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TMI Blog1925 (3) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... r the date of the alleged adoption, and this circumstance has given rise to some argument as to the proper division of the property in such a case. 4. The first point is in substance a question of procedure. On February 5, 1928, plaintiff and some of the defendants moved for an adjournment with a view to a compromise: the case stood over till March 13, and on that date the following entry appears in the Roznama: The case is adjourned as there is a likelihood of a compromise being made between the parties. 5. On March 14 there is the following note: Compromise has not been effected uptil now and so the case is adjourned to 16/3. 6. On March 16, plaintiff put in an application stating that he desired to withdraw the suit. Defendants' pleader objected to the proposed withdrawal on the ground that there had been an adjustment of the suit 7. The trial Court held that the adjustment was proved; that plaintiff could withdraw if he wished, but that his withdrawal would not deprive the Court of jurisdiction to enquire into and record the compromise, and to determine the other issues in the suit. 8. The first question is one of facts : Was there any concluded agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff was the validly adopted son of defendant No. 1. But after the compromise was recorded by the Court plaintiff again withdrew from the suit (see Exhibit 50), His first intimation (Exhibit 42) was apparently no more than a threat for he continued to take part in the proceedings up to April 13, on which date the compromise was recorded by the Court. The Court clearly could not have passed a complete decree on that date and it would be difficult to hold that anything in Order XXIII, Rule (8), could deprive plaintiff of his right to withdraw after all the proceedings required by that rule were at an end. 11. But there are other and wider considerations which lead me to hold that plaintiff could not have withdrawn so as to defeat the defendants' claim. It is relevant to point out that in a partition suit a defendant seeking a share is in the position of a plaintiff and one plaintiff cannot withdraw without the permission of another (Order XXIII, Rule 1 (4)). Were procedure by counter-claim in force outside Bombay the position would be clear enough, There would be a counter-claim by defendant No. 4 for her share, and the defendant in a counterclaim is a plaintiff, and a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by Jenkins C. J. in Satyabhamabai v. Ganeah Balkrishna. 13. Upon these grounds I am Of opinion that the technical objection raised by plaintiff should not be allowed to prevail, and the further points arising in the appeal must be considered. 14. The points which thus arise for decision are :- (a) What share should plaintiff get on a partition ? (b) What share should defendants Nos. 3, 4 and 5 get ? (C) How is the share of the deceased defendant 1 to be distributed. 15. Upon the first point it is argued that the parties are Sudras, and that in the case of Sudras the adopted son and the after-born son take equal shares. Reliance is placed upon the decision of the Privy Council in Perrazu v. Subbarayadu (1921) L. R. 48 I. A. 980, S. C. 33 Bom. L. R. 920 No doubt this case is an authority for holding that in Madras and in Bengal among Sudras the rule is that for which the appellant's counsel contends. But the question of fact here has not been determined. The parties are Agris by caste, and it cannot be assumed that Agris are Sudras. The point was never taken in the lower Court. The parties were content to leave the determination of their shares in the hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Dattaka Chandrika has never been placed so high in Western India as in Bengal and Madras [Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma (1899) L. R. 26 I. A. 113 and Waman Raghupati Bova v. Krishnaji Kashiraj Bova (1889) I. L. R. 14 Bom. 249.] The case is one where the principle of stare decision should be maintained: 17. The remaining points present no difficulty. Three wives take equal shares with the father and the son, the adopted son gets a share equivalent to one-fourth of the son's share. The arithmetical result is that plaintiff gets 1/21 and each of the other shares 4/21. The inheritance as regards the share of the deceased must be in the same proportion. No other result is logically possible. 18. I would, therefore, confirm the decree and dismiss the appeal with costs The cross-objections were not pressed and must also be dismissed with costs. Coyajee, J. 19. I am of the same opinion. 20. The facts of this case are sufficiently set out in the judgment of my learned colleague. The plaintiff claiming to be the adopted son of Mahadu (defendant No 1) has brought this suit to obtain by partition his share in the joint family properties. The e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdiction to give effect to the agreement (Order XXIII, Rule 3). A plaintiff denying such agreement or seeking to recede from it cannot deprive the Court of such power by claiming to withdraw the suit. 21. By this agreement, Exhibit 48, which was in the form of are application to the Court, the parties settled all their dispute and agreed that the determination of their respective shares is accordance with law should be made by the Court and then t decree should be obtained in terms of that document, Or behalf of the appellant (plaintiff) it was contended before that as the agreement itself did not specify the extent of the shares but loft its determination in accordance with law to the Court, there was no adjustment of the suit within the provisions of Order XXIII, Rule 3, and that therefore it was competent to him to withdraw the suit. I am unable to accept this contention. In the first place, this was a suit of a special nature It is the right of every defendant in a partition suit to ask to have his own share divided off and given to him...A defendant claiming a share on partition is, qua that claim, in the position of plaintiff and,..is clearly entitled to have his ..... 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