D M VENKATARAMANAPPA Vs. CHIKKADADDAPPA

JUDGEMENT

(1.) These two appeals by the same appellants are filed against a common order on I.A.Nos.II and III filed by them before the Trial court.

(2.) The facts of the case are as follows: The appellants claim that they, along with the respondents, except Respondents No.4, constituted a Hindu Joint Family. It is stated that the father of appellant No.1 had three wives. Appellant No.1 and father of appellant No.3 are children of Bhagyamma, the third wife. Respondents Nos.1 to 3 are born to Chikka Akkkayamma, the second wife. Dodda Akkayyamma, the third wife of Munishamappa did not have any children. During the life time of late Munishappa, appellant No.1 and one Muniyappa had filed O.S. 185/75. The said Muniyappa, the plaintiff therein, and Munishamappa, defendant had entered into a compromise and the suit was accordingly decreed in terms of the compromise. At para 15 of the compromise petition, it was recorded as follows: "It is agreed that the eastern portion of Survey No.88 measuring 2 acres 4 guntas is left for the maintenance of Chikka Akkayamma, the mother of defendants Nos.1 to 3 and Dodda Akkayamma and they shall hold the said land for their life time." Dodda Akkayarnma having died intestate as on 17.11.1991, it is the claim of the appellants that the property which was provided for the maintenance of Dodda Akkayamma and Chikka Akkayamma reverted to the family and is in the joint possession of the parties. The respondents, seeking to alienate the said property to the exclusion of the appellants, the suit was brought along with applications under I.A.Nos.II and III seeking to restrain the respondents from alienating the property and from changing the nature of the property, respectively. The defendants contended that the properties having been conferred on Dodda Akkayamma, she became an absolute owner of the property by virtue of Section 14(1) of the Hindu Succession Act, 1956 (hereinafter referred to as 'the Act' for brevity) and since she lived, during her life time, with Defendant No.1, of her volition, has bequeathed her interest in the subject property to Defendants No.5 to 7 under a registered will, dated 13.3.1991. It is Defendant No.1 and his children who have been in possession and enjoyment of the suit property. Therefore, the appellants are not entitled to any order of injunction. The Trial Court on consideration of the applications and objections thereto, held that in terms of the Will executed by Dodda Akkayamma, Mutation entries have been effected in favour of Defendants Nos.5 to 7 and it is also noticed that appellants Nos.1 to 3 had themselves filed a statement before the revenue authorities on 2.11.2002 admitting the will. Though the counsel for the appellants had taken a stand that the same was a got up document, the Court was not convinced with the explanation and also noticed that for over a period of ten years the appellants had not taken any steps to claim the said disputed property and having regard to the admitted legal position, the Trial Court found that there was no case made out by the appellants for injunction.

(3.) Smt. T.N. Manjula Devi, Senior Advocate, appearing for Manjula Devi Associates for the appellants, contends that the grant of the subject property in favour of late Dodda Akkayamma for her maintenance during her life time, to be a restricted estate in the property and since the intention under the said compromise can be gleaned from the circumstances that in so far as the allotment of shares in respect of other members of the family is concerned, it is expressly confered absolutely. This would pre-suppose that the property allotted to the share of Dodda Akkayamma for her maintenance was a restricted estate and the property would revert to the family on her demise. Therefore, it is not open for respondent Nos.5 to 7 to claim any exclusive right in respect of the said property.