ADOPA CHIMA BHUMAIAH Vs. ADOPA SAILU AND OTHERS

JUDGEMENT

(1.) The defendant in OS 18/1979 is the appellant. The respondents are the sons of the appellant. They instituted a suit for partition and separate possession of the plaint schedule property through their mother, being natural guardian, alleging that the appellant and the respondents are the members of joint Hindu family which owns ancestral joint family property, that is the plaint schedule property. They alleged that the appellant ill-treated their mother due to which she had to stay away from him with the plaintiffs from the year 1975. They are entitled to ⅔ share in the plaint schedule property and separate possession. The appellant denied the claim of the respondent alleging that the mother of the respondent had no locus standi to file a suit for partition and separate possession because she was not appointed as guardian by the competent Court. He has denied that the respondents have got ⅔ share in the plaint schedule property. He has further pleaded that he was not the pattadar of the land bearing Survey Nos. 1411 to 141/8 and 129/1 and he is only a shareholder in respect of Survey Nos. 234, 235 and 590. he has pleaded that the suit house is not ancestral property, but it is the self-acquired property of the defendant. He has further pleaded that under these circumstances, the suit deserves to be dismissed.

(2.) On assessment of the evidence on record, the lower Court reached the conclusion that the mother of the respondents has no interest adverse to them and, therefore, she is entitled to file a suit for partition and separate possession on their behalf and the suit schedule property is the ancestral property in the hands of the appellant. Rejecting the contention of the lean :ed counsel of the appellant, the trial Court held that though after the death of his father the appellant being the sole surviving coparcener of the plaint schedule property became its owner by survivorship, yet after the respondents were born to him they became the coparcener's with the appellant and the plaint schedule property became the coparcenary property and, therefore, the respondents have got ⅔ share in the plaint schedule property. It also concluded that non-joinder of the legitimate son of the appellant is not fatal to the suit for partition because the property to be partitioned is the coparcenary property and not separate property.

(3.) Feeling aggrieved by the order and judgment of the lower Court, the appellant has preferred this appeal.