SHRIMANTHRAO Vs. SHAMRAO

JUDGEMENT

(1.) this is plaintiffs second appeal from the judgment and decree dated june 26th, 1984, delivered by district judge, gulbarga in regular civil appeal No. 40 of 1982 (Shamrao and Others v. Shrimanthrao), arising out of judgment and decree dated 10-8-1982 delivered by civil judge, gulbarga in o.s. No. 87 of 1978, whereby the lower appellate court has allowed the plaintiffs appeal in part, but maintained the trial court decree for partition and separate possession, with respect of 1/4th share in item nos. 4 and 7 (14 acres and 8 guntas of land in survey No. 160). As regards other suit properties the lower appellate court set aside the trial court decree and dismissed the suit and appeal with regard thereto.

(2.) the brief facts of the case are, that the plaintiff-appellant filed a suit with allegations to the effect that defendant 1 i.e., respondent 1 has been his father, who had married twice the two sisters i.e., in other words according to the plaintiffs case, plaintiffs mother and the step mother were sisters. From the first wife, defendant 1 had two sons, i.e., plaintiff-appellant and defendant 3. Defendant 4 who is impleaded as respondent 4, is the second wife of defendant 1 and the step mother of the plaintiff and defendant 3, and defendant 2 is the son of defendant 1 from the second wife of defendant 1, in other words the step brother of plaintiff-appellant. According to the plaintiffs case, the plaintiff and the defendants framed joint hindu family. According to the plaintiffs case, the first defendant was the kartha of the family. Plaintiff alleged and according to admitted case of the parties, the family owned land measuring 14 acres 8 guntas in item No. 7, bearing survey No. 160 and also two rooms in the house being item No. 4 in the plaint schedule. Both these properties have been situate in madiyal village. It is also an admitted fact that first defendant was working as a primary school teacher with effect from 1937. According to the plaintiff's case, all the properties in the suit which consisted of 10 items, as mentioned in the schedule to the plaint had been joint family properties, belonging to the plaintiff, plaintiffs father and plaintiffs brothers i.e., defendants 1 to 3. According to the plaintiff in addition to the ancestral properties, other properties mentioned in the plaint were acquired out of the joint family funds and joint family income derived from ancestral property, the plaintiff claimed himself to be entitled to th share in all the suit properties. It may be mentioned here that item nos. 9 and 10 of the suit properties have been 25 tolas of gold and Rs. 20,000/- cash and item No. 2 consisted of two plots situated in brahmapur, gulbarga. According to the plaintiff, plaintiff had given a notice to his father-defendant 1 seeking partition and separate possession of his share in the suit properties, but as no compliance of the notice had been done, plaintiff filed a suit for the reliefs mentioned earlier.

(3.) defendants 1 to 3 contested the suit by filing joint writ tenstatement, while no written statement being filed by defendant 4, the suit remained ex parts. According to the pleadings of defendants 1 to 3, the land measuring 14 acres and 8 guntas i.e., item No. 7 and 2 rooms of the house item No. 4 were ancestral joint hindu family properties in which plaintiff had got the share. The defendant further alleged item nos. 2, 9 and 10 were not the joint family properties, nor the defendant was in possession of any gold or cash. The defendant further contended that item nos. 1, 3, 5, 6 and 8 and 5 acres and 135 guntas of land in item No. 7 were purchased by the first defendant out of his earnings and the first defendant constructed a room and a sofa in item No. 4 and that these properties the defendant denied to be the joint family properties. The defendant has asserted that the said properties were not the joint family properties and that plaintiff had no share therein. The defendant further contended that the family had been indebted to the tune of Rs. 8,000/- and it was the duty of the plaintiff to share that liability.