BASAVALINGAMMA Vs. SHARADAMMA

JUDGEMENT

(1.) This appeal by the defendants in OS No. 18 of 1977 is directed against the judgment and decree dt. 8-3-1982 passed by the Dist. Judge, Chitradurga in RA No. 23 of 1981, on his file, allowing the appeal in part and giving a decree in favour of the plaintiff for partition and separate possession of 1/15th share In B Sch. properties with costs of the lower Court and directing enquiry for the purpose of mesne profits as provided under Or. 20, R. 12 of the CPC and further directing that a preliminary decree be drawn accordingly. The judgment and decree dt. 21-2-1980 passed in OS No. 18 of 1977 were accordingly modified.

(2.) The plaintiff is the widowed daughter-in-law of Siddappa. Siddappa had two sons, namely, Rajappa and Nagaraja and two daughters namely, Sharadamma and Saraswathamma. The plaintiff is the widow of Rajappa who died after 1956. The plaintiff Instituted a suit earlier at CS No. 37 of 1963 for separate possession of her 1/3rd share which devolved on her on the death of her bus band, against Siddappa and his other son. She got a decree in her favour on 23 3-1967. Aggrieved by the said judgment and decree, the defendants went up in appeal before the learned District Judge, Chitradurga in RA No. 4 of 1967 and the learned District Judge who heard the appeal modified the decree by awarding 1/6th share instead of 1/3rd share to the plaintiff. The judgment was on 19-12 1967. After the decree was passed, the plaintiff moved for amendment of the decree before the trial Court by filing IA 14 wherein she contended that her share was enhanced as her father-in-law died during the pendency of the proceeding, the trial Court rejected her application holding that if she inherited a share on the death of her father-in-law, she was at liberty to institute a fresh suit for getting her share determined and partitioned. The matter was brought up in revision at CRP Nos. 1464, 1604 and 1605 of 1975 before this Court and this Court on hearing ordered that IAs 14 and 32 in OS No. 37 of 1963 were rightly dismissed. This Court, however, made it clear that the dismissal of the petitioner's application for variation of her share, did not bar her from instituting a separate suit for her share in the estate of deceased first defendent. The order was delivered on 14-12-1976. Thereafter, the plaintiff instltuted OS No. 18 of 1977 before the Munsiff, Chitradurga, claiming 1/8 share in B Sch. properties after the death of her father-in-law Siddappa. In the meanwhile, she was awarded actual possession of 1/6th share in the earlier suit OS No. 37 of 1963 during 1968 which she has shown in plaint A Sch.

(3.) Her suit was resisted by the defendants in the suit. The defendants are : Basavallngamma the widow of Siddappa, Nagaraja the second son of Siddappa and the two daughters, namely, Sharadamma and Saraswathamma, of Siddappa. The defendants resisted the suit by filng their written statements. They contended that since the present plaintiff instituted a suit at OS No. 37 of 1963 for partition of her share and got her share separated even during the life time of her father in-law, Siddappa, she was not entitled to claim any share in the estate of her father-in-law after his death. According to them the house was improved by spending more than Rs. 30,000 and if at all she were to be awarded any share in the house, she would be required to deposit her share of expenses for improvement. They also contended on the aspect of the Court fee.