RATHNAVATHI Vs. SARASWATHI ADAPPA

JUDGEMENT

(1.) This is plaintiffs' appeal against the judgment and decree of dismissal dated 25.10.2006 passed in O.S. No. 300/1998 by the Court of II Additional Civil Judge (Sr. Dn.)/Mangalore. The case of the plaintiffs is that plaintiffs 1 to 59 and defendant Nos. 1 to 7 and 9 are the members of Aliyasantana family governed by Aliyasantana law of inheritance; plaintiffs 1 to 46 constitute the members of Kavaru (branch of family) headed by one Korapolu Hengasu. Plaintiffs 47 to 57 and defendant No. 9 constitute members of another branch represented by Poovake Hengasu; plaintiffs 58 and 59 belong to the branch of one Veeramma. Defendants 1 to 7 are the wife and children of Nissanthathi Kavaru member by name Kanthappa Adappa. Defendant No. 8 is the purchaser of 'C' Schedule property from Kanthappa Adappa. Since one member of Povakke's branch by name Seetharama was not willing to join as plaintiff, he was arrayed as defendant No. 9. One of the sons of Veeramma by name Suresh is stated to be unheard off for more than last 15 years and therefore he is presumed to be dead and is not made as party to the suit.

(2.) The suit is resisted by defendants 1 to 7. Defendants 1, 5 and 7 filed written statement which came to be adopted by defendants 2, 3, 4 and 6. In the written statement, the defendants admit that the partition took place in the family of Thimmaju in respect of Thimmaju's family properties as per Ex. P2, dated 16.7.1951. They also admit that as per the then existing law i.e., Madras Aliyasantana Act of 1949, the share allotted to Nissanthathi Kavaru, or persons as defined under the Madras Aliyasantana Act was to revert back to the Kutumba or to nearest Santhathi Kavaru of the family as the case may be. The same proposition of law as it then existed was given effect to in the said deed of partition dated 16.7.1951 regarding the reversion of the property to the nearest Santhathi Kavaru; which means the defendants also admit that Kanthappa Adappa was provided only the life interest in the properties under Ex. P2 and that those properties would revert to the original family, or to the nearest Santhathi Kavaru as the case may be after the demise of Kanthappa Adappa. However, it is pleaded by the defendants that in view of subsequent change in law by virtue of Hindu Succession Act, 1956 and the pronouncement of the Apex Court on the subject, the share allotted to Nissanthathi Kavaru in a partition effected prior to passing of Hindu Succession Act would not revert to the nearest Santhathi Kavaru. In other words, defendants 1 to 7 pleaded that the properties allotted to Kanthappa Adappa (member of Nissanthathi Kavaru) under the partition at Ex. P2 would not revert to nearest Nissanthathi Kavaru as specified in Ex. P2, but such properties would vest with the personal heirs of Kanthappa Adappa (i.e., defendants 1 to 7 herein), after coming into force of Hindu Succession Act, 1956.

(3.) Based on the rival pleadings, the following issues were raised by the Trial Court:-