S. RAJANNA Vs. S.M. DHONDUSA AND OTHERS

JUDGEMENT

(1.) THE appellant was the 2nd defendant in O.S. No. 30 of 1956 on the file of the District Court, Bangalore, filed by respondents 1 to 4 as the plaintiffs. The appellant 2nd defendant is the eldest son of Chikka Munisamisa who was the 1st defendant in the suit. The four plaintiffs, the appellant and the 3rd defendant (5th respondent in the appeal) are the six sons of the said Chikka Muniswamisa. Chikkamunisamisa died after filing his written statement but before trial. His wife and two daughters were later impleaded as supplemental defendants 4, 5 and 6. They are respondents 6, 7 and 8 in the appeal.

(2.) THE father Chikka Muniswamisa appears to have been divided from his brothers many years ago. He carried on business along with his sons and amassed considerable wealth. Besides large amount of cash, he also acquired several immovable properties in Bangalore.

(3.) ON 6 -10 -1952 Chikka Munisamisa effected a partition of his properties between himself and his six sons. Exhibit D -1 is the partition deed. The timber yard was allotted to the six sons in six equal shares. Paragraph 2 of the deed dealing with this item of property reads as follows: - - "2. I have equally distributed the entire vacant site (Timber yard) bearing present Nos. 143 and 144, measuring east to west 285' and north to south 150' situate at Aralepet, Bangalore City, amongst my six children, that is to say land measuring the remaining 135' and 30' to 40' east to west excluding the path measuring a breadth north to south 15' out of 150' north to south and a length of 285' east to west, in front of the said vacant site. On this site the six persons should build 12 shops. I have equally distributed the remaining area measuring east to west 245' and north to, south 150' (including the area loft out for path) excluding the said buildings, amongst my six children. At present there are some old buildings, and sheds etc., on the aforesaid vacant site. From this there is an income of about Rs. 459 -12 -0' by means of rent. Any one of my sons should collect this rent amount and the six persons should take equal shares in this amount. The value of the aforesaid vacant site is Rs. 60,000/ - (Rupees Sixty thousand)." Another paragraph of the deed which is of relevance to the controversies raised in the suit is paragraph 10 which reads as follows: "10. As I have no income whatever from the houses and sites which are retained by me, each one of my sons should pay a sum of Rupees one hundred (Rs. 100) per month till my death, for the personal expenditure of my family, and for the expenses towards my charity deeds, pilgrimages, gifts and for the perquisites of my daughters, when they come to my house." On the same day, namely, 6 -10 -1952, the six sons executed in favour of the father an agreement marked Exhibit P -2 with reference to the 10th paragraph of the partition deed. As the text indicates, it was executed to avoid inconvenience to the father by any inadvertent omission on the part of any of the sons to make the monthly payment required under 10th paragraph of the partition deed. The operative portion reads: "You, yourself can recover the rent of the said Timber yard. We have to pay Rupees six hundred per month to you and excluding the rent amount of the said timber yard, we six persons shall pay the balance amount every month according to our respective shares. In future if we construct buildings etc. on the said Timber yard and if you do not get the aforesaid rent, then, we shall pay you rupees one hundred each as shown in the said partition deed."