Mukund Ramchandra Lathi v. Purushottam Kashinath Lathi

9-C Dr. Sapna W/o Atul Karva, Age 30 years, Occupation Doctor, Resident of Vardhaman Co-Operative Housing Society, Shrirampur, District Nagar. 9-D Monika W/o Rajesh Somani, Age 28 years, Occupation Household, Resident of 2-2-1105/79, Tilak Nagar, “Aasha” New Nulla Kuta, Hyderabad-44.

10. Barkuram @ Kedarnath Ramchandra Lathi, Age 45 years, Occupation Business, Resident of L.I.G. 25, Harshaverdhan Nagar, Bhopal (M.P.)

11. Nandkishor Ramchandra Lathi, Age 42 years, Occupation Business, Resident of 7, Polan Peth, Lathi wada, Jalgaon.

12. Shivprasad Satyanarayan Lathi, Age 13 years, Occupation Education, Resident of 7, Polan Peth, Jalgaon. Defendant No.12 being minor through mother guardian Mangalabai W/o Satyanarayan Lathi, Age 35 years, Occupation Household, resident of 7, Polan Peth, Lathi Wada, Jalgaon.

13. Ashok Ramchandra Lathi, Age 38 Occupation Service, years, Indrakund, Panchavati, Nashik. 8

14. Vijay Ramchandra Lathi, Age 27 years, Occupation Business, Resident of 7, Polan Peth, Lathiwada, Jalgaon.

15. Laxmibai W/o Jankidas Lathi, Age 36 years, Occupation Household, Resident of C-13 Suniti Co-op. Housing Society, Chintramandir, Vavare Lane,Nashik. Behind

16. Dwarkabai W/o Bankatlal Lathi, Age 66 years, Occupation Household,

17. Arvind Bankatlal Lathi, Age 51 years, Occupation Business.

18. Anil Bankatlal Lathi, Age 45 years, Occupation. Business.

19. Deelip Bankatlal Lathi, Age 36 years, Occupation Business.

20. Avinash Bankatlal Lathi, Age 36 years, Occupation Business. Defendant Nos. 16 to 20 all resident of 7, Polan Peth, Lathi Wada, Jalgaon.

21. Umabai W/o Ramnarayan Maheshwari, (Kabra), Age 53 years, Occupation Workshop, Resident of B-6 Runwal Park, Behind Akbar Ali, Chembur (Mumbai).

22. Savitribai W/o Ramkumar Agrawal, Age 45 years, Household, Resident of 41, Polan Peth, Jalgaon. Occupation

23. Ishwardas Baluram Katariaya (Balani), Age Major, Occupation Business, Resident of 41, Polan Peth, Jalgaon.

24. Prabhudas Baluram Katariya, Age 9 Occupation Business, 41, Polan Peth, Major, Resident of Jalgaon.

25. Ramchandra Baluram Katariya (Balani), Age Major, Occupation Business, Resident of 41, Polan Peth, Jalgaon. Mr. P.R. Patil and Mr. P.A. Pisal, Advocate for the appellant Mr. R.R. Mantri, Advocate for respondents No. 1A, 1C to 1E and 6 Mr. A.S. Bajaj, Advocate for respondent No. 2 and 4B Mr. V.J. Dixit, Senior Advocate with Mr.S.B. Yawalkar, Advocate for respondent No. 3 and 4C Mr. R.S. Bihani and Mr. P.S. Pawar, Advocates for respondent No. 4E Mr. R.N. Dhorde, Advocate for respondent No. 4F Mr. A.G. Talhar, Advocate for LRs of respondents No. 7A, 7C, 7E to 8, 9 to 15 Mr. S.P. Shah, Advocate holding for Mr. Sanjay Mundhe, Advocate for respondents No. 16 to 20 Mr. V.J. Dixit, Advocate for appellant in Cross Objection No. 409 of 2005 Mr. R.S. Bihani, Advocate for appellant in Cross Objection No. 416 of 2005 Mr. R.N. Dhorde, Advocate for appellant in Cross Objection No. 419 of 2005 CORAM : A.V. NIRGUDE, DATED : 16th September, 2010 JUDGMENT

1. This appeal is filed against the Judgment and decree passed by the learned Civil Judge, Senior Division, Jalgaon in Special Civil Suit No. 61 of 1996. The appellant was the plaintiff and had filed the suit seeking partition and possession of his joint family property, which 10 according to him, belonged to his joint Hindu family. The appellant also claimed accounts of past income of the suit property and for his share in it. (For the sake of convenience, it is better if the parties to the appeal can be referred to by their designation in the Court below).

2. The plaintiff (the appellant) is one of the grand sons of one Raosaheb Roopchand Motiram Lathi, who died on 24th January, 1954. Raosaheb’s wife Narbadabai had predeceased him in 1951. Raosaheb left behind three sons and one daughter, whose names were Kashinath, Ramchandra, Bankatlal and Ayodhyabai. Kashinath died in September, 1984, Bankatlal died in March, 1964 and Ayodhyabai died in 1992. Ramchandra, the third son of Raosaheb was alive when the suit was filed and was party to the suit as the defendant No.7. The plaintiff is son of Ramchandra. On the other hand, the defendants No. 1 to 3 are sons of Kashinath, the defendant No.4 is widow of Kashinath and the defendant No.5 is his daughter. The defendant No. 6 is the grand son of Kashinath. These are the contesting defendants. The defendants No. 17 to 21 are children of deceased Bankatlal and defendant No. 16 is widow of Bankatlal. They too are supporting the plaintiff in this case. The defendants No. 22 to 25 are purchasers of some of the suit properties. The genealogy emerging from the pleading can be set out as under : 11 GENEALOGY Motiramji (died in 1900) _______________________________________________________ Manikchandji (Died 31/5/95) Rupchandji (Raosaheb) (28/12/1979) to 24/1/1954) _______________________________________________ Kashinath = Ayodhyabai Ramchandra = Jamunabai Bankatlal died on (Deceased-D4) (15/4/2000) (D-7 A) (Deceased) 21/9/84 (3/9/99) (D-7) D-8 (21/3/1964) (Deceased) _______________________________ Dwarkabai (Widow) (D-16) ________________________ Purushottam Shrikrushna Madhukar Pushpa (Deceased (D-2) & (D-3) (D-4D) Uma Arvind Anil Dilip Avinash deft.1) (D4B) (D-4C) (D-21) (D-17) (D-18) (D-19)(D-20) (D-4A) _____________________________ Chandra- Shrikant Sunil Sushma Sandhya kala (D-1B) (D-1C) (D-1D) (D-1E) (D-1A) (D-6) ____________________________________________________________ Shashi- Barkuram Mukund Nand- Satish Shivpra- Ashok Vijay- Laxmi kant (D-7C (D-7D kishor (Decea- sad (D-7U) kumar (D-7AA- (D-9) (D-10) plff) (D-7E sed) (D-12) D-13 (D7UU) D-15) (9-A,9B, 9C,9D) (D7-E) (D-14) D-11) 12 (D22 to D25 are Purchasers) The details of the suit properties are not required to be given in this Judgment, because they are described properly in the plaint as well as in the impugned Judgment. The facts leading to the litigation are as under :

3. Raosaheb Roopchand Motiram Lathi was a remarkable person of Jalgaon during 1930 to 1950. He flourished with his own exertion in social, cultural, educational and commercial fields of the area. During his life time, he created lot of wealth, which are the suit properties. He even established a Co-operative Bank and an Education Society. During his life time, the erstwhile British Government recognized his work and bestowed Title ‘Raosaheb’ to him. Raosaheb had several businesses and at least three cloth shops at Jalgaon and Bhusaval. His children Kashinath, Ramchandra and Bankatlal were born in 1908, 1917 and 1922. In 1942, two of his sons were helping him in his cloth and other businesses. At that time, elder two of his sons were married having children, except the youngest Bankatlal, who was about 20 years old. In 1942, Raosaheb handed over cash of Rs.15,000/- to each of his sons and asked them to leave him and his businesses. He made it clear to them that the amount which he had given to them was not refundable and with that amount they should start their own independent businesses. Thereafter, all the three sons started their own businesses. They then became independent and did not depend on Raosaheb for their livelihood. The eldest son Kashinath was educated and had already become a Lawyer. He had started his legal practice in 1933, but he left his practice in 1942. After 1942 or so, he left Jalgaon for Mumbai, where he started his own business. He also took his wife and 13 children with him to Mumbai. On the other hand, his younger brothers and father stayed at Jalgaon. Ramchandra took education up to 3rd standard, and from 1930 onwards, he helped his father in his business. In 1942, he started his own shop of cloth and started residing separately. He got married in 1935 and again in 1948 and had his children. The third brother Bankatlal took education up to 3rd standard up to 1934. In 1940, he got married. He started his own business. He had his children, but died in 1964. His children after becoming major got married and had been doing their own businesses.

4. It is almost an admitted fact that the suit properties belonged to Raosaheb and they were his self acquired properties. On 24th January, 1954, Raosaheb died due to old age. He had not made any Will. At the time of his death, his elder son Kashinath used to stay at Mumbai and he mostly depended on his younger brothers to look after the property which Raosaheb left for the three sons. The three sons all along assumed that they were the only legal heirs, who would inherit the suit property, the self acquired movable and immovable properties of Raosaheb. On 8th December, 1955, Kashinath (eldest son of Raosaheb) filed Special Civil Suit No. 2 of 1956 against his two brothers for partition of the movable and immovable properties left behind by Raosaheb. While filing this suit, Kashinath made serious allegations against his brothers that they were trying to utilize the property for their own use and were interested in excluding him from the same. Kashinath even sought account of the income of the property from the date of death of Raosaheb.

5. The brothers of Kashinath defended the suit for quite some 14 time. Various interim applications were taken out in that suit and were hotly contested. Ultimately, when the suit ripened for recording evidence, there occurred a compromise between the brothers, and Ramchandra and Bankatlal agreed to give all the immovable properties of Raosaheb, which wer mentioned in the plaint, to Kashinath. In addition to this, they also agreed to give movable properties at item Nos. 4 to 14, mentioned in schedule-B to the plaint, to Kashinath. It was further agreed between the brothers that Kashinath would be liable to pay all the dues of deceased Raosaheb along with the estate duty. The agreement further indicated that Ramchandra who at that time owned an immovable property, a house, at Jalgaon, would belonge to him exclusively and his brothers had no right in it. At that time, there were at least two money decrees amounting to Rs.85,000/- pending against deceased Raosaheb, and Kashinath agreed to discharge such liability. The suit of 1956 thus came to an end on 26th December, 1957. After this, apparently there remained no dispute between the brothers over Raosaheb’s self acquired properties. During next few years, Kashinath discovered some more properties, which Raosaheb had acquired during his life time and which were not included in the suit of 1956. He appropriated those properties too and all along enjoyed as his exclusive property.

6. On 21st April, 1984, Kashinath executed a Will, and soon thereafter, on 24th September, 1984, he died. Kashinath in his Will bequeathed certain immovable property to his brother Ramchandra, the defendant No.7. When Ramchandra learnt about it, he, on 25th September, 1985, executed a deed of relinquishment in respect of the property which he was to receive as bequeathed by Kashinath in favour of the family members of Kashinath. On 25th August, 1994, the 15 plaintiff himself purchased certain property which Kashinath received in the compromise of Special Civil Suit No. 2 of 1956 from one of the sons of Kashinath. On 30th March, 1995, a public notice was issued by one Purohit. The plaintiff came across this notice, and thereafter, on 15th February, 1996, he filed the suit for partition. The year of birth of plaintiff is 1952. He had attained majority in October, 1970, and when he was almost 44 years old in 1996, he has filed the suit. In this background, let me now narrate the case of the plaintiff, which he pleaded in the plaint.

7. In the notice dated 30th March, 1995, there occurred mention of the Will executed by Kashinath and some property being bequeathed to Ramchandra, the father of the plaintiff. The plaintiff said that he got curious from such references and took search through the city survey record and found that the house property City Survey No. 1900/A/2 originally belonged to his grand father Raosaheb. In 1958, the City Survey Officer recorded mutation in respect of number of house properties mentioning that Kashinath was owner of such properties. From the city survey record, the plaintiff also learnt that a Special Civil Suit No. 2 of 1956 was filed. The plaintiff then took search of the record of the said civil suit and found that the said suit was filed by Kashinath against his own father and uncle Bankatlal. The plaintiff then, for the first time, learnt that as per the compromise recorded in that suit, certain immovable properties were given to the share of Kashinath. The plaintiff states that for the first time he asked his father Ramchandra about the said events of 1955, 1956 and

1957. He said, his father then narrated following story to him. Kashinath, Bankatlal and Ramchandra had undivided interest in the property left behind by Raosaheb. Kashinath was the eldest brother and he was educated up to LL.B. and was practicing as 16 an Advocate. Since the death of Raosaheb, Kashinath started quarrels with his brothers Ramchandra and Bankatlal. He even started collecting rent from the tenants, who occupied certain properties belonging to Raosaheb. On account of this, Ramchandra and Bankatlal had grievance against Kashinath. Due to such dispute, there even occurred a violent incident between Kashinath and Ramchandra. Kashinath started harassing his brothers Ramchandra and Bankatlal. After filing of the Special Civil Suit No. 2 of 1956, Kashinath obtained exparte order to get inventory of household articles and profits from the shops of his brothers Ramchandra and Bankatlal. Due to all these activities, Ramchandra and Bankatlal got fed up. They also suffered loss of reputation due to the inventories taken of their properties, and due to filing of the suit for recovery of amount etc, Ramchandra and Bankatlal thus out of frustration and emotional coercion were forced to enter into compromise in Special Civil Suit No. 2 of 1956. The plaintiff after learning this information, decided to demand partition and separate possession of the share in the suit properties from the family members of deceased Kashinath. They flatly denied to give him the share, and so, on 28th January, 1996, this suit was filed for following reliefs : (1) Declaration that the compromise recorded in Special Civil Suit No. 2 of 1956 was not binding on him and declaration that the defendant No. 7 Ramchandra had no authority to enter into such compromise. (2) The decree passed in Special Civil Suit No. 2 of 1956 be set aside being against the interest of the plaintiff. (3) Partition of the suit properties and handing over of 127th share to the plaintiff. (4) Declaration that sale of properties City Survey Nos. 17 1876/1 and 1876/2 in favour of defendants No. 22 to 25 is illegal, void and not binding on the share of the plaintiff and for setting aside of the sale transaction. (5) Account of the income earned by movable and immovable suit properties received by the members of Kashinath’s family and 127th share of the plaintiff in it along with interest @18% per annum.

8. The defendants No. 1, 3, 4 and 6 opposed the suit firstly on the ground of limitation. They further stated that there was no joint family in existence between Raosaheb and his sons. At the time of Raosaheb’s death, his self acquired property came to his three sons, who became 'tenants in common' and were never joint tenants. Ramchandra and Bankatlal were never under any obligation to protect so called interest of their children in the properties which they inherited from their father as tenants in common. There existed no coparcenary between the three brothers and their children after or before Raosaheb’s death. These defendants also mentioned that on 25th July, 1985, the plaintiff, as per the direction of his father (the defendant No.7 – Ramchandra), brought to the defendants the deed of surrender executed by Ramchandra in favour of children of Kashinath, and thus, the plaintiff was aware of the execution of the surrender-deed of Ramchandra. If he knew about this surrender- deed, he also aware of the decree in Special Civil Suit No. 2 of 1956. The defendants further pointed out that the plaintiff and other defendants No. 11, 12 and 14, after making due inquiry of title of the defendant No.2, had purchased certain property from him. This property happened to be one of the properties which Kashinath received at the time of compromise in Special Civil Suit No. 2 of 1956. The plaintiff and the defendants No. 11, 12 and 14 thus are estopped from denying the defendant No.2’s title of the property which they 18 purchased in 1994. These defendants further stated that the compromise in Special Civil Suit No. 2 of 1956 was legal and proper. They pointed out further that the suit was contested by Ramchandra and Bankatlal. An order of appointing receiver on the suit property was also passed. The Court even suggested to appoint an Arbitrator for resolving the dispute. But, ultimately, the reference to the arbitrator was revoked and the suit was taken up for hearing. Thereafter, on 16th December, 1957, the compromise was recorded. They, therefore, suggested that there was no coercion of Ramchandra and Bankatlal to enter into such compromise. These defendants further stated that Kashinath during his life time partitioned the property which he inherited from his father. He even executed a Will. They stated further that Kashinath bequeathed certain property to the defendants No. 17 to 20 (sons of Bankatlal). They, after the demise of Kashinath, took the bequeathed property and have been enjoying the same on ownership basis. The defendants No. 22 to 25 are the purchasers of some of the suit properties. Since the sale transaction in their favour is challenged by the plaintiff, they filed a written statement, raising similar defences, mentioned above. The defendants No. 17 to 20, the sons of Bankatlal took a different line of defence. They stated that the properties held by Raosaheb during his life time were never his self acquired properties, but they were ancestral properties. They pointed out that Raosaheb’s father made fortune in his business and had purchased those properties. They stated that plaintiff and all the defendants are thus coparceners, and so, Kashinath, Ramchandra and Bankatlal had no right to enter into compromise regarding the coparcenary property, which was subject matter of Special Civil Suit No. 2 of 1956. They 19 further stated that Raosaheb had no debt when he died. They further took up a defence that they learnt about the compromise decree in Special Civil Suit No. 2 of 1956 only after the present suit was filed. The defendant No.5 is the daughter of Kashinath, and it seems, there occurred some conflict of interest between she and her brothers regarding one of the coparcenary properties. She even filed suit against her brothers, and in view of this, she filed written statement in this suit, admitting the case of the plaintiff.

9. In view of these assertions, the learned Judge of the trial Court framed certain issues, allowed the parties to lead evidence, took several documents on record and recorded his findings that ; 1 2 3 4 5 6 7 8 9 The plaintiff could not prove that the properties mentioned in the plaint were properties of Hindu undivided property. The compromise decree in Special Civil Suit No. 2 of 1956 was binding on the plaintiff. The plaintiff has no locus standi to challenge the decree in Special Civil Suit No. 2 of 1956. The suit is barred by limitation though it was maintenable in its present form. The plaintiff was estopped from claiming partition and share in the suit properties. Ramchandra and Bankatlal relinquished their share in the suit properties against satisfaction of the debts. Ramchandra and Bankatlal had authority to enter into compromise in Special Civil Suit No. 2 of 1956. The Will of Kashinath was valid and legal. The Will of Ayodhyabai was also valid and legal.

10. After going through the record, hearing the learned Advocates appearing for the parties, following points arose for my consideration : 20 1 2 3 Whether the property of Raosaheb was his ancestral or self acquired property ? Whether there occurred partition in 1942 between Raosaheb and his sons ? Whether after the death of Raosaheb, his property became coparcenery property of his sons and grand sons ? 4 Whether the plaintiff accrued birth right in such property which his father inherited on the death of Raosaheb ? 5 Whether the plaintiff had right of partition of such property immediately after the death of Raosaheb, his grand father ? 6 Whether the plaintiff proved that his father had no authority to deal with his undivided share in the co-parcenery property ? 7 Whether he further proved that his father Ramchandra while agreeing in the compromise in Special Civil Suit No. 2 of 1956 acted against the interest of minor members of coparcenery ? 8 Whether he further proved that due to coercion Ramchandra and Bankatlal had agreed to effect partition through the compromise decree in Special Civil Suit No. 2 of 1956 ? 9 Whether the decree in Special Civil Suit No. 2 of 1956 required registration? If the answer of this is in affirmative, what is the effect of non-registration ? 21 10 Whether the partition effected through the compromise decree in Special Civil Suit No. 2 of 1956 is invalid due to exclusion of other immovable properties belonging to Raosaheb? 11 Whether the suit is filed within limitation ? 12 Whether the suit is barred by Order XXIII Rule 3A read with Section 96 (3) of the Code of Civil Procedure ? 13 Whether the Special Civil Suit No. 2 of 1956 operates as resjudicata to the present suit ? 14 Whether the finding recorded by the trial Court in respect of Kashinath’s and Ayodhyabai’s Wills would be binding on the parties to the suit including the defendant No. 5 ?

11. Point No. 1 - As said above, between the plaintiff and the contesting defendants, there is no dispute on the fact that Raosaheb acquired his properties on his own and they were his self acquired properties and not his ancestral properties. However, the defendants No. 16 to 20 and the defendant No.5 adopted a different line, saying that the properties which Raosaheb held during his life time and which were the subject matter in Special Civil Suit No. 2 of 1956 were his ancestral properties. When they took up such a stand, the burden would be on them to prove such case. On the other hand, instead of 22 leading independent evidence, they tried to place reliance on admission of the defendant No.3 in his deposition that on the death of father, Raosaheb had left education and come back to Jalgaon for doing his father’s cloth business. The learned Judge of the trial Court rightly rejected this material being sufficient to draw a conclusion that Raosaheb’s father Motiram was a wealthy man and his cloth business provided nucleus for Raosaheb to build up his business, and ultimately, his large estate. The learned Judge also took into account the evidence that has come on record showing certain properties standing separately in the names of Raosaheb and his brother Manikchand and drew his conclusion that such evidence was not sufficient to come to a conclusion that those properties were left behind by their father Motiram. In absence of proof of the extent of business left behind by Motiram, the father of Raosaheb, one cannot draw a conclusion that the same was sufficient to built up the large business developed by Raosaheb during his life time. The learned Judge of the trial Court on this issue elaborated quite extensively referring to Judgments of Supreme Court, specially the Judgment of Supreme Court reported in AIR 1972 SC 2531. The learned Advocate appearing for the defendants No. 16 to 20 could not throw better light on this issue, and, I am inclined therefore to hold that the properties belonging to Raosaheb were his self acquired properties.

12. Point No. 2 : Once I hold that Raosaheb had extensive properties which were his self acquired properties, let me examine whether Raosaheb and his sons formed a joint Hindu family or Hindu undivided family. There is no dispute about the fact that the sons born to 23 Raosaheb initially were depended on him. They grew up gradually and one became a lawyer, whereas the two others joined Raosaheb to help him in his business. So, one can say that initially Raosaheb and his sons, grand sons, if any, and wives of Raosaheb and his sons formed a joint Hindu family. But, such family did not possess any ancestral property. Even then, at that time, the normal state of Raosaheb’s joint Hindu family was such that the family was joint in food and worship, but not in estate. This family was joint due to the tie of sapindaship. But, as said above, this joint family did not have joint family property which is purely a creation of Hindu Law, and thus, who own a joint family property, are called coparceners. In absence of joint family property, Raosaheb and his sons were not strictly speaking coparceners. (Reference : Article 229 of Mulla’s Hindu Law, Twentieth Edition). In this background, one has to appreciate the effect of the event that took place in 1942. The pleadings of the plaintiff are clear, when he said that in 1942, Raosaheb separated his sons from him. Therefore, there certainly arose issue between the parties, as to whether there occurred a separation of a joint family of Raosaheb and his sons. Though the learned Judge of the trial Court did not frame specific issue to that effect, he discussed this issue elaborately on the basis of the evidence that has brought on record by both the parties.

13. On 10th June, 1942, as many as four documents were executed, they are on record at Exh. 286/21, 286/22, 286/23 and 286/24. The document (Exh. 286/21) is said to have been written by none other than Raosaheb. But, this document does not bear signature of Raosaheb and date. The learned Judge of the lower Court rightly kept this document away from the record. However, the three remaining documents are almost identical in nature and are 24 proved properly. Exh.286/22 and 286/23 are receipts executed by Ramchandra and Bankatlal in favour of their father. These documents are duly signed by Ramchandra and Bankatlal. The contents of these receipts also suggest that the similar receipt must have been executed by the third son of Raosaheb, namely; Kashinath. These receipts show that by that time Raosaheb had three shops, namely; Motiram Lakmichand, M/s Lathi Brothers Jalgaon and M/s Lathi Brothers Bhusaval. These receipts indicate that on that day Raosaheb had closed down two of his businesses and handed over an amount of Rs.15,000/- each to his sons. These receipts also show that Raosaheb thereby suggested and expected that that his sons would start their independent businesses with the amount which he had given to them. The receipts further contemplated that though the amounts which were given to his sons were not refundable, the sons would have no concern thenceforth to the business of their father and vice-versa. It is thus clear that Raosaheb, the father, made his sons independent for starting their own businesses. From the contents of these receipts, I have no doubt in my mind that the intention of Raosaheb and his sons on that day was to get separate. There is an indication on record that after this incident, Ramchandra got separated from his father even in mess. On the other hand, soon thereafter, even Kashinath shifted to Mumbai for business purpose. This event of June, 1942, thus effected a complete severance between the sons and father. It also ended the joint status of the family, which though had no estate in common, became separate even in food and worship. I am not agreeing with the conclusion that the learned Judge of the trial Court drew on this point. He wrongly assumed that Raosaheb did not effect severance, but merely handed over Rs. 15,000/- to each of his sons out of love and affection. I think, this 25 conclusion of the trial Court is erroneous, because he is presuming that this was done by Raosaheb out of love and affection for his sons. The language of the receipts at Exh.286/22 and 286/23 is businesslike, giving no indication of love and affection between sons and father. This I say because Ramchandra while accepting the amount clearly mentioned that this amount was non-refundable and his father would not demand such amount back from him. The learned Judge of the trial Court again committed an error in appreciating this event holding that these documents were created just for the purpose of income tax assessment. There is nothing on record to show that by formally separating his sons, Raosaheb could claim any relief from the income tax assessment. The learned Judge in my view wrongly assumed that this was done to get such relief. On the other hand, having regard to the language of the receipts, having regard to the decision of Raosaheb to close down permanently two his shops at that time, it becomes clear that Raosaheb indeed wanted his sons to start businesses separately and he most probably did not want his sons to help in his business or to remain a part of his business. It has not come on record that till 1942, though Raosaheb had as many as three shops, he made any of his sons a partner in his business. The receipts clearly mention that the sons Ramchandra and Bankatlal worked in the shops belonging to their father Raosaheb for the purpose of getting experience only. They had no interest in the business of their father though they were working in the shops. This clearly indicates that Raosaheb always guarded his personal interests meticulously and made it clear to his sons that they had no interest or share in his business beyond rendering help for the purpose of gathering experience. Indeed, these documents reveal acute business acumen of Raosaheb, but beyond that, it also indicate that he always guarded and protected his position as an independent owner of his businesses and properties that his sons had no concern 26 whatsoever with them. In addition to this, there is nothing on record to show that despite of 1942 event, Raosaheb continued his business with the help of his sons Ramchandra and Bankatlal.

14. The learned Judge of the lower Court took into account certain letters to hold that there was joint family of the three brothers during the life time of Raosaheb. I too went through these letters. These letters are of 1954-55. These letters indicate that Kashinath, who was not residing at Jalgaon, was repeatedly making inquiries with his brothers at Jalgaon, as to whether they are taking care of the property of Raosaheb after his death? They too were repeatedly informing him that they were taking proper care of their father’s property after his death. Indeed, till 1957, the property of their father remained their joint property. These letters do not help us to come to a conclusion that the brothers were joint and were also joint with their father during his life time.

15. Points No. 3 to 5 : The succession to Raosaheb’s self acquired property would open on the day of his death i. e. 24th January, 1954. The Law which prevailed on that day would apply to such succession. On that day, the old Hindu Law was applicable. The Hindu Succession Act by then had not come into force. So, the sons of Raosaheb as Sappindas would succeed to his property. There were only three sons to Raosaheb and they would therefore get equal share in the self acquired property left behind by Raosaheb. However, when the sons of Raosaheb inherited his property, the property that they inherited became their ancestral property. The essential feature of ancestral property according to Mitakshara Law is sons, grand sons and great grand sons of the person who inherits it, acquire an interest and the right attached to such property at the moment of their birth. The rule of old Hindu Law in this regard 27 mentioned in Article 221 of the Mulla’s Hindu Law, twentieth edition, would apply, which reads as under :

221. Incidents of joint family or coparcenary property : Joint family or coparcenary property is that in which every coparcener has a joint interest and a joint possession. The incidents of a coparcenary were summarised in the undermentioned decision of the Supreme Court. The following are the main incidents of joint family or coparcenary property, it : (a) devolves by survivorship, not by succession (section 229) – This proposition must now be read in the context of sections 6 and 30 of the Hindu Succession Act 1956, in cases were those sections are applicable; (b) an interest by birth. is the property in which the male issue of the coparceners acquire The joint family property must be distinguished from the joint property of the English Law. The joint property of the English law devolves like joint family property by survivorship. However, the male issues of the joint tenants do not acquire any interest in it by birth. Two complete strangers may be joint tenants according to English Law, but in no conceivable circumstance could they constitute a joint Hindu family, or hold property as a joint Hindu family. They fundamental principle of a joint Hindu family is the tie of sapindaship, without which it is impossible to form a joint Hindu family. Joint family property is purely a creating of Hindu law, and those who own it are called coparceners. The rights of coparceners are set forth in s 235. The distinction between joint family property and joint property comes into prominence only in two kinds of case, namely, the case dealt with s. 223, sub-section (2) (property inherited from maternal grandfather), and that dealt with in section 228 (joint acquisitions). After having section 228, we shall use the expression ‘joint property’ as equivalent to ‘joint family property’. In view of this, the plaintiff accrued birth right in such property which his father inherited on the death of Raosaheb.

16. The next question is, whether plaintiff had right of partition of such property immediately after the death of Raosaheb, his grand father. The answer has to be in affirmative. As said above, if he has undivided share in the coparcenary property which his father inherited, and if such property is still undivided even amongst his father and uncles, he would certainly have a right to seek partition of such property, though his father and his uncles are not inclined to divide the property amongst themselves. The Law on this subject is discussed by Supreme Court in the case of Valliammai Achi v. 28 Nagappa Chettiar and another (AIR 1967 SC 1153). It is observed by the Supreme Court that : will. “10. But even assuming that there was some kind of election by Pallaniappa we cannot see how the nature of the property left by Pallaniappa's father would change merely because Pallaniappa's father made a will giving the residue absolutely to Pallaniappa and Pallaniappa took out probate of The property being joint family property Pallaniappa's father was not entitled to will it away and his making a will would make no difference to the nature of the property when it came into the hands of Pallaniappa. A father cannot turn joint family property into absolute property of his son by merely making a will, thus depriving sons of the son who might be born thereafter of their right in the joint family property. It is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently : [see Hindu Law by Mulla, Thirteenth Edition, p. 249, para 223 (2) (4)]. If that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, we fail to see how that character can change merely because the father makes a will by which he gives the residue of the joint family property ( after making certain bequests) to the son. A father in a Mitakshara family has a very limited right to make a will and Pallaniappa's father could not make the will disposing of the entire joint family property, though he gave the residue to his son. We are, therefore, of opinion that merely because Pallanappa's father made the will and Pallaniappa probably as a dutiful son took out probate and carrie out the wishes of his father, the nature of the property could not change and it will be joint family property in the hands of Pallaniappa so far as his male issues are concerned. 11. Further it is equally well settled that “under the Mitakshara law each son upon his birth takes an interest equal to that of his father in ancestral property, whether it be movable or immovable. It is very important to note that the right which the son takes at his birth in the ancestral property is wholly independent of his father. He does not claim through the father...." (see Mulla's Hindu Law, Thirteenth Edition, p. 251, para 224). It follows therefore that the character of the property did not change in this case because of the will of Pallaniappa's father and it would still be joint family property in the hands of Pallaniappa so far as his male issue was 29 concerned. Further as soon as the respondent was adopted he acquired interest in the joint family property in the hands of Pallaniappa and this interest of his was independent of his father Pallaniappa. In such circumstances even if Pallaniappa could be said to have made an election there can be no question of the respondent being bound by that election, for he is not claiming through his father.” The question still arises, as to whether in the life time of his father, the plaintiff, soon after the death of Raosaheb, could have demanded partition. The full Bench of our High Court in the case reported in ILR 16 Bom. 29, held that in the life time of one’s father, a grand son cannot demand partition of the ancestral property which his father inherits. The Law on this subject was settled by the Supreme Court in the case reported in AIR 1968 SC 1018. In view of this, the plaintiff could have filed a suit for partition soon after the death of Raosaheb. No matter whether his sons and uncles resided a partition or not.

17. Point No. 8 : After the death of Raosaheb, his eldest son Kashinath filed Special Civil Suit No. 2 of 1956. It is mentioned above that the suit was opposed by both his younger brothers. For quite some time, the contest was quite keen. Kashinath, the plaintiff in that suit used every trick to harass his younger brothers, and ultimately, they agreed for the compromise. The first question that is required to be decided, as to whether Kashinath could coerce his brothers into agreeing for the compromise? This is a question of fact and unfortunately the witnesses, who came before the Court, could not throw any light on this aspect, because they were not present or they were too young when the suit was contested and compromise was arrived at. The original defendant No. 7 Ramchandra, who was party to this suit, by 30 keeping mum, did not support the case of the plaintiff. This was the only person who could have lent support and credibility to the case of the plaintiff. The plaintiff in the plaint and also in his evidence stated that his father Ramchandra told him as to what had happened between the brothers during the pendency of Special Civil Suit No. 2 of 1956 and how it ultimately came to an end into a compromise. Obviously, this was a hearsay information, and so, the deposition of the plaintiff on this, is second hand and cannot be taken into account. It is certainly not proof for the events that took place then. Ramchandra could have easily recorded his case through his written statement, but he did not file written statement, and therefore, clearly indicated to the Court and also to his own son/the plaintiff that he did not support his case. The silence on his part on this crucial aspect of the case, thus fails the plaintiff on this issue. The learned Judge of the lower court rightly came to the conclusion that by remaining silent, Ramchandra gave a clear indication that he himself never felt that he has coerced, defrauded or influenced by his elder brother Kashinath. It is admitted that Ramchandra and Bankatlal, during their life time, never made any grievance about the compromise which they entered into while ending the litigation of Special Civil Suit No. 2 of 1956. What happened afterwards, would further damage the case of the plaintiff on this point. Kashinath got almost all the immovable properties left behind by his father. But, when he was about to die, he made a Will and bequeathed some properties to his own brother Ramchandra and the children of his deceased brother Bankatlal. Few days after he made the will, he died. The children of Kashinath then made the contents of the Will known to these legatees, and surprisingly, even at that time, Ramchandra went to the Registrar’s 31 office, and, at his expenses, made a deed of relinquishment, and once again, gave up the right that he had accrued to some property of Kashinath in favour of Kashinath’s children. This shows that Ramchandra came from a different mould and was a man of principles. This act on his part clearly indicates that what he did not want as his own in 1957 when the compromise took place, he did not desire to have it or part of it, almost 30 years thereafter also. These events must have been known to all the members of the family including the plaintiff. The children of Bankatlal accepted the legacy and took over the property which they received through the Will of Kashinath. So, the Will of Kashinath and its effects were not secrete and every one including the plaintiff was aware of them. The act of relinquishment of the legacy by Kashinath further confirmed the earlier conclusion that in 1957 he was not coerced or brow beated into the compromise. I, therefore, record my finding on point No. 8 in negative.

18. Points No. 6 and 7 : As discussed above, it has now become clear that in 1957, when plaintiff’s father entered into the compromise, he clearly dealt with the undivided shares of his sons in the property left behind by Raosaheb. The question is, whether he had authority to deal with the undivided shares of his children who were then minor ? Ramchandra was then Karta of his Branch of coparcenary, and as such, he had authority to deal with the property of joint Hindu family. This is a settled Law. However, the Law expects such father not to alienate the joint family property except for a legal necessity or for payment of antecedent debts. Any other alienation by him would not bind the sons’ interest in the property. So, in this case, one has to examine, as to whether what Ramchandra and Bankatlal did with their joint family properties, was for a legal necessity or for payments of antecedent debts ? 32 In this case, even the plaintiff admitted that at that time there existed an antecedent debts against all the three brothers, incurred by their father Raosaheb. A decree of Rs.75,000/- was pending against them and it was therefore clear that they had obligation to discharge such liability. As said above, when the compromise was arrived at, Ramchandra and Bankatlal gave up their shares in the immovable properties of their father, mainly because their brother Kashinath, who was receiving the said property, was accepting the liability of payment of antecedent debts single handedly. The learned Judge of the trial Court rightly held that the debts outstanding against Raosaheb was not imaginary. They were real ones. He rightly pointed out that the final decree in Regular Civil Suit No. 142 of 1955 was for payment of Rs.78,853/-, and the agreement dated 15th December, 1992 was also in existence between Murlidhar Rathi and Raosaheb (Exh.200/43). In view of this, Ramchandra and Bankatlal cannot be said to have acted imprudently or foolishly when they entered into the compromise. The learned Judge of the trial Court rightly held “though in the long run the compromise may not have been stood to advantage of Ramchandra and Bankatlal they cannot complain about the same when they accepted as a best deal on the day of compromise. They may have been at some loss but it was a calculated risk. In arriving such compromise the duo had shown wisdom rather than frustation or negligence”. “The sons (of Ramchandra and Bankatlal) differed in their opinion 40 years later when they found that Kashinath could successfully protect the estate despite seizable liability. But they cannot set the clock back in the guise of allegation of fraud, coercion and undue influence.” I have no hesitation to hold that Ramchandra and Bankatlal had not only authority to deal with the undivided shares of their children in the coparcenary property, but they while agreeing for the compromise in Special Civil Suit No. 2 of 1956 did not act against the interest of minor members of the coparcenary, and the 33 alienation of the joint family property made by them, at that time, is binding on the plaintiff and other children of Ramchandra and Bankatlal.

19. Point No. 9 : The decree in Special Civil Suit No. 2 of 1956 is admittedly not registered after it was passed. The question is, whether it becomes invalid or void due to non-registration ? In this regard, one has to read the relevant provisions of Law, which are Sections 17 and 49 of the Registration Act. Section 17 reads as under :

17. Documents of which registration is compulsory.-(I) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely,- (a) Instruments of gift of immovable property; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (d) Leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; [( e ) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the [State Government] may, by order published in the [Official Gazette], exempt from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by 34 which do not exceed five years and the annual rents reserved by which do .not exceed fifty rupees. [(I-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53-A of the Transfer of Property Act, 1882, shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001, and if such documents are not registered on or after such commencement then, they shall have no effect for the purposes of the said section 53-A.] (2) Nothing in clauses (b) and (c) of sub-section (1) applies to - (i) any composition deed; or (ii) any instrument relating to shares in a joint stock company, notwithstanding that the assets of such company consist in whole or in part of immovable property; or (iii) any debenture issued by any such company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except insofar as it entitles the holder to the security afforded by a registered instrument whereby the company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or (iv) any endorsement upon or transfer of any debenture issued by any such company; or (v) [any document other than the documents specified in sub- section (I-A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or (vi) any decree or order of a Court [ except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or (vii) any grant of immovable property by the [Government]; or (viii) any instrument of partition made by a Revenue Officer; or (ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement 35 Loans Act, 1883; or (x) any order granting a loan under the Agriculturists' Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or (x-a) any order made under the Charitable Endowments Act, 1890, vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or] (xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or (xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer. [Explanation.-A document purporting or operating to effect a contract for the sale of immovable property shall not be. deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the first day of January, 1872, and not conferred by a will, shall also be registered. Section 49 reads as under :

49. Effect of non-registration of documents required to be registered - No document required by section 17 [or by any provision of the Transfer of Property Act, 1882,] to be registered shall- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: [Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument.] 36

20. The question is, whether the compromise decree in question would fall within any of the exceptions mentioned in sub-section (2) of Section 17. According to the contesting defendants, it would fall within the ambit of clause 6 of sub-section (2). The compromise decree is a decree of a Court and it did not deal with any immovable property, which was not subject matter of that suit. Shri. P.R. Patil, the learned Advocate appearing for the appellant placed reliance on the Judgment of Supreme Court in the case of Bhoop Singh v. Ram Singh Major and others (AIR 1996 SC 196 (1). He argued that in view of ratio of this Judgment, the compromise decree in this case required registration. However, this Judgment does not support Shri. Patil’s argument. As said above, the compromise in this case did not create any new right in favour of Kashinath, and so, registration of the decree was not essential. The decree thus is valid.

21. Point No. 10 : In the plaint of Special Civil Suit No. 2 of 1956 Kashinath made a statement that he had included all the properties known to him belonging to his father Raosaheb in the litigation as the subject matter of the suit. But, he said that if he found in future some other properties belonging to his father which are not included as subject matter in the suit, he should be permitted to add them in this litigation. During pendency of the suit, even the defendants, the younger brothers of Kashinath, who were residing at Jalgaon, did not bring to the notice of the Court any other properties of their father which were not included as the subject matter. It can thus be said that Kashinath, on his own, intentionally did not exclude any property belonging to his father from the Special Civil Suit No. 2 of 1956. Despite this, it is an admitted fact that subsequent to the decree in Special Civil Suit No. 2 of 1956, five immovable properties belonging to their father were noticed and found by the sons of Raosaheb. It is 37 also an admitted fact that thereafter Kashinath took over these properties and got his name mutated in the records as owner of these properties, to which his brothers raised no objection. In view of this, it cannot be said that exclusion of the other five properties would vitiate the decree passed in Special Civil Suit No. 2 of 1956.

22. Point No. 11 : I have discussed, as to whether the plaintiff had right to file this suit and I concluded that he did have a right to file a suit of this nature. This is essentially a suit for partition and for declaration that the compromise decree in Special Civil Suit No. 2 of 1956 was not binding on his share. The question is, whether the suit is filed within limitation? The plaintiff stated that he did not know that his grand father Raosaheb had extensive self acquired properties. He also stated that he did not know that after Raosaheb’s death, his father and his two uncles inherited to such a fortune. He said, he did not know that since his father Ramchandra had his share in such property as his ancestral property, he himself, (plaintiff) too got undivided share in such property as a birth right. In other words, he did not know that on the day of death of Raosaheb, he and his father took interest in certain property left behind by Raosaheb as their ancestral/coparcenary/joint family property. He said, he did not know anything about the filing of the suit of 1956 and the compromise that was recorded in such suit. He also suggested that when he himself purchased certain property from his cousin, Kashinath’s son, he did not know that this property originally belonged to his grand father Raosaheb etc. He said that in 1995, he learnt about this history of his family when he came across the public notice issued by one Purohit. Unless the plaintiff convinces the Court about credibility of this story, he would not succeed in bringing his suit within limitation. 38 On facts, the case of the plaintiff mentioned above is not at all believable. The plaintiff was 44 years old when he filed the suit in

1996. He attained majority some time in 1970. A suit of this nature could have been filed by the plaintiff even during his minority through his guardian. He could have filed this suit within three years from attaining majority. Had he filed this suit during such period, the plaintiff could have easily asserted that his father dealt with the joint family property illegally as he gave away the property without having any legal necessity or without any having liability of antecedent debts.

23. The case of the plaintiff would fall within Article 110 of the Limitation Act, 1963, which reads as under : Description of suit Period of Time from which period limitation begins to run 110 By a person excluded Twelve When the exclusion from a joint family becomes known to the property to enforce a plaintiff. right to share therein.

24. Since the case of the plaintiff not believable that he did not know about the history of his family, the learned Advocate appearing for him tried to suggest that the other coparceners including the contesting defendants had no occasion to oust or exclude the plaintiff from the suit property, and in addition, they did not plead that they had ousted and excluded the plaintiff from the suit property earlier to the filing of the suit. In view of this, he suggested that the limitation for filing of this suit had not started running against the plaintiff. In other words, he suggested that the suit of the plaintiff is within limitation. I too believe and hold that if at all any Article would apply to this case, it would be Article 110. I would discuss the applicability of Article 59 in subsequent paragraph of this Judgment, but I hold that Article 110 alone would apply to this case. 39 The question, therefore is, whether the plaintiff got excluded from the suit property, and secondly, when did the plaintiff know about his exclusion? I have discussed above that the plaintiff had an ample opportunities to know the history of his family after he became major in 1970, when he purchased certain property CTS No. 1855/2 from the defendant No.2 for consideration, and, above all, he could have learnt history from his father long long back at least when he became major. The plaintiff, as said above, certainly knew about the Will of Kashinath and the relinquishment deed which his father executed, soon after. At that time, assuming the plaintiff had no knowledge about the history of his family, the plaintiff could have certainly curious to know as to what had happened in between plaintiff and his uncle. His father would not have hesitated to tell him such history. For his father, there was nothing embarrassing about the past of the family. So, I hold that the plaintiff is feigning ignorance of the very peculiar history of his family. He is now lieing that he no knowledge of it. He ought to have knowledge about the entire history of his family long before he filed the suit. Now, when did the plaintiff get excluded from the so called joint family property? The answer to this is very simple. The moment his father entered into compromise in February, 1956, the plaintiff got excluded from his joint family property. The cause of action for this kind of suit thus arose on that day. At that time, plaintiff admittedly was a minor and the plaintiff could have waited till his attaining majority for filing the suit to challenge the decree in February, 1956. If it is held that as soon as the plaintiff reached the age of majority or soon thereafter he learnt about the partition decree of Special Civil Suit No. 2 of 1956, he can be attributed with knowledge of his 40 exclusion on the day when he attained majority or soon thereafter. Such knowledge can be attributed to him at least when his father executed the deed of relinquishment. Such knowledge can also be attributed to him on the day when he purchased property C.T.S. No. 1855 from the defendant No.2. At that time, the plaintiff had investigated the title of the property which he purchased. The plaintiff should have filed the suit within 12 years from the date of knowledge of exclusion from the suit property. So, there is no difficulty in coming to a conclusion that the suit is barred by limitation.

25. Article 59 of the Limitation Act is also sought to be applied to the facts of this case. Article 59 reads as under : Description of suit Period of Time from which period limitation begins to run

59. To cancel or set aside Three years When the facts entitling the an instrument or decree plaintiff to have or for the rescission of a instrument decree contract cancelled or set aside or the contract rescinded become known to him.

26. In my view, the plaintiff is not seeking cancellation of the decree that was passed in Special Civil Suit No. 2 of 1956. He is only seeking declaration that the decree was not binding on him. In my view, Article 59 would not apply to the facts of the case. The finding on this point, recorded by the Court below, in my view, is not entirely correct. The learned Advocate appearing for the plaintiff placed reliance on the Judgment of Supreme Court in the case of Ratnam Chettiar and others v. S.M. Kuppuswami Chetiar and others (AIR 1976 Supreme Court 1). In this Judgment, the Supreme Court held as under : 41 Thus on a consideration of the authorities discussed 19. above and the law on the subject, the following propositions emerge: (1) A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside. (2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors. (3) Where, however a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition. (4) Where there is a partition of immovable and movable properties but the two transactions are distinct and separable or have taken place at different times, if it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair. The facts of the present case, in our opinion, fall squarely within propositions Nos. (3) and (4) indicated above. Shri. Patil tried to utilize sub-paragraph No. 3 from the above quoted passage of the Judgment. Assuming that the plaintiff has grievance that the partition that took place between his father and uncles was unfair and was detrimental to the interest of minors of the family including himself, the plaintiff could have filed the suit for re- opening of the partition. Even in such situation, Article 110 of Limitation Act would apply. I think, Mr. Patil’s reliance on the words, 42 “whatever the length of time” used in sub-paragraph No. 3 is erroneous to draw a conclusion that such a suit can be filed at any time. Such a suit is bound to be filed within limitation as provided under Article 110. The reference of this Judgment is not quite useful to Mr. Patil. I, therefore, conclude that suit is not filed within limitation.

27. Point No. 12 : I have held above that the present suit is maintainable despite the fact that the earlier Special Civil Suit No. 02 of 1956 got disposed of through a compromise. So, the disposal of the earlier suit in view of the compromise that was recorded, would not come in way of the Special Civil Suit No. 02 of 1956.

28. Point No. 13 : In view of the above observation, the Special Civil Suit No. 02 of 1956 would not operate as res judicata to the present suit.

29. Point No. 14 : This point relates to a dispute between the members of Kashinath’s family. Initially, Kashinath’s sons and daughters jointly opposed the suit by filing a written statement. But, subsequently, the defendant No.5, the daughter of Kashinath, thought it fit to file an independent written statement, in which she supported the case of the plaintiffs. She raised rather unconnected dispute with her own brothers that the Will executed by Kashinath and Ayodhyabai would not bind her. In a way, she was trying to deny the validity of the Wills executed by her parents Kashinath and Ayodhyabai. In view of this dispute, the learned Judge of the lower Court thought it fit to frame an issue in respect of validity of Wills of Kashinath and Ayodhyabai. The learned Judge of the lower Court giving cogent reasons and held that the Wills are valid documents and are binding on the legatees including the defendant No.5. This finding would certainly bind the defendant No.5 although she has filed an 43 independent suit challenging the validity of the Wills of her parents. Since that suit yet not decided, the findings on this point is binding on the legatees of the Wills. Appeal stands dismissed. At the request of the appellant’s Advocate, earlier order dated 30th August, 2007 shall continue for a period of eight weeks. In view of disposal of First Appeal, Civil Application Nos. 11000 of 2004, 8992 of 2005, 4852 of 2007, 4844 of 2007, 6328 of 2008, 1360 of 2010, 8221 of 2010 and 8220 of 2010 stand disposed of. Cross Objection No. 409 of 2005 stands disposed of in terms of the findings recorded above. In view of the fact that the suit is already pending, the Cross Objections No. 416 of 2005 and 419 of 2005 stand dismissed. (A.V. NIRGUDE, J.) srm/fa/1563/04/16910/ok 44