JAVARASETTY Vs. NINGAMMA

JUDGEMENT

(1.) These are appeals by the plaintiff-defendant against the judgments rendered in R. A. 28 of 1989 and R. A. 61 of 1989 on the file of the learned District Judge at Mandya, setting aside the judgments and decrees of the lower appellate Court dated 22/09/1990.

(2.) The facts leading this appeal may be stated briefly and they are as follows :- The appellant in this Court, who, for convenience is referred to as the defendant, the rank assigned to him in O.S. No. 55 of 1973 filed by the respondent Ningamma, filed O.S. 37 of 1972 in the Court of the Principal Civil Judge, Mandya for declaration of his title to the suit schedule properties as the kartha of the undivided family of himself and his sons and further for an injunction restraining the defendant - Ningamma, the plaintiff in O.S. 55 of 1973 and persons claiming through her or under her or acting for her interfering with his possession and enjoyment of the suit schedule properties. His case was that he had earlier filed a suit in the very same Court which was later transferred to the District Judge and was numbered as O. S. 7 of 1966. During the proceedings of that case, the defendant Ningamma undertook not to disturb the plaintiff's possession of the suit properties and that she would have recourse to law to obtain her share if any in the suit schedule properties and therefore that suit came to an end with an undertaking given by the said Ningamma, the defendant-respondent, for convenience, hereinafter referred to as the plaintiff.

(3.) Plaintiff's case in O. S. 55 of 1973 was that her father Ningappasetty died somewhere in the year 1941 and at the time of his death, he was possessed of the suit schedule properties as ancestral properties and when he died, he left behind him his brother, the defendant Javarasetty, the appellant in this Court, herself and her mother. In other words, the emphasis of her pleading was that defendant Javarasetty was the sole surviving co-parcener of the undivided family consisting of himself and his late brother Ningappasetty. She continued to live with her uncle, who got her married some time after the death of her father to none other than his sister's brother one Karishetty. It was after her marriage, that defendant Javarasetty had his first child Appaji @ Ningappasetty and therefore, having regard to the date of death of her father in terms of Section 8 (d) read with Section 8(a) of Hindu Women's Right to Property Act, of the erstwhile State of Mysore, she was entitled to 3 / 5th share in the suit schedule properties and therefore, moved the Court for partition by metes and bounds and put her in possession of the same.