ORDER

1. This appeal under section 100 of the CPC has been preferred by the plaintiff being aggrieved by the judgment and decree dated 7.9.2022 passed in Civil Appeal No.48/2019 by the Ist District Judge, Khargone, District Mandleshwar arising out of the judgment and decree dated 21.10.2019 passed in Civil Suit No.26-A/2017 by the IIIrd Civil Judge, Class-I, Khargone (East Nimar).

2. The following genealogical tree shows relationship between the parties:-

3. As per the plaintiff, the joint family of the parties held considerable joint family property situated at various villages. On 15.5.1996, an oral partition of the same was effected between them in which they were allotted different properties by way of their share. On 30-05-1996 a partition deed in terms of the oral partition was also executed between the parties. In the deed, it had been stipulated that the properties being allotted to Smt. Rampyari Bai would devolve upon the person who shall look after her during her lifetime. The plaintiff did so and also performed her last rites hence succeeded to the property allotted to her share. Upon death of Smt. Rampyari Bai, plaintiff and defendants are jointly recorded over her property in the revenue records but recording of defendants over the same is without any right or authority and he deserves to be recorded over the same exclusively. He requested the defendants for the same but defendant No.1 has denied his title to the said property.

4. Contending aforesaid, the plaintiff instituted an action for declaration of his title to the suit lands bearing Khasra No.56/1 Ka and 57/2 area 1.131 hectare, Gram Shahpura, Tehsil Gongawa, District Khargone, for possession of the same, for damages and mesne profits contending that the same are a part of the property allotted to Smt. Rampyaribai.

5. Defendant No.1 contesting the plaintiff's claim by filing his written statement submitting that he is the sole owner of the suit lands. The plaintiff never took care of Smt. Rampyari Bai and instead tortured her. It is he who looked after her hence upon her death, the suit lands have been inherited by him exclusively and he is in possession thereof.

6. The trial Court held that on 30.5.1996, a partition of the joint family property was effected between the parties in which the suit lands had been allotted to the share of Smt. Rampyari Bai. As per the partition deed upon her death the same were to devolve upon the person who would take care of her during her lifetime. The plaintiff did the same hence upon her death has become the owner of the suit lands. In consequence, plaintiff's claim for declaration of title and possession was decreed.

7. In appeal by defendant No.1, the lower appellate Court has held that as per the partition deed 30.5.1996 all the members of the family were allotted shares in the joint family property. The property which was allotted to Smt. Rampyari Bai was by way of a limited estate and the manner in which the same would devolve upon her death had been stipulated therein. However, in view of section 14(2) of the Hindu Succession Act, 1956, (‘the Act, 1956’) the property became her absolute property and she was its sole owner. Upon her death, the same would devolve as per Section 15 and 16 of the Act, 1956. Thus, plaintiff, defendants No.1, 2, 3, 7 and 8 and heirs of Vishwanath jointly inherited 1/6th share each therein. In consequence, the judgment and decree passed by the trial Court has been set aside. It has however been held that the decree shall not effect rights of plaintiff for seeking partition in respect of his 1/6th share in property of Smt. Rampyari Bai.

8. Learned counsel for the appellant has submitted that the lower appellate Court has grossly erred in setting aside the judgment and decree passed by the trial Court. The conditions imposed upon the parties in the partition deed dated 30.5.1996 (Exhibit P-5) have been failed to be given due effect to which were binding upon them. It was provided therein that the