Partition claims must be substantiated by evidence showing property governance under applicable inheritance laws, with failure to establish joint familial ownership leading to application of the Hindu Succession Act.

JUDGMENT :

RAVI V HOSMANI, J.

Challenging judgment and decree dated 23.03.2015 passed by II Addl. Senior Civil Judge, DK, Mangalore, in R.A.no.93/2008 and judgment and decree dated 18.01.2008 passed by I Addl. Civil Judge (Jr.Dn.), DK, Mangalore in O.S.no.546/1989, this appeal is filed.

2. Brief facts as stated are appellants were defendants no.15 to 18 in OS no.546/1989 filed by respondents no.1 to 4 (plaintiffs) for partition and separate possession of 1/22^nd share each, in land bearing Sy.no.376, measuring 30 cents, situated in Athavara, Mangaluru ('suit property’, for short) and for mesne profits etc.

3. In plaint, it was stated, plaintiffs and defendants no.1 to 18 constituted undivided Aliyasantana Family governed by Madras Aliyasantana Act, 1949, as amended by Karnataka Aliyasantana Act, 1961 (‘Act’ for short). It was stated, suit property was ancestral property and defendants no.19 to 31 were made parties as they were legal representatives of deceased male members of family and entitled to per capita share of deceased member.

4. It was stated, suit property was purchased on 11.05.1914 by Smt.Birmaye Hengasu from Channaya Maistry. After her death, it devolved on her daughter Smt.Devi who was plaintiff no.1’s grandmother and great grandmother of plaintiffs no.2 to 4. It was stated Smt.Devi died on 21.04.1936 leaving behind children namely, Laxman, Narnappa, Mohan and Smt.Bhavani. It was stated, her three sons died long back. As their per capita share devolved on their children, they were made parties to suit. It was stated, Smt.Bhavani died on 22.09.1983.

5. It was stated, suit property was joint family property of plaintiffs and defendants and they had per capita share in it. Suit property consisted four residential houses, one shop premises, bhootasthana and some trees. It was stated defendants no.2 to 10 occupied premises bearing Door no.18- 7-248, two premises were occupied by tenants and one residential premises was occupied by defendants no.24 to 29. It was stated since possession of property was for and on behalf of family, plaintiffs were in joint possession of suit property. It was further stated, suit property was yielding net income of Rs.1,224/- per year and plaintiffs would be entitled to their share of income from date of suit till delivery of their share. It was stated, suit property was situated within Mangaluru Urban Agglomeration including house site and there was no impediment under law to divide same. It was stated, though plaintiff made attempts for amicable division, it proved futile. Hence suit was filed.

6. On appearance, defendants no.2, 7, 15, 30 and 31 filed written statement admitting genealogical tree, but stating that even defendants no.1 to 18, 30 and 31 were also entitled for separate share in suit property. Defendant no.2 denied any income from property on ground that he had to spend large sum for filing cases for eviction of tenants for non payment of rents etc. and also that he had spent Rs.50,000/- for repair and renovation of old house. Therefore, she was entitled for said amount apart from allotment of said house to her share in equity.

7. It was further stated, Sushant - born to defendant no.6 on 10.03.1995, b