M.S. LAKSHMIPATHI NAIDU Vs. SRI. M.S. GOVINDAARAHULU NAIDU S/O. LATE M.V. SREERAMALU NAIDU SINCE DECEASED BY HIS LEGAL REPRESENTATIVES (SMT. SABITHA. G D/O M.S. GOVINDAARAHULU NAIDU W/O SRI. KAMARAJ

JUDGEMENT

(1.) THIS is defendants' appeal challenging the judgment and decree of the Trial Court which has decreed the suit of the plaintiff as prayed for granting one -half share in the plaint schedule property.

(2.) THE subject matter of the suit is land with dwelling house, cut house and other buildings and erections thereon forming part of Old No.12, and New No.26, building situated on Richmond Road, Richmond Town Civil and Military Section, bearing present New No.79, Richmond Road Bangalore, measuring on the East 203 ft., on the West 195 ft., on the North 100 ft., and on the South 100 ft. bounded by the boundaries as clearly set out in the schedule to the plaint (hereinafter referred to as schedule property).

(3.) AFTER service of summons, the defendant entered appearance and filed his written statement. The relationship between the parties was not disputed. The execution of the safe deed in respect to the schedule property in favor of their father was not disputed. However, he denied that their father purchased the schedule property out of his own funds. He denied plaintiffs possession over the suit schedule property. It is his specific case that the plaintiff was newer in possession of the suit schedule property at any time either along with the father or with the defendant. Even after the demise of their father he was not in possession. The plaintiff had deserted the family in 1940, He converted form. Hindu religion to Christian religion and became a Christian. Thereafter he married a Christian woman according to the customs and rituals of the Christian religion, The plaintiff deserted the family of the defendant and his - father and went out of the fold of Hindu religion and he seized to be a Hindu by religion. The plaintiff is not entitled to succeed to the schedule property as lawful legal heir. The Hindu Succession Act applies to a person who is a Hindu by religion and a co -parcener or co -owner as the case may be in a family which is governed by the provision of Hindu Succession Act. The plaintiff having converted himself into a Christian, be cannot claim the status of a Hindu and as he cannot either claim that he is the co -owner or co -parcener in the family consisting of his father, defendant and himself. The property in the hands of their father was not ancestral 'property or was his self -acquired property. But the property stood nominally in the name of the father of the defendant and it is only the defendant who will inherit the property since the plaintiff has already ceased to be a Hindu and the property is not either joint family property or the co -parcenary property at the hands of Late M.V. Sreeramalu Naidu. The plaintiff is residing at No.42, Langford Road Cross, Shantinagar, Bangalore - 25 and be is not in possession, of any portion of the plaint schedule property. The plaintiff has suppressed the contents of the earlier legal notice. Their father was a chronic patient and was ailing from 1933 onwards and one of his lung was not functioning and he was under the care and protection from 1935 onwards with the defendant He was not able to work or earn anything on account of his serious illness and he was confined only to the bed. It is the defendant who has worked in the Garage, with his hard work the defendant was able to earn money and had purchased the property by paying the sale consideration in the name of his father. The plaintiff deserted his ailing father and mother in the year 1936 and had become a Christian and had married a Christian woman and had got children. There were litigations between the father of the defendant and the defendant against Palai Central Bank and Shambumal Gangaram Bankers vs. S.R. Ramaswamy Iyengar. The defendant who fought the cases and the property which is the subject matter of this suit having been attached, defendant paid the amount to the decree holders and got the attachments removed. In para 9 of the plaint it id specifically pleaded that the plaintiff was excluded from having possession and enjoyment of the schedule property and the allegation made by the plaintiff that he is in joint possession and enjoyment of the suit schedule property is a utter false one. Defendant filed a suit O.S.No.228/1978 (old) O.S.No.4312/1980 (new) against the tenants for recovery of arrears of rent The defendant has sent a reply to the legal notice issued by the plaintiff claiming partition. At para 11, he categorically states that the suit schedule properly is not a joint family property of M.V. Sreeramalu Naidu. It is the self -acquired property of the defendant. The plaintiff is not entitled to claim partition of the said property, The plaintiff is ousted from making any claim or seeking partition of the schedule property. Therefore, he is not entitled to claim partition. The suit is barred by limitation since the first notice was issued on 06.03.1970 and the suit having been filed in 1993. The suit is not properly valued and the suit filed under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, Court fee paid is insufficient. The defendant has exercised absolute ownership over the schedule property. By filing suit against the tenants, he is in continuous possession and perfected the title lay -prescription. He has exercised the right of ownership by collecting rent and without sharing the income from the property with the plaintiff. He has paid taxes. The plaintiff allowed the defendant to exercise the ownership of the schedule property, but the defendant has openly asserted and hostile title against the plaintiff and the defendant is in exclusive possession and therefore, the suit Sled after 12 years from the date of exclusion of the plaintiff from the schedule property is not maintainable. Therefore, he sought for dismissal of the suit. An additional written statement also came to be filed after the death of the plaintiff contending that the plaintiffs wife Anthamma, who is the legal heir to the estate of the plaintiff is not made a party to the suit and the suit for, partition without impleading her is barred by non joinder of necessary parties.