A K LAXMANAGOUDA Vs. A K JAYARAM

JUDGEMENT

(1.) THIS appeal under Section 96 of the Code of Civil Pro-cedure has arisen from the judgment and decree 20-1-1997 in O. S. No. 87/93 whereby the trial Court (Civil Judge, Chikmagalur) has dismissed the plaintiff/appellant's suit for decree for declaration that after the life time of the 2nd defendant, the plaintiff becomes the absolute owner of the schedule property and for decree for permanent injunction restraining the defendants/respondents from alienating the suit schedule property in any manner and from cutting and removing the timber or shade trees standing in the schedule property.

(2.) THE brief facts of the case giving rise to this appeal are that Kenchegowda, his two sons A. K. Lakshmana Gowda and A. K. Jayaram as well as Smt. S. Yeshodamma, wife of Kenchegowda and mother of the plaintiff/appellant and defendant/respondent No. 1 constituted a joint family. That according to the plaintiff's case, on 28-3-1980, with the consent of all the members, like Kenche Gowda effected a partition vide partition deed executed and registered on 28-3-1980 and the property was divided into three shares, one share of the property namely the schedule property was retained by Kenche Gowda while other two shares of the joint familiy property were given to the plaintiff/appellant and defendant/respondent No. 1. So far as the schedule property is concerned, according to the plaintiff/appellant's case. Sri. Kenche Gowda, father of the plaintiff and defendant No. 1, retained it with himself as property falling in his share. The plaintiff asserted that on 28-1-1987, during his life time and life time of his wife namely the 2nd defendant, Kenche Gowda executed a Will of the schedule property. According to the plaintiff's case, under that Will executed by Kenche Gowda, life interest was given in the schedule property to the defendant/respondent No. 2 Smt. Yashodamma. The plaintiff's case is that Kenche Gowda having died on 19-5-1991, and on and after the death of Kenche Gowda, Smt. Yashodamma inherited only limited or life estate in scheduled properties under the Will. The plaintiff further alleged that on 30-3-1993, the defendant/respondent No. 2 Smt. Yashodamma executed a registered sale-deed of the suit schedule property in favour of defendant/respondent No. 1. The plaintiff alleged that the defendant/respondent No. 2 Smt. Yashodamma had no right to sell the suit schedule property and she could not sell the suit schedule property as she had the life interest therein only and so the sale deed 30-3-1993 cannot bind the plaintiff/appellant, and the plaintiff/appellant's right to ownership of the schedule property cannot be affected thereby. The plaintiff alleged that the defendants 1 and 2 i. e. , respondents started threatening to alienate the suit property and standing timber to third persons in order to defeat the plaintiff/appellant's claim. The plaintiff alleged that in the above circumstances, he has been compelled to file the suit and has filed this suit. The defendants 1 and 2 filed the written statement and the case of the defendants has been at the time of partition it was specifically agreed that the schedule property should go to defendant No. 2 absolutely after the death of Kenche Gowda and it is false to state that late Kenche Gowda made the Will 28-1-1987 bequeathing the suit schedule properties to plaintiff and creating only a life interest in favour of defendant No. 2. In alternative it was asserted that even otherwise defendant No. 2 had a right of maintenance over the family properties at the time of partition and it continued even after the death of Kenche Gowda, that the life interest in favour of defendant No. 2 was created in lieu of her pre-existing right of maintenance over the suit schedule properties and that the same, as such, stood enlarged into an absolute right by virtue of provisions of Section 14 (2) of the Hindu Succession Act. The defendants further asserted that the defendant No. 2 sold the schedule property for valuable consideration under the registered sale-deed 30-3-1993. The defendants further asserted that it is false to contend that the defendant No. 1 i. e. , respondent No. 1 did not derive any title to schedule properties under the said deed. The defendants alleged that the defendant No. 2 was forced to alienate the suit schedule property to defendant No. 1 to clear the debts of her deceased husband and to raise funds for the marriage of her unmarried daughter.

(3.) ON the basis of the pleadings of the parties, the trial Court framed the following issues :-