K RAMANANADA MALLYA Vs. K ANASUYA BAI

JUDGEMENT

(1.) Plaintiff in OS 122/1986 on the file of Sub Court, Kasaragod is the appellant. Defendants are the respondents. Suit was filed for partition. Plaint schedule properties are 9 cents in RS No. 89/4 and 52 cents RS No. 94/4 of Kasaragod Kasba Village. They admittedly originally belonged to Sheshu Mallya who died issueless in 1933. He had adopted Panduranga Mallya, who died in 1982, as his son. First respondent is the widow and appellant and respondents 2 to 5 are his sons. Sixth respondent is the son of second respondent. According to the appellant, appellant and respondents 1 to 6 are followers of Hindu Mithakshara Law of and Sheshu Mallya was a member of the coparcenary and under Ext. A1 partition deed dated 24/10/1921 joint family properties were divided and some properties were allotted to Sheshu Mallya. The properties so allotted were outstanding on anwar rights. Under Ext. A2 he assigned the anwar right and utilising the funds he purchased plaint A schedule properties under Ext. A3 sale deed dated 09/02/1928. When Panduranga Mallya was adopted, as his son, he became a member of the coparcenary. When respondents 2 to 5 and late Ramanatha Mallya were born to Panduranga Mallya and sixth respondent was born to the second respondent, they all became members of that coparcenary and each of them had one share. On the death of Panduranga Mallya, his rights vested with the other members of the coparcenary by survivorship. On the death of Ramanatha Mallya, the son of Panduranga Mallya, his rights devolved on the mother, the first respondent. It is contended that C. V. Kamath had filed OS 8/1958 before Sub Court, Kasaragod against Panduranga Mallya and another and obtained a money decree and in execution of that decree plaint A schedule properties were put up for sale in EP 28/1966 and C. V. Kamath purchased the entire plaint A schedule property. According to the appellant Panduranga Mallya had only an undivided 1/7 share in the property and he was sued in OS 8/1958 only in his individual capacity and so in the Court auction sale C. V. Kamath obtained only the 1/7th right and title of K. Panduranga Mallya. Thereafter C. V. Kamath and the sons of Panduranga Mallya were in joint possession of the plaint A schedule properties. It is contended that appellant later realised that seventh respondent and one Muthappa had filed two separate applications for purchase of jenm right before Land Tribunal, Kasaragod and as per the orders passed by the Land Tribunal, purchase certificates were granted in their favour. It was contended that the orders passed and the purchase certificates so issued are invalid and not binding on the plaint A schedule properties as it is not an agricultural lease and they were only building tenants in respect of two houses occupied by them and they played fraud on the Land Tribunal and obtained the orders. It was also contended that no individual notice was given to Panduranga Mallya and in any case respondents 1 to 6 were not impleaded in the applications before the Land Tribunal and therefore the orders are not binding on them and in any case the orders and the purchase certificates are sham and void. Contending that appellant and respondents 1 to 6 are in joint possession of the properties appellant sought division of the plaint A schedule properties and allotment of his 1/7 share.

(2.) Respondents 1 to 6 in their joint written statement admitted plaint allegations and claimed their 6/7 shares.

(3.) Seventh respondent filed a written statement disputing the title of the appellant and respondents 1 to 6 contending that seventh respondent has been in possession of portion of plaint A schedule property shown in the written statement and he had sold portion of the property to respondents 8 and 9 and seventh respondent is now in possession of 14 cents and he has already purchased jenm right in respect of the property and after due enquiry purchase certificate was issued by the Land Tribunal and it is valid and binding on the appellant and respondents 1 to 6 and therefore they are not entitled to claim any share.