DEVAKI SHEDTHI Vs. SANJIVI SHEDTHI

JUDGEMENT

(1.) Defendants 1 and 2 in O.S.38/1968 on the, file of the Principal Civil Judge, Udipi, are the appellants in the above appeal.

(2.) The facts of the case are briefly these: Pachu Shedthi was the common ancestress of the parties to the suit. She had three children-two daughters and a son-Kaveri Shedth, Kollu Shedthi and Subbiah Shetty Kaveri Shedthi had four children-Dejappa, Shetty, Nagappa Shetty, Dcvaki Shedthi (defendant 1) and Narayana Shetty. Raghava Shetty Sharada Shedthi and Duggamma alias Varija (defendants 2 to 4) are the children of Devaki Shedthi (defendant 1) . Ashok Kumar, Prasad and Devaraja (defendants 5 to 7) are the children of Sharada Shedthi (defendant 3). Subramania (defendant 8) is the son of Duggamma alias Varija (defendant 4) . Kollu Shedthi the second daughter of the common ancestress had three children-Krishna Shetty, Muddu Shetty and Mahabala Shetty. Rukinuni Shedthi, Lcelavathi Shedthi and Kushalavathi Shedthi (defendants 9, 10 and 11) are the legal representatives of Muddu Shetty who died after the coming into force of the Hindu Succession Act. Subbiah Shetty the son of the common ancestress died on 24-2-1960 leaving behind him his widow Sanjeevi Shedthi (plaintiff 1) and children, plaintiffs 2 to7. The parties are governed by the Aliyasantana Law.

(3.) The plaintiffs who are the legal representatives of Subbiah Shetty instituted the suit out of which this appeal arises for partition and separate possession of their share in the properties belonging to the kutumba of which Subbiah was an undivided member at the time of his death. Defendants 1 to 8 contested the suit. The principal contention raised by them in the course of the written statement was that by virtue of a karar which came into existence on March 1, 1929, the family became divided and hence the suit for partition was not maintainable. Alternatively, it was pleaded that even though the karar referred to above did not amount to a partition under the customary law, it must be deemed to be a partition in view of the provisions of sub-sec. (6) of Sec.36 of the Madras Aliyasanthana Act, 1949 (hereinafter referred to as the Act) and hence the suit for partition was not maintainable. The trial Court after recording the evidence and hearing the parties negatived the contention of defendants 1 to 8 that the suit for partition was not maintainable on account of an earlier partition and passed a preliminary decree for partition. It should be mentioned here that the other defendants did not contest the claim of the plaintiffs in the Court below.