JUDGMENT - S.B. MHASE, J.:---This appeal is directed against the judgment and decree passed in Reg. Civil Appeal No. 210/79 decided by District Judge, Buldhana on 30-11-82 confirming judgment and decree of partition passed by Civil Judge, Jr. Dn. Buldhana on 13-8-79 in R.C.S. No. 243/77.

Brief facts of the case are that one Ramsing was the main propositor of the family, who was the maternal grand-father of plaintiff/respondent. Said Ramsing was having four sons viz. Rustam (D-1), Fulsing (D-2), Tukaram and Gulabsing-father of plaintiff-respondent. Tukaram one of the sons of Ramsingh was also dead and deft. No. 3 Ramdas is son of Tukaram. The father of the plaintiff/respondent Gulabsing expired on 8-5-57. At the time of death of Gulabsing, there was a joint family and co-parcenery of defendant No. 1 to 3 and his deceased brother Tukaram. The suit property is the joint family property of the said family. The respondent is claiming her ¼ the share in the suit property.

3. Pending the suit, original defendant No. 1 Rustam expired and his undivided share in the suit property has been inherited by original defendants 2 and 3 i.e. by the present appellants.

4. The Civil Judge, Jr. Dn., Buldhana as stated above, has passed a decree in favour of respondent for partition and separate possession of ¼th share of respondent. Further enquiry under O. 20, Rule 12 C.P.C. for fixing means profits from the date of suit till the possession of suit property is obtained by the respondent/plaintiff was also granted by the said decree. Further direction was that copy of the decree be sent to Collector for effecting partition of the suit field and so far as house property and other moveable property is concerned, direction was given that the same will be partitioned by the Commissioner who will be appointed by the Court. Accordingly, preliminary decree was drawn. The said decree was challenged as stated above by the appellants. However, the decree was confirmed by the Appellate Court also.

5. The learned Advocate appearing for the appellants Mrs. Sirpurkar submitted that the judgment and decree passed by both lower courts in favour of respondent so far as house property is concerned is contrary to section 23 of Hindu Succession Act, 1956. According to her house property included in the present suit is a dwelling house, wherein appellants, who are the male co-parceners of the said family and that they have not partitioned amongst themselves and, therefore, the law as per section 23 is bar or prohibition for filing a suit of partition in respect of said property. The second contention, which has been raised by the learned Advocate for appellants is that the suit filed by the respondent is barred by limitation. According to the appellants, father of the respondent expired in May, 1957 and the suit has been filed in the year 1977 i.e. practically after a period of 20 years. It is further submitted that the respondent has admitted in her statement that after the death of her father Gulabsing in 1957, she was married and, thereafter after a period of six years, she claimed partition from the appellants. However, instead of granting her share in partition, appellants said that the respondent shall go to the Court to claim partition of her share. Thereby according to her, right to claim partition has been denied six (six) years after the death of the father of respondent and, therefore, the suit was barred.

The respondent was served in this appeal. However, she has not engaged any lawyer and, therefore, the appeal is being heard today exparte.

7. So far as the first contention raised by Mrs. Sirpurkar, learned Advocate for appellants is concerned, I find that the property described in the plaint is of three types. There is a description of agricultural lands. Thereafter, there is a description of house property and thereafter, moveable property is described. All these descriptions of different properties have been stated in the plaint para 1, without gi

Click Here to Read the rest of this document