Judgement

RAMASWAMI, J.: This appeal is brought by special leave from the judgment of the Bombay High Court dated 12th December, 1962, in First Appeal No. 436 of 1958 by which the High Court dismissed the appeal and allowed the cross-objections filed by the respondents in the said appeal.

2. The relationship of the parties will appear from the following pedigree:

3. Goudappa had one daughter by name Gangabai, while Apparaya had three children (i) Nenappa II, (ii) Revagowda and (iii) Subhadrabai. In 1930 Nenappa II was given in adoption to Goudappa. He had two wives Kashibai and Sidgangawa. Revagowda married another Sidgangavva. In 1938 Revagowda was murdered. Thereafter Goudappa and Apparaya purported to effect a partition between themselves. At the time of the death of Nenappa I, six plots of lands belonged to the joint family. Five of these plots are survey Nos. 43, 59, 65, 66 and 69 measuring 137 acres and 15 guntas and assessed at Rs. 120/12/- and are located in Borgi Khurd. The other plot survey No. 77 which was in Borgi Budruk measured 14 acres and 24 guntas and was assessed at Rs. 10/14/-. The total area of the ancestral lands was, therefore, 151 acres and 27 gunthas assessed at Rs. 143/-. Between 191 and 1940, 12 other pieces of lands in both these villages measuring 137 acres and 39 gunthas and assessed at Rs. 18/10/- were acquired in various names. After Nenappa II was murdered in 1944, both the brothers denied his adoption by Goudappa and purported to effect a partition on 28th April, 1944. After the partition deed was executed various alienations were made by the two brothers. On 25th September, 1944 by Ex. 161 Goudappa gifted S. Nos. 61 and 62 of Borgi Budruk and Survey No. 45 of Borgi Khurd to defendant No. 4, Subhadrabai. By Ex. 162 dated 1st October, 1946 Goudappa made a gift of plot Survey Nos. 62 and 63 of Borgi khurd and Survey No. 11/3 of Borgi Budruk to defendant No. 3 who is the daughter of Nenappa II. On 20th April, 1948 by Ex. 159 Apparaya sold Survey Nos. 77 and 43 to defendant No. 3 for a sum of Rs. 5000/-. On the same day by Ex. 160 Goudappa sold Survey No. 79 or Rs. 1000/- to Apparaya. Again on 17th May, 1948, by Ex. 158 Goudappa made a gift of plot Survey Nos. 59 and 60 of Borgi Khurd to defendant No: 3. By Ex. 117 dated 7th December,1948 Goudappa by a Vardi transferred Survey No. 66 of Borgi Khurd, to defendant No. 3 his widowed daughter. On l5th December, 1948 Goudappa gave a portion of plot No. 96 to Sidgangawa, wife of Apparaya for maintenance. By Ex.166, dated 25th May, 1950, Goudappa and defendant No. 1 together sold to defendant No. 5 portion of survey No. 23 for a sum of Rs. 3000/-. Finally on 19th November, 1953, Apparaya executed his last Will which is Ex. 168 whereby be bequeathed survey No. 79 to defendant No. 4 and one house to his daughter defendant No. 4. The plaintiff claimed to be the adopted son of Revagouda and brought the present suit on 10th June, 1954, challenging the partition deed as fraudulent. He allege that it was intended to defeat the rights of the widows, that it was never acted upon and that the family continued to be joint. The defendants contested the suit on the ground that the partition deed Ex, 157 was a genuine transaction and was acted upon. that Apparaya and Goudappa became separate in status and managed their properties separately. The defendants supported all the alienations as being genuine and effective. The trial Court came to the conclusion that the 12 pieces of lands which were acquired between 1911 & 1940 formed part of the joint family properties, that the partition deed Ex. 157 was not intended to be acted upon but was executed to defeat the rights of the widows. The trial Court held that none of the alienations except the sale deed Ex, 159 executed by Apparaya in respect of Survey plots Nos. 43 and 77 in favour of defendant No. 3 was binding on the plaintiff. The trial Court accordingly made a decree for partition with appropriate directions. The defen