Qureshi. J.

(1) This second appeal is directed against the judgment and decree dated 22-8-1974, passed by Shri S.S. Dwivedi, Additional District Judge, West Nimar, Khargone, in Civil Appeal No. 15-A of 1968 deciding the appeal against the judgment and decree dated 11-1-1968 passed by the Civil Judge Class I, Khargone in Civil Suit No. 20-A of 1966.

2. Facts leading to this appeal in short are that one Bhagwan s/o Rama filed a snit in the Court of the Civil Judge Class II, Khargone for declaration of his title on the ground that in village Salwan, agricultural land bearing Khasra No 187 area 2 acres is mutated in the name of the plaintiff and defendants Ganpat, Sakharam and Kadva. The land originally belonged to one Rama who bad three sons Ganpat i.e. plaintiff, Vitthal and Bhagwan. Vitthal had two sons, namely, Sakbaram and Kadva As such, the plaintiff and defendant No.1 are brothers and defendants No.2 and 3 are the sons of the deceased brother Vitthal.

3. According to the plaintiff, they were the members of joint Hindu family. But 40 or 45 years prior to the date of the institution of the suit there was a partition between the brothers. Since then each one was in possession as an owner of his respective share. At the time of the partition the father of defendants No.2 and 3 i.e. Vitthal was alive and the mother of the plaintiff and defendant No.1 and grand mother of defendants No.2 and 3 was also alive. Rama, the father of the plaintiff was dead. At the time of partition, the suit land survey No. 187 was kept separate for the maintenance of the mother of the plaintiff, defendant No.1 and Vitthal, father of defendants No.2 and 3. However, the name of all the three brothers was mutate a on the suit land. After the death of Vitthal, the names of defendants No. 2 and 1 were mutated in place of their father. Since the date of partition, the mother was residing with the plaintiff. In the year 1947, the mother of the plaintiff died while living with the plaintiff. Only plaintiff spent money on funeral rituals and other religious riles of his mother, the other brothers did not share the expenses with the plaintiff. Therefore, it was agreed between the brothers that since other brothers had not contributed towards the expenses, incurred by the plaintiff on the funeral rituals of their mother, the two other brothers i.e. defendant No. 1 and father of defendant No.2 and 3 relinquished their rights from the suit land in favour of the plaintiff and since then the plaintiff became the sole owner of the suit land. The fact of relinquishment of their rights was also recorded in an agreement (Ex. P. I) dated 19-9-1947, between the parties later on when the plaintiff asked the defendants to get the name of the plaintiff mutated exclusively after the deletion of the names of the defendants they declined to do so and asserted their shares in the suit land, therefore, the plaintiff had to file this suit.

4. During the pendency of the suit before the trial Court, the defendants No. 1 and 3 died and their legal representatives were brought on record. The legal representatives of the deceased Kadva admitted the claim of the plaintiff. However, Ganpat in his life time and Sakharam, the defendant resisted the suit on the ground of their title on the suit land. They denied that they have relinquished their claim in the suit land. The execution of the so called agreement was also denied by them. It was averred on their behalf that although plaintiff had incurred all the expenses on the funeral rituals and other religious rites on the death of the mother of the plaintiff but they did not relinquish their rights in the suit land in lieu of the share of the expenses, instead they had agreed to pay their share after the settlement of account. Some legal pleas were also raised pertaining to maintainability of the suit and admissibility of the agreement of relinquishment. The trial Court decreed the suit of the plaintiff. aggrieved by which the defenda