JUDGMENT - (1) This appeal arises from the suit filed by the plaintiffs, who are respondents nos. 1, 2 and 3 before me, for possession of survey No. 92 of mouza kopadi. The following facts are no more in dispute. One Ramji, the grandfather of plaintiffs Nos. 1 and 2 and the husband of plaintiff No. 3 was at the relevant time the owner of this survey number. He died in the year 1941 leaving him surviving his widow Bainabai, plaintiff No. 3 , and two sons Deorao and Bhaurao, who are defendants Nos. 2 and 3 respectively in the suit. Plaintiffs Nos. 1 and 2, Pralhad and Dnyaneshwar, are the sons of Deorao. There was a partition of the joint family estate on 31st December 1951 whereunder the joint family properties were partitioned between Deorao and Bhaurao. As a result of this partition, the suit field along with other properties came to the share of Bharurao. On 5th of January 1952 Bhaurao sold away the suit field to defendant No.1, who is appellant before me, for the sum of Rs. 2500/-. Subsequent to this sale deed, on 26th March 1952, there was a partition between Deorao, Defendant No., 2 and his two sons, Pralhad and Dnyaneshwar, plaintiffs Nos. 1 and 2, whereunder the properties, which came to the share of Deorao under the partition dated 31st December 1951, were divided by metes and bounds between Deorao and his two sons. In this partition, as the plaintiffs Nos. 1 and 2 were then minors, Bainabai acted as guardian. The present suit was filed in the year 1956 by two sons of Deorao and Bainabai, the mother of Deorao. The reliefs asked for in the suit are that the partition dated 31st December, 1951 between Deorao and Bhaurao is not binding on the plaintiffs, as under the said partition no share was allotted to the mother Bainabai. Secondly, the alienation made by Bhaurao of the suit filed in favour of defendant No. 1 was not valid and binding on the plaintiffs, and lastly there was a prayer for possession.

(2) The case of the first defendant was that the partition effected on 31st December 1951 between Deorao and Bhaurao was a valid partition. In fact, Bainabai plaintiff No.3 , had orally relinquished her interest in the joint family properties in favour of her two sons, Deorao and Bhaurao, after the death of Ramji, and that is why no share was allotted to Bainabai when the joint family properties were divided between the two sons, defendants Nos. 2 and 3, and the sale effected by Bhaurao in favour of defendant No. 1 was binding on the plaintiffs.

(3) The trail Court accepted the contentions of defendant No. 1 and dismissed the plaintiffs suit. It held that after the death of Ramji, Bainabai had orally relinquished her interest in the joint family properties and the partition effected between defendants Nos. 2 and 3 on 31st December 1951 was valid and binding.

(4) The plaintiffs came in appeal from this decision of the trial Court dismissing the suit. The appellate Court has modified the decree that has been passed by the learned trial Judge. It held that the partition dated 31st December 1951 was a valid partition. However, it took the view that it was not established that Bainabai had orally relinquished her interest in the joint family properties after the death of Ramji and that was the reason why no share was allotted to her when the joint family properties were partitioned between the two brothers Deorao and Bhaurao. It further held that relinquishment of interest in the joint family properties, which consist of immovable properties, can only be made by a registered deed if the interest to be relinquished is worth more than Rs. 100/-. Such relinquishment cannot be made orally and, as in the present case, there was no registered deed Bainabai had not legally relinquished her interest in the joint family properties to which she was entitled. The appellate Court, therefore, modified the decree in view of the said finding as stated above. It is from this decision of the learned Additional District Judge that defendant No. 1 h

Click Here to Read the rest of this document