cattle. It has been contended before us that Ganpatrao could not have been writing to plaintiff these letters if there had been already a partition between the two brothers. The difficulty in accepting these letters is that the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 5 bullocks, 4 cows, a bullock-cart, and plough etc. in which the defendants do not have any share. The defendants have strongly relied upon the document described as 'pavati' dated 24.7.1941 executed by Ganpatrao and Shankarrao and witnessed by a relation. This document refers to the earlier partition of 1914 and recites that as some properties were then left undivided, dispute in the family with respect to them was being settled under the document. The plaintiff, however, has denied the deed. 13. The defendant No. 1 has been examined as D.W. 1 and has stated about the partition of 1914. He further stated that Shankarrao started making 'vahiwat' of his lands as owner and got a rent note executed in respect of those lands. The plaintiff was staying in Gwalior till 1938 and when he returned to religen in 1938 he stayed in his own house which he had got in partition. All the relevant statements of Shankarrao in support of his case of jointness and purchase of lands by Ganpatrao on behalf of the family but in the names of his branch were denied. He was cross-examined at considerable length but nothing has been elicited to discredit his testimony. The post cards wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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