Karnataka High Court
Basavaraj Guddappa Maliger vs Beerappa @ Doddabeerappa on 31 July, 2012
Bench: N.Kumar, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 31 S T DAY OF JULY, 2012
PRESENT
THE HON'BLE MR. JUSTICE N. KUMAR
AND
THE HON'BLE MR. JUSTICE H. S. KEMPANNA
REGULAR FIRST APPEAL NO.572/2007
C/W.
REGULAR FIRST APPEAL NO.573/2007
AND
REGULAR FIRST APPEAL NO. 230/2007
REGULAR FIRST APPEAL NO.572/2007:
BETWEEN:
1. BASAVARAJ GUDDAPPA MALIGER
AGE: 67 YEARS
R/O. 8 TH CROSS,
1 S T MAIN, KALYAN NAGAR
DHARWAD - 580 001.
2. SMT FAKIRAVVA,
W/O. MALLAPPA MATTIKOTI
AGE: 80 YEARS
R/O. ARALIKATTI
TALUK HIREKERUR
DISTRICT HAVERI - 581 111.
REP. BY HIS GPA HOLDER
THE APPELLANT NO.6.
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3. SMT. SHANTAVVA MALLAPPA MATTIKOTI
AGE: 64 YEARS
R/O ARALIKATTI
TALUK HIREKERUR
DISTRICT HAVERI -581 111.
REP. BY HIS GPA HOLDER
THE APPELLANT NO.6.
4. JAHNAVI
W/O NEELAGIRISH BHANDARI
AGE: 49 YEARS
R/O UJJAYANI ROAD
KOTTUR
TALUK KUDALAGI
DISTRICT BELLARY
REP. BY HIS GPA HOLDER
THE APPELLANT NO.6.
5. SMT RATNAMMA BASAVARAJ MALIGER
AGE: 60 YEARS
R/O 8TH CROSS, 1 S T MAIN, KALYAN NAGAR
DHARWAD - 580 001.
REP. BY HIS GPA HOLDER
THE APPELLANT NO.6.
6. CHINNAYYA BASAVARAJ MALIGER
AGE: 40 YEARS
R/O 8 TH CROSS, 1 S T MAIN
KALYAN NAGAR
DHARWAD - 580 001.
7. SRI RAJKUMAR BASAVARAJ MALIGER
AGE: 37 YEARS
R/O 8 TH CROSS, 1 S T MAIN
KALYAN NAGAR
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DHARWAD - 580 001.
REP. BY HIS GPA HOLDER
THE APPELLANT NO.6.
8. SRI RAVIKUMAR BASAVARAJ MALIGER
AGE: 35 YEARS
R/O 8 TH CROSS, 1 S T MAIN
KALYAN NAGAR
DHARWAD - 580 001.
REP. BY HIS GPA HOLDER
THE APPELLANT NO.6.
APPELLANTS
(BY SMT.V.VIDYA IYER, ADV.,)
AND
1. BEERAPPA @ DODDABEERAPPA
S/O GUDDAPPA MALIGER
AGE: 76 YEARS
R/O. SRINAGAR
HUBLI - 580 020.
SINCE DEAD BY HIS LRS'
1(a) SMT. BASAVVA,
W/O. BEERAPPA MALIGER
AGE: 68 YEARS
R/O. SAI NAGAR, HUBLI
DISTRICT DHARWAD.
1(b) SRI. ROHIL
S/O. BEERAPPA MALIGER
AGED 49 YEARS
R/O. SAI NAGAR HUBLI
DISTRCT DHARWAD.
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1(c) SRI. MOHAN
S/O. BEERAPPA MALIGER
AGED 47 YEARS
R/O. SAI NAGAR HUBLI
DISTRICT DHARWAD.
1(d) SRI. KARABASAPPA
S/O. BEERAPPA MALIGER
AGED 44 YEARS
R/O. SAI NAGAR HUBLI
DISTRICT DHARWAD.
1(e) KUMARI BHAGYASHREE
GRAND D/O. BEERAPPA MALIGER
AGED 19 YEARS
R/O. SAI NAGAR HUBLI
DISTRICT DHARWAD.
1(f) SMT. PREMA
D/O. BEERAPPA MALIGER
W/O. MADIVALAPPA KAVOORA
AGED 49 YEARS
R/O. SAI NAGAR HUBLI
DISTRICT DHARWAD.
1(g) SUJATHA
D/O. BEERAPPA MALIGER
AGED 35 YEARS
R/O. SAI NAGAR HUBLI
DISTRICT DHARWAD.
1(h) SANJOTHA
D/O. BEERAPPA MALIGER
AGED 25 YEARS
R/O. SAI NAGAR HUBLI
DISTRICT DHARWAD.
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1(i) SMT. ROOPA
D/O. BEERAPPA MALIGER
W/O. SHIVAPUTRAPPA CHENNIKATTI
AGE: MAJOR
R/O. ARALIKATTI VILLAGE
HIREKERURU TALUK
HAVERI DISTRICT.
... RESPONDENTS
(BY SRI.RAVI S. BALIKAI, ADV., FOR R1(c), 1(d)
R-1(a) AND R.1(i) ARE SERVED)
RFA FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DT. 10.11.2006
PASSED IN OS.NO. 261/1999 ON THE FILE OF
THE II ADDL.CIVIL JUDGE (SR.DN.) HUBLI,
DISMISSING THE SUIT FOR PARTITION AND
SEPARATE POSSESSION.
REGULAR FIRST APPEAL NO.573/2007:
BETWEEN:
1. SRI NINGAPPA
ADOPTED SON OF SRI BASAPPA
DODDABASAPPA MALIGER
AGE: 73 YEARS
R/O SUNNKALLBIDARI,
TALUK: RANEBENNUR
DIST: HAVERI - 581111.
REPRESENTED BY HIS G.P.A. HOLDER
SECOND APPELLANT.
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2. BASAVARAJ GUDDAPPA MALIGER
AGE: 67 YEARS
R/O 8 TH CROSS,1 S T MAIN
KALYAN NAGAR, DHARWAD-580 007.
3. SMT FAKIRAVVA
W/O MALLAPPA MATTIKOTI
AGE; 80 YEARS
R/O ARALIKATTI
TALUK: HIREKERUR
DIST: HAVERI - 581 111.
REPRESENTED BY G.P.A. HOLDER
SRI.CHINNAYYA BASAVARAJ MALIGER.
4. SMT. SHANTAVVA MALLAPPA MATTIKOTI
AGE; 64 YEARS
R/O ARALIKATTI
TALUK: HIREKERUR
DIST: HAVERI - 581 111.
REPRESENTED BY G.P.A. HOLDER
SRI.CHINNAYYA BASAVARAJ MALIGER.
5. JAHNAVI
W/O NEELAGIRISH BHANDARI
AGE: 49 YEARS
R/O UJJAYANI ROAD,
KOTTUR, TALUK: KUDALAGI
DIST: BELLARY- 583 109.
REPRESENTED BY HER G.P.A. HOLDER
SRI.CHINNAYYA BASAVARAJ MALIGER.
... APPELLANTS
(BY SMT. VIDYA IYER, ADV.,)
AND
1. BEERAPPA @ DODDABEERAPPA
S/O GUDDAPPA MALIGER
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AGE; 76 YEARS
R/O SAINAGAR
HUBLI-580 020.
SINCE DEAD BY HIS LRS'
1(a) SMT. BASAVVA,
W/O. BEERAPPA MALIGER
AGE: 68 YEARS
R/O. SAI NAGAR, HUBLI
DISTRICT DHARWAD.
1(b) SRI. ROHIL
S/O. BEERAPPA MALIGER
AGED 49 YEARS
R/O. SAI NAGAR HUBLI
DISTRCT DHARWAD.
1(c) SRI. MOHAN
S/O. BEERAPPA MALIGER
AGED 47 YEARS
R/O. SAI NAGAR HUBLI
DISTRICT DHARWAD.
1(d) SRI. KARABASAPPA
S/O. BEERAPPA MALIGER
AGED 44 YEARS
R/O. SAI NAGAR HUBLI
DISTRICT DHARWAD.
1(e) KUMARI BHAGYASHREE
GRAND D/O. BEERAPPA MALIGER
AGED 19 YEARS
R/O. SAI NAGAR HUBLI
DISTRICT DHARWAD.
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1(f) SMT. PREMA
D/O. BEERAPPA MALIGER
W/O. MADIVALAPPA KAVOORA
AGED 49 YEARS
R/O. SAI NAGAR HUBLI
DISTRICT DHARWAD.
1(g) SUJATHA
D/O. BEERAPPA MALIGER
AGED 35 YEARS
R/O. SAI NAGAR HUBLI
DISTRICT DHARWAD.
1(h) SANJOTHA
D/O. BEERAPPA MALIGER
AGED 25 YEARS
R/O. SAI NAGAR HUBLI
DISTRICT DHARWAD.
1(i) SMT. ROOPA
D/O. BEERAPPA MALIGER
W/O. SHIVAPUTRAPPA CHENNIKATTI
AGE: MAJOR
R/O. ARALIKATTI VILLAGE
HIREKERURU TALUK
HAVERI DISTRICT.
... RESPONDENTS
(BY SRI. ANAND R. KOLLI, ADV., FOR
SRI. BASAVARAJ G. GODACHI, FOR R-1(a),
1(f), 1(g), 1(h), 1(i)
SRI. RAVI S. BALIKARI, ADV., FOR R1(c) AND
1(d))
RFA FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DT. 10.11.2006
PASSED IN OS.NO. 282/2003 ON THE FILE OF
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THE II ADDL.CIVIL JUDGE (SR.DN.) HUBLI,
DISMISSING THE SUIT FOR PARTITION AND
SEPARATE POSSESSION.
REGULAR FIRST APPEAL NO. 230/2007:
BETWEEN:
1. BEERAPPA @ DODDABEERAPPA
S/O GUDDAPPA MALIGER
AGE; 76 YEARS
R/O SAINAGAR
HUBLI-580 020.
SINCE DEAD BY HIS LRS'
1(a) SRI. ROHILESHWAR
1(b) SRI. MOHAN
BOTH ARE BROTHERS
S/O. BEERAPPA MALIGER
AGED 49 & 47 YEARS RESPECTIVELY
R/O. ACHCHAVANNA COLONY
3 R D CROSS, SAI NAGAR HUBLI
DISTRICT DHARWAD.
1(c) SRI. KARABASAPPA
S/O. BEERAPPA MALIGER
AGED 45 YEARS
OCC: AGRICLTURE
R/O. PLOT NO.268,
SHIVANANDA NAGAR
GAMANAGATTI ROAD, HUBLI
DIST. DHARWAD.
APPELLANTS
(BY SRI.RAVI S. BALIKAI, ADV.,)
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AND:
1. BASAVARAJ GUDDAPPA MALIGER
AGE: MAJOR, OCC: NIL
R/O 1ST MAIN, 8TH CROSS
KALYAN NAGAR, DHARWAD-07.
2. FAKIRAVVA MALAPPA MATTIKATTI
AGED 79 YEARS,
OCC: HOUSEHOLDWORK
R/O ARALIKARI
TAL: HIREKURUR
DIST: HAVERI - 11.
3. SHANTAVVA MALLAPPA MATTIKOTI
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O ARALIKARI,
TALUK HIREKERUR
DIST: HAVERI
4. JANHAVI
W/O NEELAGIRISH BHANDARI
AGE: 57 YEARS,
OCC: HOUSEHOLD WORK
R/O UJJAYANI ROAD
KOTTUR, TALUK: KUDALAGI
DIST: BELLARY
5. SMT RATNAMMA BASAVARAJ MALIGER
AGE: 63 YEARS,
OCC: HOUSEHOLD WORK
R/O PLOT NO.36, 1ST MAIN
8TH CROSS, KALYANAGAR
DHARWAD-07.
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6. CHINNAYYA BASAVARAJ MALLIKER
AGE: 41 YEARS,
OCC: HOUSEHOLD WORK
R/O PLOT NO.36, 1ST MAIN
8TH CROSS, KALYANAGAR
DHARWAD-7
7. RAJKUMAR BASAVARAJ MALIKER
AGE: 30 YEARS,
OCC: HOUSEHOLDWORK
R/O PLOT NO.44, 1ST MAIN
8TH CROSS, KALYANAGARA
DHARWAD-07.
8. RAVIKUMAR BASAVARAJ MALIGER
AGE: 36 YEARS, OCC: HOUSEHOLD WORK
R/O PLOT NO.36, 1ST MAIN
8TH CROSS
KALYANAGAR, DHARWAD-07.]
9. SMT. BASAVVA
W/O. BEERAPPA MALIGER
AGE: 68 YEARS
OCC: HOUSEHOLD
R/O. ACHAVVANA COLONY
3 R D FLOOR, SAI NAGAR,
HUBLI - 580 031.
10. SMT. PRAMILA
W/O. MADIVALAPPA KADLUR
AGE: 40 YEARS
OCC: HOUSEHOLD WORK
R/O. C/O. MADIVALAPPA KADLUR
C/O. BHARATH TRADERS, SHOP NO.2
DARSHAN COMPLEX, NEW JEWARAGI ROAD
GULBARGA - 585 102.
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11. SMT. ROOPA,
W/O. SHIVAPUTRAPPA CHINNAKATTI
AGE: 37 YEARS, OCC: HOUSEHOLD WORK
R/O. ARALIKATTI
TQ. HIREKERUR
DIST. HAVERI.
12. SMT. SUJATHA
W/O. BHIMANNA HALEMANI
AGE: 35 YEARS, OCC: HOUSEWIFE
R/O. LIG 88, NEAR HORTICULTURE
GARDEN, HUDCO, JALANAGAR
BIJAPUR - 586 101.
13. SMT. SANJOTHA
W/O. SAHEB GOWDA PATIL
AGED 32 YEARS,OCC: HOUSEWIFE
R/O. AT PRESENT
C/O. SMT. BASAWWA
W/O. BEERAPPA MALIGER
ACHVVANA COLONY
3 R D CROSS, SAI NAGAR
HUBLI - 580 031
DIST. DHARWAD.
...RESPONDENTS.
(BY SMT. V.VIDYA IYER, ADV., FOR R.1 TO R.8
SRI. ANAND R. KOLLI, ADV., FOR SRI.
BASAVARAJ G. GODACHI, ADV., FOR R9 TO
R.13)
RFA FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DT.10.11.2006
PASSED IN OS.NO.261/1999 ON THE FILE OF
THE II ADDL.CIVIL JUDGE (SR.DN.) HUBLI,
DISMISSING THE SUIT FOR PARTITION AND
SEPARATE POSSESSION.
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THESE APPEALS COMING ON FOR
HEARING ON INTERLOCUTORY APPLICATION
THIS DAY, N.KUMAR J., DELIVERED THE
FOLLOWING:
J U D G M E N T
As all these appeals are preferred against the common judgment and decree passed by the trial Court in O.S.No.261/1999 and O.S.No.282/2003, they are taken up for consideration together and disposed of by this common judgment.
2. For the purpose of convenience, the parties are referred to as they are referred in O.S.No.261/1999.
3. Before we go into the averments in the plaint, it is necessary to notice the genealogy. One Sri.Kariningappa is the propositus. He had three sons by name, (1) Basappa @
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Doddabasappa, (2) Hiriyappa @ Sannabasappa and (3) Karabasappa. Hiriyappa, one of the sons of Kariningappa died at the age of 3 years. Therefore, his branch stood extinguished. Basappa @ Doddabassappa married Smt.Bharmavva. He had no male issues. Karabasappa had two sons by name Muppanna and Guddappa. Muppanna had a son by name Beerappa @ Sannabeerappa. Guddappa had three sons by name Beerappa @ Doddabeerappa, Ningappa and Basavaraja. There was no partition in the family. Beerappa @ Sannabeerappa, S/o. Muppanna took his share in the joint family property and went out of the family. Other members continued to be joint in the joint family. Ningappa, S/o. Guddappa was given in adoption to Basappa @ Doddabasappa and therefore, he ceased to be a member of the
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family of Guddappa and his sons. The plaintiff in the suit is Beerappa @ Doddabeerappa i.e. the son of Guddappa. The first defendant is Basavaraj Guddappa Maliger, S/o. Guddappa. Defendant Nos.2, 3 and 4 are the daughters of Guddappa. Smt.Fakiravva was born in the year 1927; Smt.Shantavva was born in the year 1943 and Smt.Jahnavi was born in the year 1950. Guddappa died on 30.6.1998. Defendant No.5 is the wife of Basavaraj Maliger i.e. the first defendant. Defendant Nos.6, 7 and 8 are the sons of defendant Nos.1 and 5. Ningappa was not made a party to this suit. By virtue of the adoption on 5.3.1937, he ceases to be member of the family of Guddappa and his children.
4. The subject matter of the suit is; ten items of the properties, which are clearly set out in paragraph 3 of the plaint.
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5. The case of the plaintiff Beerappa is; as Ningappa had been given in adoption to the family of Doddabasappa Maliger, who is the senior uncle of Guddappa in the year 1937, he is not made a party to the proceedings. Three daughters of Guddappa Maliger are married long back and are quite well off in their husband's house. At the time of their marriage itself, Guddappa had given huge amount to them in the form of cash and gold, which form part of their respective shares in the joint family properties. Therefore, the Undivided Joint Hindu family continued with three co-parceners i.e., Guddappa Maliger, father of the plaintiff, plaintiff and the defendants. The said Guddappa Maliger had a brother by name Muppanna. There was a partition between the two brothers. In spite of partition, two properties bearing
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Sy.No.229 measuring 6 acres 31 guntas at Sunakalbidari taluk, Ranebennur and Sy.No.215 measuring 5 acres 15 guntas situated at Sunakalbidari taluk, Ranebennur have been kept jointly and are used by all the brothers and their heirs. Thereafter, Sri.Guddappa Maliger after taking his share from his brother continued to enjoy his share separately and out of the income derived from agricultural lands, he purchased some other lands also. The said Guddappa Maliger lived about 98 years and died on 30.6.1998 at Aralikatti village leaving behind the defendants and the plaintiff. The wife of Guddappa Maliger had predeceased him.
6. Plaintiff had joined as teacher in Government Primary School and spent most of his service in his native place in Ranebennur taluk. As he was eldest in the family, he used to
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look after the family matters and joint family properties. During his service as a teacher he used to look after all the landed properties of his father along with him. The first defendant was studying. He completed his degree in engineering. Thereafter, the first defendant joined PWD and served wherever he was posted.
7. In the year 1972, the plaintiff was posted to Hubli wherein, he was forced to set up a separate house with his wife and children. He built a house in Sainagar and started living there even to this day. Very recently, he retired from his service. Since the father of the plaintiff was hale and healthy, he continued to look after the family lands. When the plaintiff started living in Hubli, he used to visit his village frequently to look after his father and
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properties. Some of the agricultural properties are irrigated lands fetching high yield. Out of joint family income, Guddappa Maliger, father of the plaintiff purchased some other properties, which also form joint family properties. The properties mentioned at Serial Nos.8, 9 and 10 have been purchased by defendant No.1 in his name and in the name of his wife and children out of the income from the joint family properties and thus, they also constitute the properties belonging to the Undivided Hindu Joint Family. The properties purchased by defendant No.1 are the properties purchased by him out of the money derived from the joint family funds. In the year 1998, whe n the father of the plaintiff expired, defendant No.1 took control over the joint family properties forcibly and denied the plaintiff's share in them.
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However, all the movable properties mentioned in the plaint i.e. cash and gold have been taken over by the defendants exclusively without giving single paise to the plaintiff. The plaintiff being the eldest in the family, has his legitimate right in the joint family properties in spite of unauthorized and hindrance activities of defendant No.1. After the death of father of the plaintiff, plaintiff and defendant No.1 constituted co-parcenery, undivided Hindu Joint Family and thus, both are entitled to equal share in the properties described above. After death of his father, the plaintiff requested the defendant No.1 to make partition of all the properties by metes and bounds to have smooth and cordial relationship between each other. Defendant No.1 did not heed to it. Hence, the plaintiff issued a legal notice to defendant No.1
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asking for partition on 16.8.1999. Though it was received by defendant No.1, he did not give any reply to it nor made any efforts to do partition. Hence, the plaintiff was constrained to file the suit for partition and separate possession of his half share in the suit schedule property.
8. After service of summons, defendant No.1 entered appearance and filed detailed written statement. In the written statement at paragraph 4, he has given genealogy of the family. He contended that the plaintiff intentionally has not added Ningappa as defendant in the suit. The non-joinder of necessary party will go to the root of the case and on that account alone the suit is not maintainable and liable to be dismissed. He denied that Ningappa had been given in adoption in the year 1937. The partition pleaded
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by the plaintiff between his father and brother is not admitted and specifically denied. He denied the allegation that the plaintiff used to look after all the landed properties of his father along with him. It is the plaintiff's father and his brother Ningappa, who used to cultivate the lands personally and jointly. They were looking after the agricultural establishment of the joint family. It is his specific case that plot No.14 measuring 5 Guntas 12 Annas is purchased on 25.11.1971 out of the joint family funds and house is constructed out of the joint family funds. Now it is worth about Rs.40 lakhs to 50 lakhs and odd. Though it is earned by joint family funds, plaintiff knowing fully well it is joint family property, but intentionally, has not mentioned this property in the suit schedule properties, which will go to the root of the
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plaintiff's case. Therefore, the suit is liable to be dismissed.
8.1. He denied the allegation that the property mentioned at Serial Nos.8, 9 and 10 have been purchased by defendant No.1 in his name and in the name of his wife and children out of the income from the joint family properties and thus, they also constitute the properties belonging to Hindu Undivided Joint Family. It is submitted that the suit properties at Sl.Nos.8 to 10 mentioned in the suit were not purchased out of the joint family income of the Maliger family. Sl.No.8, agricultural land bearing R.S.No.25/2, 4 acres was purchased by Sri.Channa basappa Kariyappa Ukkund of Aralikatti village and his children by name
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Shivanandppa Channabasappa Ukkund, Smt. Ratnamma, w/o. Sri. Basavaraj G. Maliger and Shekarappa Channabasappa Ukkund under a registered sale deed dated 28.9.1989. So also the suit schedule property shown in Sl.No.9 i.e. agricultural land bearing No.772/2, 11 acres 29 Guntas of Ingalahalli village, purchased by 1) Smt.Ratnamma, W/o. Sri.Basavaraj G. Maliger, 2) Chinnayya Basavaraj Maliger, (3) Rajkumar, 4) Ravikumar, S/o. Sri.Basavaraj G.Maliger, jointly in the year 1991. These properties were purchased by Smt.Ratnamma out of her personal funds received from her parental house in respect of her share and agricultural income out of the landed property held by her. The name of children of
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Smt.Ratnamma and her husband was included for the sake of convenience for the management of her property. Plaintiff has no right or interest whatsoever kind over these suit schedule properties. In respect of Sl.No.10 noted in the suit schedule property, it is the self-acquired property of defendant No.1, out of the savings of his salary income and agricultural income of Smt.Ratnamma Maliger from her parental share. He had purchased site of 14 guntas i.e.145' x 110' ft. with an outhouse of dimension of 36'x23' ft. at Dharwad Saptapur, Kalyannagar Area, by obtaining permission from the competent authority of Government of Karnataka and permission for building construction
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through a letter dated 9.4.1987. In this property the plaintiff has no right or interest whatsoever kind. With an ulterior motive, the plaintiff has mentioned the property Nos.8 to 10 in the suit schedule column, knowing fully well that he has no any right or interest whatsoever kind over these suit schedule properties. The plaintiff has no right to claim any share in his property. He denied that he took control over the joint family property forcibly after the death of his father. He also denied the allegation that he took over the cash and gold belonging to the joint family without giving a single pie to the plaintiff. Ningappa, S/o. Guddappa though he had gone in adoption to Basappa continue d to live in the joint
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family of Guddappa and cultivated the joint family properties in common. Ningappa is also the member of Undivided Hindu Joint Family. The plaintiff intentionally avoided the mentioning of Sainagar house at Hubli, which was constructed out of the joint family funds. Therefore, the plaintiff intentionally with an ulterior motive, has included Sl.Nos.8 to 10 as joint family properties in the suit, in which he has no right. It is also contended that plot No.268 of block No.329/B measuring 1 guntas and 1.7 Annas in Shivanananda Nagar, Gamangatti village in the name of Karibasappa, S/o. Beerappa Malige, the plaintiff. It is also the joint family property, which is liable for partition.
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Therefore, he sought for dismissal of the suit.
9. The first defendant's wife - fifth defendant also filed separate written statement. She has virtually adopted the statement filed by her husband. Therefore, it would be a repetition to set out what is stated by defendant No.1. She claims that item in Sl.Nos.8 and 9 standing in her name and in the name of her children are not the joint family properties. They belong to her exclusively and the plaintiff has no right to seek partition in the said properties. Similarly, Sl.No.10 in the plaint schedule is the property exclusively belonging to her husband defendant No.1 in which also the plaintiff has no right to seek partition. Therefore, she sought for dismissal of the suit.
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10. Other defendants have not filed any written statement.
11. After filing of the aforesaid suit, Ningappa as well as first defendant in the above suit and 3 daughters of Guddappa i.e., sisters of plaintiff and Defendant No.1 in the above suit have filed a suit in O.S.No.282/2003 for partition and separate possession of their share in the suit properties mentioned in paras 2 & 5.
12. The properties mentioned at Sl.Nos.1 to 7 in O.S.No.261/1999 are the subject matter of the said suit. In addition to that, they had included the suit schedule the property bearing Sy.No.26/1+2 measuring 7 acres 37 guntas of Hadiyal village. They have also mentioned the plot bearing No.199/2 in Unkal Village Hubli, Plot No.14 measuring 5 guntas 12 Annas
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situated at Sainagar Taluk, Hubli in the schedule. In para 3, they have set out the genealogy. There is no dispute. Their grievance is, the first defendant in the said suit, who is the plaintiff in the earlier suit acquired a plot of land in Sainagar out of joint family funds. He has constructed nearly 15 houses there on and let out the same for rent. He is receiving about Rs.30,000/- per month as rent, which also belongs to the joint family. In fact, he has filed the suit in O.S.No.261/1999 for partition and separate possession. He contended that the first plaintiff Ningappa had been given in adoption therefore, he has no right to claim any share in the joint family properties and efforts were made by the panchayatdars for amicably settlement. The dispute was not resolved. Therefore, the suit has been filed for partition and separate
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possession of the joint family properties. First defendant did not file any written statement. Probably, he wants the averments in the plaint to be treated as written statement in the suit. As both the suits were filed in the very same Court, the trial Court framed the issues in both the suits separately.
13. The issues in O.S.No.261/1999 are as under:
1. Whether the plaintiff proves that the suit properties are the joint family properties of himself and defendant?
2. Whether defendants prove that properties at item Nos.8, 9 and 10 are not joint family properties?
3. Whether the defendants prove that the suit is bad for non-joinder of necessary parties?
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4. Whether the defendants prove that the properties standing in the name of plaintiff are also the joint family properties?
5. Whether the plaintiff is having half share in all the suit properties?
6. Whether the plaintiff is entitled for partition and separate possession as prayed for?
7. Whether the plaintiff is entitled for mesne profits as prayed for?
8. What order or decree?
Addl. Issues:-
Whether the defendants 5 to 8 prove that the suit item 8 and 9 are their self acquired properties?
14. As no written statement is filed in O.S.No.282/2003 the Court framed the following points for consideration:
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1. Whether the plaintiffs prove that suit properties are joint family properties.
2. Whether the plaintiffs prove that they are entitled for the relief claimed by them?
3. What decree or order.?
15. Both the suits were clubbed and common evidence was recorded.
16. The plaintiff in O.S.No.261/1999 was examined as PW.1. He examined a witness by name Gadigeppa Ramappa Totad as PW.2. He produced in all twenty documents, which are marked as Exs.P.1 to P.20. On behalf of the defendants first defendant Basavaraj was examined as DW.1. First plaintiff in O.S.No.282/2003 was examined as DW.2. One
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Heggappa Martandappa Totad was examined as DW.3 and fifth defendant i.e. the wife of the first defendant was examined as DW.4. They produced in all 78 documents, which came to be marked as Exs.P.1 to P.78.
17. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the partition between Karibasappa and Basappa, son of Kariningappa is not proved. In which event, Ningappa had been given in adoption to his grand father Basappa, he is entitled to share in the joint family properties. As the plaintiff has not impleaded Ningappa, the suit of the plaintiff is bad for non-joinder of necessary party. Insofar as Item Nos.8 to 10 are concerned, the evidence on record establishes that item in Sl.Nos.8 and 9 are the properties standing in the name of
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fifth defendant and her children. The consideration for purchasing of the said properties has come from her parental share. At any rate, no material is placed on record to show the consideration for purchase of those items has flown out of the income of the joint family funds. Therefore, it was held that the said two properties are not joint family properties. Insofar as item in Sl.No.10 is concerned, there is an admission in the evidence of the parties that the said property has been acquired from some portion of the funds flown from the joint family. But as the suit is dismissed for non-joinder of necessary party, the trial Court has declined to divide the said properties. Similarly, it held that the properties, which are standing in the name of the plaintiff, which are situated at Sainagar, were also acquired out of the joint family funds.
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But the said property is not made the subject matter of the suit. As the suit for partition should include all the joint family properties and as all the joint family properties are not included, the suit for partition is not maintainable. By the aforesaid reasons, the suit filed by the plaintiff in O.S.No.261/1999 came to be dismissed.
18. Similarly, insofar as the suit in O.S.No.282/2003 is concerned, the property at Sl.No.10 in the above suit was not included. Therefore, that suit is also not maintainable for not inclusion of all the joint family properties, accordingly, the said suit came to be dismissed.
19. Aggrieved by the said judgment and decree, all the three brothers have preferred these three appeals.
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20. Learned counsel for the plaintiff in O.S.No.261/1999 contended that the property situated at Sainagar, Hubli taluk which stands in the name of the plaintiff is not a joint family property. Therefore, there was no obligation cast upon the plaintiff to include his self-acquired property in the suit for partition. Therefore, the trial Court was not justified in dismissing the suit of the plaintiff on that ground. Similarly, she contended that Ningappa admittedly had been given in adoption. Therefore, he ceased to be a member of the joint family. As he was not a member of the joint family, he was not made party to the suit. Therefore, the finding of the trial Court that the suit is bad for non-joinder of necessary party is vitiated. She also contended that there was a partition earlier between two branches and therefore, Ningappa would not get
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any right as he had gone out of the family, which aspect has not been properly appreciated by the Trial Court. Therefore, she submits that the judgment and award requires to be interfered with and the suit of the plaintiff for partition is to be decreed as prayed for.
21. Learned counsel for the first defendant Basavaraj contends that as item at Sl.Nos.8 to 10 in O.S.No.261/1999 is not joint family property, and it is the self-acquisition of him, his wife and children, there was no obligation to include those properties in the plaint in O.S.No.282/2003. Therefore, the trial Court committed a serious error in dismissing the suit on the ground that they have not included those properties in their plaint and therefore, he submits that the suit in O.S.No.282/2003 should be decreed as prayed for.
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22. Learned counsel for Ningappa submits that though there was a registered adoption deed which shows that he had been given in adoption to his grand father, the said document is not acted upon. Moreover, there is no partition between grand fathers, he cannot be denied the share in the joint family property. In fact, he is entitled for ½ share or at least he is entitled for 1/3 share and therefore he cannot be denied his share. These aspects have been completely missed by the trial court and he has been denied share in the joint family property.
23. From the aforesaid material on record and the rival contentions of the parties, the point that arise for our consideration in the se appeals is as under:
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(i) Whether there was a partition between the sons of Kariningappa i.e., Basappa and Kar abasappa?
(ii) Whether Ningappa, son of Guddappa was given in adoption to Basappa on 05.03.1937 and he ceased to be a member of joint f amily of Guddappa's branch?
(iii) Whether the suit schedule properties in O.S.No.261/1999 and O.S.282/2003 are the joint f amily properties which are avail able f or partition?
(iv) Whether the properties at sl.no.8 to 10 in O.S.261/1999 are the self acquisitions of def endants 1, 5 to 8?
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(v) Whether item no.9 in schedule to O.S.282/2003 is the self acquired property of plaintiff in O.S.261/1999?
(vi) Whether the suit is bad f or non-
joinder of necessary parties?
(vii) Whether the suit is bad f or non inclusion of joint f amily properties in the suit?
24. Point No.(vi): As the suit dismissed for non-joinder of necessary party and non- inclusion of all the joint family properties in the suit, let us decide the said points first, as the other points arise for consideration, only if the suit is maintainable.
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25. From the aforesaid pleadings, it is clear that in O.S.No.261/1999, Ningappa was not made a party to the suit, Ningappa is the plaintiff in O.S. 282/2003 who was before the Court seeking for partition and separate possession of his legitimate share in the joint family properties. Both the suits were clubbed together. The object behind the principle that, all members of a joint family should be made parties to a suit for partition is, in the absence of such parties, the properties belonging to all of them cannot be effectively partitioned by metes and bounds. If one of the member of a family who has a definite share in the property is not involved at the time of partition, the said partition becomes incomplete. Beyond this, there is no legal bar for effecting partition. When two suits are filed, they are clubbed
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together and all the members of the joint family are before the court, an effective division of the properties can be effected by the court in the presence of those joint family members who are there before the court. Even if one of them who is not a party in one suit, is a party in another suit, the fact remains, all the parties are before the court, all the parties are seeking partition. In those circumstances, it is very strange, the trial court has dismissed O.S.261/1999 on the ground that Ningappa is not made a party, when Ningappa himself has filed suit for partition seeking for his legitimate share in the suit schedule properties. Therefore, this approach of the learned trial Judge is unacceptable, contrary to law and dismissal of suit O.S.261/1999 on the ground of non joinder of necessary parties in
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particular, Ningappa is unsustainable and accordingly that finding is hereby set-aside.
26. Point No.(vii): Similarly, it is settled law, there can be only one partition generally. All the properties belonging to joint family have to be divided by metes and bounds in such a partition. Said partition may be by an agreement or by a decree of the Court. It is only when all the properties are taken into consideration, effective partition can be effected. But this rule is not without exceptions. It is possible that some properties which are not available for partition are excluded. Properties in which the rights of the parties are not crystalized are excluded and in respect of such properties, a second suit is perfectly maintainable provided an acceptable reason is given for not including in the earlier suit. At the
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same time, if properties are before the Court, all the parties who are entitled to share are before Court as in this case, merely because in one suit a particular property belonging to joint family is not included which is subject matter of cross suit and which is very much before the court, the court is not justified in dismissing the suit on the ground, that all the properties of joint family are not included in the suit. Though in O.S. 282/2003, the properties at sl. no.8 to 10 in O.S. 261/1999 are not included on the ground that they are the self acquired properties of defendants 1, 5 to 8 the suit cannot be dismissed. Infact, the trial court has recorded a categorical finding that the properties at sl.no. 8 and 9 are not joint family properties, those properties exclusively belong to 5 t h defendant and her children. The consideration for
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acquiring said properties has come to her from her parents' side and no consideration is from joint family fund. The suit could not have been dismissed for non inclusion of items at Sl.No. 8 and 9. In respect of Sl. No. 10, no doubt, finding is, it is joint family property. Even if plaintiffs in O.S. 282/2003 have not included in their plaint, the said property is very much before the court being at Sl.No.8 to 10 in O.S.261/1999. Once the court records a finding that the said property is joint family property and it is before the court and as all the parties who are entitled to share are before the court, nothing prevented the court from effecting partition. Therefore this approach of the trial court is also not proper and the finding recorded by the trial court in O.S.282/2003 is bad for non inclusion of Sl. No.8 to 10 in O.S.261/1999
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in the schedule to O.S.282/2003 is unsustainable. Therefore, the said finding is also hereby set-aside.
27. Point No.(i): Though plaintiff in O.S.261/1999 has pleaded a partition between Basappa and Karibasappa in the family somewhere in the year 1960, as rightly pointed out by the trial court, the date of partition, the nature of partition, whether it is oral partition or evidenced by documents and what are the properties fallen to the share of the brothers is not forthcoming. In fact, the case pleaded is partition was between the three brothers, Basappa, Hiriyappa and Karabasappa. The undisputed material on record shows, Hiriyappa died at the age of 3 years, thus leaving behind two brothers and it is not the case of plaintiffs,
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partition was between Basappa and Karabasappa.
28. Similarly, partition in respect of two items only as pleaded by the plaintiff is also not proved by any evidence on record. The trial court has recorded a categorical finding that if partition is not proved even if adoption is valid and legal, Ningappa as the adopted son of Basappa is entitled to half share. Therefore, the trial court was justified in recording a finding that the partition pleaded by the plaintiff is not proved.
29. Similarly, the trial court also has held the so called partition under which Beerappa took share and went out of the family is also not established. The fact remains till today Beerappa has not come forward to claim any
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share in the property when the other members of the family are fighting by filing two suits in the court. As the parties to the litigation here do not dispute the fact that Beerappa took his share and went out of the family, we can leave the matter at rest and we can concentrate on rights of other parties.
30. Points (ii) and (iii): Now admittedly sl.no. 1 to 7 which correspond to sl.no. 1 to 8 in other suit are joint family properties. If there is no partition in the family then the said property has to be partitioned . Therefore, it can be held that the suit items 1 to 7 in both the suits are the properties belonging to Hindu undivided family and are available for partition.
31. Ningappa who is before the court is claiming 1/3 r d share in the said property contending that he went out of family by way of
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adoption, that adoption is not acted upon, he continues to be the member of his natural father Guddappa and his share is only 1/3 r d and he is the man cultivating the land along with Guddappa during his life time. In that view of the matter, plaintiff, first defendant and first plaintiff in O.S.282/2003 being the three brothers would be entitled to 1/3 r d share in item no. 1 to 7 in O.S. 261/1999. In this context it is not necessary to go into the validity of the adoption deed and adoption, as he would be entitled to half share as the adopted son, when he has given up such claim, and contends the adoption was not acted upon.
32. Points (iv) & (v): In so far as sl.no.8 and 9 are concerned, the learned trial judge has carefully looked into the recitals in the registered sale deeds and the oral evidence
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adduced which clearly demonstrates the consideration for purchase of said two items of property has come from father and brothers of the 5 t h defendant. There is no evidence on record to show that the joint family has contributed anything for purchase of the said property. In fact, there is no evide nce on record to show what is the income of the joint family and the income derived from agricultural operations. Therefore, in those circumstances, the finding recorded by the trial court that the properties at sl.no.8 and 9 are the self acquisitions of defendants 5 to 8 is established by the legal evidence on record. We do not find any infirmity in the said finding which calls for interference. Therefore, the said finding of the trial court is hereby upheld and it is made clear the said two items of the property are not
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available for partition as it is not the joint family properties.
33. Then, we are left with property at sl.no.10 in O.S.261/1999 and property at sl.no.9 in O.S.282/2003. The admitted evidence on record is, plaintiff in O.S.261/1999 was working as a teacher. Though initially he worked at various places, somewhere in 1972, he was transferred to Hubli. When he was transferred to Hubli, he acquired a site, constructed a house and let it out for rent. He was getting salary. In so far as item no.10 in O.S.261/1999 which is claimed by first defendant as exclusive property is concerned, he is the most educated person in the family who was working as Executive Engineer, drawing handsome salary, never lived in the village. He also acquired property by allotment after
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obtaining permission from the Government and in fact other members have given no objection saying that they have no right in the property which enabled him to acquire the land and he has put up construction. But in the oral evidence adduced by the parties, there is evidence to the effect that both these brothers had the benefit of joint family funds. It is on the basis of that evidence, the court below has come to the conclusion, both properties are joint family properties. It is settled law, if property stands in the name of member of joint family, there is no presumption it is a joint family property. Presumption is only family is joint. If the joint family also owns property and then the members acquired property in their name to constitute the properties acquired in the name of the members of joint family, the person who is
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setting up the plea of joint family has to prove that there was sufficient nucleus derived from the joint family fund out of which the member of the joint family acquired the properties in their name.
34. In the instant case, item Nos. 1 to 7 are joint family properties they are available to the joint family. There is no evidence to show what is the income derived from the joint family properties, what is the nucleus which is available after meeting the family necessities which was utilized for acquiring these properties in the name of individual members. Absolutely the evidence on record is silent on this aspect. Similarly there is no evidence to show what is the amount paid to plaintiff in O.S.261/1999 to acquire item no.9 in O.S.282/2003 and similarly, what is the amount paid to defendant
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no.1 in O.S.261/1999 to acquire the property at sl.no.10 in O.S.261/1999. It is barely based on surmises. Therefore the said finding is not based on legal evidence and therefore it cannot be sustained.
35. The property at sl.no.9 in O.S.282/2003 is property standing in the name of plaintiff in O.S.261/1999 and it is his self acquisition. Similarly, sl.no.10 in O.S.261/1999 is standing in the name of first defendant and it is his self acquisition. Those properties at Sl.No.8, 9 and 10 in O.S.261/1999 and Sl.No..9 in O.S.282/2003 are not joint family properties and are not partiable, they are not available for partition. Excluding these properties, Sl.No.1 to 7 in O.S.261/1999 which corresponds to sl.no.1 to 8 in O.S.282/2003 are joint family properties. In fact, item No.6 in O.S.282/2003, it is
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doubtful whether the property continues to be joint family property. It is submitted that it was a joint family property, it was sold long back and not available for partition.
36. The trial court has recorded a finding that the movables set out in O.S.261/1999 such as cash and gold are not available and therefore, question of effecting partition of those items of the property would not arise. Said finding is based on legal evidence and do not call for interference.
37. From the material on record, it is not in dispute that Guddappa had three daughters apart from 3 sons. They are Fakiravva, Shantavva and Jahnavi. All the three daughters were married prior to 1956 Act came into force. Therefore, by virtue of Section 6(a) of 1956 Act, they cannot be considered as coparceners having
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equal share in the joint family properties. Therefore, the law applicable is the law prior to amendment in 2005 where Section 6(a) was substituted by old Section 6. Section 6 of the Act made it clear, if a male Hindu dies who is a coparcener at the time of death, leaving behind female heir, his share devolves by succession and not by survivorship. Therefore, these three daughters born prior to 1956 cannot be treated as coparceners and are not entitled to equal share with the brothers. But in the share of their father they are entitled to equal share with their brothers. Therefore, item 1 to 7 have to be divided into four shares. Three shares to sons and one share to Guddappa as if partition is effected a day prior to his death. In Guddappa's share, three sons and three daughters get share 1/6 t h share of 1/4 t h share. Therefore, three
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daughters get 1/24 each, whereas, other three brothers get 7/24 share in item no. 1 to 7. Hence we pass the following:
ORDER
(a) All the three appeals are partly allowed.
(b) Plaintiff's suit is decreed for partition only in respect of item No.1 to 7 in O.S.261/1999 and item Nos.1 to 8 excluding item No.6 in O.S.282/2003.
(c) Three sons i.e., plaintiff in O.S.261/1999, Basavaraj the first defendant in O.S.261/1999 and Ningappa, first plaintiff in O.S.282/2003 sons of Guddappa would be entitled to 7/24 t h share in the aforesaid joint family properties.
(c) Fakiravva, Shantavva and Jahnavi, defendants 2, 3 and 4 in O.S.261/1999 and plaintiffs 3, 4 and 5 in O.S.282/2003 are entitled to 1/24 t h share in the joint family properties.
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(d) Suit of the plaintiff in O.S.261/1999 seeking partition in respect of properties at Sl.No. 8, 9 and 10 is dismissed.
(e) Similarly, suit O.S.282/2003 seeking for partition in respect of item no.9 is dismissed.
Parties to bear their own costs.
SD/-
JUDGE SD/-
JUDGE SA/mkc