DAMODARA NAYAK Vs. VATSALA NAYAK

JUDGEMENT

(1.) The defendant in O.S.No.34 of 1981 on the file of the Sub Court, Kasaragod is the appellant. The suit was for recovery of a sum of Rs.40,652.42 due to the plaintiffs by way of owelty charged on the plaint schedule property.

(2.) Vamana Naik, the husband of 1st plaintiff and father of plaintiffs 2 to 5 was one of the parties to a family partition Ext. Al dated 17-3-1961. Defendant was also a party to the partition. The plaint A schedule properties were B schedule properties in the said partition and they were allotted to the share of the defendant. C schedule properties in the partition were allotted to the plaintiffs' predecessor Vamana Naik, who died subsequently. The partition deed contained a stipulation that the defendant would pay two candies of areca by the Vishu of each year as owelty to the share of deceased Vamana Naik and a charge was created therefor on the plaint A schedule properties Interest at 5% per annum on the value of the defaulted supply of the areca is also provided for, in the partition deed. One Gowri Amma, paternal aunt of deceased Vamana Naik filed O.S.No.8 of 1965 challenging the partition of 1961 and claiming a share for herself Vamana Naik and defendant were parties to the suit. Ext.Bl is the plaint in that suit and Ext.B2 is the written statement filed by defendants 4 and 6. A receiver was appointed as per the order dated 7-10-1972. A preliminary decree was passed. Ext.B4 is the preliminary decree and Ext. B5 is the judgment. The court ordered fresh partition awarding a share to Gowri Amma. On appeal to this court, in AS.No.647 of 1972, this court by its judgment Ext.B6 dated 10-3-1976 modified the preliminary decree passed by the Trial Court, holding that only items 1,7,31,32,36 to 38 and 47 to 49 of plaint I schedule were available for partition. Ext.B7 is the decree of this court. According to plaintiff, though this court confirmed the share awarded to Gowri Amma in the item which were found to be partible, partition of 1961 was not otherwise disturbed Defendant continued to be in possession of the plaint A schedule properties allotted to him and in the circumstances, the defendant was liable to pay owelty stipulated in the partition. A receiver was appointed in O.S.No. 8 of 1965 and he was in management of the property from 21-9-1974 to 13-10-1978. No claim for owelty was claimed for the above period. After the discharge of the Receiver, defendant got possession of A schedule property and continued to be in possession and therefore he was bound to pay owelty claimed. There is also an alternative prayer in the plaint that if by any chance the court is of the view that the partition deed of 1961 is not in force, plaintiffs may be allowed proportionate share of profits from the defendant who is in possession.

(3.) In the written statement filed by the decree in O.S.No. 8 of 1965 which was confirmed by this court in A.S.No. 647 of 1972 and therefore, plaintiffs cannot invoke the stipulation to pay owelty to Vamana Naik provided in the partition deed evidenced by Ext. A1. He also averred that some of the properties allotted to the defendant under the partition were lost on account of the Kerala Land Reforms Act and therefore he had no obligation to pay the owelty as he had no income from the properties assigned to the tenants.