MAHADEVAPPA CHANSOMAPPA DESAI Vs. KASHIRAO SOMAPPA

JUDGEMENT

(1.) The plaintiff filed Suit No. 4 of 1918 in the Court of the First Class Subordinate Judge of Bijapur to recover his one-third share by partition of the property specified in Schedules A to E to the plaint, to get a declaration that the alienation of the property in Schedule D by his father by an award decree in Suit No. 2 of 1906 in the Bijapur District Court was null and void after his father's death and to get a declaration that he was entitled to a one-third share in the property in Schedule E after the death of defendant No. 6 together with past and future mesne profits.

(2.) Somappa his father had three sons, Krishnarao defendant No. 1, Krishnappa defendant No. 2, and Mahadevappa, the plaintiff. During his life-time he divided the plaint property into four shares and gave each of his sons one share, keeping one for himself. Subsequently he willed away his own share in favour of his sons. In Suit No. 221 of 1913 filed by the plaintiffin the Court of the First Class Subordinate Judge of Bijapur to recover his share under the partition and under his father's will, it was held that a the partition was unequal and unfair, so the Court dismissed the suit. It was contended by the present defendant No. 1 in that suit that the property in suit was impartible, but no finding was recorded on that issue.

(3.) With regard to the property in Schedule D, an award decree was passed in Suit No. 2 of the 1906 filed by the plaintiffs father whereby it was decided that defendants Nos. 3, 4 and 5 should get possession of the property and remain in possession until March 2, 1926. Defendant No. 6 was the mother of Somappa and the property in Schedule D was held by her for her life-time only. The plaintiff claimed that all these properties were joint family properties, to a share in which he was entitled by partition.