SUBBEGOWDA Vs. H LKESHAVA MURTHY

JUDGEMENT

(1.) This appeal arises out of O.S.No. 632 of 1944-45 filed by respondent 1 in the Court of the Munsift of Hassan. Respondent-plaintiff 1 and defendants 7 and 8 are the sons of one Lakshminaranappa. The suit property is ancestral to the plaintiff and defendants 7 and 8 and the suit is for possession of the suit property both on his own behalf and on behalf of defendants 7 and 8, with mesne profits from the date of suit till the date of delivery of possession.

(2.) It is common case that the property was acquired by Krishnappa, the grandfather of the plaintiff, who claims half of the same under the will of the grandfather and one sixth as the heir to his father. He claims two-third share and the remaining on-third is said to belong to defendants 7 and 8 together. His mother, Venkamma, who claimed the property under a gift deed from her father-in-law, Krishnappa, was in possession and enjoyment even during the life-time of Lakshminaranappa, her husband, and owing to default in paying the arrears of revenue to the Government, the property in dispute was sold. In order to get the revenue sale set aside and regain the ownership of the property, Venkamma executed a usufructuary mortgage deed dated 22nd March 1943 in favour of one Manjegowda since decreased, the husband of defendant 2 and the undivided father of defendants 3 to 5, for a sum of Rs. 312-0-10 and the said Manjegowda deposited the arrears of kandayam of the land together with the compensation in the Revenue Department and got the sale cancelled. Since then the schedule properties were said to be in possession of Manjegowda and after his death, defendants 1 to 6, his legal heirs, are in possession of the same. They, however, denied the plaintiff's right to possession, but alternatively pleaded that in the event the Court should decide that the plaintiff is entitled to possession, they should become entitled to repayment of the arrears of revenue advanced by them before the delivery of the property to the plaintiff. The plaintiff in his turn denied that Venkamma had even possession of the suit schedule property, or that she had any right to mortgage the same. he also stated that no arrears of revenue were due and pleaded that even if the payment was made towards revenue, it was made voluntarily and as such not binding on the plaintiff.

(3.) There is no dispute that the suit property belonged to Krishnappa, the grandfather of the plaintiff. Though Krishnappa and his son Lakshminarannappa were divided the suit property appears to have been kept in common enjoyment with the result that each of them had a right to the moiety of the property. The plaintiff claims the entire interest of Krsihnappa under a will and a share through his father in the remaining half of the property. His mother Venkamma claimed the entire property under a gift deed from Krishnappa her father-in-law. She filed a suit in 1940 and obtained a decree on 35th February 1941 in her favour wherein it was held that the property belonged to her. The said decree was confirmed in the first appeal R.A. No. 111 of 1940-41, on 2nd December 1942. But in S.A.No. 356 of 1942-43 on the file of the High Court, both the decisions of the Munsiff and Subordinate Judge were set aside and the present plaintiff was declared to be the owner to the suit schedule property. The mortgage deed, Ex. IX in favour of Manjegowda is dated 22nd September 1943 when Venkamma, the mortgagor, was ostensibly the owner as held by the two Courts and at all events, on that date she had a right. That she was also in possession of the property is fully borne out by Ex. IX which is found to have been attested by H. Lakshminaranian, who is no other than the father of the plaintiff through whom he claims a portion. There can, therefore, be little or no doubt that on that date, she was not only a declared owner but was also in actual possession of the property.