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2010 DIGILAW 1248 (KAR)

Ajjawwa Yallappa Dawoonavar v. Kamalawwa

2010-12-08

B.V.PINTO, V.G.SABHAHIT

body2010
JUDGMENT V.G. Sabhahit, J : This appeal is filed by defendants 2 to 6 in O.S.No.124/1992 on the file of the learned Civil Judge (Senior Division), Hubli, being aggrieved by the judgment and decree dated 23/11/2001 wherein the suit filed by respondents 1 to 3 herein has been decreed declaring that plaintiffs and defendant No.7 are entitled to half share in the schedule properties and defendant No.1 shall be entitled to remaining half share in the suit schedule properties and properties shall be divided by metes and bounds by appointing commissioner. 2. The material facts of the case leading upto this appeal are as follows: Respondents 1 to 3 herein who are plaintiffs 1 to 3 filed a suit in O.S.No.124/1992 averring that Yellappa died in the year 1990 leaving behind him his wife and children Basappa-defendant No.1, Mallappa (dead), Yallawa-wife of Ranappa Ghorpade, Seethawwa-wife of Hanumantappa Garge, Girijawwa-wife of Bhimappa and Parawwa wife of Basappa. Plaintiffs 1 to 3-respondents 1 to 3 and defendant No.7 in the suit as plaintiffs 1 to 4 filed a suit against Basappa and subsequently defendants 2 to 6 were impleaded and plaintiff No.2 was transposed as defendant No.7. It is averred that suit schedule properties comprised of one house property situated at Devaragudihal bearing VPC No.1 and 2 agricultural lands in block No,-167 situate at Devargudihal village of Hublitaluk and another agricultural land in block No.179 measuring 6 acres 1 gunta in the same village belong to Yellappa and after his death, the plaintiffs who are the legal representatives of Mallappa along with defendant No.7 have succeeded to the property and they are entitled to half share in the suit schedule properties. It is their case that though they requested the defendant to give their share, defendant No.1 refused to give share and wherefore suit is filed for partition and separate possession of their half share. Defendant Nos.2 to 6 did not file any written statement. However, defendant No.1 filed written statement admitting that the suit schedule properties are the ancestral properties in the hands of the plaintiffs and the defendant, being the property of Yallappa, all the heirs are entitled to equal share. Having regard to the above said pleadings, the following issues were framed: 1. Whether the plaintiffs prove that they are entitled to half share in the suit properties? 2. Having regard to the above said pleadings, the following issues were framed: 1. Whether the plaintiffs prove that they are entitled to half share in the suit properties? 2. Whether the plaintiffs are entitled to the mesne profits as claimed by him? 3. Whether the genealogy as submitted by the plaintiffs is correct? 4. Whether defendants prove that all suit properties are self acquired properties of deceased Yellappa and thereafter after death of Yellappa, defendants have become owners of suit properties as stated in their W/S? (issue No.4 recasted on 13/08/01) 5. Whether the plaintiff proves that Seetavva, Yellavva, Girijavva, Paravva have waived the rights in the property? 6. Whether the suit is hit by non-joinder of necessary parties? 7. What order or what decree? 3. On behalf of the plaintiffs, Kamalawwa-plaintiff No.1 was examined as P.W.- 1. She did not get any documents marked. On behalf of the defendants, defendant No.1 -Basappa was examined as D.W. 1 and Shivappa-defendant No.7 was examined as D.W.-2 and Exs.D-1 to D-8 were marked. 4. The trial Court after considering the contention of the Counsel appearing for the parties and appreciating the oral and documentary evidence on record held that the schedule properties are the properties of Yellappa and the legal representatives are entitled to equal share in the suit properties. However, the trial Court held that since defendants 2 to 6 have not filed statement, they may be presumed to have given up their share in respect of the suit properties and accordingly held that plaintiff and defendant No.7-being the legal representatives of Mallappa, and Basappa-defcndant No.1 is entitled to half share being the son of Yellappa and passed the decree as referred to above and accordingly passed the judgment and decree dated 23/11/2001. Being aggrieved by the same, defendants 2 to 6 have preferred this appeal. 5. We have heard the learned Counsel appearing for the appellants. 6. Being aggrieved by the same, defendants 2 to 6 have preferred this appeal. 5. We have heard the learned Counsel appearing for the appellants. 6. The learned Counsel has taken us through the evidence adduced by the patties before the Trial Court comprised of evidence of P.W.1 and D.Ws.1 and 2 and the contents of the documents got marked by the defence and submitted that though the appellants-defendants 2 to 6 could not file written statement that would not take their right in the schedule properties which are the ancestral properties and at the most it can be said that they have not contested the case by filing written statement but mere non filing of the written statement would not amount to relinquishing their share or giving up their share in the schedule properties and his legal representatives being the mother and children who are entitled to equal share along with the plaintiffs and defendant No.7 and defendant No.1 and defendant No.2 is the wife and defendants 3 to 6 are the children of Yellappa. 7. Having regard to the contentions urged, the points that arise for determination in this appeal are: (1) Whether the finding of the trial Court that the appellants defendants 2 to 6 have given up their right in the schedule properties as they have not filed their written statement and decreeing the suit of the plaintiffs and defendant No.7 for half share is justified or calls for interference in this appeal? (2) What order? and we answer the above points as follows: 1. The finding of the trial Court that appellants have given up their right in the schedule property is perverse and arbitrary and the same is liable to be set aside and plaintiffs and defendant No.7 will be entitled to share in the schedule properties and appellants herein shall be entitled to 1/7th share each. 2. As per the final order for the following reasons. REASONS 8. We have given careful consideration to the contention of the learned Counsel for the parties and scrutinized the material on record. 9. It is clear from the pleading of the parties the fact that the suit schedule properties belonged to Yellappa and he died in the year 1991 leaving behind his legal representatives, is not in dispute. Therefore the property left by Yellappa devolve equally upon the wife and children of Yellappa. 9. It is clear from the pleading of the parties the fact that the suit schedule properties belonged to Yellappa and he died in the year 1991 leaving behind his legal representatives, is not in dispute. Therefore the property left by Yellappa devolve equally upon the wife and children of Yellappa. The genealogy as given in the plaint cannot be disputed and the same is shown as follows: Yallappa (deceased) Basappa Mallappa Yallawwa Seetawwa wife Girijawwa Parawwa (deft.) (dead) w/o. of Hanamantapa wife of wife of Rangappa Gharage Bhimmappa Dasappa Ghorpade Kamalawwa (Plff. No.1) Shivappa (Plff. No.2) Mallawwa (Plff. No.3) Manjula (Plff. No.4) 10. The material on record would further show that wife of Yellappa, Ajjavva-defendant No.2 was alive and she was not made a party to the suit, defendant Nos. 2 to 6 who are the children of Yellappa were also not made parties to the suit. Subsequent to filing of the suit they have been impleaded as parties. Therefore it is clear that Yellappa died leaving behind his wife Ajjavva-defendant No.2 and his children Basappa defendant No.1, Yellavva-defendant No.3, Seethawwa defendant No.4, Girijawwa defendant No.5, Parawwa defendant No.6 and Shivappa-defendant No.1. Mallappa died after the death of Yellappa leaving behind plaintiff Nos.1 to 4 and defendant No.7. Evidence of P.W.1 and PW.2 would show that even in their evidence they have stated that suit properties were the properties of Yellappa and after his death the property has devolved upon his legal representatives. P.W. 1- plaintiff No. 1 has deposed in the evidence that she has been maintaining Shivappa-plaintiff No.2 and sending him to school and plaintiff No. 2 is in her custody and he has studied up to 4th standard and now he is not going to the school. However she does not denied that defendant No.2 is the wife of Yellappa and defendant Nos. 2 to 6 are the daughters of Yellappa who had not been impleaded in the suit. D.W.1-Basavva and defendant No.7 have naturally supported the case of the plaintiff in their evidence as they wanted to claim the share to the exclusion of their mother and sisters who were not impleaded as parties. 11. 2 to 6 are the daughters of Yellappa who had not been impleaded in the suit. D.W.1-Basavva and defendant No.7 have naturally supported the case of the plaintiff in their evidence as they wanted to claim the share to the exclusion of their mother and sisters who were not impleaded as parties. 11. It is clear on appreciation of the evidence of P.W.1 and P.W.2 that the fact that Yellappa died leaving behind his wife and son Basappa defendant No. 1 and daughters-defendant No.3 to 6 and plaintiff No. 1 to 4 and defendant No.7 are the children of Mallappa who died subsequent to the death of Yellappa. Therefore it is clear that on the death of Yellappa having regard to the prevalent law as he died in the year 1990 in view of the provisions of Succession Act his wife and children are entitled to equal share as Class-I heirs. Therefore the wife-Ajjavva defendant No.1, Sons Basappa and Mallappa and four daughters would be entitled to the properties equally, i.e., l/7th share each. Plaintiff No. 1 to 4., and defendant No.7 being the legal representatives of Mallappa who was alive on the date of death of Yellappa would be entitled to the share of Mallappa, i.e., 1/35th share which would be equivalent to l/7th share in the schedule property. The plaintiff Nos. 1 to 4 and defendant No.7 would be together entitled for l/7th share, i.e., share of Mallappa in the schedule properties. 12. The calculation of shares in view of the provisions of the Act and well settled principles of law. Overlooking these evidence the trial Court has proceeded on the basis that because defendant Nos. 2 to 6 did not file written statement they must have deemed to have given up their right in the schedule property. Therefore the plaintiff Nos. 1 to 5 and defendant No.7 being the legal representatives of Mallappa son of Yellappa and defendant No.1 Basappa are entitled to 1/2 share each which is clearly perverse and arbitrary. The said finding has no basis as it is contrary to the well settled law as referred to above. Therefore the finding of the trial Court that plaintiffs and defendant No.7 are entitled to 1/2 share and defendant No.1 is entitled to half share is unsustainable and liable to be set aside. We hold that the plaintiff Nos. The said finding has no basis as it is contrary to the well settled law as referred to above. Therefore the finding of the trial Court that plaintiffs and defendant No.7 are entitled to 1/2 share and defendant No.1 is entitled to half share is unsustainable and liable to be set aside. We hold that the plaintiff Nos. 1 to 4 and defendant No.7 shall entitled to l/7th share in the schedule property and defendant 1 to 6 are entitled to l/7th share each in the schedule property and to that extent the judgment and decree passed by trial Court is liable to be modified and accordingly we pass following order. Order The appeal is allowed. Judgment and decree passed by trial Court is set aside and it is ordered that plaintiffs and defendant No.7 shall be together entitled to 1/7th share in the schedule property and defendant No.1 to 6 are entitled to l/7th each in the schedule property. Plaintiff Nos. 1 to 4 and defendant No.7 shall be entitled to l/7th share in the schedule property and they are entitled to partition and separate possession of their share in the schedule property in accordance with law. Office to draw decree accordingly. Having regard to the facts of the case there shall be no order as to costs. Appeal is allowed.