NAGAPPA NARAYAN SHETTI Vs. MUKAMBE VENKATRAMAN SHETTI

JUDGEMENT

(1.) THIS is a second appeal from a judgment of the learned Dist. J. Kanara, who confirmed the decree passed by the learned Civil Judge, Honavar, in favour of the pltf. The facts which led up to this litigation may be shortly stated as under.

(2.) ONE Narayan had three sons Vithal, Venkatraman and Nagappa. Vithal died first and long before 1937, leaving his widow Ganga. Venkatraman died on 18-6-1938, leaving him surviving his widow Mukambe and his son Manjanath. Manjanath died on 18-2-1939. Nagappa was thereafter the sole surviving coparcener of the family and the present suit was filed by Mukambe, the widow of Venkatraman, against Nagappa for a partition of the joint family properties and possession of her half share therein. The pltf. alleged that after the death of Manjanath on 18-2-1939, she had a half share in the family properties and that she was entitled to the same on partition. She also claimed, in the alternative maintenance at the rate of Rs. 150 per year. The deft, contested her claim. He contended that Ganga had adopted a son by name Dattatarya about five years before the institution of the suit and that, therefore, Ganga and her son Dattatraya were necessary parties to the suit. He further contended that the pltf's husband had l/6th share in the family properties at the time of his death and that the pltf. was not entitled to anything more than that. He lastly contended that the position of the family did not allow separate maintenance been given to the pltf. The learned trial Judge held that the deft, had failed to prove the adoption of Dattatraya by Ganga. He further held that the pltf's husband would have bad a half share in the joint family properties if he had been alive at the date of the institution of the suit that the pltf. and the deft, had each a half share in the suit properties, and passed a decree in favour of the pltf. for partition on that basis. The deft, appealed against this decision of the learned Judge and the learned Dist. J. who heard the appeal confirmed the decree passed by the lower Ct. subject to a variation in the costs which had been awarded to the pltf. The deft, filed this second appeal against that judgment of the learned Dist. J.

(3.) MR. Murdeshwar for the deft.-applt. contended before us, (1) that the pltf. is not entitled to any share in the joint family properties, the deft, being the sole surviving coparcener and (2) that on a true construction of the relevant provisions of the Hindu Women's Eights to Property Act, 1937, the pltf. is entitled only to a quarter share in the joint family properties.