SHIVADEVIAMMA Vs. SUMANAJI

JUDGEMENT

(1.) The relationship between the plaintiffs and defendants 1 to 9 is set out in our order of reference to Full Bench dated November 3, 1970. Defendants 10 to 12 are the alienees of certain items of property from defendant 1. Defendant 12 was given up in the suit on 20-12-1964.

(2.) We shall briefly refer to certain portions of the pleadings of the parties which are necessary for deciding the question that survives for consideration after the decision of the Full Bench. Plaintiffs and defendants 1 to 9 are members of Jain Community governed by Aliyasanthana Law. On the date of the suit the family consisted of only six members, the plaintiffs and defendants 1 to 3. Defendants 4 to 9 were brought on record as the legal representatives of defendant 1 on his death during the pendency of the suit. The plaintiffs' case was that the first defendant was the manager of the family from 1950 and that all the items mentioned in Schedule 'B' consisting of immoveable properties and Schedule 'C' consisting of moveable properties belonged to the family. They claimed that each of them was entitled to one sixth share in the family properties and that each of the defendants 1 to 3 was entitled to one sixth share in them. It was alleged that defendant 1 had a large amount of cash amounting to Rs. 45,000 belonging to the family and the said amount was shown as item 32 in plaint Schedule 'C'. Alter the suit was instituted, two Commissioners were appointed to make inventories of properties in the four houses, namely, Sudi House, Padukodoorbidu House, Varnabettu House Danasale House. PW.2 was appointed as Commissioner to prepare the inventory of the moveables in Pudikodoorbidu and Sudi houses and PW.5 was appointed as the Commissioner for making an inventory in Varnabettu and Danasale houses. Ext.A4 is the inventory prepared by PW.2 Ext.A27 is the inventory prepared by PW.5. There is no dispute that the movables mentioned in those two inventories were found at the respective houses. Apart from saying that defendant 1 who was the manager of the family had been acting prejudicially to the family in selling away valuable standing timber in the family properties and appropriating their value for himself and his wife and children, no other allegation was made against defendant 1 in the plaint regarding his management of the family properties. The plaintiffs specifically made a prayer in the plaint that defendant 1 should be called upon to render an account of the income of the family properties from the date of the suit till the plaintiffs were actually put in possession of their share (vide para 7 of the plaint) . Defendant 1 in his written statement claimed that some of the plaint schedule properties to which specific reference would be made at a later stage, belonged to him exclusively as they were his separate properties and that the plaintiffs had no interest in them. He also pleaded that he had not got with him any cash belonging to the family. It was urged that the income which he was deriving from the family properties which were in his possession, was utilised by him for the maintenance of the members of the family and for defending a litigation which had been instituted by one Chandraraja Hegde against all the members of the family. With regard to the claim of the plaintiffs regarding the extent of the shares they were entitled to in the family properties, it was pleaded that each of the plaintiffs and defendants 1 to 3 were entitled to only one-sixth share in three-fourths of the family properties and that the remaining one fourth of the family properties which belonged to Rathidevi Amma, his elder sister, devolved on him under her will Ext.B2. It was also pleaded by defendants 4 to 9 who were brought on record as legal representatives of defendant 1 on his death, that the share of defendant 1 in the family properties had been disposed of by him under a will Ext.B3,

(3.) At the outset it may be mentioned that the question regarding the validity and binding nature of the will executed by Rathidevi Amma, Ext.B2, has been decided by the Full Bench. It has been held that the said will was ineffective since Rathidevi Amma had only a life interest in the properties which were the subject matter of the will. There is also no necessity to deal with the will made by defendant 1 in this suit since the plaintiffs are not interested in that question. Hence, we do not express any opinion on the validity and binding nature of the said will and leave the said question open to be "decided in separate proceedings. The Court below has, while passing the preliminary decree in this case, held that plaintiffs 1 and defendant 2 have each one-fourth share; plaintiffs 2 and 3 and defendant 3 have each got one-eighth share; defendant 9 has got one-twelfth share; and defendants 5 to 8 together have got one-twenty-fourth share in the family properties. The above finding is attacked by the legal representatives, of defendant 1. Their case is that in all the family properties, plaintiffs 1 to 3 and defendants 1 to 3 are entitled to one-sixth share each as stated in the plaint and the Court below was wrong in determining their share as stated above. It was argued that on the death of Rathidevi Amma, the one-fourth share in the family properties to which she was entitled devolved on all the members of the kutumba consisting of plaintiffs 1 to 3 and defendants 1 to 3 in view of the provisions of S.36(5) of the Madras Aliyasanthana Act (Madras Act IX oi 1949) hereinafter referred to as the Act), and, therefore on the date of the suit there being only six members i.e., plaintiffs 1 to 3 and defendants 1 to 3 in the kutumba, all of them were entitled to one-sixth share in the properties of the kutumba including the share of Rathidevi Amma in which she had only a life interest. The above submission made on behalf of defendants 4 to 9 is not disputed by Sri K.R.Karanth, the learned Counsel for the plaintiffs. We, therefore, hold that plaintiffs 1 to 3 and defendants 1 to 3 are entitled to one-sixth share in the family prpperties..