SRINIVAS KUMAR MOWLE Vs. CHANDRASEKHAR MOWLE

JUDGEMENT

(1.) This Letters Patent Appeal arises out of the judgment by learned Single Judge in appeal CCCA No.3 of 1989. This Letters Patent Appeal has been filed by Appellant Defendant No.2 in the suit. The same appellant had filed the appeal which was decided by the learned Single Judge.

(2.) The plaintiff had filed a suit for partition of 'A' and 'B' schedule properties and for allotment of 1/8th share. The plaintiff contended that late Prabhakara Rao Mowle was the original owner of the suit properties. He left behind him the first defendant his widow, defendants 2 to 4 being his sons and defendants 5 to 7 being his daughters. Prabhakar Rao Mowle had died on 8-2-75 and plaintiff claims that defendants 1 to 7 and the plaintiff himself were entitled to 1/8th share of the suit properties both movable and immovable. The plaintiff and defendants were in possession of the suit properties and inspite of repeated requests defendants 1 to 7 did not agree to effect the partition therefore the suit was filed. The first defendant in her written statement contended that she was second wife of late Prabhakar Rao Mowle and she was entitled to 1/3rd share in the properties of her deceased husband. She also claimed at least Rs.300.00 per month for maintenance. According to her defendants 2 to 4 were responsible for paying the maintenance. She denied that plaintiff was entitled to 1/8th share but stated that plaintiff was entitled to 1/12th share in the properties. The second defendant also filed a written statement admitting the relationship between the plaintiff and Prabhakar Rao Mowle. However, he contended that the first defendant was not widow of Prabhakar Rao Mowle and she was only a cook. He further contended that 4th defendant had converted into Islam therefore he was not entitled to claim any share in the joint family property. Defendants 5 and 7 were daughters of late Prabhakar Rao. The plaintiff deleted the name of 5th defendant from the array of defendants. It was contended that deletion of name of the 5th defendant from the array of defendants would affect the suit and the plaint was bad for non-joinder of necessary party. It was also contended that 6th defendant was not daughter of Prabhakar Rao Mowle. Defendants 1, 2, 4 and 6 were not entitled to any property left by Mr. Prabhakar Rao Mowle. Third defendant was also not entitled to inherit any property. He stated that there was no gold jewellery. He also stated that the gun had been deposited with the International Arms and Armoury, M.G. Road, Secunderabad in accordance with law. He accepted that as kartha of family he was in possession of 'A' schedule property and he was managing the property during the life time of late Prabhakar Rao. He had received 'A' schedule property from the execution proceedings in E.P. No.16 of 1977 on the file of I Additional Judge, City Civil Court, Hyderabad between Dinshawji Italia vs. Prabhakar Rao Mowle. He paid a sum of Rs.40,000/- towards full and final settlement of decree and then he had also spent Rs.20,000.00 for filing an appeal in the Supreme Court against D. Ittaia. He had borrowed an amount of Rs.60,000.00 from financers and Banks towards the satisfaction of the decrees and he was paying the same with heavy interest.

(3.) On the basis of pleadings of the parties the following issues were framed by the Trial Court;