Karnataka High Court
Anasavva W/O Mallappa Dyamakkanavar vs Sunanda W/O Mahadevappa Gidnavar on 13 February, 2024
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RFA No. 100244 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100244 OF 2014
(PAR/POS)
BETWEEN:
1. ANASAVVA W/O. MALLAPPA DYAMAKKANAVAR
AGE: 65 YEARS, OCC: HOUSEHOLD WORK,
R/O: SULLA, TQ: HUBLI, DIST: DHARWAD
2. RAYAPPA S/O. MALLAPPA DYAMAKKANAVAR
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: SULLA, TQ: HUBLI, DIST: DHARWAD.
3. KENCHAPPA S/O. MALLAPPA DYAMAKKANAVAR
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: SULLA, TQ: HUBLI, DIST: DHARWAD.
Digitally signed
by
4. KALLAPPA S/O. MALLAPPA DYAMAKKANAVAR
SHIVAKUMAR
HIREMATH AGE: 43 YEARS, OCC: AGRICULTURE,
Date:
2024.02.23 R/O: SULLA, TQ: HUBLI, DIST: DHARWAD.
13:17:06 +0530
5. SIDRAMAPPA S/O. MALLAPPA DYAMAKKANAVAR
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: SULLA, TQ: HUBLI, DIST: DHARWAD.
6. SHANMUKAPPA S/O. MALLAPPA DYAMAKKANAVAR
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: SULLA, TQ: HUBLI, DIST: DHARWAD.
...APPELLANTS
(BY SRI. MAHESH WODEYAR, ADVOCATE)
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RFA No. 100244 of 2014
AND:
1. SUNANDA W/O. MAHADEVAPPA GIDNAVAR
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O: FLAT NO.101, ROTSON HERITAGE APARTMENT,
BEHIND AMRUT TALKIES, VIDYANAGAR, HUBLI.
2. BASAVARAJ S/O. SANKAPPA METI
GE: 46 YEARS, OCC: AGRICULTURE,
R/O: BEGUR, TQ: KALGHATAGI,
DIST: DHARWAD.
3. KAMALAVVA W/O. RUDRAPPA JAGADANNAVAR
AGE: 75 YEARS, OCC: HOUSEHOLD,
R/O: SULLA, TQ: HUBLI, DIST: DHARWAD.
4. CHANAPPA SHIVAPPA KAMATI
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: KAMATI ONI, KAMALAPUR, DHARWAD.
5. BASAVANNAPPA SHIVAPPA KAMATI
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: KAMATI ONI, KAMALAPUR, DHARWAD.
6. GNGAPPA S/O. SHIVAPPA KAMATI
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: KAMATI ONI, KAMALAPUR, DHARWAD.
7. SHIDDAPPA S/O. SHIVAPPA KAMATI
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O: KAMATI ONI, KAMALAPUR, DHARWAD.
8. MURIGEPPA S/O. SHIVAPPA KAMATI
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: KAMTI ONI, KAMALAPUR, DHARWAD.
9. SHANKRAPPA S/O. SHIVAPPA KAMATI
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: KAMTI ONI, KAMALAPUR, DHARWAD.
9.(A) SMT. GIRIJAVVA W/O. SHANKARAPPA KAMATI,
AGE: 50 YEARS, OCC: AGRL. AND HOUSEHOLD,
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RFA No. 100244 of 2014
9.(B) SIDDARTH S/O. SHANKARAPPA KAMATI,
AGED ABOUT 11 YEARS, OCC: STUDENT,
9.(C) SAMARTHA S/O. SHANKARAPPA KAMATI,
AGED ABOUT 11 YEARS, OCC: STUDENT,
PROPOSED RESPONDENT NO.9(B) AND 9(C)
ARE MINORS REPRESENTED THEIR NATURAL
GUARDIAN MOTHER RESPONDENT NO.9(A).
SMT. GIRIJAVVA W/O. SHANKARAPPA KAMATI,
AGE: 50 YEARS,
OCC: AGRL. AND HOUSEHOLD,
ALL ARE R/O: KAMATI ONI,
KAMALAPUR, DHARWAD.
10. MALLIKARJUN S/O. SHIVAPPA KAMATI
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: KAMTI ONI, KAMALAPUR, DHARWAD.
11. NEELAVVA W/O. SIDDAPPA MEESHI
AGE: 52 YEARS, OCC: HOUSEHOLD,
R/O: ARALIKATTI ONI, NEAR DHAKAPPA CIRCLE,
HUBLI, DIST: DHARWAD.
12. CHANNAVVA W/O. MANJUNATH KOPPAD
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O: SULLA, TQ: HUBLI, DIST: DHARWAD,
NOW R/O: DASTIKOPPA, TQ: KALGHATAGI,
DIST: DHARWAD.
13. SAVITRI W/O. RAYAPPA DYAMAKKANAVAR
AGE: 43 YEARS, OCC: HOUSEHOLD,
R/O: SULLA, TQ: HUBLI, DIST: DHARWAD.
14. KALLAPPA S/O. SANKAPPA METI
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O: BEGUR, TQ: KALGHATAGI,
DIST: DHARWAD.
14.(A) SMT. KAMALAVVA W/O. KALLAPPA METI,
SINCE DECEASED BY HER LRS.
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RFA No. 100244 of 2014
14.(B) SHIVAPPA S/O. KALLAPPA METI,
AGE: 36 YEARS, OCC: AGRICULTURE,
14.(C) SANKAPPA S/O. KALLAPPA METI,
AGE: 32 YEARS, OCC: AGRICULTURE,
14.(E) MISS JYOTHI D/O. KALLAPPA METI,
AGE: 34 YEARS, OCC: AGRICULTURE,
ALL ARE R/O: BEGUR VILLAGE,
TQ: KALGHATAGI, DIST: DHARWAD.
15. SIDARAMAPPA S/O. SANKAPPA METI
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: BEGUR, TQ: KALGHATAGI,
DIST: DHARWAD.
16. SHANMUKHAPPA S/O. SANKAPPA METI
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: BEGUR, TQ: KALGHATAGI, DIST: DHARWAD.
...RESPONDENTS
(BY SRI. J.S. SHETTY, ADVOCATE FOR R1 AND R2;
SRI. M.S. HALLIKERI, ADVOCATE COURT GUARDIAN FOR R9
(B) AND R9 (C);
NOTICE SERVED TO R3(A), R4, R5, R6(A), R6(B), R7, R8,
R9(A), R10, R11, R12, R13, R14(B) TO R14(E), R15, R16;
R9(B), R9(C) ARE MINORS REPRESENTED R9(A);
R14(B) TP R14(E) ARE LRS OF DECEASED R14(A))
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96
AND R/W ORDER XLI RULE 1 OF CPC., PRAYING TO SET ASIDE
THE IMPUGNED JUDGMENT AND DECREE DATED:02.08.2014
PASSED IN O.S.NO.86/2009 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE, HUBLI, BY ALLOWING THIS
APPEAL AND DISMISSING THE SUIT IN THE ENDS OF JUSTICE
AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
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RFA No. 100244 of 2014
JUDGMENT
This appeal is filed by the appellants challenging
the judgment and preliminary decree dated 02.08.2014
passed in OS No.86/2009 by the III Additional Senior Civil
Judge, Hubli.
2. For the sake of convenience, parties are
referred to as per the rankings before the trial Court.
Appellants are the defendant Nos.1(a), 2 to 6 and
respondents Nos.1 and 2 are the plaintiffs. Other
respondents are the defendants.
3. Plaintiffs filed a suit for partition and
separate possession against the defendants in respect of
the suit schedule properties. It is the case of the plaintiffs
that the Rayappa was a original propositus, he died on
06.11.1963, leaving behind Neelavva-his wife and
Basvannevva, Savakka @ Savantravva and Kamalavva
and Mallappa-defendant No.1. Defendant Nos.8 to 17 are
the legal representatives of Basavannevva. The plaintiffs
are the legal representatives of Savakka @Savantravva
and defendant No. 7 is the Kamalavva i.e., the daughter of
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Rayappa. Mallappa is the defendant No.1 who is the son of
Rayappa and defendant Nos.2 to 6 are the children of
Malappa. It is the case of the plaintiffs that the suit
schedule properties are the ancestral and joint family
properties of the plaintiffs and defendants. Further, there
is no partition effected between the plaintiffs and
defendants. The plaintiffs and defendants are the
members of Hindu undivided family. The plaintiffs have
requested the defendants to effect a partition but, the
defendants refused to effect a partition. Hence, a cause of
action arises for the plaintiff to file a suit for partition and
separate possession.
4. The trial Court issued a summons to the
defendants. The defendant Nos.1 to 14 and 16 to 20
appeared through their counsel. The defendant No.15 in
spite of service of summons, she did not choose to appear
before the trial Court. Hence, the trial Court has placed
her ex-parte. The defendant No.1 died during the
pendency of the suit.
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5. The original defendant No.1 filed a written
statement denying the averments made in the plaint and it
is contended that the plaintiffs are not entitled for share in
the suit schedule properties. It is contended that the
defendant No.1 managed the properties and improved the
same and purchased the property shown in serial Nos.7
and 8 of schedule and it is contended that Basavannevva,
Savakka and Kamalavva consented for oral partition under
which, all the agricultural lands situated at Sulla village
were allotted in favour of defendant No.1 and the
defendant No.1 became the absolute owner by virtue of
oral partition effected between the plaintiffs and
defendants and further, on the basis of oral partition, the
name of defendant No.1 was mutated. Hence, on these
grounds prays to dismiss the suit.
6. Defendant No.6 filed an additional written
statement by denying the averments made in the plaint
and prays to dismiss the suit.
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7. The trial Court on the basis of pleadings of
the parties framed the following issues and additional
issue:
1. Whether the plaintiffs prove that
themselves and the defendants are the
members of an undivided joint Hindu family and
the suit schedule properties are their ancestral/
joint family properties?
2. Whether the plaintiffs prove that they
are entitled for the partition and separate
possession of their 1/4th share in the suit
schedule properties by metes and bounds?
3. Whether the plaintiffs are entitled for the
mesne profits?
4. What order or decree?
Additional issue:
Whether the defendant Nos.1 to 14, 16 and
17 prove that there has been a completed
partition in the family and therefore the present
suit is not maintainable in law?
8. The plaintiffs in order to substantiate their
case, plaintiff No.1 was examined as PW.1 and got marked
52 documents as Ex.P.1 to Ex.P.52. Defendant No.6 was
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examined himself as DW.1 and husband of defendant
No.1(a) was examined as DW.2 and got marked 22
documents as Ex.D.1 to Ex.D.22. The trial Court on the
assessment of oral and documentary evidence answered
issue No. 1 in the affirmative, issue Nos.2 and 3 partly in
the affirmative, additional issue No.1 in the negative and
issue No.4 as per the final order. It is ordered and
declared and the suit of the plaintiffs is decreed in part. It
is ordered and decreed that the plaintiffs are having 1/40th
share each in the schedule properties by meats and
bounds. The defendant Nos.1(a) and 2 to 6 are aggrieved
by the judgment and preliminary decree filed this appeal.
9. Heard the learned counsel for defendant
Nos.1(a) and 2 to 6 and the learned counsel for plaintiffs.
10. Learned counsel for defendant Nos.1(a) and
2 to 6 submits that the trial Court has committed an error
in granting a share to the plaintiffs. He submits that the
plaintiffs have relinquished their right in respect of the suit
schedule properties in favour of defendant No.1 in the oral
partition that took place between the plaintiffs and
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defendants. He submits that after having acquiesced their
right, they have no right to file a suit for partition and
separate possession and submit that the suit filed by the
plaintiffs is not maintainable. Hence, he further submit
that on the basis of the oral partition, the name of
defendant No.1 was mutated in the revenue records.
Hence, the parties have acted upon the oral partition.
Hence, on these grounds he submits that the trial Court
has committed an error in decreeing the suit of the
plaintiffs. Hence, on these grounds, he prays to allow the
appeal.
11. Per contra, learned counsel for the plaintiffs
submits that the plaintiffs and the defendants are the
members of Hindu undivided family. Admittedly, the suit
schedule properties are the ancestral joint family
properties of the plaintiffs and defendants, no partition
was effected between the plaintiffs and defendants. He
submits that though, the defendants have taken a defence
in the written statement in regard to prior partition, but
the defendants have not produced any documents to
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establish the prior partition. He also further submit that in
view of the law laid down by the Hon'ble Apex Court in the
case of Vineeta Sharma Vs. Rakesh Sharma reported
in 2020 (9) SCC 1 submit that the plaintiffs are entitled
for equal share. He also submit that the trial Court has
granted 1/40th share but, the trial Court has not assigned
any reasons for coming to a conclusion that the plaintiffs
are entitled for 1/40th share each. He submits that the trial
Court would have granted equal shares to the plaintiffs in
view of amendment to Section 6 of Hindu Succession Act.
Hence, on these grounds, he prays to modify the
judgment and decree passed by the trial Court in so far as
an extent of shares allotted to the plaintiffs. Hence, on
these grounds he prays to dispose of the appeal.
12. Perused the records and considered the
submissions of the learned counsel for the parties.
13. The Points that would arise for our
consideration are as under:
1. Whether the plaintiffs prove that the
suit schedule properties are the ancestral
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joint family properties of the plaintiffs and
defendants?
2. Whether the defendant No.1 proves
that there was a oral partition between the
plaintiffs and defendants and the plaintiffs
have relinquished their right in favour of the
defendants?
3. Whether the plaintiffs prove that the
trial Court has committed an error in
awarding 1/40th share each to the plaintiffs
when the plaintiffs are entitled for equal
share?
to 6 prove that the judgment and decree
passed by the trial Court is perverse,
arbitrary and erroneous?
5. What order or decree?
14. Point Nos.1 and 2: Both these Points are
interlinked with each other and hence, they are taken
together for common discussion in order to avoid the
repetition of facts.
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It is the case of the plaintiffs that the plaintiffs and
defendants are the brothers and sisters and they are the
children of late Rayappa who was a original propositus
died on 06.11.1963, leaving behind his wife Neelavva and
Basavannevva, Savakka, Kamalavva and Mallappa i.e.,
defendant No.1. The suit schedule properties are the
ancestral joint family properties of the plaintiffs and
defendants and no partition was effected between the
plaintiffs and defendants. In order to substantiate the case
of the plaintiffs, plaintiff No.1 was examined as PW.1 and
she has reiterated the plaint averments in the
examination-in-chief and in order to prove that the suit
schedule properties are the ancestral joint family
properties of plaintiffs and defendants, the plaintiff No.1
has produced the documents marked as Ex.P.1 to Ex.P.14
are the record of rights, Ex.P.15 to Ex.P.22 are the
extracts, Ex.P.23 to ExP.27 are the Panchayat extracts,
Ex.P.28 to Ex.P.32 are the D-extracts, Ex.P.33 is the old
extract, Ex.P.34 and Ex.P.35 are the D-extracts, Ex.P.36
to Ex.P.43 are the hand maps, Ex.P.44 and Ex.P.45 are
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the Register of non-testamentary documents relating to
immovable property, Ex.P.46 is the record, Ex.P.47 and
Ex.P.48 are the complaint extracts dated 09.06.2010 and
Ex.P.49 is the copy of the application submitted by
Basavaraj to the Gram Panchayat authority on 20.10.2019
requesting to transfer the property in the name of
Basavaraj. Ex.P.50 is the postal acknowledgement.
Ex.P.51 is the postal receipt. Ex.P.52 is the death
certificate of the mother of plaintiffs. From the perusal of
the evidence of PW.1, nothing has been elicited from the
mouth of this witness.
15. The defendant No.6 got himself examined as
DW.1 and he has reiterated the written statement
averments in examination-in-chief filed by defendant No.1
and further, the defendant No.1(a)'s husband was
examined as DW.2 and they have reiterated the written
statement averments in the examination-in-chief and
further produced the records marked Ex.D.1 the copy of
the application filed by the Basavaraj to the Tahshildar
dated nil, Ex.D.2 is the copy of the birth certificate of the
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mother of the plaintiffs, Ex.D.3 is the certificate issued by
the Headmaster of Sulla village pertaining to Mallappa and
Ex.D.4 is the certificate issued by the Headmaster of Sulla
village in respect of Kamalavva. Ex.D.5 is the certificate
issued by the Headmaster in respect of Basavannevva i.e.,
the mother of defendant Nos.8 to 17 who died on
03.07.2003, leaving behind defendant Nos.8 to 17. Ex.D.6
is the certified copy of the written statement filed in OS
No.85/2008. Ex.D.7 is the application submitted to the
revenue authorities vide communication dated 04.01.2006
to transfer the landed properties and further, Ex.D.8 is the
copy of the letter addressed to Shanmukappa by the Chief
Operating Officer of Apco Organic Certification Agency
dated 02.07.2013. Ex.D.9 is the copy of Register which
discloses in respect of the suit scheduled properties.
Ex.D.10 is the copy of a payment register which discloses
that the land revenue was paid. Ex.D.11 is the Form
No.III. Ex.D.12 is the copy of the letter dated 27.05.2013
and Ex.D.13 is the certified copy of the plaint in OS.
No.85/2008 filed by Nagappa against the defendants.
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Ex.D.14 is the copy of the plaint in OS. No.210/2011.
Ex.D.15 to Ex.D.17 are the relinquishment deeds which
discloses that plaintiff Nos.2, 4 and 5 have relinquished
their rights in respect of the suit schedule properties in
favour of defendant No.1. Ex.D.18 to Ex.D.20 are the
mutation extracts which discloses that on the basis of the
relinquishment deeds marked as Ex.D.15 to Ex.D.17, the
name of defendant No.1 was mutated by virtue of
mutation extracts marked as Ex.D.18 to Ex.D.20. Ex.D.21
and Ex.D.22 are the certified copies of the judgment and
decree passed in OS. No.87/2009. Further, the defendants
have produced the relinquishment deed marked as
Ex.D.15 to Ex.D.17 which discloses that the suit schedule
properties are the ancestral joint family properties of the
plaintiffs and defendants.
16. Further, admittedly, the plaintiff Nos.2 and 3
have not relinquished their right in favour of defendant
No.1. Further, the plaintiffs have produced the records
which discloses that the suit schedule properties are the
ancestral joint family properties of the plaintiffs and
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defendants. Further, it is the case of the defendants that
there was an oral partition between the plaintiffs and
defendants and the plaintiffs have relinquished their right
in favour of the defendant No.1. As could be seen from the
records, the plaintiff Nos.1 and 3 have not relinquished
their right in respect of the suit schedule properties, only
plaintiff Nos.2, 4 and 5 have relinquished their right in
respect of the suit schedule properties by virtue of
relinquishment deeds marked as Exs.D.15 and 17. The
defendants have failed to prove that there was a oral
partition between the plaintiffs and defendants as the
plaintiff Nos.2, 4 and 5 have already relinquished their
right in favour of defendant No.1 in respect of the suit
schedule property. Hence, they are not entitled for share
in the suit schedule properties.
17. The plaintiff Nos.1 and 3 have proved that
the suit schedule properties are the ancestral joint family
properties of the plaintiffs and defendants. Further, proved
that there is no partition effected between the plaintiffs
and defendants as alleged by defendants in the written
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statement and the defendants have failed to prove that
there was a prior partition between the plaintiffs and
defendants. Further, the defendants have failed to prove
that there was a oral partition between the plaintiffs and
defendants. Further, the plaintiffs have failed to prove that
plaintiff Nos.1 and 3 have relinquished their right in favour
of the defendant No.1, as observed above, the plaintiff
Nos.1 and 3 have not relinquished their right in favour of
the plaintiffs. Only plaintiff Nos.2, 4 and 5 have
relinquished their right in favour of defendant No.1 by
executing relinquishment deed marked as Ex.D.15 to
Ex.D.17.
18. The defendant No.2 has failed to prove that
there was a prior oral partition between the plaintiffs and
defendants and also, defendants have proved that the
plaintiff Nos.2, 4 and 5 have relinquished their right in
favour of defendant No.1 and failed to prove that the
plaintiff Nos.2 and 3 have relinquished their right in
respect of the suit schedule properties. In view of the
above discussion, we answer Point No.1 in the
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affirmative and Point No.2 partly in the affirmative
and partly in the negative.
19. Point No.3: It is the case of the plaintiffs
that the plaintiffs are the daughters of original propositus.
The plaintiffs are the coparceners and they are entitled for
equal share. Further, the trial Court has granted 1/40th
share each to the plaintiffs. From the perusal of the
judgment of the trial Court, the trial Court has not
assigned the reasons to come to a conclusion that the
plaintiffs are entitled for 1/40th each share in the
immovable property, to that extent, the trial Court has
committed an error in granting 1/40th share. Admittedly,
plaintiffs are the children of Savakka, she is the daughter
of Rayappa, she died on 02.10.1987, leaving behind the
plaintiffs as her legal heirs, as the mother of plaintiffs was
a daughter of Rayappa is a coparcener as per Section 6 of
Hindu Succession Amendment Act, 2005. Further, after
the death of Savakka, the plaintiffs have succeeded to the
suit schedule properties. The trial Court could have
granted a share i.e., by dividing the properties between
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Rayappa, Neelavva and 4 children and each of them would
got 1/6th share, the Basavannevva could have got 1/6th
share, Savakka would have got 1/6th share, defendant
No.7 could have got 1/6th share and defendant No.1 could
have got 1/6th share, Rayappa and Neelavva could have
got 1/6th share each. Rayappa died leaving behind
Neelavva and 4 children. After the demise of Rayappa his
share i.e., 1/6th share would devolve under Section 8 of
the Hindu Succession Act, 1956. Basavannevva would get
1/5th in 1/6th share, Savakka would get 1/5th in 1/6th
share, defendant No.6 would get 1/5th in 1/6th share,
Mallappa would get 1/5th in 1/6th share. Each would get
6/30th share (1/6+1/30) i.e., 1/5th share. Neelavva died
on 05.09.1991, leaving behind the plaintiffs and
defendants as her legal heirs, her 1/5th share is to be
devolves under Section 15 of the Hindu Succession Act,
the 4 children i.e., Basavannevva, Savakka, defendant
Nos.7 and 1. Plaintiff Nos.1 and 2 would get equal share.
Thus, each son will get 1/4th share. Hence, each son takes
1/5th+1/4th share in the 1/5th share of Neelavva i.e., 1/20th
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share 1/5th+1/20th=5/20th i.e., 1/4th share each. Thus, the
trial Court has committed an error in granting 1/40th share
each to the parties. Thus, the judgment and decree passed
by the trial Court in granting 1/40th share is required to be
modified. Further, though the plaintiff Nos.1 and 3 have
not filed an appeal challenging the judgment and
preliminary decree passed by the trial Court awarding
1/40th share. However, this Court considering under Order
XLI Rule 33, even though, no appeal or cross-objections
were filed by the plaintiffs. However, this Court can hold a
relief by exercising discretion under Order XLI Rule 33.
Hence, the plaintiffs are entitled for 1/4th share. In view of
the above discussion, we answer Point No.3 in the
affirmative.
20. Point No.4: As we have already discussed
and answered Point Nos.1 to 3 in favour of plaintiffs, we
hold that defendants have failed to prove the prior
partition and also failed to prove that the plaintiff Nos.1
and 3 have relinquished their right in favour of defendant
No.1 in respect of the suit schedule properties. The trial
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Court considering the material on record was justified in
decreeing the suit of the plaintiffs. In view of the above
discussion, we answer Point No.4 partly in the
affirmative.
Point No.5: We proceed to pass the following:
ORDER
i) The appeal is allowed-in-part.
ii) The judgment and decree passed by the
trial Court is modified. Consequently, the
plaintiff Nos.1 and 3 are entitle for 1/4th
share together, defendant No.8 to 17 are
entitle for 1/4th share together and
defendant No.7 is entitle for 1/4th share
and defendant No.1 is entitle for 1/4th
share.
iii) Accordingly, draw preliminary decree.
iv) Learned counsel for defendant Nos.1(a)
and 2 to 6 and learned counsel for the
plaintiffs fairly submit that the parties will
pay Rs.20,000/- to the guardian of minor
respondent Nos.9(B) and 9(C).
v) Their submission is placed on record.
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vi) Defendant Nos.1(a) and 2 to 6 and
plaintiff Nos.1 and 3 are directed to pay
Rs.20,000/- to the learned counsel Sri.
Mrityunjaya S. Hallikeri for representing
the minors.
vii) In view of the disposal of the appeal,
I.A.No.1/2021 does not survive for
consideration.
Sd/-
JUDGE
Sd/-
JUDGE
PJ
