K L LAXMIKANTHA Vs. K L VIJAYALAXMI

JUDGEMENT

(1.) Aggrieved by the judgment and decree in O. S. No. 92 of 1992 on the file of the Sub Court, Kasaragod, this appeal is filed by the defendant. The respondent as plaintiff filed the suit for partition and separate possession over the plaint schedule property. Plaint A schedule property originally belonged to late Suganda, mother of plaintiff and defendant who passed away in March, 1992. On her death, A schedule property devolved on the defendant and plaintiff and both or them are entitled to 1/2 right over the property. A schedule consists of the residential building in the occupation of the defendant and 4 other shop rooms in the possession of monthly tenants. The annual income of the property would fetch Rs. 14,200/-. Defendant is collecting the entire income and appropriating the same without paying anything to the plaintiff. Notice was issued on 28-5-1992 and again on 30-5-1992. The second notice sent was received by the defendant to which she sent a false reply. Even after acceptance of notice, the defendant was not amenable for partition and hence the suit.

(2.) The defendant filed written statement contending that late Suganda bequeathed A schedule property to her as per registered Will dated 9-1-1985. On the death of Suganda, the Will has come into effect and now a Schedule property exclusively belongs to the defendant. The plaintiff has no manner of right and she is not entitled to any participation and separate possession. The defendant has obtained purchase certificate from the Land Tribunal with respect to A schedule property. He received only one notice to which he sent a reply. He has effected valuable improvements in the suit properties. She has electrified the house and did plastering work, constructed iron gate to the compound and effected other improvements spending about Rs. 34,000/-. In equity, the defendant is entitled to value of improvements and allotment of the residential house in case of partition.

(3.) On the basis of the pleadings, the Trial Court framed six issues. No oral evidence was adduced by the plaintiff. Ext. A1 to A4 were marked on her side. The defendant was examined as DWs 1 and 2 and independent witnesses were examined as DWs 2 and 3, Exts. B1 to B8 were marked. The Court below after appreciation of the evidence passed a decree for partition. Against the said judgment and decree, this appeal is filed by the defendant.