BASAPPA MALLAPPA SONNAD Vs. BHAGAWWA

JUDGEMENT

(1.) This appeal is directed against the Judgment and Decree dated 17-11 -1977 passed in O.S.No. 46/1975 on the file of the Civil Judge, Chikodi. The appeal is by the sole defendant. We refer in the course of our Judgment to the parties by the ranks assigned to them in the trial Court.

(2.) The respondents-plaintiffs brought the suit for partition and separate possession of suit schedule properties claiming 5/9th share in the suit schedule properties detailed in the three schedules viz., A, B and C to the plaint. They are five agricultural lands situated in Palabhavi village of Raibag Taluk. Schedule 'B' properties are two houses, one bearing VPC No. 14A situated in Palabhavi village and the other situated in the land bearing R.S.No. 175/4/3B of the same village, such land being one of the five agricultural lands described in Schedule-A. The properties in Schedule 'C' were the movables consisting of an oil engine with pump installed in the land bearing S.No. 175/4/3B, a cart and a pair of bullocks. The 1st plaintiff in the plaint, alleged that she was the widow of one Mallappa who died on 9-11-1974 leaving behind a son Basappa, the defendant in the suit and a daughter Gowrawwa the 2nd plaintiff. The plaint schedule properties were the ancestral properties which belonged to and which were being enjoyed as such by the joint family consisting of deceased Mallappa, husband of the 1st plaintiff and the defendant. The plaintiffs pleaded that on Mallappa's death the plaintiffs had become entitled to 5/9th share in the joint family properties by succession under Section 6 of the Hindu Succession Act, 1956 (hereinafter referred to as the Act) and also the 1st plaintiff was entitled to a share in her own right in the suit properties. They however urged that when the defendant with a malafide intention gave a false wardi to the village revenue authorities to the effect that he was the sole heir and successor to late Mallappa and got his name entered in the relevant records relating to the plaint schedule properties, the plaintiffs preferred RTA appeal before the Assistant Commissioner, Chikodi, and in the meanwhile they requested the defendant to put them in separate possession of their 5/9th share in the plaint schedule properties, but he - refused. Therefore, they brought the suit.

(3.) The defendant resisted the suit claim inter alia contending that the plaintiffs and the defendant did not constitute a joint family, the defendant did not admit the genealogy detailed in the plaint; and the plaintiffs were not the heirs and successors of late Mallappa who had been telling the defendant that he had divorced the 1st plaintiff more than 30 years back. Thus the defendant contended that he was the sole heir of late Mallappa. Therefore, he wanted the suit dismissed.