KENCHAPPA KALLU KURUBAR Vs. BALASAHEB KALAGOUDA PATIL

JUDGEMENT

(1.) This is matter coming up for orders in regard to vacating stay the main petition is taken for disposal by consent of the counsel for parties.

(2.) Counsel have been heard and the revision petition is disposed of by the following order : The revision petitioner was an applicant before the Trial Court in I.A. No. XVIII in O.S No. 245/1978 on the file of the Principal Munsiff, Chikodi. The suit was filed by the plaintiff for partition. There were as many as 34 defendants. The applicant-petitioner is the son of the 32nd defendant who died during the pendency of the suit. It is seen from the order itself that defendant No. 32 having entered appearance engaged a counsel but failed to file a written statement and also failed to appeal on the subsequent date of hearing. In the result of his death, the plaintiff obtained an order under Order 22 rule 4(4) exempting him from bringing the L.Rs on record. In that ciicumstance, the revision petitioner filed the application to come on record. The learned Trial Judge has dismissed the said application on the ground that in view of the exemption granted earlier to the plaintiff it is not possible to allow the revision petitioner to come on record in place of the deceased defendant No. 32.

(3.) I do not see how that is prohibited by order XXII or any of the rules made there under. In a suit for partition whether a person has filed a written statement or not unless he is denied to be a member of the family he is entitled to his legitimate share. The fact that the petitioner was entitled to a share is obvious by the fact that the petitioner's father was made one of the defendants. After the death of defendant No. 32 his son must get the share to which his father was entitled to.