MHALSA MARTHAND KULKARNI Vs. BHEEMAJI MALHARRAO

JUDGEMENT

(1.) This appeal is filed by the defendant Nos. 4, 5 and 7 in O.S. No. 5/1997 on the file of Prl. Civil Judge (Sr.Dn.), Bailhongal being aggrieved by the judgment and decree dated 17.12.2002, whereunder suit filed by the respondents 1 & 2 herein has been decreed against Defendants la to 8 for partition and separate possession of their 7/36th share each or 14/36th share together in the entire suit properties mentioned in the plaint schedule A, B and C and defendants 2 & 3 are entitled to 7/36th share each, defendants 4 to 7 together are entitled to 7/36th share, defendant la is entitled to 1/36th share in the entire suit properties mentioned in the plaint schedule A, B & C and they are at liberty to apply to the court during the final decree proceedings for partition and division of their share by paying necessary court fee. It is further ordered that the registered sale deed dated 22.11.1996 executed by defendant No. 7 in favour of defendant No. 8 with respect to the Sl. No. 1 of plaint schedule 'B' is null and void and not binding on the share of the plaintiff Nos. 1 & 2. The essential facts of the case leading upto this appeal with reference to the ranks of the parties before the trial court are as under:

(2.) The plaint commences with a description of the suit properties. Schedule 'A' landed properties comprises of seven items of land; Sl. Nos. 1 to 6 situated at Jamalur Village and the land in Survey No. 225 at Sl. No. 7 is at Sangolli Village. Schedule 'B' comprises of one house and backyard situated at Jamalur Village at Sl. No. 1, an open site at Sl. No. 2 and houses at Sl. Nos. 3 & 4 are situated at Sangolli Village. Schedule 'C' comprises of 'A' Class shares of M.K. Hubli Sugar Factory standing in the name of deceased Marthand Malharrao Kulkarni.

(3.) It is the case of the plaintiffs that Malharrao Bheemaji Kulkarni, defendant No. 1 in the suit had five sons, Viz., Marthand (predeceased his father), Dattatraya (Defendant No. 2), Chidamber (Defendant No. 3), Bheemaji (Plaintiff No. 1) and Neelkanth (Plaintiff No. 2). Marthand died leaving behind his wife: Mhalasa (Defendant No. 4), his daughters: Smt. Vijaya @ Ranjani W/o. Gurunath Nadgir (Defendant No. 5) & Smt. Vinaya W/o. Prakash Torvi (Defendant No. 6) and son, Sri Sanjeev (Defendant No. 7). It is the case of the plaintiffs that the suit schedule properties are the joint family properties of the family as there was no partition of the same. It is averred that the plaintiffs have got 50% share in the schedule properties. That Malharrao and his brother Vitthal Bheemaji Kulkarni were also not divided and they were entitled to 50% share each in the schedule properties and Malharrao had a brother whose grandson: Pradeep is arrayed as Defendant No. 9 in the suit. It is averred in the plaint that the family of the plaintiffs and defendants 1 to 7 is a joint Hindu family. Suit schedule properties are the joint family properties as there is no partition between plaintiffs and defendants 1 to 7 in regard to the suit schedule properties. Properties at Sl. Nos. 1 and 2 in Schedule 'A' were purchased in the names of Defendant Nos. 2, 3 and deceased Marthand Malharrao Kulkarni/father of Defendant Nos. 5 to 7 and husband of Defendant No. 4, out of the compensation amount received by the submergence of the joint ancestral family land at Old Sangolli. The suit property mentioned at Sl. No. 1 in 'B' Schedule was previously an open site, which was purchased in the name of the deceased Marthand as the elder member of the family; it was purchased from one Sri Irappa Shivarudrappa Telgede under the registered sale deed dated 03.05.1976 and measuring east-west 23 cubits and north-south 50 cubits out of the joint family funds. After the purchase of the open site, a house has been got constructed on this open site and the house measures totally 150 Sq.ft. The remaining portion is the back yard to this constructed house and at the time of purchase of this open site, the number of the property was G.P. No. 433/A. After the construction of the house on this open site, it has been given G.P. No. 54/A. After the death of Marthand, now this property is standing the name of Defendant No. 7. The joint family had a house in Old-Sangolli which has been acquired by the Government under Malaprabha Project and compensation was awarded. With the help of this compensation amount, a new house has been got constructed in gaon-thana of Sangolli village for residential purpose and so also out of this compensation amount, another building is got constructed wherein now Defendant No. 3 is running his hospital. These two properties are now bearing G.P. No. 455 and 456. There is also an open site allotted by the Government and it is bearing G.P. No. 453. These properties are now standing in the name of Defendant No. 1.