NARSAPPA NINGAPPA MALI Vs. BHARMAPPA RAYAPPA MALL

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff Ningappa and continued by his sons after his death for one -third share in the property in suit. It is now found that the plaintiff and defendant No. 1 are the sons of Rayappa who was one of the four sons of Narasappa. Defendants Nos. 2 to 5 are the sons of Satyappa who was the son of Shidlingappa one of the sons of Narsappa. The property in suit originally belonged to Shiddappa, the sou of Ningappa, the second son of Narasappa. In 1910, Satyappa and the present plaintiff and defendant No. I filed a suit to recover the property which bslonged to Shiddappa from the then defendant who was in possession of that property. In that suit they claimed the property as the nearest heirs of Shiddappa. The reversion to Shiddappa opened on the death of his mother which took place in 1909, the widow of Shiddappa having died in 1908. The plaintiff s present claim is based on the allegation that he, defendant No. 1, and Satyappa, were the nearest heirs of Shiddappa and that he was entitled to one-third share in the property. Defendants Nos. 2 to 5 put forward a defence that Rayappa was not a son of Narasappa at all. This defence has been negatived in both the lower Courts, and we are not now concerned with it.

(2.) The trial Court passed a decree in favour of the plaintiff in respect of his one- third share. The appellate Court has modified that decree by declaring that the plaintiff is entitled to one-fourth share in the plaint property.

(3.) This modification of the decree is apparently based upon the view that Satyappa was entitled to one -half and Ningappa and Bharmappa together were entitled to the other half of the property of Shiddappa, According to Hindu law, however, all the three were then the heirs of Shiddappa and each one of them was entitled to claim an equal share without reference to the shares of their respective fathers who might have half and half if they had been alive and if their third brother Kedari was not alive at the time when the reversion to Shiddappa s estate opened on his mother s death. There is nothing on the record of this case to justify the suggestion which has been made by Mr. Desai before us that Shidlingappa, the father of Satyappa, and Rayappa, the father of the present plaintiff and . defendant No. I were alive at the material time. On the contrary it is clear from the pleadings and from the suit filed in 1910 by Satyappa and the present plaintiff and defendant No. 1 that on the death of Shidappa s mother the nearest heirs were the plaintiffs in the suit of 1910. Mr. Desai has not been able to support the view that these three persons took per stirpes and not per capita. It is clear from the decision in Nagtsh v. Gururao (1892) I.L.R. 17 Bom. 303 that according to the Hindu law each one of these heirs is entitled to an equal share in the property of Shiddappa. The trial Court was right in awarding one-third share in the property to the plaintiff.