LAXMAN SHIVASHANKAR Vs. SARASWATI

JUDGEMENT

(1.) THIS Letters Patent Appeal arises from a suit for possession of an agricultural land filed by the plaintiff Saraswati. The trial Court held on a preliminary issue that the suit was barred by res judicata and dismissed the suit. On appeal, the District Court found that the suit was not so barred and remanded it to the trial Court for disposal on the remaining issues. An appeal from this order was filed in this Court and was heard by Miabhoy J. , who confirmed the decision of the District Court. The present appeal was then filed on a certificate granted by Miabhoy J. under Clause 15 of the Letters Patent.

(2.) THE previous suit, the decision in which is claimed to operate as res judicata was filed in 1950 by the present plaintiff Saraswati and her stepsister Parvati. In both the suits, Saraswati claimed that the property in dispute originally belonged to the joint family consisting of her father Chanbasappa and his brother Shivshankar, and that on a partition between Chanbasappa and Shivshankar, the property had fallen to the share of Chanbasappa. Chanbasappa died in 1942, leaving behind his son Malkappa, his daughters Saraswati and Parvati, and his widow Ambawa. Shivshankar died in 1946, and the defendants in the suit of 1930 as well as the present suit are the widow and the son respectively of Shivshankar. Saraswati claimed in the former suit, as she has done in the present suit, that after the death of Chanbasappa in 1942, the property went to his son Malkappa, who died in 1943; that after Malkappa's death, the property was vested in his mother (Chanbasappa's widow) Ambawa, who remarried in 1944; and that on the remarriage of Ambawa, the property was inherited by the daughters Saraswati (the present plaintiff) and Parvati.

(3.) IN the suit of 1950, the claim of the plaintiffs was opposed by the defendants on two grounds : firstly, that there was no partition between Shivshankar and Chanbasappa, so that on the death of Chanbasappa and Malkappa, the property went by survivorship to Shivshankar and thereafter to the defendants; and secondly, that even supposing that the property was the separate property of Chanbasappa and then of Malkappa, the plaintiffs Saraswati and Parvati were not the nearest heirs of Malkappa. In dismissing the suit of 1950, the Court accepted both these defences. On the first issue, whether the suit property was the separate property of Chanbasappa, the Court held that the plaintiffs had failed to prove the alleged partition between Chanbasappa and Shivshankar. On the second issue, whether the plaintiffs were the heirs of the deceased Malkappa, the learned trial Judge observed that at the time when the suit was filed, one Nilawwa the mother of Chanbasappa and Shivshankar, was alive, and that Nilawwa was a nearer heir of the deceased Malkappa,' being his grandmother; than the plaintiffs who were his sisters. Nilawwa, however, died during the pendency of the suit, and this fact was brought to the notice of the learned Judge. But the learned Judge was of the view that Ambawa, despite her re-marriage, was the nearer heir of the deceased Malkaprp. Hence the second issue was also decided against the plaintiffs.