UPENDRA KAMATH Vs. RAMADAS KAMATH

JUDGEMENT

(1.) The plaintiff is the appellant in the Second Appeal. The suit was for partition and separate possession of the proper lies which originally belonged to one Vittappa Kamath. Vittappa Kamath executed a registered will on 17th December 1931 bequeathing his properties in Schedule.1 of the will to one Ganapathy Kamath for life and afterwards to the "second schedule people''. Schedule.2 properties were given to defendants 1 to 3 and the children of Mukunda Kamath to be born thereafter. The plaintiff and defendants 1 to 6, the children of Mukunda Kamath, according to the plaintiff, are entitled to share in the properties. I think it is useful to quote paras 4 and 5 of the plaint.

(2.) The first defendant in his written statement questioned the maintainability of the suit. According to him the suit properties have devolved upon defendants 1 to 3 who are the only sons in existence at the time of the execution of the will. Plaintiff and defendants 4 to 6 were born after the death of Vittappa Kamath. As such, they, who were not born at the relevant period, do not derive any right or interest in respect of the said properties. He also contended that the 6th defendant does not derive any right in respect of the properties even according to the terms of the will because the will specifically states that the sons of Mukunda Kamath alone would be entitled to the properties. Sixth defendant is a daughter of Mukunda Kamath.

(3.) The Trial Court in the first instance held that the plaintiff and defendants 4 and 5 besides defendants 1 to 3 will be entitled to get the benefits as per the will but then the court further held that the suit properties were being enjoyed as joint family properties managed by the manager or Kartha of the joint family, the first defendant. On that basis the court held that the plaintiff has title over the suit properties besides defendants 4 and 5 as also defendants 1 to 3. A preliminary decree was passed for partition of the suit property into 6 equal shares, one share to the plaintiff, one share to the first defendant and the remaining 4 shares to be jointly allotted to defendants 2 to 5. The share of the 1st defendant in plaint item No. 7 was to be allotted to the 7th defendant and share of 1st defendant in plaint item No. 8 was to be allotted to the 8th defendant as assignees of the properties from the same defendant.