SANJIVA Vs. VASANTHA

JUDGEMENT

(1.) This is the 15th defendant's appeal against the Judgment and Decree, dated 29/06/1988 of the learned Civil Judge at Mangalore, Dakshina Kannada District, in O.S. No. 13/ 1976 on his file.

(2.) The facts to this appeal may he stated briefly and they are as follows. The plaintiffs Vasantha, Jayanatha and Sumantha filed the said O.S. No. 13/ 1976 in the Court of the Civil Judge at Mangalore for partition of schedule-B and C properties said to belong to the undivided family of which their deceased grand-mother Parameshwari Hengsu was a member. They arrayed as many as 50 defendants of whom Sanjiva, the 15th defendant, appellant herein, Krishnappa and Shyama are also the grand children of the said Parameshwari Hengsu but by the daughter while the plaintiffs are the children of a predeceased son of the said Parameshwari Hengsu by name Narayan Bhandary. It has been stated that the suit schedule-B properties are mulgeni properties which fell to the share of the aforementioned Parameshwari Hengsu by virtue of a family karar dated 29-12-1949 under the terms of which her branch of the undivided Aliyasanthana family consisting of said Parameshwari Hengsu, Gangamma, Yamuna as well as Thunga (since deceased) whose branch of the family was represented by dedefendants 4, 5, 25 to 37, 43 and 44. It has been further alleged by the plaintiffs that the suit schedule-C properties were the self-acquired properties of Parameshwari Hengsu and as Parameshwari Hengsu's grand children they are entitled to succeed to half the estate in schedule-C properties as against the half share to which defendants 15, 16 and 17 are entitled to as the children of daughter of Parameshwari Hengsu. They claim, that the branch represented by Parameshwari Hengsu had 32 members and she had at the time of her death 1/32rd share in the entire B schedlue properties and therefore they were entitled to 1/64th share in the B schedule properties being the half interest to which their father Narayana Bhandary would have been entitled to had he survived Parameshwari Hengsu.

(3.) They have also alleged, certain alienations made by defendants 15, 16 and 17 of some of the properties in the C schedule to the plaint are not binding on them and that the said defendants 15, 16 and 17 who are enjoying the properties are liable to render accounts for past, current and future mesne profits. Defendants 1 to 3, 5 to 12, 14 to 17, 29 to 37, 39, 41, 42 and 44 entered appearance. Defendant 1 filed her written statement and the same was adopted by defendants 6 to 9 and 11 to 14. Defendants 15 to 17 filed separate written statement but common to them only. The minor defendants 13, 41 and 42 filed their own written statements. Defendants 47 and 50 also filed their own written statements. Generally, the defendants admitted that the plaintiffs and the defendants 1 to 44 constituted a joint Hindu family governed by the Aliyasanthana School of Law which governs their inheritence. They stated that Parameshwari Hengsu, Gangamma, Thunga and Yamuna were four daughters of Venkamma who could be taken as the prepositus of the family as set out in suit schedule-A, the genealogy. They admitted the family karar of 1949 as well as the death of Parameshwari Hengsu on 20-11-1956. However, the defendants also claimed that the plaintiffs had leftout many other members of the undivided Aliyasanthana family and therefore the suit was liable to be dismissed for non-joinder of necessary parties. Generally, there were averments by defendants denying the income claimed by the plaintiffs from the properties in schedules B and C of the suit plaint and gave their own estimate of such income. Defendants 15 to 17 in their separate written statements denied that the plaintiffs were the members of the Aliyasanthana family to which the defendants belonged. They have alleged that their father Narayana Bhandary having pre-deceased Parameshwari Hengsu, the question of plaintiffs inheriting from Parameshwari Hengsu did not arise in the Aliyasanthana School of Law of inheritance. They have also admitted that B schedule properties were mulgeni properties which had fallen to the share of the branch of the family represented by Parameshwari Hengsu, their grand-mother. They also, like the other defendants, have denied the income from the schedules B and C properties as estimated by the plaintiffs and gave their own account of the income and pleaded that since the death of Paramshwari Hengsu they had spent vast sums of money in improving some of the properties. More important than those averments, they set up a will said to have been executed by the late Parameshwari Hengsu, the said will, having been executed on 28-5-1956 in which she had bequesthed in favour of defendants 15 to 17 the entire C schedule properties as well as her share in the B schedule properties. Therefore, they have contended that the plaintiffs were not entitled to claim any share in the suit schedule C and B properties and their suit was liable to be dismissed. They have also claimed that the plaintiffs had not properly valued the suit and as such the suit was liable to be dismissed. They have further pleaded that the sales effected by them were sales effected as absolute owners by virtue of the will of Parameshwari Hengsu, and as such the alienations could not be questioned by the plaintiffs.