:1: t tilE [1I(H (OIRT OF KR\AT\K\ (1R(tIT BEXUI T DII RW 1) 1)IF1) TillS [III S I) V OF I)F( EMBER. 2010 PRESENT [111 I-IONBl. MR..JUSTICE \ .CS BI1\III I N1) 1 HE HON’BLE MR.Jt!STICF B. YINTO REGt TAR FIRST APPEAl. NO.429/2002 BEI’s\EEN: I SMi.AiJ\Vv\\ \‘ \ILAPPA DA OO\\ R W OY kI LAPPA \(I \1 \JOR OC( FIO SEIR)I D YAI I \\\\\ A. \ 0 \4I I) \K\PPA GII0RPA1)E (I \ \ R ((C I{OUSLI{OLI). NM\\f PP\ 4 ‘\Ii iR1 \\A\\ \ (‘KEI \I \PP \ \61 M \J(;;R :2: .4 5. SMT. PARAWWA, WO BASAPPA, AGE MAJORq 0CC: HOUSEHOLD WORK. APPELLANTS I TO 5 ARE RESIDENT OF DEVARGUDIHAL TALUK HUBLI, DIST. DHARWAD. APPELLANTS (BY SRI. F.S.DABALI, ADV.) AND: 1. SPAT. KAMALAWWA, W/0 MALLAPPA DAWOONAVAR AGE 40 YEARS, 0CC: HOUSEHOLD. 2. MALLAWWA, D/0 MALLAPPA DAWOONAVAR AGE ABOUT 18 YEARS, 0CC: HOUSEHOLD. 3. MANJULA, Df0 MALLAPPA DAWOONAVAR AGE 16 YEARS, 0CC: STUDENT SiNCE MINOR REPRESENTED BY M/G BY NATURAL MOThER RESPONDENT NO. I. 4. BASAPPA. S/O YALLAPPA DAWOONAVAR, AGE 55 YEARS, 0CC: AGRICULTURE 5. SHJVAPPA MALLAPPA DAWOONAVAR, 5/0 MALAPA, AGE MAJOR, 0CC: AGRICULTURIST. ‘3 J I ARl R[ SIl)I\ 1 01 I)[ N ART DIIL\1 L\I ( K 111 Il 1. D1S 1. 1)11 \R\\ NI) 13Y SRI NI R \\1 \ BIIA I’ FOR Ri 10 . A1)V, R4 AND ‘ Sf), R \I!\OR REPRESEN EEL) 131 RI RESPO\I)E\ ES RI A IS FILED I’\DFR SECTION 01- (JPC 1-F-Il’ ii. ‘I)GNIEN T’ AND DECREE. i).-\ FED P \SSFD IN OS NO.12492 ON 1I1F F-ill OF (1VIL JLDOF, SR.D\. -ll 131 1, I)ECREEING I FOR PARTITION AM) SEP:\RAIE III1S APPEAl F)\N. \ ( 1 .SABHAH1 I This av’peal OSM It 19Q) r ()\1IM,j ON FOR ORDERS 11115 Li. F)F1 IVEREF) THE 101.1 O\\ ING JUDGMENT filed b’ defendants fic I the lcarr I to 6 in NhlS \C\INS I IF-liz :\1)I)1 1111—’ SI I P0551 SSIO\. iiFI .4. p opeities and propernes shall be dii ided b’s, metes and 1 ounds hi .ippointine. c.omnussionc.i Pie ‘nateni fact of the .a l’adm& ip t” this appeal an. as follows Respondents 1 to 3 herein who are plaintiffs 1 to 3 ikd suit in 0 S No 124 1992 aiemng thu Yellappa died in the ‘sear 1990 leasing behind him hn wife and children Basappa-dctendant ‘do 1 Mallappa(dead), \ allawa wife of Ranappa (ihorpade Seethawwa-wite of Hanumantappa Cans. ‘iriaw s i v ifc of Bl 1 imappa and Parawwa wife of Ba ppa Plar iii i re pondent 1 to and r aiitifi ‘ d t ai r ‘I d e 0 C at De\ argudihal village of Hubli taluk and another agricultural land in block Noi79 measuring 6 acres I nunta in the same Vi Ia c helonc to Yeliappa and after his death, the. plaint.i f.fs w.ho are the l.e.gal representati.ve.s of Mallappa along with detendant No,7 have succeeded to the property and the are entitled to half share in the suit schedule properties. It is their case that though they redluesled the defendant to give their share, defendant No.1 refused to give share and wherefore suit is filed for partition and separate possession of their half share, Defendant Jos2 to 6 did not file any wri.tten. statem.er.t, However, defendant No. I filed written statement admitting that the suit schedule properties are the ancestral properties in t.he ha.nds of the piain.tiffs and th.e defbn.dant, being t.he uroperts of Y al lappa, all the he.i rs are enttied to e.uai share, Having regard. to the above said plead.ings, the .,. “‘Cz’ ‘ :6: S I. Whether the plaintiffs prove that they are entitled to half share in the suit properties? 2. Whether the plaintiffs are entitled to the mesne profits as claimed by him? 3. Whether the genealogy as submitted by the plaintiffs is correct? 4. Whether defendants prove that all suit properties are self acquired properties of deceased Yellappa and thereafter after death of Yellappa, defendants have become owners of suit properties as stated in their W/S? (issue No.4 recasted on 13/08/01) 5. Whether the plaintiff proves that Seetavva, Yellavva, Girijavva, Paravva have waived the rights in the property? 6. Whether the suit is hit by non-joinder of necessary parties? 7. What order or what decree? :7: a 3. On behalf of the plaintiffs, Kamalawwa-plaintiff No.1 was examined as P..W.-1. She did into get any documents marked. On behalf of the defendants, defendant No.1-Basappa was examined as D.W. I and Shivappa-defendant NO.7 was examined as D.W.-2 and Exs.D- I to D-8 were marked. 4. The trial Court after considering the contention of the counsel appearing for the parties and appreciating the oral and documentary evidence on record held that the schedule properties are the properties of Yellappa and the legal representatives are entitled to equal share in the suit properties. However, the trial Court held that since defendants 2 to 6 have not filed statement, they may be presumed to have given up their share in respect of the suit properties and accordingly held that plaintiff and defendant No.7-being the legal representatives of Mallappa, and Basappa-defendant No.1 is entitled to half share being the son of Yellappa and passed the decree as referred to above and accordingly passed the judgment and decree dated 23/11/2001. :8 Beinu aguiie ed b’, the saint. delendant’ to 6 ha’ c. pieferred this app.41 W h b lund thc kirned coun J ‘ippeaun’ lx the appellants 6 1 he Ic uned counsel has taken us through the idcnct adduced In th parties bcfore tht trial coult compn’ed ot eidence of P W.l and!) Ws 1 and 2 and the contents of the documents got marked by the defenc..e and submitted that though the appellants defendants 2 to 6 uld not tik ntten stain hnt that would not take theii i2ht tIn. F dulc ,ioptrtie v hih an. thc inc. tial 1 tia ft idhati tie a it sta ii it a c C r a • C) with the plainulls and defendant \o 7 and defendant No.) and detnddnt \u 2 is the ‘ife and defendants to b are t’e t.hildr fi’ Y Ilappa 7. I la ing regard to the contentions urged. the points thn arise ioi determination in this appeal are: (I) ‘W hethet the finding of the trial Court that thc. appellants-defendants 2 to 6 ha’ e given up their right in the ‘chedule properties as the) ha e not filed theit written statement and decreetna the suit of the plamulls and defendant No.7 for half slime is justihed cit tall’ br interference in this appeal? What iidei dse i ‘. br 1 nt. )flt . sasf I I he nn1” nJ tl. r’ i.tl ( our that •‘nx llantc ha e n n “p th% tlrl!t . he d dule ii er’ in id r 1’ ,l.’n 1 i’d ci ncani. ‘. lx eat ‘d to ‘i a I’ — i’ ut:— ijjt. % .u :pj.c1t” Itt. —c;, — Ilt ii’. 10: 2. As per the final order frw the following reasons. REASONS 8. We have given care.fu I consideration t.o the contention of the- learned counsel ftr the parties and crutinized the material on record. Ii is clear from the pleadinu of the parties the fact that the suit schedule properties belonged to Yellappa and he died in the year lQQl leaving behind his legal representatives, is not in dispute. Therefore the property left by Yellappa devolve equally upon the wife and children of Yeliappa. The genealogy as amen in the plaint cannot be disputed and the same is shown finilows: ,,. . lth( ffrit I H it (ill a H nan an pa t ‘ te o I Rnippa (rnarlgc Bhinirn’ppa DVsappa v.-—- —- —n .-. —- am awwa . in a . j\.\ v1a.n a Ii \u 1;Jt2thIlto 3 jtN4 : 11 10. The material on record would further show that wife of Yellappa, Ajjavv a-defendant no. 2 was alive and she was not made a party to the suit, defendant nos. 2 to 6 who are the children of Yellappa were also not made parties to the suit. Subsequent to filing of the suit they have been impleaded as parties. Therefore it is clear that Yellappa died leaving behind his wife Ajjavva-detèndant no. 2 and his children Basappa defendant no. I, Yellavva-defendant no. 3, Seethawwa defendant no. 4, Girijawwa-defendant no. 5, Parawwa defendant no. 6 and Shivappa-defendant no. I. Mallappa died after the death of Yellappa leaving behind plaintiff nos. 1 to 4 and defendant no. 7. Evidence of P.W.l and P.W.2 would show that even in their evidence they have stated that suit properties were the properties of Yellappa and after his death the property has devolved upon his legal representatives. P.W.l-plaintiff no. 1 has deposed in the evidence that she has been maintaining Shivappa-plaintiff no. 2 and sending him to school and plaintiff no. 2 is in her custody and he has studied :12: / up to 4 th standard and now he is not going to the school. However she does not denied that defendant no. 2 is the wife of Yellappa and defendant nos. 2 to 6 are the daughters of Yellappa who had not been impleaded in the suit. D.W.1- Basavva and defendant no. 7 have naturally supported the case of the plaintiff in their evidence as they wanted to claim the share to the exclusion of their mother and sisters who were not impleaded as parties. 11. It is clear on appreciation of the evidence of P.W. 1 and P.W.2 that the fact that Yellappa died leaving behind his wife and son Basappa-defendant no. I and daughters-defendant no. 3 to 6 and plaintiff no. 1 to 4 and defendant no. 7 are the children of Mallappa who died subsequent to the death of Yellappa. Therefore it is clear that on the death of Yellappa having regard to the prevalent law as he died in the year 1990 in view of the provisions of Succession Act his wife and children are entitled to equal share as Class-I heirs. Therefore the wife-Ajjavva deffndant no. I sons Basappa and Mallappa and fbur daughters would he entitled to the properties 1/7 share each, Plaintiff no, I to 4 and defendant no, 7 being. the legal representatives of Mallappawho was alive on the date of death et Yellappa ould be entitled to the share of Mallappa. i.e., :S share hich would he equivalent to I . 7 share in the schedule property. The plaintiff nos. ito 4 and defendant no. 7 would be together entitled for 1 / 7 thl share, i.e., share of Mallappa in the schedule properties. 1 2. The calculation of shares in viev ol’ the provlsions of the Act and welbsettled principles of law, Overlooking these evidence the trial Court ha.s proceeded on the basis that because defendant nos, 2 to 6 did not file written statement they must have deemed to have tl’” riaht in the schedule P 50 P’Y I aero”e tne pLantr1 nos. I to a ann Getennant no,/ beina the etal representatises of MaIlappa son ot \‘eiiappa and defendant no. I Basappa are entitled to C share each which is 14: clean) penterse and arhitran I he said finding has no basis as it is contrart to the viell settled las’ as referred to .iho e. Ilaeikn the findina of th trial C ourt. that plaint ifs and defendant no. 7 are entitled to’ share and defendant no. 1 is entitled to halt’ share is unsustainable and liable to be bet aside. We livid that the plaintiff nos 1 to 4 and delendant no 7 shall & entitled to 1 7 ‘hare in the schedule propem and defc.ndant nos. I to 0 are entitled to 1 .7’!: share each in the schedule property and to that etenL the judgment and decree passed by the trial Court is liable to be modified and accordingly e pass the tbllo’ ing order Order Ihr appeal t1h’eci. Judgment md .ecrcc ,ncsd ii:. tile t’L1 1 t “nit ‘ ‘t i’idr md t s 4)ruIbresJ nt”i j!aini’S imt dr — . ._‘.!‘r ., 2c dci:’ .y:.qt n) . ‘ ‘2 - flift’. . .11 ;, %. %al.iJ r 15: Plaintiff nos. 1 to 4 and defendant no. 7 shall be entitled to 1, 7 th share in the schedule property and they are entitled to partition and separate possession of theft share in the schedule property in accordance with law. Office to draw decree accordingly. Having regard to the facts of the case there shall be no order as to costs. Sd! JUDGE Sd/ JUDGE I Kinv/bvv