M V SHIVAJI RAO KORE Vs. RUKMINIYAMMA

JUDGEMENT

(1.) This appeal arises out of the decree passed in OS. No.35 of 1964 on the file of the Principal Civil Judge, Mysore. The facts of the case are these : One D.Venkatrao Kore (Deft.1) had two sons M.V.Shivajirao and Shankara Rao. Shankara Rao, died in the year 1957 leaving behind him his widow Rukminiyamma, the plaintiff in the above suit and his mother Venkubai as his heirs. Alter the death of Shankara Rao, Rukminiyamma continued to live with the members of the family of her husband till about 1960. In 1960 she went out of the family of her husband and issued a notice to the 1st defendant calling upon him to divide the properties of the joint family by metes and bounds and to deliver possession of the share to which she was entitled on the death of her husband in the year 1957. Since the demand made in the said notice was not complied with, she instituted a suit in forma pauperis in Misc.No.240 of 1960 on the file of the District Judge, Mysore on 29-10-1960. The said application was registered as a suit in OS. No.2/1963 on 11-1-1963 on the file of the District Judge, Mysore. Thereafter on account of the reorganisation of the jurisdiction of the Civil Courts in Mysore State the suit stood transferred to the Court of the Civil Judge, Mvsore and was registered as OS. No.35 of 1964. During the pendency of the petition Misc. .240 of 1960, Venkat Rao the 1st defendant died on 22-3-1962. After his death Shivaji Rao, the son of the 1st defendant Venku Bai, widow of the first defendant Sushilabai, Nagubai and Kamalabai the daughters of defendant No.1 were impleaded as legal representatives of the deceased first defendant. The 2nd defendant Savitribai is the sister of Venkat Rao, the first defendant.

(2.) The case of the plaintiff as disclosed in the plaint is that the family of her husband owned considerable properties, moveable and immovable, as set out in the schedule attached to the plaint at the time of death of Shankara Rao, the husband of the plaintiff and that on his death by virtue of the provisions of the proviso to S. 6 of the Hindu Succession Act. (hereinafter referred to as the 'Act') the plaintiff became entitled to 3/18th share in the family properties. It was also claimed that by the reason of the death of Venkat Rao the 1st defendant during the pendency of the suit the plaintiff became entitled to 1/18th share in the family properties as a heir of Venkat Rao. she being the widow of a pre-deceased son of Venkat Rao. The plaintiff therefore prayed for partition and separate possession of 4/18th share of the familv properties. It may be mentioned here that as against defpndant-2 the case of the plaintiff was that a certain sum of money which had been deposited in her name belonged to the familv and that the 2nd defendant was liable to render account to the plaintiff and other members of the family with regard to the said amount.

(3.) In this case number of written statements have been filed by the legal representatives of the 1st defendant. Although they took a common stand in the first written statement filed by them, some of them resiled from that stand and tried to support of the case of the plaintiff in some respects by the written statements filed by them subsequently. But by the time the case was taken up for trial the relative contentions of the parties became crystallised in the following way. The case of Shivaji Rao, the son of 1st defendant was that the plaintiff was not entitled to a share because she had ceased to be the wife of Shankara Rao by reason of the fact that Shankara Rao himself had divorced her in accordance with the custom prevailing in the community to which they belonged and so the suit was liable to be dismissed. By a memo filed by all the parties before the Court below on 19-6-67 it was agreed that Items 1 to 3, S.Nos.12 & 12 3 in Item No.4 and Item No.5 in A schedule should be considered as joint family properties for the purpose of the suit. Shivaji Rao, however, maintained even after the said memo was filed that land bearing S.Nos.14/1 and 14/2 in item No.4 of plaint A schedule was his separate property as he had purchased the same under a registered deed in the year 1959. with the moneys belonging to him. Defendant No.2 pleaded in her turn that a sum of Rs.15.000 which was utilised by her for the purpose of purchasing certain buildings exclusively belonged to her and that she was not in any way accountable to the plaintiff or to any other member of the family in regard to it. She also pleaded that all other moneys which stood in the joint accounts standing in the name of defendant No.1 and herself has been drawn and utilised by the members of the family and no other money was available with her regarding which she could be called upon to render account.