SOMAKKE Vs. HANMAKKE

JUDGEMENT

(1.) In this appeal directed against a preliminary decree for partition of properties belonging to an aliyasanthana family of South Kanara District, the only challenge is against the findings on issues 4 and 5 framed by the trial Court. Both of them arise out of the notice issued before suit and the claims relatable thereto.

(2.) The common ancestress of the parties was one Venkamma. She had two daughters Pammakke and Somakke. Pammakke's daughter's son Munda Shetty was the last nissanthathi Kavaru descended from the elder daughter Pammakke. The younger daughter Somakke had 4 children of whom 2 were females. The elder Chandakke's descendents are the defendants in this suit. The survivors among them now constitute 3 santhathi kavarus and one nissanthathi kavaru; it also appears that by reason of there being female descendants of the heads of the santhathi kavaru, there are 2 further sub-kavarus. Venkamma's children 7 in number constituting one santhathi kavaru are the plaintifls.

(3.) The suit notice claiming partition Ext. A-4 dated 15-11-1949 was issued by lawyer on behalf of 2 kavarus, namely, the plaintiffs and Munda Shetty above mentioned, the great grandson of the common ancestress. Out of them, Munda Shetty died on 12th April 1960 before the institution of the suit. The plaint dated 31-10-1961 was actually presented on 23-11-1961. The plaintiffs claimed that by reason of the claim put forward in Ext.A-4 themselves as well as the deceased Munda Shetty constituting a separate nissanthathi kavaru, were entitled to be allotted one joint share and that because severance had already taken place on the date of service of the notice the death of Munda Shetty subseqent to the said date did not take his share away from the kavaru of the plaintiffs. This contention was opposed by the defendants. The nature of the controversy is reflected in issues 4 and 5 which read as follows: