LAWS(KAR)-1973-9-8

IRAPPA Vs. RAMAPPA SANGAPPA POTRADDI

Decided On September 04, 1973
IRAPPA Appellant
V/S
RAMAPPA SANGAPPA POTRADDI Respondents

JUDGEMENT

(1.) Aggrieved by the decree passed in Civil Suit No.3 of 1966 on the file of the Civil Judge Bijapur, the plaintiffs therein have filed the above Appeal and the 1st defendant therein has filed cross-objections. The said suit was instituted by the plaintiffs for partition and separate possession of the share of the plaintiffs in the suit properties. The parties to the suit are related to each other as follows : <IMG>judgement_14_kantlj1_1974_ASH099051.jpg</IMG> The propositus Irappa had one son by name Lakshmappa. Lakshmappa had two sons and a daughter by name Sangappa Hanumappa and Chennawwa (Defendant 5). It is stated that Hanumappa relinquished his interest in the suit properties on 3-5-1941. That on 7-9-1951 a partition took place between Lakshmappa and his son Sangappa At that partition the properties described in plaint schedule 'A five items in schedule 'B' and some moveables were allotted to the share of Sangappa and the properties described in schedule 'C' were allotted to Lakshmappa. On the same day a partition took place between Sangappa and his only surviving son Ramappa defendant 1. (his first son Irappa having died on 29-3-1938). Thereafter plaintiff 1 was taken in adoption by Lakshmibai, plaintiff 2, the widow of Irappa the first son of Sangappa to her husband. Sangappa died on 20-4-1865 leaving behind him his widow Ningawwa, defendant 4, his son defendant 1 and two daughters Neelawwa (defendant 2) and Kasawa (defendant 3). Lakshmappa executed a will on 7-9-1951 bequeathing the properties which were allotted to his share (plaint 'C' schedule properties) in favour of his daughter Chennnawwa, defendant 5. Lakshmappa died on 8-1-1952.

(2.) The case of the plaintiff is that the 2nd plaintiff is the adopted son of Irappa, the first son of Sangappa by virtue of adoption which took place on 16-5-1952, and that he was entitled to a share in all the properties described in the plaint Schedule A to D. It is further pleaded that the partition which took place between Lakshmappa and Sangappa, the partition which took place between Sangappa and Ramappa, defendant 1, and the will executed by Lakshmappa on 7-9-1951 were inoperative and not binding on the plaintiff 1 and he is entitled to claim partition in respect of those properties notwithstanding those transactions. It was alternatively pleaded that the two partitions and the will which came into existence on 7-9-1951 were collusive and sham transactions and therefore ineffective.

(3.) The defendants denied the validity of the adoption of plaintiff 1 by plaintiff 2. They also pleaded that the partition deeds and the will which came into existence on 7-9-1951 were not sham and collusive transactions. With regard to two items of properties, namely, survey Nos.83/2 and 91 described in Schedule 'B' of the plaint, it was contended that they were the self-acquisitions of the first defendant and were not therefore available for partition. The Court below while upholding the adoption of the 1st plaintiff by the 2nd plaintiff passed a preliminary decree in favour of the plaintiffs for 6/20th share instead of 6/15th share claimed in. the plaint in the properties described in plaint schedules 'A' and 'B1 and at serial 1 and 7 in schedule 'D'. It upheld the plea cf the defendants that the partitions and the will dt. 7-9-1951 were true and, genuine and accordingly negatived the case of the plaintiffs with regard to properties described in plaint 'C' schedule. The Court below negatived the contention of the defendants that the lands bearing survey Nos.83/2 and 91 which were acquired in 1963 and 1964 were the self acquisitions of the. first defendant. It therefore held that those two items were also available for partition. The Court below further ordered that the defendant should pay in all Rs. 1,300 by way of past mesne profits for six years prior to the date of suit to the plaintiffs and further directed an enquiry into the future mesne profits under Rule 12, Order 20 CPC. Aggrieved by the decree passed by the Court below the plaintiffs have filed this appeal in so far as it related to the determination of the share of the plaintiffs in the properties and in so far as the decree of the Court bellow rejected the case of the 1st plaintiff in regard to the plaint 'C' schedule properties. The first defendant has filed cross-objections challenging the finding of the Court below on the question of adoption of the first plaintiff by the 2nd plaintiff, the finding of the Court below that items 83/2 and 91 of plaint 'B' schedule were divisible and the finding with regard to the liability of the defendants to pay mesne profits past and future.