V. MUNIRAJ. S/O. VENKATARAMANAPPA, SINCE DEAD BY LEGAL REPRESENTATIVES (SMT. LAKSHMAMMA, WIFE OF LATE V. MUNIRAJU Vs. V. VENKATARAMANAPPA, SON OF BADAGE VENKATAPPA, SINCE DEAD BY HIS LEGAL REPRESENTATIVES AND OTHERS

JUDGEMENT

(1.) HEARD the learned counsel for the appellants. The respondents are served with notice of the appeal, but have remained unrepresented. The appellant, now represented by his legal representatives, was the plaintiff before the trial court. It was the case of the plaintiff that he and defendants no. 2 to 4 were the sons of defendant no. 1. The plaintiff and defendant no. 4 were said to be the sons of defendant no, I, through his first wife. Munilaksmamma. Defendants no. 2 and 3 were born through the second wife of defendant no. 1, Jayamma. The plaintiff claimed that the parties constituted a Hindu joint family and it owned ancestral landed properties at Kaudenahalli. There was also a house and vacant site at Yerayanapalya, a hamlet of Kaudenahalli. It is stated that there was a partition between the grandfather of the plaintiff, his father and his two uncles, namely, Kurulappa and Narayanappa. At the partition, land bearing survey no. 122/2 was divided into three shares. The plaintiffs father, (Defendant no. 1) was allotted 1 acre 19 1/2 gunants, which is more fully described in the plaint schedule, item no. 1. And one other item of land in Survey no. 123/1 being garden land had. also been allotted, subject to a life interest in the same in favor of the grandfather of the plaintiff. It is the plaintiffs case that his grandfather had subsequently died and hence both the above items of property are in the joint possession of the plaintiff and the defendants. Apart from the lauds, the house and vacant site more fully described in Schedule -B. It is stated that the first defendant and his second wife along with defendants - two and three and daughters live in that house. The plaintiff alleges that the first defendant has turned hostile towards him and defendant no. 4 at the instigation of the second wife, has deprived them of any benefit from the family properties. Inspire of repeated demands for an amicable settlement - the first defendant having negated the same, the suit for partition was filed, claiming one -fifth share in the suit properties.

(2.) DEFENDANTS 1 to 3 had contested the suit. In their written statement, it was contended that the suit was bad for non -jointer of parties, as all the members of the family were not mentioned in the plaint. Though it was admitted that the plaintiff and the fourth defendant were the sons of the first defendant, born through the first wife Munilakshmamma, she had deserted the first defendant when she was pregnant with the plaintiff and had gone away to her native village, at Andhra Pradesh. She had again returned at the instance of the first defendant only to desert him yet again when she was pregnant with the fourth defendant. She had then faded to return to the matrimonial home and thus the plaintiff and the fourth defendant had no contact with the first defendant and his new family, which he had started by taking. Jayamma as his second wife and through whom, he had defendants 2 and 3 and two daughters. It was denied that the suit properties comprised joint family properties or that the same were available for partition. It was contended that suit item no. 1. of 'A' Schedule was alienated in favor of one Bidappa, under a sale deed dated 28.12.1971, for family necessity. Insofar as item no. 2 of 'A' Schedule and Item no. 1 of 'B' Schedule was concerned, it was contended that the same had been allotted absolutely to the father of the first defendant and he had bequeathed the same in favor of defendants 2 and 3 under a registered will Insofar as item no. 2 of 'B' Schedule was concerned, the same had been acquired by Defendant no. 1 from out of his own Winds and loan obtained from his employer. M/s Indian Telephone Industries. It had been subsequently sold to one Srinivasamurthy, who was said to be in possession of the same. It was denied that there were any movables available for partition.

(3.) ON the basis of the above pleadings, the court below had ramed the following issues : - 1. Whether the plaintiffs prove that the suit properties are joint family properties in the possession of the defendants? 2. Whether the plaintiffs are entitled 1/5th share in each of the suit schedule properties? 3. Whether the plaintiffs are entitle partition of 1/5th share in the suit properties? 4. Whether the defendants prove that the suit properties in. Schedule 'A' and 'B' is no more in the possession of the joint family?