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Karnataka High Court
Virupakshappa Malleshappa - Appellant
Versus
Akkamahadevi - Respondent
Decided On : 10-15-01
R.F.A. : 542 of 1995
VISHWANATHA SHETTY, J. ( 1 ) APPELLANTS 1 to 5 in this appeal were defendant 1 to 4 and 7 respectively. In this appeal they have called in question the correctness of the judgment and decree dated 22/06/1995 made in O. S. No. 2 /1990 by the Court of Civil Judge at Koppal.
Fact of the Case:
Respondents 1 and 2 filed suit O. S. No. 2/1990, on the file of the Court of Civil Judge at Koppal seeking for partition and award of possession of their one-fourth share in the suit schedule properties and also for future mesne profits from the date of the suit till they are put in possession of the suit schedule properties.
Finding of the Court:
The trial Court, on the basis of the materials on record, held on Issue No. 1 that Item No. 1 (b) of the suit schedule properties is the joint family property and item Nos. 2 and 3 are not joint family properties. The trial Court answered Issue No. 2 in favour of the plaintiffs and held that the business carried on by the 7th defendant-firm is a joint family business. Issue No. 3 was answered by the trial Court against the contesting defendants and the trial Court held that the contesting defendants have failed to prove the Will. On Issue No. 4, the trial Court, held that each of the plaintiffs is entitled for one eighth share in Item Nos. 1 (a) and 1 (b), 4, 5, 6 and 9 of plaint Schedule -I properties and also in the movables found in the inventory.
Issues: (I) Whether the plaintiffs prove that suit properties shown as Item No. 1 (b), 2 and 3 in the schedule are joint family properties ? (ii) Whether the plaintiffs prove that Defendant No. 7 firm is a joint family firm ? (iii) Whether the defendants prove that late Siddaramappa executed the will dated 17-10-1984 bequeathing Rs. 20,000/- to 2nd plaintiff, half portion of the house namely Item No. 4 shown in the schedule to defendant No. 5 and to get the children of 6th defendant educated and decently married and Rs. 2,000/- per month to Defendant No. 5, etc. ? (iv) Whether the plaintiffs are entitled for relief of partition ? If so, what is their share? (v) Whether the Court fee paid is proper? (vi) To what order and decree ?
Ratio Decidendi: The trial Court did not rightly act upon the Will put forward by the defendants.
Final Decision: Accordingly, it is dismissed with costs.
( 1 ) APPELLANTS 1 to 5 in this appeal were defendant 1 to 4 and 7 respectively. In this appeal they have called in question the correctness of the judgment and decree dated 22/06/1995 made in O. S. No. 2 /1990 by the Court of Civil Judge at Koppal.
( 2 ) THE parties, in the course of this judgment, will be referred to with reference their respective ranking before the trial Court.
( 3 ) BRIEF facts of the case, which may be relevant for the disposal of this appeal, may be stated as hereunder : (A) Respondents 1 and 2 filed suit O. S. No. 2/1990, on the file of the Court of Civil Judge at Koppal seeking for partition and award of possession of their one-fourth share in the suit schedule properties and also for future mesne profits from the date of the suit till they are put in possession of the suit schedule properties. (B) The plaintiffs and defendan -6 are the daughters of one Sidramappa Sanklapur. Defendant -5 is the wife of the said Siddaramappa Sanklapur. According to the case set up by the plaintiffs, one Malleshappa Sanklapur was the propositus of the family, and he has four sons viz. , the aforesaid Sidramappa Sanklapur, Gurusiddappa, Shankarappa and Virupakshappa; and after the death of Malleshappa, his four sons continued as members of the joint family till the year 1959; and in the year 1959, since Gurusiddappa and Shankarappa, the two sons of Malleshappa, could not pull on well with the other members of the family, they separated from the joint family taking their share in the agricultural lands, and the Oil Mill and other properties held by the family, which were set out in detail to the schedule given to the plaint, continued as joint family assets in the hands of the said Siddaramappa and his brother - Virupakshappa; the said Siddaramappa having expired in the year 1985, his brother - Virupakshappa refused to give their one-fourth share inspite of the demand made. (C) In the suit, Virupakshappa was made as defendant-1 and two of his sons viz. , Mallikarjun and Sharanappa, were made as defendants 2 and 3 and his son-in-law was made as defendant-4. the mother and sister of the plaintiffs were made as defendants 5 and 6. The Oil Mill known as "sri Siddeshwara Oil Mill" the business of which was carried on by a partnership firm, was made as defendant-7. According to the plaintiffs, on the death of their father - Siddaramappa, their mother - Virupakshamma and their sister - Girija Gangamma i. e. , defendants 5 and 6, being the legal heirs of the said Siddaramappa, are entitled for half share in the joint family properties i. e. , the suit schedule properties. (D) Defendants 1 to 4 resisted the claim of the plaintiffs contending, inter alia, that since the said Siddaramappa had executed a Will dated 17th Oct. 1984 (Exhibit D-11), the plaintiffs are not entitled for the share claimed in the suit. According to them, the legal heirs of late Sidramapa are not entitled to succeed to his properties except to the extent provided for in the Will. It is their further case that Item No. 1 of the suit schedule properties, i. e. , land measuring 9 acres 15 guntas in Survey No. 46/1 having been purchased by defendant-2 by means of registered sale deed dated (Exhibit D-9), defendant-2 being the absolute owner of the said property, the property is not available for partition and Item No. 3 of the suit schedule properties, i. e. , house and shop situated at Koppal bearing No. 5-2-152/a having been purchased by defendant-3 by means of sale deed (Exhibit D-10), the said item of the property is also not available for partition. It is also claimed by them that item No. 2 of the suit schedule properties belongs to defendant 4 as he has succeeded to the said property on the death of his mother - Gangamma, though the Municipal recordss show that the said property stands in the name of defendant 1 , and therefore, the said property is also not available for partition. (E) In the light of the pleadings of the properties
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