V '.3 MANDIA',
"=n"3*,s sawraosa
-1-
IN run nxen coax! or xAnnm:nxa ax naanneksfy
DATED THIS THE 13"*DAY 0? OCTOBER §éOéf;f*'"
Barons 'WV ' .
max nou'aLz ua.JusrIcn s,x,$5:zix§a3z§Hag_wgW
REGULAR FIRST A§pEAL'Nq;§3/2c6i; m' jgu
BETWEEN:
1 s SHIVAMALLEGOWDA _-- ;;
MAJOR, s/o sIDDEG@waAj'r
R/O SATHEGALAVILQAGE _ _ ;AV:
KOLLEGAL;,cHAMARAJNAGAR' §,V j
MYSORE 'V . . 4'
s""a =~* ',.,; APPELLANT
(By M/S P fiA§Akggu=AssoéIA$Es} ADV)
AND:
1 'MAMATEa_' _. . '
_;D/o.s.sHIvAMALLEGoWDA
v,'RAo_N0 24, SUGAR TOWN
. *3/o s;sfiIvAMALLEsowDA
*,R/Q no 24. SUGAR TOWN
MANQYA
.'Hs/o S.SHIVAMALLEGOWDA
R/O NO 24, SUGAR TOWN
MANDYA
4 K PREMALATH
W/O S SHIVAMALLEGOWBA
-2-
R/O NO 213, SUGAR TOWN
MANDYA
. . . RESPONDENIE
{By Sri T NARAYANAGOWDA FOR C/R)
THIS REA Is FILED U/S..I96-_CPC'J AG;zxIjfr¢s'I+_flIfHEE_V
JUDQIENT AND DEGREE DATED§7.2.2{300'1'APAS$.ED";NA'
O.S.NO.46/95 ON THE FILE OE"':.THE0'~II00'3JxI3DL.&CIVIL.'
JUDGE (SR.DN.}, MYSORE, ,DEcREEI1'~IG 'I'HEI's_SUI'T ';E"(3«R
PARTITION & SEPARATE POSSESISIGN.'-I. . '._ --
THIS APPEAL COMING o'N-,;:~"oR HEER_I'Ns'.= T2315 BAY,
THE COURT DELIVERED IHE FOI__.LL'!6I1§5(§: 9
This_-IE 3defendaEt{s-- appeal challenging the
Judgmenfu End *dééréE*0déEed 7.2.2000 passed in
o.S.§c.46/95~I¢n"1tEe Tfile of the II Addl.Civil
.0Jndgé.(Sr{Da), M§E6Ie.
x0,2IV0§ITfié0 appellant is the defendant and
V. resfiondéfitéil to 4 are the plaintiffs in the Suit
.0' in Q.s}46/95. For the sake of convenience the
0»0pirtiéa are referred tx> by their ranking $1: the
.E=HOEiginal Suit.
W.
-3-
3. It is the case of the plaintiffs that
the Plaintiffs 1 to 3 are children of the 4*"
plaintiff, who is the mother and the defendant is
their father and the 4*" plaintiff is the iegaiiy
wedded wife of the defendant. It is the ease ai~,
the plaintiffs that the marriage_..o:;f:"'i.VVthe._
plaintiff and defendant toot Pi??? Qfifl§;6ei9?4l
in accordance with the rites and; "cfistofie "A
prevailing in their comnnnity,'_that xinw the
wedlock, plaintiffs l txt 3 gate hora, that the
suit eehedaia fiieperties li:e}, item: Noe.1 to 6
are the ancestral pro§erties which have come to
the share af the defendant's branch consisting of
.~. himself 'and inlaintiffs 1 to 3, in a partition
lg which .ha3*,taken place between himself and his
hrothers in the partition of their joint family.
4, it ie the ease of the plaintiffs that the
A~fdefenaaht is addicted' to alcohol, gambling and
':'all other vices, that he was treating his wife,
fkfthe 4" plaintiff with cruelty, he was not taking
"fl
6. In the said Suit, summons was served onxv
the defendant. He entered appearance and fii§d;;i.
his written statement denying all the a§erment$ L
of the plaint. Thereafter based on the 9i¢aeinqs,x,f
the following issues were framed{"_"
1.
Do plaintifEe>opro§eh that .the enit
properties ceme ‘tc_ he Teiiotted to
the share :.of-:=defendentif”et a
partition_ effected”: emendet the
defendant hie father and brothers on
72%gT,4’v~…;;’98″f;;éVV V’
2. ajD0 i°§;a;fiti:fs§_ prove that the
idefendant7negie¢ted to maintain the
4″ ,p3_aVin”t
3.;.»:_s theieéxh iipliaintiff entitled to
“$”:eiaim seearate maintenance from the
2 _ _ .defendant? If so, what amount?
A”n é, ‘ere the plaintiffs entitled to Bfdth
‘ _r ‘sn5:¢ in suit properties?
5.” .. Krevéthe plaintiffs 1 to 3 entitled
Vfor a decree for partition?
ii*5q: What decree or order?”
W
-9-
9. The main contention of the appellehtcifi;
this appeal is that the partition fofiieeitfi9″
schedule properties into four 3hare$_ah3 awarding’.
1/4″‘ share to each of the plaiintiffs
also awarding of maintehance aatfl theLi£etem.of
Rs.£-5.060/– 13.21. to the 4″‘ .is–VV:eVrroVheous:
that there was no partitioh eetweefi the eetendant
and his brothers as Jnehtiefisfi ‘ifih52;}p13 relied
upon by the piéihtifts 535 efiheid by the court
below is iécorrecti that there was no partition
as such” beteeehaithehidefeneafiti and his brothers
and that the seitischeeeie item Nos.3, 4 and S
are the joint*famii§ properties which continues
«=to beh ih ujoiat*-9essession and joint name of
V”§efendan;’an$”his brothers. The share of the
defehdahttiins suit schedule item No.3 i.e.
.sy.No}23?/1″ measuring 1 acre 42 cents; suit
“” ischedgle item No.4 i.e. Sy.No.238 is 1.40 cents
:andi”ih respect of suit schedule item No.5, i.e.,
th3y.$o.24G, the share of the defendant is only to
h””an extent of 2 acres and 65 cents and as such the
“W
-11-
11. By looking into the grounds raised by
the defendant in the appeal memo and also by
looking into the Judgment and decree passed in
the original suit, the following points arise for
determination. They are:
1) Whether the trial Court is justified”ini ,
holding that there is partition between v V
defendant and his “brothers” as -per»
Ex.P13 and that §the_ suit_”aChedulef
properties are allotted_to thg share of»
defendant?
ii) iwhetner the trial Court is justified in
ho1ding_ that fiche xsuit schedule item
Nos, 73; _74′ and 5 are properties
;belongingTto”the’defendant?
iii} Whether the trial Court is justified in
diViding’t the suit schedule lands
equally between the plaintiffs 3. to 3
and ‘defendant? Further granting 1/3″
_share each to plaintiffs 1 to 3?
;* i¢)R Whether the amount of maintenance
“i ‘Cawerded in a sum of Rs.6,000/- to the
~_45” plaintiff is excessive and calls for
interference ?
i”¥; vi” What order ?
‘i”f”sEAS駧
12. Point Nos.1 and 3: The facts and
Vf*.d:’circumstances to deal with these points being
“*1
same they are taken up together ‘If “~,
consideration. It is the case of the ‘
1 to :3 that all the suit sched–ule..4pra.r:t of the same towards the benefit
‘JV”*of :_plaii.ntiffs’;””V The defendant in his written
not specifically denied that the
shit properties Item Nos.1 to 6 are the
‘p_anc:es’L:ra.«l properties and are in his possession.
A fi_”He;ha«s also not specifically denied the fact that
the}:e was partition between himself and his
hhhrothers on 22.4.1985 as per E’.x.P13. He has also
not stated in the written statement that suit
“””;?
-13-
schedule item Nos.3 to 5 are in joint possession
of himself and his brother. It is interesting to
note that the defendant in one breath claims that
suit schedule item Nos.1 to 3 are in» joint “_
possession of himself and his brothefl nsmeiy’d
C.S.Jayaram. Assuming for a monent that the said ”
item Nos.3 to 5 of the suit schednie properties ”
are the properties in Vwhioh the’–defehdantis
brother C.S.Jayaram has a share; in that event,
nothing prevented the defendant to state the said
fact eitherwiil His hritten statement or jJ1 his
evidence)’ fini the7,othefiT_hand, at the time of
evidence the defendant stated that item Nos.1, 2
waand 3§c¢fi”the suit_schedule ____ properties belong to
“xthéir_ father}! item: No.4 belongs to his Younger
bfotherhsayarefiegowda, item No.5 belosqs to his
V .elde.t””bro:the§f Siddegowda and item No.6 belongs to
‘Rdd’him,, in “the appeal memo, he does not clearly
dhsneoiff to whom item Nos.3 to 5 belong to and who
:’arei in possession and cultivation of the same
A'””elong with him. On the contrary, he takes the
wv:
E
_Vto ccets;~
hR _Lp’Nd2fl,,1..
~13-
cost of living and also the age of the*i4%3
for her maintenance, therefore}- the memegnt.i
maintenance awarded to her is just éndh9fope;.§n&7e
plaintiff and that the minimum that is ieq§i§e3T:’
does not call for interference in this appeg1,Ms
16. Point No.5§m_In §iéw of the enefier
point Nos.1 to 4, it ie iséeh sthetg there is
decree passed
infirmity jJt»thejjungment’enef
the trail ¢5§§t;”§nic§3§a1is’§o; interference
this appeal. Cheeérdinelni the”tollowing:
: »;.2’a>efiQ3§§B.
The eppeal is disnissed without any order
to
1’10
in
83