T N ANANTHA BALARAJE Vs. GUNAMBA NANJARAJE

JUDGEMENT

(1.) THIS appeal preferred by the defendant in the suit arises out of the judgment and decree dated 28. 2. 1997 passed in O. S. No. 188 of 1991 on the file of the Court of the II Addl. Civil Judge, Mysore. The Court below has decreed the suit for partition and separate possession of the share of the plaintiff who is respondent is this appeal in the suit schedule properties. The plaintiff filed the suit for declaration that she is entitled for half share in item No. 1 of the suit schedule property and two-third share in item nos. 2 and 3 of the suit schedule properties and for partition of the same by metes and bounds and to put her in separate possession of the same and also for directing an inquiry regarding future mesne profits.

(2.) THE facts set out in the plaint, in brief, are as follows: sri M. N. Balaraje Urs was the absolute owner of the suit schedule properties and he died on 17. 6. 1930. At the time of his death, he was the sole surviving co-parcener of the family. He left behind his wife Smt. Lingajjammanni and his daughter kunanda Nagaraje Urs, the plaintiff. He had executed a Will dated 13. 6. 1930 produced and marked as Exhibit-P. 2. which was commenced on 9. 6. 1930 and completed on 13. 6. 1930. The Will was probated in Mis. No. 70/30-31 by the learned district Judge, Mysore and the probate was granted on 4. 4. 1931. Under the Will, Sri. M. N. Balaraje Urs had bequeathed his self-acquired property to his wife Smt. Lingajjammanni and the plaintiff who is his only daughter. Sri. M. N. Balaraje Urs had no male issues and therefore he had permitted his wife Smt. Lingajjammanni to take in adoption any boy except from the family of Sri. Balananjaraje Urs. He also bequeathed the ancestral properties of 1/3rd share each in favour of his wife, daughter who is the plaintiff and his brother Narasaraje Urs by name. In the will, it was covenanted that in the event of Narasaraje Urs getting the stipend of Rs. 600/-per month from the Palace administration, the properties bequeathed to him shall vest with his wife Smt. Lingajjammanni. Sri. Nanjaraje Urs got the stipend of Rs. 600/- per month and consequently his 1/3rd share in the ancestral properties as per the will came to be bequeathed in favour of Smt. Lingajjammanni. Thus, Smt. Lingajjammanni got 2/3rd share in the ancestral properties and the remaining 1/3rd share came to be bequeathed in favour of the plaintiff. As permitted under the will Smt. Lingajjammanni took the defendant in adoption on 13. 6. 1951 by adoption deed dated 13. 6. 1951 produced and marked as exhibit-D. 1 which came to be registered in the Office of the sub-Registrar, Mysore. Smt. Lingajjammanni continued to be the owner of 2/3rd share till her death on 30. 4. 1975. She died intestate leaving behind the plaintiff and the defendant as her legal representatives. The defendant is none other than the natural son of the plaintiff. The plaintiff and Smt. Lingajjammanni had entered into a partition of the ancestral properties left behind by late Sri. M. N. Balaraje Urs by a partition deed dated 13. 6. 1965 with regard to item No. 1 of suit schedule properties in terms of the will dated 13. 6. 1930. The plaintiff had not taken her 1/3rd share in item nos. 2 and 3 of the suit schedule properties. Athough the plaintiff and the defendant have been in joint possession and enjoyment of the suit schedule properties, it is alleged that the defendant recently exhibited a hostile attitude towards the plaintiff in the matter of enjoying the suit schedule properties. That led to the plaintiff causing a legal notice dated 5. 6. 1991 demanding partition and separate possession of the suit schedule properties. The defendant sent an untenable reply that led to the filing of a suit praying for the reliefs noticed above.

(3.) THE defendant put in appearance through his Counsel and contested the suit by filing written statement. The written statement was amended twice. In the written statement it was contended that the adoption made by Smt. Lingajjammanni relates back to the lifetime of sri. M. N. Balaraje Urs, and consequently, the defendant became the adopted son of Sri. M. N. Balaraje Urs. Sri M. N. Balaraje Urs was incompetent to do away with the co-parcenery property in its entirety and the will executed by him could only be operative to the extent of his right, title and interest in the co-parcenery properties. Pursuant to the adoption in the year 1951, the defendant became the absolute owner of all the properties of Sri. M. N. Balaraje Urs. Although the will executed by Sri. M. N. Balaraje Urs was probated it would not bind the defendant because Sri. M. N. Balaraje Urs was incompetent to will away co-parcenery properties in its entirely. Therefore, the plaintiff is not entitled to the reliefs as sought in the plaint. Late Smt. Lingajjammanni would be entitled to the l/4th share in item nos. 2 and 3 of the suit schedule properties and the plaintiff and the defendant are entitled for equal right in the said share of Lingajjammanni. If so, the plaintiff is entitled to 1/8* share in item nos. 2 and 3. The defendant was not made aware of the partition deed dated 17. 6. 1965 nor he was made a party to the said partition. The plaintiff has taken the properties whatever was bequeathed under the Will. The defendant is the natural son of the plaintiff. He was given in adoption to his maternal grandfather. The plaintiff got married in the year 1935 and she continued to live with Lingajjammanni till her death and thereafter she shifted to her one third share. Items 2 and 3 were acquired by lingajjammanni from out of the properties of Balaraje Urs. Therefore, they became the ancestral and joint family properties in the hands of lingajjammanni and they could not be described as stridhana properties. The suit schedule properties are also the properties of the defendant and therefore, Lingajjammanni had no absolute rights of ownership in them. The plaintiff is not entitled to any share much less half share in the suit schedule properties. Assuming that lingajjammanni had a right in the properties she could have been entitled only to half share to which her husband would have been entitled to if he were alive. Therefore, Lingajjammanni would be entitled only to one fourth share in items 2 and 3 and the plaintiffs and defendants are entitled for equal rights in the said share. In such an event the plaintiff is entitled to one-eighth share in items 2 and 3. The defendant has sent a proper reply to the legal notice dated 5. 6. 1991. The plaintiff is not entitled to call for any accounts. The claim of the plaintiff is barred by time as the suit was brought 12 years after the death of Lingajjammanni. The right that could have been claimed by the plaintiff being the heir of Lingajjammanni got extinguished.