Skip to content


Shivadeviamma and ors. Vs. Sumanaji and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKarnataka High Court
Decided On
Case NumberFirst Appeal No. 50 of 1965 (With Cross-objections)
Judge
Reported inAIR1973Kant247; AIR1973Mys247; (1973)1MysLJ364
ActsMadras Aliyasanthana Act, 1949 - Sections 28
AppellantShivadeviamma and ors.
RespondentSumanaji and ors.
Appellant AdvocateB.P. Holla, Adv.
Respondent AdvocateK.R. Karanth and ;K.R.D. Karanth, Advs.
Excerpt:
- code of civil procedure, 1908. section 148: [a.s. pachhapuri, j] enlargement of time - suit for specific performance of contract - decretal of suit subject to deposit of the balance sale consideration within one month from the date of decree - confirmed in appeal - failure of the petitioner to deposit the amount as ordered in the suit - miscellaneous application requesting extension of time to deposit the amount - rejection of challenge as to held, as could be seen from the provisions of section 148 c.p.c., the question regarding the extension of time arises in case if any time is fixed or granted by the court for doing of any act prescribed or allowed by the code. so, as regards the applicability of this provision, it is relevant to note that the extension of time is only when the.....venkataramiah, j.1. the relationship between the plaintiffs and defendants 1 to 9 is set out in our order of reference to full bench dated november 3, 1970. defendants 10 to 12 are the alienees of certain items of property from defendant 1. defendant 12 was given up in the suit on 20-12-1964.2. we shall briefly refer to certain portions of the pleadings of the parties which are necessary for deciding the question that survives for consideration after the decision of the full bench. plaintiffs and defendants 1 to 9 are members of jain community governed by aliyasanthana law. on the date of the suit the family consisted of only six members, the plaintiffs and defendants 1 to 3. defendants 4 to 9 were brought on record as the legal representatives of defendant 1 on his death during the.....
Judgment:

Venkataramiah, J.

1. The relationship between the plaintiffs and defendants 1 to 9 is set out in our order of reference to Full Bench dated November 3, 1970. Defendants 10 to 12 are the alienees of certain items of property from defendant 1. Defendant 12 was given up in the suit on 20-12-1964.

2. We shall briefly refer to certain portions of the pleadings of the parties which are necessary for deciding the question that survives for consideration after the decision of the Full Bench. Plaintiffs and defendants 1 to 9 are members of Jain community governed by Aliyasanthana Law. On the date of the suit the family consisted of only six members, the plaintiffs and defendants 1 to 3. Defendants 4 to 9 were brought on record as the legal representatives of defendant 1 on his death during the pendency of the suit. The plaintiff's case was that the first defendant was the manager of the family from 1950 and that all the items mentioned in schedule 'B' consisting of immovable properties and schedule 'C' consisting of movable properties belonged to the family. They claimed that each of them was entitled to one sixth share in the family properties and that each of the defendants 1 to 3 was entitled to one sixth share in them. It was alleged that defendant 1 had a large amount of cash amounting to Rs. 45.000/- belonging to the family and the said amount was shown as item 32 in plaint Schedule 'C'.

After the suit was instituted, two Commissioners were appointed to make inventories of properties in the four houses, namely. Sudi house. Padukodoorbidu house. Varnabettu house and Danasale house. P.W. 2 was appointed as commissioner to prepare the inventory of the movables in Pudikodoorbidu and Sodi houses and P.W. 5 was appointed as the Commissioner for making an inventory in Varnabettu and Danasale Houses. Exhibit A-4 is the inventory prepared by P.W. 2 and Exhibit A-27 is the inventory prepared by P.W. 5. There is no dispute that the movables mentioned in those two inventories were found at the respective houses. Apart from saying that defendant 1 who was the manager of the family had been acting prejudicially to the family in selling away valuable standing timber in the family properties and appropriating their value for himself and his wife and children, no other allegation was made against defendant 1 in the plaint regarding his management of the family properties. The plaintiffs specifically made a prayer in the plaint that defendant 1 should be called upon to render an account of the income of the family properties from the date of the suit till the plaintiffs were actually put in possession of their share (vide para 7 of the plaint). Defendant 1 in his written statement claimed that some of the plaint schedule properties, to which specific reference would be made at a later stage, belonged to him exclusively as they were his separate properties and that the plaintiffs had no interest in them. He also pleaded that he had not got with him any cash belonging to the family. It was urged that the income which he was deriving from the family properties which were in his possession, was utilised by him for the maintenance of the members of the family and for defending a litigation which had been Instituted by one Chandraraia Hegde against all the members of the family.

With regard to the claim of the plaintiffs regarding the extent of the shares they were entitled to in the family properties, it was pleaded that each of the plaintiff and defendants 1 to 3 were entitled to only one-sixth share in three-fourths of the family properties and that the remaining one-fourth of the family properties which belonged to Rathidevi Amma. his elder sister, devolved on him under her Will Exhibit B-2. It was also pleaded by defendants 4 to 9 who were brought on record as legal representatives of defendant 1 on his death, that the share of defendant-1 in the family properties had been disposed of by him under a Will Exhibit B-3.

3. At the outset it may be mentioned that the question regarding the validity and binding nature of the will executed by Rathidevi Amma, Exhibit B-2. has been decided by the Full Bench, It has been held that the said will was ineffective since Rathidevi Amma had only a life interest in the properties which were the subject-matter of the Will. There is also no necessity to deal with the will made by defendant 1 in this suit since the plaintiffs are not interested in that question. Hence, we do not express any opinion on the validity and binding nature of the said will and leave the said question open to be decided in separate proceedings.

4. The court below has while passing the preliminary decree in this case, held that plaintiff 1 and defendant 2 have each one-fourth share; plaintiffs 2 and 3 and defendant 3 have each got one-eighth share; defendant 9 has got one-twelfth share; and defendants 5 to 8 together have got one-twenty-fourth share in the family properties. The above finding is attacked by the legal representatives of defendant 1. Their case is that in all the family properties, plaintiffs 1 to 3 and defendants 1 to 3 are entitled to one-sixth share each as stated in the plaint and the court below was wrong in determining their share as stated above. It was argued that on the death of Rathidevi Amma, the one-fourth share in the family properties to which she was entitled, devolved on all the members of the kutumba consisting of plaintiffs 1 to 3 and defendants 1 to 3 In view of the provisions of Section 36 (5) of the Madras Aliyasanthana Act (Madras Act IX of 1949) (hereinafter referred to as the Act), and. therefore, on the date of the suit there being only six members i.e., plaintiffs 1 to 3 and defendants 1 to 3 in the kutumba. all of them were entitled to one-sixth share in the properties of the kutumba including the share of Rathidevi Amma in which she had only a life interest. The above submission made on behalf of defendants 4 to 9 is not disputed by Sri K. R. Karanth, the learned counsel for the plaintiffs. We. therefore, hold that plaintiffs 1 to 3 and defendants 1 to 3 are entitled to one-sixth share in the family properties.

5. The next question relates to the movable properties of the family which are liable to be partitioned. The court below has held that the movables found in Sudi. Danasale and Varnabettu houses are family properties. It was contended by the legal representatives of defendant 1 that the above finding was liable to be set aside. They relied upon the evidence of defendant 9 who has been examined in this case as D.W-7 in support of their case. D.W. 7 has stated that Nemanna Hegde, elder brother of defendant 1. was the manager of the family till his death in 1949. During his lifetime, his younger sister Rathidevi Amma and defendant 1 had to institute proceedings against him for recovering maintenance due to them from family properties and that Rathidevi Amma and defendant 1 left the family house which is known as 'Sudi House' in the year 1922. Since then Rathidevi Amma was living in Karkal. In 1922 defendant 1 moved out of the family house and started living at Gudde Angadi Bandasali where he lived for about eight years along with his wife and children. From there he moved to Padukudoor in 1932 with all the movables belonging to him and stayed in Padukudoorbidu House-In 1938 he shifted to Muniyal House. In 1950 defendant 1 shifted to Danesale house. After defendant 1 left Pudukudoorbidu house, defendant 9 was staying there with his family. The wife of defendant 1 was residing from 1944 at Varnabettu house. He further deposed that during the life time of Nemanna Hegde, certain properties yielding an income of 175 muras of rice and RUT pees 75/- cash, had been given to defendant 1 for his maintenance and that from out of the said income he had acquired certain movables and immovable. The movables that were found in Padukudoorbidu house. Varnabettu house and Danasale house belonged exclusively to defendant 1. On the side of the plaintiff there is no specific evidence regarding the total extent of movables which belonged to the family apart from the two reports prepared by the Commissioners, namely. Exhibits A-4 and A-27. The reports of the Commissioner only stated that at the time of the inventory, the movables mentioned therein were found at the respective places. The question for consideration is whether the movables found hi all the four houses, namely, Sudi House, Padukudoorbidu House, Varnabetty House and Danasale House, should be treated as joint family properties. It is not disputed that Sudi house was originally the family house where Nemanna Hegde was living. It is not the case of defendants 4 to 9 that defendant-1 kept any of his movables in that house. It is reasonable, therefore, to hold that the movables which were found at the time of the inventory at Sudi house which are mentioned as items 1 to 65 in Para 7 of Exhibit A-4 are family properities. On the same principle it has to be held that the movables found in Danasale house as recorded in Exhibit A-27 belong to the family.

It is alleged in the plaint that even though Rathidevi Amma. the elder sister of defendant 1, was the next seniormost member of the family alive at the time of the death of Nemanna Hegde, defendant-1 who was a junior member took over the management of the family properties and functioned as manager. In Ext. A-24 which is a certified copy of the deposition of defendant 1 in O. No. 27 of 1955 on the file of the Subordinate Judge. South Kanara. in Para 10 defendant 1 has admitted that he was the Manager of the entire kutumba properties since 1950 and prior to that his brother Nemanna Hegde was the manager. He has also stated that his elder sister took properties yielding 100 muras of rice.

It is. therefore, clear that from 1950 onwards defendant-1 was the manager of the family and during that year he shifted to Danasale house. His wife admittedly was living at Varnabetty house away from him and that defendant-9 and his wife and children were residing at Padukudoorbidu house. It is, therefore, clear that from 1950 defendant-1 was residing at Danasale house as manager of the family. In these circumstances, we are of the opinion that the movables found at Danasale house as per Exhibit A-27 should be held as family properties. We, therefore, hold that the furniture, i. e., items 1 to 56 in para 5 of Exhibit A-27, copper vessels items 1 to 20. brass vessels items 1 to 13, bronze vessels items 1 to 7, stainless steel vessels items 1 to 7. she buffalo and cow and other miscellaneous items 1 to 22 found in Danasale house are family properties. The above items are mentioned in part A of para-5 of Exhibit A-27. The movables that were found at the time of the inventory at Padukudoorbidu house and Varnabetty house, cannot be considered as family properties because there is no evidence at all in support of the plaintiffs with regard to their claim, but on the other hand we have the evidence of defendant-9 which supports the case of defendants 4 to 9.

6. The next contention urged by Sri B. P. Holla, the learned counsel for defendants 4 to 9. is that the court below was wrong in coming to the conclusion that Defendant 1 had with him a sum of Rs. 24,196/- belonging to the family on the date of suit and he was liable to account for the same. In arriving at that conclusion, the court below has adopted a very curious reasoning. It overlooked the fact that defendant-1 was the manager of an Aliyasanthana family and that he was not ordinarily liable to render an account regarding the income of the family properties prior to the date of division unless there was proof regarding fraudulent misappropriation of the family properties by him. As already mentioned, the only allegation that was made against defendant-1 in the plaint was that he was selling away timber belonging to the family in order to utilise the proceeds for the benefits of his wife and children. In support of this part of the case, the plaintiffs examined P.W.1 Jinaraia Poovani and P. W. 3 Jogappa Shetty. P. W. 1 has stated that he had purchased in the year 1956 timber of the value of Rs. 8,000/- from defendant-1 and that he had paid on 29-4-1956 a sum of Rs. 6,000/- and on 16-5-1956 a sum of Rs 2000/- in respect of the said transaction. P.W. 3 has stated that he had purchased some timber and fire-wood in or about the year 1955 from defendsnt-1 of the value of less than Rs. 1,000-. Apart from the evidence of P.Ws. 1 and 3 there is no other evidence in this case adduced on behalf of the plaintiffs to show that defendant-1 had misappropriated any monies belonging to the family.

Dealing with' the liability of an Yajman of an Aliyasanthana family to render an account regarding the amounts realised by him prior to the date of division, a Division Bench of this Court consisting of Hombe Gowda. C. J. and Hegde J., (as he then was), has observed as follows in Mudankila v. Appi, Regular Appeal No 128 of 1961 decided on 12-7-1966 (Mys)-

'Now coming to the plaint 'C' Schedule properties, the first item mentioned therein was realised in the year 1955 and the second item was realised in 1944 as could be gathered from Exhibit B-31. The fact that those items were realised by the first defendant several years prior to the institution of the suit is not sufficient for concluding that those moneys are available for partition. A yajman of an Aliyasanthana family is ordinarily not accountable in respect of the monies realised by him. If the junior members of the family want to claim accounts from the yaiman. they must plead and establish that he had misappropriated family funds. A' mere misspending of the family moneys would not 'subject the yajman of the family to accounting in respect of the moneys realised. The plaintiffs have not pleaded that the money in question has been misappropriated by the yajman. They have further not proved that those sums are now available for partition. The first defendant pleads that those moneys are not available as he has spent them away.

Whether the spending in question was proper or not, the fact remains that the moneys in question are not proved to be in existence and therefore they are not available for partition. Under these circumstances, the moneys mentioned in plaint 'C' Schedule could not have been included as family assets available for partition.'

The case of the plaintiffs in the present case is in no way different from the case which was considered in Regular Appeal No. 128 of 1961 (Mys). Sri K. R. Karanth urged that the above decision should not be followed by us because in the said decision there was no reference to the provisions of Section 28 of the Act, which reads as follows ;--

'28 (1) The yajman shall keep true and correct accounts of the Income and expenditure of the kutumba; and every major member of the kutumba shall have the right to inspect the accounts of each fasli year at the kutumba house at any time in the months of August and September in the immediately succeeding fasli year, and also to take copies of, or extracts from, such accounts:

Provided that nothing contained in this Sub-section shall apply to any kutumba, the gross income of which from all sources, in any one year, does not exceed three thousand rupees.

(2) If the accounts are not made available for inspection as provided for in Sub-section (1), the Civil Court of the lowest grade having original jurisdiction over the place where the whole or any part of the immovable property of the kutumba is situated or where the yajman resides may on application by any major member of the kutumba and after notice to the yajman Pass an order causing the account to be produced in Court and allowing such member to inspect and also to take copies of or extracts from, such accounts.

(3) Whoever knowingly disobeys an order of the Court under Sub-section (2) shall be punishable with imprisonment which may extend to three months, or with fine which may extend to five hundred rupees, or with both:

Provided that no Court shall take cognisance of an offence punishable under this Sub-section, except on the complaint in writing of the Court whose order has been disobeyed or of some other Court to which such Court is subordinate.'

We cannot agree with Sri Karanth for two reasons, (i) a decision of a Division Bench of a Court cannot be ignored by another Division Bench only on the ground that the earlier decision of the Division Bench had not taken into account certain aspects of the case, which were not urged before it and (ii) we are not inclined even after hearing Sri Karanth on those aspects of the case, to disagree with the view expressed in Regular Appeal No. 128 of 1961. What all is stated in Section 28 of the Act is that the yajman of a family should maintain true and correct accounts and the junior members of the family are entitled to ask for them and when they are not furnished to approach the Court as provided in Section 28 (2). The said section does not impose any other liability or responsibility on the yajman which was not there before the Act was passed. Section 39 of the Act states that nothing contained in the Act shall be deemed to affect any rule of Aliyasanthana Law custom or usage, except to the extent expressly laid down in this Act. The true legal position with regard to the liability of an Yajman to render account is as has been explained by this Court in Regular Appeal No. 128 of 1961 (Mys).

In Section 28 of the Act, as already stated, there is no provision which compels us to take a different view of the matter. The above view receives support from a decision of the Madras High Court In Thachunni Nair v. Unniappan Nair, AIR 1945 Mad 93, in which their Lordships of the Madras High Court were concerned with a case arising under the Madras Marumakattayam Act (22 of 1933). Section 32 of that Act reads :--

'The Karnavan shall keep true and correct accounts of the income and expenditure of the tarwad. The accounts of each year shall be available for inspection at the tarwad house by the major anandravan once In a year throughout the month of Kanni following such year end any such anandravan may take copies of. or extracts from, such accounts.'

It is true that in the Marumakkatayyam Act there is no provision similar to Sub-sections (2) and (3) of Section 28 of the Act. But we find in that Act also a provision corresponding to Section 39 of the Act In Section 50 which reads as follows:--

'Nothing contained In this Act shall be deemed to affect any rule of Marumakkattayyam Law. custom or usage, except to the extent expressly laid down In this Act.'

Leach C-- J-- dealing with Sections 32 and 50 of the Marumakattayam Act observed as follows:--

'Therefore before the Act was passed this suit would not have been maintainable, even in so far as it directed the production into Court of the accounts. As we have indicated it is accepted that the section permits a suit to be filed by a junior member requiring the karnavan to produce the accounts into Court if he has failed to make them available for inspection at the tarwad house; but this does not mean that a suit for accounts will lie. It merely contemplates the keeping of correct accounts and the production of them for inspection. Section 50 puts it beyond all doubt that the customary law is not altered except to the extent of the express provisions in the Act. The customary law did not permit of a suit for accounts against the karnavan, and to hold that Section 32 contemplates such a suit would be doing grave violence to its wording. The section, of course, leaves untouched the right of a junior member to bring a suit to compel the karnavan to make good any loss caused to the estate by reason of his misfeasance or fraud and the right to sue for his removal on the ground of neglect of his duties or abuse of his powers.'

We therefore, hold that the law regarding the liability of an yajman of an aliyasanthana family to render account regarding his dealings prior to the date of division has not undergone any change on the enactment of Section 28 of the Act. The Court below arrived at the figure of Rs. 24.196/- as being available for partition or as the amount in respect of which defendant 1 was liable to render account by deducting from the approximate income the family properties might have yielded from 1950, the probable amount spent by defendant 1 for the maintenance of the family during that period. This is hardly the method that should be followed by Courts to determine the liability of a manager regarding his dealings prior to the date of division. The Court below has not given any finding that there was any fraudulent misappropriation of the faintly funds by defendant 1 nor has it found that any cash belonging to the family was proved to be in existence at the time when the division of status took place. In these circumstances, the Court below should have rejected the claim of the plaintiffs for accounts in respect of the period prior to the date on which the division of status took place. We therefore, hold that the decision of the Court below to that extent is liable to be set aside.

7. We shall now proceed to consider the cross-objections filed by the plaintiffs. It may be mentioned here that the Court below has held that sixteen items of property included in the plaint schedule were separate properties of defendant 1 and that they were not liable for partition. The plaintiffs have filed cross-objections against the said finding. But at the time of the hearing of this appeal, the plaintiffs confined their case In respect of only the following items, namely, survey numbers 136/1, 54/1, 107/1 and 107/2 of Shirlal village, 93/3 and 96/1 of Padukudoor village and 65/12. 65/14 and 277/3B of Kantavar village. Sri Karanth relied upon Ext. A-8 which is an extract of patta No. 12 of Shirlal village to show that S. Nos. 136/1, 54/1. 107/1 and 107/2 were family properties. He pointed out that all these four items had been included in the said patta which stood in the name of Nemanna Hegde and that along with other items belonging to the family, these items also were transferred to the name of Rathidevi Amma by the revenue authorities as per K. R. No. 270/59 dated 11-6-1950 and that the said items were within a few days thereafter i. e.. on 17-6-1950 had been taken out of patta No. 12 and included in patta No. 50 consisting of the exclusive properties of defendant 1- It was argued that since these four items of properties were in patta No. 12 which originally stood in the name of Nemanna Hegde, the previous manager, they should be considered as family properties notwithstanding their transfer to Patta No. 50 on 17-6-1950. Sri Holla urged that these items were the separate properties of Nemanna Hegde and that in the previous proceedings which had been filed against the family they had been shown as the separate properties of defendant 1. He relied upon Exhibit B-70, a security bond which had been executed by defendant 1, in which they had been shown as his separate properties. He next relied upon Exhibits P-65 and P-66 under which the lands bearing S. Nos. 54/1 and 136/1 respectively had been granted in favour of Nemanna Hegde in or about the year 1915-16.

8. The fact that in the previous proceedings these four items were not shown as family properties cannot be considered to be of any materiality at all. In the said suit all the parties to this suit were only defendants and the suit was ultimately dismissed. Any finding in that suit cannot be considered as res judicata. The statement made by defendant 1 in Exhibit B-70, the security bond, that the said properties belonged to him also cannot be used against the plaintiff because that was a statement made by defendant 1 in his own favour. But the submission made by Sri B.P. Holla on the basis of Exhibits P-65 and P-56 relating to S. Nos. 54/1 and 136/1 however appears to be well founded. In 1915-16 Nemanna Hegde was a junior member of the family as he was not the yajman. The presumptions of law that are ordinarily raised in the case of the properties belonging to Marumakkethayam tarwad are set out in Achuthan Nair v. Chainnammu Amma. : [1966]1SCR454 . The same principles are applicable to the properties of a kutumba under Aliyasanthana Law. The relevant portion of the said decision reads as follows :--

'Courts have recognised the difference between a joint Hindu family under the Hindu Law and a tarwad under the Marumakathayam Law in the context of acquisition of properties and have adopted different principles for ascertaining whether a property acquired in the name of a member of a family is a joint family property or the self acquired property of the said member. Under Hindu law, when a property stands in the name of a member of a joint family it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law. But the said principle has not been accepted or applied to acquisition of properties in the name of a junior member of a tarwad (anandravan). It was held that there was no presumption either way; and that the question had to be decided on the facts of each case; See Govinda v. Nani. (1913) ILR 36 Mad 304; Dharnu Shetty v. Dejamma. AIR 1918 Mad 1367; Ahmad v. Manha Mammad Kunhi : AIR1926Mad643 ; and Thatha Amma v. Thankappa AIR 1947 Mad 137. But it is settled law that if a property is acquired in the name of the karnavan, there is a strong presumption that it is a tarwad property and that the presumption must hold good unless and until it is rebutted by acceptable evidence; See Chathu Nambiar v. Sekharan Nambiar. : AIR1925Mad430 and AIR 1947 Mad 137.'

From the foregoing it is clear that any acquisition made by Nemanna Hegde at a time when he was a junior member must be held to be his separate property unless there is any evidence to the contrary. It may be that the time when he also became manager of the family, these two items were included in his patta. It is not the case of the plaintiffs that these two items which were originally separate properties became joint properties by reason of their having been thrown into the family hotchpot by Nemanna Hegde. We, therefore, hold that survey numbers 136/1 and 54/1 belong exclusively to Nemanna Hegde and on his death by reason of the provisions of the Jain Succession Act (Madras Act III of 1929), these properties devolved of his heir defendant 1. But with regard to S. Nos. 107/1 and 107/2 when were also in patta No. 12 Exhibit A-8 consisting of other family properties, there is no evidence regarding the date of their acquisition by Nemanna Hegde. Nemanna Hegde was admittedly the manager of the family from 1921 to 1949. Applying the rule enunciated by the Supreme Court in the above decision in the absence of evidence regarding the date on which they were acquired, we hold that they are family properties as they had been included in the patta of the family.

9. We shall now turn to S. Nos. 9.3/3 and 96/1 of Padukudoor village. It is stated that they were acquired by defendant 1 on 10-5-1954 and 24-4-1956 after defendant 1 became the manager of the family. Defendant 1 was in possession of a large number of family properties yielding substantial income with which it was possible for him to acquire these two bits of land. In the circumstances, as held by the Supreme Court these items must be held as family properties because there is no evidence rebutting the presumption that arises in respect of properties acquired by a manager.

10. The three other items of property in respect of which the plaintiffs have made a claim are those situated in Kantavar village bearing S. Nos. 65/12, 65/14. and 277/3B. The case of the de-fendant-1 in regard to lands bearing S. Nos. 65/12 and 65/14 is that the said items of property had been originally held on mulgeni by his sister Padmavathi and that on her death as her successor under the Jain Succession Act, he became entitled to the said right. P. W. 4 who has been examined on behalf of the plaintiffs is the tenant of those properties. He has stated that his elder brother had taken those lands on lease and that till his death, his elder brother and he were cultivating the same under Padmavathi. the elder sister of defendant 1 and that after the death of Padmavathi. they were paving rent to defendant 1. These transactions relate to a period prior to the date on which defendant 1 became the manager of the family. We therefore, hold that the mulgeni right in these two lands bearing S. .Nos. 65/12 and 65/14 of Kantavar village is the separate property of defendant 1. The land bearing S. No. 277/3B of Kantavar village was taken by defendant 1 on dharkasth under Exhibit B-39 dated 28-2-1937 when he was still a junior member of the family. It should be mentioned here that during the lifetime of Nemanna Hegde the relationship between Nemanna Hegde and defendant 1 was not at all cordial and that some items of property had been entrusted to defendant 1 for being enjoyed for his maintenance and even if it is held that some of the items of property which were acquired by defendant 1 were acquired from out of the savings that he made from out of the income that he derived from the properties that were given for his maintenance, such properties cannot be considered as family properties. We. therefore, hold that the land bearing S. No. 277/3B of Kantavar village belongs to defendant 1. Sri Karanth argued that S. No. 277/3B must have been acquired from out of the income that defendant 1 derived from the income from the properties that were allotted to him by Nemanna Hegde during his lifetime, and, therefore, that must be held to be family property. We are not1 in agreement with the above submission in view of the decision in Kinhanna Alva v. K. T. Alva, (19661 1 Mys LJ 57, in which a similar contention was negatived by this Court.

11. Sri K. R. Karanth did not' contest the finding of the Court below holding that S. Nos. 167/1. 176/3. 60/1, 60/2. 60/3A. 60/4C, 60/7A and 60/14 of Shirlal village. S. Nos. 285/1. 285/2, 322/1, 322/2 and 582/1 of Karkal Kasaba village are not available for partition.

12. In the result, in substitution of the decree passed by the Court below we make the following preliminary decree:--

(1) Plaintiffs 1 to 3 and defendants 1 to 3 are each entitled to one-sixth share in the family properties described in Schedule 'B' except lands bearing Survey Nos. 136/1, 54/1. 167/1. 176/3. 60/1, 60/2, 60/3A. 60/4C. 60/7A and 60/14 of Shirlal village. S. Nos. 65/12, 65/14 and 277/3B of Kantavar village and S. Nos. 285/1 285/2, 322/1, 322/2 and 582/1 of Karkal Kasaba village.

(2) Plaintiffs 1 to 3 and defendants 1 to 3 are entitled to one-sixth share each in the movables that were found in Sudi house and Danasale house:--

(3) The suit in respect of movables found in Varnabetty and Padukudoorbidu houses is dismissed;

(4) The parties are directed to render accounts with regard to the income of family properties in their possession from the date of suit under Order XX, Rule 18 of the Code of Civil Procedure and(5) The costs of the suit in the lower Court and of the appeal in this Court shall come out of the estate.

13. The Court, below will now proceed to pass a final decree in accordance with law.

14. The appeal and cross-objections are accordingly disposed of.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //