Mallappa S/o Fakkirappa Madiwalar v. Parvatevva W/o Ulavappa Madiwalar
2021-02-04
N.S.SANJAY GOWDA
body2021
DigiLaw.ai
ORDER : The undisputed facts are that a suit in OS No.187/1997 was filed by Ulavappa Mallappa Madiwalar seeking for partition on the premise that the suit schedule properties were the joint family properties of the defendants and plaintiffs. The said suit after contest was decreed. While decreeing the suit, the Trial Court held that the defendants have proved that they were the members of joint family and that the suit schedule properties were the joint family properties of plaintiffs and defendants. 2. The Trial Court ultimately proceeded to grant 1/6th share in item Nos.1 to 4 of the suit properties in favour of the legal representatives of the plaintiffs. 3. Admittedly, this preliminary decree has been accepted by the defendants, including the present petitioner who was defendant No.4 in the suit. 4. Thus, in OS No.187/1997 a categorical finding has been recorded by the Civil Court that the plaintiffs and defendants were members of a joint family and the suit properties were joint family properties. 5. The effect of this finding is that all the members of the joint family would be entitled to a share. 6. The final decree Court by the impugned order has accepted the prayer of defendants and respondents and has proceeded to grant 1/6th share to defendant No.1(through his LRs), defendant Nos.4 and 5, defendant No.6 to 10 and defendant Nos.11 to 15. In other words each branch of the family has been granted 1/6th share. 7. Learned counsel for the petitioner contends that since no share was granted to defendants in the preliminary decree, in the final decree proceedings, the other defendants could not have been granted a share. According to him, the Court which was dealing with the drawing of a final decree would have no jurisdiction to grant the shares in respect of defendants who had not made any such claim during the trial. He submits that if a share ought to have been granted to the defendants, an enquiry ought to have been conducted by the Final Decree Court. 8. I have considered the submissions of the learned counsel for the parties and perused the records. 9.
He submits that if a share ought to have been granted to the defendants, an enquiry ought to have been conducted by the Final Decree Court. 8. I have considered the submissions of the learned counsel for the parties and perused the records. 9. In view of the undisputed fact that OS No.182/1997 was decreed after recording a finding that the plaintiffs and defendants were members of joint family and the suit properties were joint family properties, the inevitable consequences of this finding would be that each branch of the family would be entitled to a share. The Trial Court by the impugned order has merely declared that each branch is entitled to a share, having regard to the finding recorded in the judgment dated 27.03.2012. 10. Since, it is not in dispute that the plaintiffs and defendants are members of joint family and that the suit properties are joint family properties, the order passed by the Executing Court, determining of shares of each branch cannot be found fault with. It is to be noticed here that a proceeding for drawing up of a final decree is basically a procedure designed to ensure and demarcate the share of each of the parties is pursuant to the decree of partition already granted by the Court. 11. I do not find any infirmity in the finding recorded by the Final Decree Court. Hence, writ petition is dismissed.