UMAVATHI Vs. SUNANDA

JUDGEMENT

(1.) DEFENDANTS 14 to 25 who are the L. Rs of the second defendant are the appellants before this Court. The suit is one for partition between the plaintiff, second defendant who is now represented by defendants 14 to 25 and defendants 3 to 5. Each claim 1/4th share along with their mother who is the first defendant from the father Ishwara Rai. The mother died during the pendency of the suit. Thereafter, the share of the parties increased to 1/3rd. This suit for partition apart from mesne profits in C. S. No. 379 of 1979 was decreed by the First Additional Munsiff, Mangalore, on 24-11-84. On appeal by the defendants in R. A. No. 13 of 1985 the learned Second Additional Civil Judge, Mangalore, Dakshina Kannada confirmed the decree of the Trial Court and dismissed the appeal on 1-8-1987. Hence the second appeal.

(2.) THE second appeal has been admitted on the following question oflaw;

(3.) THE shares of the parties is not disputed and the fact that all of them claim under one Ishwara Rai is also not disputed. Equally so 'originally Ishwara Rai was the tenant of the entire property and he was having the occupancy right'. Now that occupancy right is sought to be divided between the parties as the legal heirs. No doubt, there may be inter se rivalry between the brothers and sisters as it is usual and common in every family. But that does not mean that there are rival claims to the property. Their claim is rival so far as the shares are concerned and not to the property of Ishwara Rai. According to me when ishwara Rai was held to be the original tenant and his right is sought to be partitioned in a Civil Court, the question of application of the Kar-nataka Land Reforms Act or any other Act does not therefore arise. In a hindu family for a partition the right between the sons and daughters from their father cannot be disputed nor can be denied by them.