C MALLAPPAJAIAH Vs. M MUDDANNA

JUDGEMENT

(1.) though this appeal has come up for orders, having regard to the short question involved in this appeal both sides have agreed that production of paper books may be dispensed with and the appeal may be taken up for final hearing. In the light of the submission made by learned counsel on both sides, this appeal is taken up for final hearing.

(2.) the appellant is the plaintiff. This appeal was admitted to consider the following substantial question of law:

(3.) in the light of the contentions urged on both sides, the following points arise for consideration: i. Whether the lower appellate court is justified in law in holding that item nos. 4 and 5 are not joint family properties? Ii. Whether the courts below are justified in not awarding specific share to which the plaintiff is entitled to in the suit schedule properties? Iii. Whether the lower appellate court is justified in not issuing a direction for enquiry into future mesnc profits? Point No. (i): the following geneology which is not in dispute proves the relationship of the parties: <IMG>JUDGEMENT_160_KANTLJ3_1990Image1.jpg</IMG> No. 1) the date of death of mallaiah and his wife puttamma as mentioned in geneology are also not in dispute. Thus from the aforesaid geneology it is established that the plaintiff and defendants 2 and 4 represent one branch, viz., the branch of mallaiah, defendant-1 is dead. His legal representatives are respondents 2(a) to 2(d). They represent another branch, viz., the branch of chikkanna, defendant-3 represents the other branch, viz., the branch of doddaiah. Doddaiah is no more. 5. The suit properties are 8 in number. These properties are described as items 1 to 8 in the schedule to the plaint. It is not in dispute that item nos. 1 to 3 and 6 to 8 are the joint family properties. Defendant-2 disputed that item nos. 4 and 5 are joint family properties. The case of the plaintiff is that item nos. 4 and 5 are also the joint family properties. Both are agricultural lands. Item No. 4 is a dry land bearing survey No. 56/1b measuring 1 acre and 16 guntas and item No. 5 is a wet land bearing survey No. 112 measuring 1 acre and 10 guntas. Both the properties situate at kambalu village, sompura hobli, nelamangala taluk. In the plaint, the plaintiff did not plead that though item No. 5 was gifted by one thimmakka under a registered gift deed dated, 23-8-1942 (exhibit d-4) in favour of defendant-2, it was blended with the joint family properties. He merely claimed that item No. 5 was also a joint family properties. Similarly, the plaintiff claimed that item No. 4 was also one of joint family properties. The case of the plaintiff in this regard was that item No. 4 was purchased by defendant-2 in his name with the aid of the joint family fund. 7. The trial court on an appreciation of the evidence on record held that item No. 4 was the self acquired property of defendant-2 and item No. 5, though it was gifted by thimmakka in favour of defendant-2, it was blended along with joint family properties and, therefore, it was also a joint family property. There was no dispute as far as the share to which each branch was entitled to. The trial court awarded l/3rd share in all the suit schedule properties, except item No. 4, to the plaintiff along with defendants 2 and 4 as they together represented one of the three branches. It also declared that the plaintiff was entitled to mesne profit and reserved liberty to the plaintiff to make an application for the said purpose under the appropriate provision of law. Thus the suit of the plaintiff stood dismissed in respect of the property described at item No.