- (1.) THIS Second appeal arises out of the Suit filed by the appellant for partition of the properties listed in the schedule to the plaint. The appellant filed the present suit for partition against his father and two brothers. He claimed 1/4th share in the suit properties and past mesne profits of Rs.500/- for three years before the institution of the suit. The trial Court upon consideration of the evidence came to the conclusion that the appellant's suit properties mentioned in paras
(2.) A , 2B and 2C of the plaint are not joint family properties of the appellant and the respondent nos.1 to 3 and, therefore, not liable for partition. Trial Court further held that the appellant does not have a right to file the present suit. 2.In an appeal carried by the appellant, the first appellate Court reversed the finding of the trial Court and held that the suit properties are joint family properties. It, however, held that the appellant is not entitled to file a suit for partition. It, therefore, refused to work out the shares of the appellant. The present Second Appeal has been admitted on the following substantial questions of law: "2. Whether the Appellate Court having held that the Deed (Exh.25) of Family Arrangement is inadmissible in evidence and cannot be relied upon, was in error of law to hold that the question of partition or arrangement does not survive and the Court cannot consider the question of partition?" "4. Whether the Appellate Court having discarded the Document (Exh.25) Family Arrangement, on the ground of being of suspicious character, was in error of law in holding and proceeding on the basis of the pleading in the Plaint in regard to the family arrangement. There was no option but to proceed with the case on the footing that there was no family arrangement?" "5. Whether the Appellate Court having held that the Suit Properties are the Hindu Joint Family Properties, was under law bound to consider the question of partition of the properties?" "11. Whether in the Plaint there is no averment to challenge family arrangement in any manner and whether a conclusion could have been drawn that the previous arrangement as pleaded is not contended to be unfair, inequitable and is based of fraud, is an error of law?"
(3.) MR .Patil, learned Counsel for the appellant, submitted that the findings of the learned first appellate Court are vitiated by serious contradictions. There appears to be substance in this submission. That the learned first appellate Court has, firstly, held that the suit properties are joint family properties. Inspite of that, the learned first appellate Court has found that the appellant is not entitled to partition on the ground that there is a family arrangement pleaded by him. However, the family arrangement in exh.25 which is described is a memorandum of arrangement has been held to be inadmissible in evidence. Thus, in effect, the appellant has been non-suited merely on the ground that he has, in the plaint, pleaded that in order to avoid quarrels, by way of family arrangement, he is residing separately. It is difficult to see how the appellant could have been non-suited on the ground of a family arrangement which is held inadmissible in evidence and not even relied upon for collateral purpose.;