JUDGMENT

SHARMA, J :— This appeal, directed against the decision of the Bombay High Court in a first appeal, arises out of a suit filed by the appellant Shankarrao for partition of the properties set out in the plaint. The suit was decreed by the trial court. On appeal, the High Court has reversed the decision and dismissed the suit.

2. For properly following the cases of the parties it may be necessary to appreciate their relationship. The plaintiff-appellant Shankarrao had a brother Ganpatrao, now deceased, whose wives are defendants 4 and 5 and whose sons are defendants 1, 2 and 3. The plaintiff claimed that the family was joint till 1946 and out of the income of the joint family Ganpatrao, who was the Karta, had purchased certain lands in which also he (the plaintiff) has got half share. He also challenged certain alienations effected by Ganpatrao and claimed share in the transferred properties. Some properties mentioned in the body of the plaint are 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 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 1 to 4) is set out in the decree, Ext. 86 (at page 289 of the paper book). It was pleaded 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 has been claiming the lands which were the subjectmatter 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 there was a partition in the family in 1914 when he was allotted the suit lands with a dilapidated house and he has been in possession thereof as owner since then. The trial court decreed the suit holding that Shankarrao had in fact been adopted by a stranger and had thus gone out of the family. An appeal was filed before the High Court which was registered as F.A. No. 370 of 1948 and was allowed by the judgment Ext. 74. The finding on the question of adoption was reversed but the suit was dismissed on the ground that it did not embrace all the joint family properties as also on the further ground that Ganpatraos consent to his sons for partition was lacking. It was stated by the learned counsel for the parties before us that by a custom which was binding, a member of the joint family whose father was alive could not maintain a suit for partition without the fathers consent. In the result, the trial courts decree was reversed and the suit was dismissed.

4. In the present suit defendant No. 1 heavily relied on the written statement filed by Shankarrao in Special Suit No. 36 of 1947 pleading partition in the family in the year 1914. It was contended on behalf of the plaintiff Shankarrao that the High Court in the earlier suit had recorded a finding that the aforesaid 1914 partition had not been proved and in view of this findings, which is binding on the parties, he (the plaintiff) is entitled to a decree. The trial court agreed with him. On appeal, the High Court has held that there was no finding recorded in the earlier litigation on the question of earlier partition in the family which could bind the parties in the present case. Relying upon the admission of the plaintiff Shankarrao in the earlier suit the High Court has proceeded to hold that the defence case of a partition in the family in the year 1914 was correct.