Kashinath vs Laxmi Bai

Ravi V. Malimath, J.—Aggrieved by the judgment and decree of the trial Court granting 4/5th share to the plaintiffs, the defendant has filed the present appeal.

The parties will be referred to as per their rank in the trial Court.

Plaintiff No. 1 is the mother, plaintiff Nos. 2 to 5 and defendant are her children. Father died prior to filing of the suit. He was the exclusive owner and possessor of the suit properties. The suit schedule properties were self-acquired properties. He died on 01.04.1988 leaving behind him the plaintiffs and defendant as his legal heirs. That the defendant was addicted to bad habits like drinking, gambling etc. During the life time of the father, the marriage of plaintiff No. 2 was performed. Thereafter plaintiff No. 2 and her husband helped the father for managing the properties. In view of the illegal activities committed by the defendant, the suit land was mutated in the name of plaintiff No. 2 and to protect the land during his life time. He has also performed the marriage of plaintiff No. 3. After his death, defendant forcibly took over the management of the suit properties and started mismanaging the same. He has failed to maintain his mother plaintiff No. 1 and other plaintiffs. Thereafter, the defendant challenged the mutation in the name of plaintiff No. 2, which was set aside by the Assistant Commissioner and thereafter the name of the plaintiff No. 4 and defendant were entered in the records. The defendant also filed O.S. No. 131/1989 before the Munsiff Court at Bidar, claiming exclusive ownership over the suit land. The suit was decreed holding him to be the Karta of the joint family. The lands are not being cultivated by the defendant. There was no income from the properties. Since plaintiffs and defendant are still in joint possession over the properties, the plaintiffs demanded their share, but the defendant denied to allot the shares to the plaintiffs. Hence, they filed the instant suit seeking partition.

After service of summons, the defendant entered appearance and filed his written statement. His evidence was that during the life time of their father he performed the marriage of plaintiff No. 2 by giving Rs. 50,000/- as dowry and 5 tola of gold to plaintiff No. 2''s husband. Therefore, the plaintiff No. 2 is not entitled for any share. The marriage of plaintiff No. 3 by giving dowry and gold ornaments was admitted by plaintiff No. 3 and her husband in the affidavit in O.S. No. 131/1989. The plaintiff No. 5 is having illegitimate intimacy with plaintiff No. 2''s husband. The relief claimed is not tenable. That there is no relationship between the plaintiffs and hence, joint family question does not arise. That during the year 1991 on the basis of the family settlement the mutation was sanctioned. The same was challenged before the Assistant Commissioner which was dismissed. The plaintiffs have not challenged the said order. Hence, it is pleaded that the suit be dismissed. Based on the contentions, the trial Court framed the following issues for consideration.

Whether the plaintiffs prove that they have got 5/6th share each in the suit property?

Whether defendant proves that there was partition earlier in the family during the life time of Prabhanna?

Whether the defendant proves that the suit is bad for non joinder of necessary parties?

Whether the defendant further proves that the suit is bad for min joinder of parties?

What order or decree?

In support of the case plaintiff was examined as PW.1 and got marked Ex. P1 and in support of the defendants case defendant No. 1 was examined as DW. 1 and one Manikappa was examined as DW.2 and Vaijinath was examined as DW.3 and got marked Exs. D.1 to D.32.

The trial Court held issue Nos. 2, 3 and 4 in the negative and issue No. 1 in the partly affirmative. It held the plaintiffs are entitled to 4/5th share in the suit properties. Aggrieved by the same, the defendant has filed the present appeal.

Learned counsel for the appellant contends that the impugned order is bad in law and liable to be set aside. That the trial Court committed an error in granting a share to the plaintiffs. That the property having since been divided, no share could be granted.

Learned counsel for the respondents defends the impugned order.

Therefore, the following issues arise for consideration in this appeal.

(1) Whether the judgment and decree of the Trial Court is perverse in misreading Ex. D-27?

(2) Whether the judgment and decree calls for any interference?

The primary contention of the appellant is that in terms of O.S. 131/1989 filed by him against the plaintiffs for declaration and injunction, the suit was decreed. He was declared as a owner of the suit properties. The said document was marked as Ex. D.27. Ex. D.27 would show that the suit was decreed in favour of the defendant in his capacity as a manager of the joint family properties which included the plaintiffs and himself. Therefore the defendant cannot claim exclusive share in the suit schedule properties. Since the entire case of the defendant was placed on only Ex. D27, on consideration of the same, the trial Court rightly held that the plaintiffs are entitled for an equal share in suit schedule properties along with defendant. Under these circumstances, when an equal share has been granted, I do not find any grounds to interfere with the order of the trial Court. Ex. D-27 has been rightly considered by the Trial Court. The decree has been granted to the plaintiff therein in the capacity of the karta of the family and not as an individual capacity. Therefore, I do not find any perversity in the order of the Trial Court. Ex. D-27 has been rightly appreciated by the Trial Court. Issue No. 1, is accordingly answered.

Under these circumstances, it cannot be said that the judgment and decree of the Trial Court is perverse. The Trial Court has considered the material evidence on record and hence it does not call for any interference. The suit was decreed by granting an equitable share which includes the appellant-defendant also. The suit has been decreed based on the facts as well as law to each one of the sharers being entitled to 1/5th share. The trial Court has rightly granted the shares. Hence no interference is called for. The second issue is accordingly answered.

Consequently, the appeal being devoid of merit, is dismissed.