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Gavarawa Kom Gaudappa and ors. Vs. Mallanawada Chanagouda Patel and anr. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported inAIR1923Bom382; 76Ind.Cas.559
AppellantGavarawa Kom Gaudappa and ors.
RespondentMallanawada Chanagouda Patel and anr.
Excerpt:
bombay vatan act (v of 1886), section 2 - succession to vatan property--daughters--male members of family. - code of civil procedure, 1908. order 37, rule 2: [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] maintainability of summary suit held, a written contract or a contract in writing need not always be a contract signed by both the parties and may consist of exchange of correspondence of a letter or letters written by one and assented to by the promisor without signature or even of a memorandum or printed document not signed by either party. a written contract therefore, need not be evidenced in a single document, written by the parties since the written document can be by exchange of documents in writing between the parties. on the other hand an implied contract would arise by..........n the possession of balappa as the last male holder. baappa belonged to the third branch of the vatan family, the pedigree of which is exhibit 159, balappa left two daughters and a brother's widow. it cannot be contended that under section 2 of the vatan act (v of 1886) the r claims to succeed are not postponed in the event of there being in existence any male members of the same family. the plaintiffs were such members, therefore, prima facie, they would beentitled, at any rate, to share the property left by balappa. the plaintiff belonged to the last branch of the vatan family and they proved that they had acquired the right of the second branch by agreement through arbitral on which came to an end after the suit was filed.2. the only quest on therefore in the suit would be whether.....
Judgment:

1. The plaintiffs sued for a declaration that they were the owners of the lands in suit and for a perpetual conjunction restraining defendants from obstructing their enjoyment. The suit property a admittedly was Vatan property which had been n the possession of Balappa as the last male holder. Baappa belonged to the third branch of the Vatan family, the pedigree of which is Exhibit 159, Balappa left two daughters and a brother's widow. It cannot be contended that under Section 2 of the Vatan Act (V of 1886) the r claims to succeed are not postponed in the event of there being in existence any male members of the same family. The plaintiffs were such members, therefore, prima facie, they would beentitled, at any rate, to share the property left by Balappa. The plaintiff belonged to the last branch of the vatan family and they proved that they had acquired the right of the second branch by agreement through arbitral on which came to an end after the suit was filed.

2. The only quest on therefore in the suit would be whether the plaintiffs had been in possess on with in 12 years of the suit, and of that there was ample evidence. The defendants did not even appear to give evidence in the Trial Court. They confined their endeavours to instructing their Pleader to argue that the plaintiffs' documents show nettle were forged. The learned Judge has considered all those questions and came to the consuls on that the plaintiffs had proved their title and possess on within 12 years. Why the elder branch should prove 12 years adverse possession we do not know. If they had title they could only have lost it if a third party could prove that he had acquired his title by adverse possession.

3. It has been argued in this Court that the plaintiffs had not proved their title because they had not pleaded that they belonged to the same Vatan family of Balappa. Plaintiffs said in the plaint that they were the Vatan Bhaubands of the de ceased, and, therefore, under the Vatan Act, succession did not go to daughters nor to defendant No. 1 who was the widow of the deceased's brother. The plaintiffs also said that plaintiff No. 1's grand-father Bhimappa and plaintiff No. 2 Hanmantgauda were the Vatani Bhaubands of the deceased and were members of the eldest branch, and that they a lone were the nearest heirs under the Vatan Act, that Would seem to be sufficient pleading to maintain the allegation that they belonged to the same Vatan family of Balappa and certainly defendants would be put on notice to deny that fact if they wished to assert that the plaintiffs were not members of the same Vatan family.

4. The case of Bai Laxmi v. Maganlal (1) is re-led upon by the appellants. The original Vatandar was one Gopinath. When heeded without issue, Government issued separate sanads to two of his first cousins. So, there were two separate Vatans, and from that time the members of each Vatan would not be considered as members of the same Vatan family as having descended from the common progenitor. Hare it has not been suggested that the pedigree is not correct or that Gavadappa at the top of the ped gree was not the common progen tor of the various branches who are in possess on of the Vatan property. It follows, therefore, that the decision of the Court below was right and the appeal must be dismissed with costs.


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