K.G. THIMMAPPA GOWDA S/O KEMMARA SHESHAPPA GOWDA AND OTHERS Vs. B. SAROJINI W/O SHEENAPPA GOWDA AND OTHERS

JUDGEMENT

(1.) THIS appeal is filed by the defendants by challenging the Judgment and Award passed in O.S. No. 98/1997 dated 23.8.2002.

(2.) FOR the sake of convenience the parties shall be referred to in terms of their status before the trial court.

(3.) ACCORDING to the plaintiffs, Sheenappa Gowda, Thimmappa Gowda and Chidananda as well as their father Sheshappa Gowda who are all members of a Hindu joint family which owned ancestral properties at Puttur Taluk. That the father of plaintiff Nos. 2 to 4 was working as a primary school teacher at Belthangady Taluk and was living away from the family. The first plaintiff was also working and was living away from the family. Since Sheshappa Gowda was aged, the affairs of the family were being managed by the first defendant; that Sheenappa Gowda had taken up property situated at Barya village and he and his wife -first plaintiff had improved the said lease hold property out of their income and also by obtaining loan from time to time. Sheenappa Gowda had also filed a declaration in Form No. 7 and he was granted occupancy right in respect of the said land. Subsequently, Patta was also granted in his favour. That since the first defendant and Chidananda were not getting on well, it was proposed to divide joint family properties and allot separate shares to Chidananda. Accordingly, the partition deed was entered into between Sheenappa Gowda for himself and on behalf of his minor sons, plaintiff Nos. 2 to 4, the first defendant and his minor son and Chidananda and his minor sons as well as their father Seshappa Gowda. The said deed of partition was registered on 2.4.1986. That the partition deed also contained clauses regarding repayment of a loan of Rs. 20,000/ - obtained by late Sheenappa Gowda from his father to his two brothers and also to his father which was accordingly paid. 'A' schedule property in the partition deed was jointly allotted to Sheenappa Gowda and his children and the first defendant and his son, while 'B' schedule property in the said deed was allotted to Chidananda and his sons. In lieu of payment of Rs. 20,000/ - to Chidananda and his sons, the family house was allotted to the sharers of 'A' schedule property. There were other clauses regarding delivering 390 kgs of areca nuts to the father by his sons and that a sum of Rs. 7000/ - had to be repaid. At the time of partition it was also concluded that the self -acquired lease hold property of Sheenappa Gowda at Barya village was not to be part of the partition and that after the partition, the possession of 'B' schedule property mentioned in the deed was taken by Chidananda and the first defendant took possession of 'A' schedule property on his behalf and also on behalf of Sheenappa Gowda. Subsequently, a sum of Rs. 10,000/ - was paid by Sheenappa Gowda to the first defendant at the time of the marriage of the latter's daughter in the year 1995 as per the terms of the partition deed. Sheenappa Gowda had executed General Power of Attorney on behalf of himself and his sons in favour of first defendant authorizing him to cultivate the property on 5.5.1986. But the first defendant continued to enjoy the entire 'A' schedule property without giving any income to Sheenappa Gowda. The husband of the first plaintiff died intestate on 5.8.1996 and subsequently, there were talks regarding the share of the properties between the plaintiffs and the first defendant, but since the latter expressed an unfair opinion the plaintiff had got issued a legal notice dated 17.9.1996 terminating the power of attorney, in response to which the first defendant had sought for settlement of the matter by purchasing the share of the plaintiffs. But since the money offered was only a pittance, it was not accepted by the plaintiffs. Thereafter the first defendant sent an untenable reply to the notice falsely contending that he had borrowed certain loans for the improvement of the properties, but since all attempts to get the share of the plaintiffs had failed, another legal notice was sent on 17.7.1997 which was served on the first defendant, in response to which a Caveat petition was filed by him and a belated reply was sent. The plaintiffs hence sought for partition of the plaint 'B' schedule properties.