SUNDARI Vs. LAXMI

JUDGEMENT

(1.) This appeal is by special leave granted by this Court against the judgment and order of the High Court of Mysore in C.R.P. No. 931 of 1967 allowing a revision against the order passed by the Civil Judge, Mangalore, in R. I. A. No. 2266 of 1966 in O. S. No. 91 of 1950.

(2.) The facts of the case may be briefly stated. The parties to his litigation are governed by the Allyasanthana law prevalent in the district of South Kanara. They were members of a Kutumba descended from a common ancestress by name Manjekee. One Parameshwari and her son and daughter instituted Original Suit No. 91 of 1950 before the Court of the subordinate Judge at South Kanara for partition of properties in accordance with the provisions of the Madras Aliyasanthana Act, 1949, (Madras Act IX of 1949). The suit was dismissed by the trial Court upholding the defence raised that a certain award decree made in Original Suit No. 314 of 1924 on the file of the District Munsiff, Mangalore, amounted to a partition within the meaning of sub-section (6) of Section 36 of the Madras Aliyasanthana Act, and therefore another suit for partition was not maintainable. Though the trial Court dismissed the suit holding that the suit for partition was not sustainable it proceeded to record findings determining the shares to which the members of several branches are entitled in the event of there being a decree for petition.

(3.) On appeal by the plaintiffs the High Court of Karnataka reversed the decision of the subordinate Judge and held that the award decree in Original Suit No. 314 of 1924 on the file of the District Munsiff, Mangalore, did not amount to a partition and that the suit for partition was maintainable. The High Court passed a preliminary decree on 28th June, 1961 and remanded the suit for further proceedings. The Advocates on both sides agreed regarding the shares on the parties and the Court directed a preliminary decree for partition and specified the shares as found by the trial Court in Paragraph 17 of its judgment. The shares were determined on a joint memo filed by the parties on 25th September, 1963. The shares allotted to defendants 22 to 24 were 85,176 out of a total of 6,15,264 shares.