NAMDEV VYANKAT GHADGE Vs. CHANDRAKANT GANPAT GHADGE

JUDGEMENT

(1.) This appeal is by the plaintiffs challenging the validity and the correctness of the judgment and decree dated 27th June, 1994 passed in Second Appeal No. 406 of 1994 by the High Court of Bombay affirming the concurrent findings of the trial Court and that of the first appellate Court. In order to appreciate the contentions urged before us, it has become necessary to state the facts to the extent necessary for deciding the questions that arise for consideration. The family pedigree of the parties is as set out below :-

(2.) Bali had two sons, namely Vyankat and Anand Rao. Anand Rao died on 6-7-1930 in joint family. The defendant No. 2 was the wife of Anand Rao. After death of Anand Rao, Vyankat became absolute owner of the suit property. The share of Anand Rao in suit property merged and the defendant No. 2 had only right of maintenance being a widow in the joint family of plaintiffs and defendant No. 1. Plaintiffs and defendant No. 1 are sons of said Vyankat and defendants 3 to 5 are the daughters of said Vyankat. Defendant No. 6 is the adopted son of defendant No. 2. After death of Anand Rao, maintenance was used to be given to defendant No. 2. On 8-2-1978, Vyankat also died and thereafter defendant No. 1 in collusion with the defendant No. 2 got the name of defendant No. 2 mutated in records showing half share in the suit property and got half share mutated in his name in the suit properties being the Karta of the family. It is the further case of the plaintiffs that as per Hindu law, defendant No. 2 had no right over the suit property, the plaintiffs filed complaint about the said mutation entry; however, the defendant No. 1 with the help of defendant No. 2 obstructed their possession over the suit property. Hence, the plaintiffs filed a suit for partition of their shares in the suit property collectively claiming that they had 7/12th share, defendant No. 1 having 7/24th and defendant Nos. 3 to 5 each having 1/8th share in the suit property and that defendant No. 2 had only right to maintenance. During the pendency of the suit, defendant No. 2 also died and plaintiffs and defendants 1, 3 to 5 are her legal heirs. It was also the case of the plaintiffs that defendant No. 2 had not taken defendant No. 6 in adoption. The defendant No. 1 in collusion with defendant No. 2 set up the adoption of defendant No. 6 who is the grandson of the defendant No. 1 through his daughter Sindutai. Defendant Nos. 3 and 5 remained absent in the suit and were proceeded ex parte. Defendant Nos. 1 and 2 filed joint written statement and contested the suit, contending that on 10-6-1968, defendant No. 2 had taken defendant No. 6, grandson of defendant No. 1, namely, Dattatraya in adoption after performing some due ceremony; hence the defendant No. 6 is having share in the suit property; defendant No. 2 denied that she had only right of maintenance; the defendant Nos. 1 and 2 denied that after the death of Anand Rao, his share merged and said Vyankat became absolute owner of the suit property; according to them, plaintiffs would not get more than 7/48th share in the suit property. Defendant No. 4 filed written statement and denied that after the death of Anand Rao, said Vyankat became absolute owner of the suit property being sole surviving coparcener. It was further the case of the defendant No. 4 that in item Nos. 2 to 4 of the suit schedule property, the said Vyankat being the tenant, after the re-grant, he became owner of those grants as self-acquired property. Consequently, defendant No. 2 and alleged adopted son has no share in the said lands. Defendant No. 6 suo motu appeared and he was allowed to take part in the proceedings after the death of defendant No. 2. The trial Court held that the adoption of defendant No. 6 was valid and decreed the suit of the plaintiffs declaring that the plaintiffs 1 and 2 and defendant No. 1 each having 7/48th share, defendant Nos. 3 to 5 having 1/48th share in the suit property.

(3.) Aggrieved by the decree passed by the trial Court, the plaintiffs filed appeal before the District Judge. The learned District Judge, concurring with the findings recorded by the trial Court, dismissed the appeal. Thereafter, the plaintiffs filed second appeal before the High Court. The High Court also dismissed the second appeal declining to interfere with the concurrent findings of both the lower Courts. Hence, this appeal.