SHASHIKANTH AND ORS. Vs. DEVARU AND ORS.

JUDGEMENT

(1.) Aggrieved by the judgment and decree dated 9-11-2009 in O.S. No. 198 of 2005 passed by the Civil Judge (Senior Division), Sirsi in partly decreeing the suit of the plaintiff for declaration etc., the defendants 3 and 8 have filed this appeal. Parties shall be referred to as per their rank in the Trial Court.

(2.) The case of the plaintiff is that defendants 1 to 3 are the brothers. Defendants 4 to 7 are the sisters of the plaintiff. Defendant 8 is the wife of defendant 3 and they are members of the Hindu undivided family. The suit schedule properties are the joint family properties and therefore, the plaintiff and defendants have a share in that. That plaintiff and defendants 1 to 3 have 9/40th share and defendants 4 to 7 have 1/40th share. The propositus of the family Ganapati Ramayya Hegde died on 18-2-2002 and their mother Gouramma died on 26-1-2003. The plaintiff and defendants 1 to 7 are the only legal heirs. Some of properties have been acquired from out of the income of the joint family properties. The family of the plaintiff does not have any income other than the income of the joint family agricultural lands. Even though some of the properties were acquired by their father, they have been cultivated and developed by all the family members. After the death of their father, defendant 2 started to manage some of the suit schedule properties. Except the said properties which are in possession of the plaintiff, the other properties are in joint possession and enjoyment of the plaintiff as well as defendants 1 to 7. That the sole intention to avoid agricultural income tax, the father of the plaintiff had arranged to show that the partition between himself and his sons. Accordingly, mutation entries have been affected. At that point of time, plaintiff and defendants 1 and 2 were minor and defendant 3 was not yet born. However, the actual partition did not take place and the properties were not physically divided. When the defendant 1 demanded his share of the family properties, at the intervention of the panchayat, an agreement was entered into on 21-12-1986 and the same was signed by the plaintiff, defendants 1 to 3 and their father. They have acted upon the said agreement. Therefore, the plaintiff has legitimate share over the joint family properties. That defendants 1 to 3 are not furnishing proper accounts of the joint family income, notwithstanding the intervention by the Counsels. The plaintiff was regularly demanding his partition by metes and bounds. Applications were filed by the plaintiff as well as defendants before the Revenue Authorities to change the entries. In the interregnum, defendant 10 also moved the Revenue Authorities on the basis that his father executed a 'Will' dated 27-8-2001 in favour of her son and Revenue Authorities have sanctioned M.E. No. 1005. Two 'Wills' were set up by defendants 1 to 8 which have not been proved. Hence, the instant suit was filed for declaration and partition. On summons being issued, defendants 2, 3 and 7 have filed separate written statements. Defendants 5 and 6 have filed a memo adopting the written statement filed by defendant 7. Defendant 4 has adopted the written statement filed by defendant 2. Defendant 8 have filed a memo adopting the written statement of defendant 3. Defendant 1 has stated in his written statement that he admits relationship. However, the other averments were denied. That even though there is partition in the year 1958, it was intended only to avoid agricultural income. Subsequently, in the year 1986, an actual partition has taken place and the parties are enjoying their respective shares since then. Defendant 1 was allotted suit Sy. Nos. 1, 3, 20, 21 and he is in possession of the same. Apart from that Sy. No. 31 in 'C' Schedule and 2 acres of coconut garden in forest Sy. No. 112 was also allotted to the share of defendant. That he has encroached 30 guntas of forest land and developed his areca garden. That 'D' Schedule property does not exist. The 'Will' executed by the deceased in favour of defendant 2 was challenged before the Assistant Commissioner, wherein it was held that the legal heirs of the deceased have been ordered to be entered in the records. That the father of the plaintiff has constructed two multi storage building at Sirsi. Plaintiff is in possession, but has not included in the schedule. Hence, suit is not maintainable. Defendant 2 has denied the existence of the joint family and 9/40th share of the plaintiff in the suit schedule property. All the other averments are also denied. Based on the pleadings, the Trial Court framed the following issues:

(3.) In support of his case, the plaintiff examined himself at P.W. 1 and exhibited 47 documents. 5 witnesses were examined on behalf of defendants and 7 documents were marked on their behalf. Issues 1, 2, 3, 6, 8, 10, 13, 14 and 15 and additional issue 1 (framed on 11-3-2008) in affirmative and issues 5, 7, 11 and 12, additional issue 1 (framed on 30-10-2006) and additional issues (framed on 11-3-2008) 1, 2, 3 and 4 in negative. By the impugned judgment, the suit of the plaintiff was partly decreed. It was held that the plaintiff was entitled for 1/5th share + 1/40th share in suit items 22, 24, 28 to 36. Defendants 1 to 3 were entitled for 1/5th + 1/40th share in the said properties. Defendants 4 to 7 were entitled for 1/40th share in the said properties. Claim of the plaintiff in respect of other properties were dismissed. Aggrieved by the same, defendants 3 and 8 have filed this appeal.