PRASANNA KUMAR Vs. SUGUNA

JUDGEMENT

(1.) This is a Regular First Appeal by the defendant against the decree for partition passed by the Civil Judge, Mangalore, South Kanara, in OS. No. 108 of 1967. The respondents, who are the original plaintiffs brought the suit for partition and possession of plaintiffs' 25126th share in the family properties described in Schedule-A to the -plaint and for possession and future income. They also prayed for a direction to the defendant to account for the future income. It is not disputed that the suit properties were the self-acquired properties of one Guddappa, who died on the 16th of March, 1942, and that he was governed by Aliyasanthana Law. The said Guddappa was married to Janamma, by whom he got a son by name Sanjiv. Janamma, the first wife had left her husband Guddappa and waa living separately. Guddappa then married the second wife, Kamala. Guddappa got 9 children by his second wife, Kamala. They are Prasanna, (defendant-1), Suguna (plaintiff-1), Varija (plaintiff'-2), Janida Suvarna (plaintiff-3), Malini (plaintiff-4), Nanda Kumar (plaintiff-5), Vasanthi since deceased), Padmakshi (plaintiff-6). and Malika (plaintiff-7) . The said Kamala and her children constituted a Kavaru under Aliyasanthana Law when Guddappa died. The other plaintiffs are the grand-children of Guddappa who were not born on the date of the death of Guddappa. Guddappa executed a will dt. 28-12-1941 bequeathing all his self-acquired properties. Under that will, Guddappa has bequeathed some properties to his son Sanjiv by the first wife and to his three sisters. The testator did not bequeath anything to his first wife Janamma. In this case, we are only concerned with the bequest made by Guddappa under the aforesaid will in so far as it relates to his second wife Kamala and nine children. The trial Court has construed the will as having the effect of bequeathing the suit properties to the kavaru consisting of Kamala and her nine children. Out of them Vasanthi died unmarried. As the bequest, according to the learned Judge is in favour of the kavaru,' he came to the conclusion that plaintiffs 1 to 7, the children of Guddappa, as well as the other plaintiffs who are the grand-children are all together entitled to 25/26th share in the suit properties. The result is that the defendant who is one of the sons of Guddappa is entitled to only 1/26th share in the suit properties.

(2.) In this appea], the defendant questions the correctness of the finding of the learned Civil Judge that the bequest was in favour of the kavaru of the Aliyasanthana family with all its incidents.

(3.) The contention of Shri U. L. Narayana Rao, learned Counsel for the appellant, is, that the bequest of the suit properties was in favour of nine named children of the testator and that therefore the said nine persons took the suit properties as tenants-in-common.