SUMITRA Vs. SHIVAMURTHY

JUDGEMENT

(1.) PLAINTIFF in an original suit bearing O.S.No.77/1997, which was pending on the file of the Court of Civil Judge (Jr.Dn.) Sankeshwar has approached this Court being aggrieved by the divergent judgments of the first appellate Court passed in R.A.No.26/1999, which was pending on the file of the Civil Judge (Sr.Dn.) Hukkeri. The suit filed by the plaintiff is for the reliefs of partition and separate possession was allowed in part. There were 5 defendants in the said suit. Plaintiff Smt.Sumitra died during the pendency of the suit and her legal representatives brought on record in the original suit itself. Defendant Nos.1 to 4 of the said suit filed an appeal under Section 96 of CPC challenging the said judgment and decree passed in O.S.No.77/1997. The said appeal has been allowed and thereby the suit of the plaintiff filed for the relief of partition and separate possession has been dismissed. Hence, the plaintiff is before this Court by filing an appeal under Section 100 of CPC challenging the divergent judgments given by the first appellate Court insofar as it relates to the dismissal of her suit.

(2.) IT is very pertinent to note in the present case that, defendant No.2 -Gangappa had filed a counter claim seeking preferential right under Section 22 of the Hindu Succession Act on the ground that the sale deed executed in favour of the deceased Sumitra by the deceased Kallawwa, the wife of the Shivappa as guardian of defendant Nos.5 was hit by the provisions of Section 22 of the Hindu Succession Act, more especially without making first offer to him i.e., defendant No.2. The said counter claim came to be dismissed only on the ground of non -payment of requisite court fee on the counter claim.

(3.) THE facts leading to the filing of the suit by the appellants as plaintiffs before the trial Court are as follows: One person by name Irappa who was the propositus is no more. He had three sons namely, Shivappa, who died in the year 1972, Shivamurthy defendant No.1, Gangappa defendant No.2. He had only one daughter by name Satawwa, defendant No.3. Shivappa had a wife by name Kallawwa and she also died prior to the filing of the suit. She is survived by two children Gourawwa the daughter defendant No.4 and Irappa the son defendant No.5. Kallawwa during her life time i.e., after the death of her husband chose to sell 1/3rd share in Sy.No.136 of Hattargai village in favour of deceased plaintiff Sumitra on 14.06.1978 for a total consideration of Rs.5,000/ -. On the basis of the said sale deed, plaintiff Sumitra chose to file a suit for general partition seeking 1/3rd share in respect of 3 agricultural lands measuring 26 guntas in Sy.No.167/1A, 1.25 acres in Sy.No.167/5A -5B and 5 acres 18 guntas in Sy.No.136 and three houses described in schedule 'B' and two open sites bearing VPC No.837/1 and 837/2. Defendant No.2 -Gangappa chose to file a detailed written statement denying all the averments. He had admitted the relationship between defendants interse and the deceased Irappa and Kallawwa. The averment that Kallawwa had sold 1/3rd share in his favour through a registered sale deed on 14.06.1978 has been specifically denied. The averment that purchaser was put into possession pursuant to sale deed dated 14.06.1978 has also been specifically denied. According to him, defendant Nos.1 to 4 have got preferential right to purchase the undivided share in the suit land bearing Sy.No.136. On the basis of the same, he had filed counter claim on the basis of the right of presumption under Section 22 of Hindu Succession Act. Defendant No.4 -Gourawwa also chose to file written statement with a specific averment that there was no legal necessity or pressure on the estate of the joint family, her mother to sell the property. Hence, she had prayed for dismissal of the suit. Apart from that she has averred that defendant No.4 has preferential right under Section 22 of the Hindu Succession Act. She has specifically averred that the sale deed dated 14.06.1978 is illegal and ab initio void. A memo was filed on behalf of defendant No.1 and 3 adopting the written statement filed by defendant No.2 vide memo dated 26.07.1990. On the basis of the pleadings of the parties, following issues came to be framed.