PUTTANA SHETTY Vs. PADMA SHETTY

JUDGEMENT

(1.) THIS appeal is at the instance of the plaintiff. Suit is one for partition and separate possession in respect of schedules 'b'. 'c' and 'd' properties to the plaint and plaintiff claims 3/8th share and also seeks rendition of accounts or mesne profits from defendant 1 from 1-9-1989.

(2.) FACTS as narrated in the plaint are as under: plaintiff and defendant-1 are sons of late annayya Shetty. They formed joint family with their late father Annayya Shetty. They are governed by Mithakshara law of Inheritance and Succession. Plaintiff's father died in or about 1979 as undivided member of the family. So his 1/3rd share belongs to his legal heirs since wife had pre-deceased him. Annayya Shetty had another son by name chennappa Shetty who had died and his widow/defendant-5 is impleaded. Annayya shetty has also a daughter by name Yamuna. She was the mother of defendant-4. Defendants 2 and 3 are his daughters. Plaintiff was in military services for about 8 years. He was discharged from the Army on account of intermittent depression. After the death of the father, defendant-1. being the eldest son, continued to reside in the main family house and has been in possession and enjoyment of all the family properties. The family has accumulated properties both movables and immovables. On discharge from Army services the plaintiff approached defendant-1 to give his due share but defendant-1 made over a small portion of property described in 'c' schedule. That was due to intervention of grahastas. No share was given in the family movables. The small property handed over to the plaintiff is located in between other properties in such a way that the plaintiff is not able to enjoy the same. The plaintiff did not want to continue jointly. He therefore called upon defendant-1 to hand over his legitimate share. But defendant-1 did not like the same. Suit property fetch an annual net income of 80 muras of rice, 2000 coconuts, 12 candies of arecanuts, five quintals of cashewnuts besides other income apart from movables and outstanding. Defendants 6 and 7 are children of defendant-1 and defendant-8 is husband of late Yamuna. They were impleaded by way of an amendment. Defendant 8 has no right over suit schedule properties. On receipt of notice, the first defendant filed a written statement denying various allegations. According to him, 'b' schedule properties are owned by the family. He stated that late Annayya Shetty had first wife and through her, one Lingappa shetty and Laxmana Shetty are born and annayya Shetty got divided the property between himself and the children of the first wife under registered partition deed dated 10-1-1966. The remaining property was retained by Annayya Shetty and his second wife's children, who are plaintiff and defendants 1 to 3. After partition, properties covered by r. S. Nos. 234/1. 29/2, 30-2b, 30/2c, 30/3b, 281/7, 281/5 do not constitute family properties of late Annayya Shetty. S. No. 249/1b is not included in the plaint 'b' schedule. The aforesaid survey numbers are in possession of Lingappa Shetty and Laxmana Shetty, step brothers of plaintiff and defendant-1. Plaintiff is in possession of 97 cents of land in Sy. No. 30/2a, 12 cents of S. No. 281/1a, 26 cents in S. No. 30/3a and 3 cents in S. No. 30/2b. Defendants 2 and 4 are in possession of land in Sy. No. 249/1b. Annayya Shetty died on 1-3-1980. Plaintiff resided in the family house along with the father till his death and thereafter till 1982. Property was given to the plaintiff in terms of oral partition held in 1982 in the presence of grahastas. Plaintiff took one pair of oxen, two she-buffaloes, one pot. one chembu, one wooden bench, one copper gudana. copper cherige. a grinding stone, two bags of rice, agricultural implements, one pumpset in terms of the averments. The income as stated by the plaintiff is also denied. There are liabilities incurred for the purpose of last rites of Annayya Shetty. All the members are liable to share the liability which existed at the time of death of Annayya Shetty. Amount spent for effecting improvements are to be taken into account. He wanted the suit to be dismissed. Defendants 2 and 4 have filed written statement challenging the capacity of the wife to file suit representing the husband. Defendant No. 3 has filed a memo adopting written statement of defendants 2 and 4. Additional written statement was filed. Plea of limitation was raised. Learned Trial Judge framed as many as 12 issues and in addition to an additional issue, he has answered the same in terms of its findings in Para 14. Ultimately the learned Trial Judge has chosen to pass the following order :

(3.) LEARNED Counsel for the appellant would take us through the material on record in particular, the pleadings and the evidence on record to contend that the judgment and decree suffer from various errors of law in terms of his submissions. He says that the learned judge has chosen to dismiss the suit by relying upon a portion of the evidence without taking into consideration, the entire evidence on record. He also says that the material documents would show that there existed no partition as sought to be made out by the defendant. He would also say that the material witnesses have not been examined by the defendant. He also relies on a few judgments in support of his submissions.