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Thimmayya Ajiri Vs. Marudevi and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKarnataka High Court
Decided On
Case NumberFirst Appeal No. 156 of 1964
Judge
Reported inAIR1968Kant269; AIR1968Mys269; (1967)1MysLJ619
AppellantThimmayya Ajiri
RespondentMarudevi and ors.
Excerpt:
.....that the application must be exhaustive of all the lands claimed by the applicant obviously is based on certain purpose and preventing piece meal applications so that there may be consolidated enquiry and hearing by the tribunal competent to decide a particular application and such rule is based on order 2, rule 2 of c.p.c., the above ratio enables the tribunal to consider at a stretch all the lands held by the applicant or any of the family members and whether such lands are tenanted lands or not to see that the applications so filed contain all the particulars of different tenanted lands. the very purport of rule 19 is to file such application in form 7 making a mention of all such properties at a stretch. however the exception provided as per judicial dictum is that, the..........are these:-during the pendency of the suit all the properties belonging to the family except home-farm lands which were in the possession of the plaintiffs and defendant 3 continued to be in possession of a receiver who had been appointed at some antecedent stage. according to the report of the commissioner, the receiver was not able to collect all the income due to the family from the tenants who cultivated them. the receiver was able to collect smaller sums of money and after their deposit in court, some part of it was distributed and what remained was a sum of rs.23,934-51. the plaintiffs and defendant 3 were in possession of what is described as home-farm lands and the commissioner was of the opinion that the income derived from the home-farm by defendant 3 was rs. 11,532-00.....
Judgment:

(1) This is an appeal by defendant 3 against that part of the final decree made by the Court below by which he was directed to pay to defendant 1 a sum of Rs. 1,344-86 paise and to defendants 2 and 4 a sum of Rs.5,379-43 paise. This liability related to the period between December 4, 1951 and March 31, 1963. Defendant 3 contends in this appeal that the determination of the amounts, was not properly made.

(2) A few facts which we should enumerate for understanding the complaint ventilated in this appeal are these:-

During the pendency of the suit all the properties belonging to the family except home-farm lands which were in the possession of the plaintiffs and defendant 3 continued to be in possession of a receiver who had been appointed at some antecedent stage. According to the report of the Commissioner, the receiver was not able to collect all the income due to the family from the tenants who cultivated them. The receiver was able to collect smaller sums of money and after their deposit in court, some part of it was distributed and what remained was a sum of Rs.23,934-51. The Plaintiffs and defendant 3 were in possession of what is described as home-farm lands and the Commissioner was of the opinion that the income derived from the home-farm by defendant 3 was Rs. 11,532-00 during the period with which we are concerned. He made an allowance in regard to the amounts which should be credited in favour of defendant 3 and one of the items debited against defendant 3 was the income from the home-farm amounting to Rs. 11,532-00 nP.

(3) The only item in that statement which is called in question by Mr. U. L. Narayana Rao for defendant 3 is the sum of Rs. 11,532 which, according to the Commissioner, was the income from the home-farm derived by defendant 3. Mr. U. L. Narayana Rao, also maintained that since defendant 3 was himself entitled to an annual income of 104 muras and 101/2 seers as stated by the Commissioner in his earlier report, all that income should have been credited by the Commissioner to his account instead of crediting only the share of defendant 3 in the amounts collected by the receiver as income from the lands in his management.

(4) The second submission was repelled by the subordinate Judge, and, in our opinion, rightly. If some part of the family property was in possession of a receiver and some other properties were in the possession of some of the members of the family, in the absence of any allotment of a specific property to a particular member of the family, each member of the family is entitled to a share of the aggregate income which is attributable to his share in the family property. For that purpose, the income derived by the receiver and the income derived by the other members of the family who are in possession of properties other than those in the possession of the receiver, have got to be brought into a pool for distribution. By the application of this principle, what emerges is that if defendant 3 was in possession of the home-farm, the income from that home-farm has to be brought into the pool in the same way in which the income derived by the receiver has to be brought. That exactly was what was done by the Commissioner and what he did receive was the imprimatur of the Subordinate Judge and in our opinion very rightly.

(5) Defendant 3 could not claim the home-farm as his property until there was a partition and it was allotted to him exclusively, and it was not. So whatever was the income which he derived from the home-farm during the relevant period, had to be distributed amongst all the members of the family in proportion to their shares in the family property.

(6) If this was all that could be said about it, we should have had little hesitation in dismissing the appeal. But Mr. Narayana Rao contends that the Commissioner's assessment of the I come from the home-farm was exclusive, and, that no investigation was made into the validity of that objection by the subordinate Judge. We find from the order prepared by the Subordinate Judge on March 23, 1964 by which he evolved the principle on the basis of which the income had to be distributed that the question as to whether defendant 3 died in fact derive income of Rs. 11,532 was not considered or discussed. Mr. Narayana Rao, contended that the basis adopted by the Commissioner that the income from the home-farm aggregated to 43 muras was on unavailable basis. He also contends that the price of each mura specified by the Commissioner is excessive. On these matters the Subordinate Judge made no investigation.

(7) So, while, we affirm the principle on which the Subordinate Judge proceeded to make the final decree against defendant 3, we set aside that part of the decree by which a decree was made against defendant 3 for payment of the amounts referred to in the final decree to defendants 1, 2 and 4. We remit that part of the matter to the Subordinate Judge for fresh adjudication on the question as to what was the income derived by defendant 3 from the home-farm during the relevant period. The Subordinate Judge will record a finding on that matter affording to defendant 3 and to defendants 1, 2 and 4 an opportunity to produce all such evidence which they wish to produce. The Subordinate Judge will then make a final decree on the basis of the principle stated in this judgment.

(8) We make it clear that the decree made against the plaintiffs will remain undisturbed and is to no extent affected by this judgment which relates only to the liability of defendant 3.

(9) The Court-fee paid on the memorandum of appeal will be refunded to defendant 3. There will be no direction in regard to costs.

(10) Order accordingly.


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