Karnataka High Court
Ishwar S/O. Badka Naik (Deceased) And ... vs Smt. Jattamma Yane Mastamma Kom ... on 24 May, 2023
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.100212 OF 2017
BETWEEN:
ISHWAR S/O. BADKA NAIK (DECEASED)
AND HIS LR's
(AS PER O.S.NO.83/2011)
1. SMT. IRAMMA KOM ISHWAR NAIK,
AGED ABOUT 72 YEARS
2. MADEV S/O ISHWAR NAIK,
AGED ABOUT 47 YEARS,
3. SOMAIYYA S/O ISHWAR NAIK,
AGED ABOUT 45 YEARS,
4. SMT. MASTAMMA KOM VENKATESH NAIK,
AGED ABOUT 40 YEARS,
5. NAGAPPA S/O ISHWAR NAIK,
Digitally
signed by
YASHAVANT
AGED ABOUT 39 YEARS,
YASHAVANT NARAYANKAR
NARAYANKAR Date:
2023.05.26
12:00:40
6. PRAKASH S/O ISHWAR NAIK,
+0530
AGED ABOUT 38 YEARS,
ALL ARE R/AT: HADI JATTANAMANE,
DIVAGERI, MURUDESHWAR
TA: BHATKAL, UTTARAKANNADA - 581 350. ... APPELLANTS
(BY SRI LAXMESH PUTTA MATAGUPPI,
SMT. HEMAVATI P. MATAGUPPI AND
SRI. SANGAMESH S. GHULAPPANAVAR, ADVOCATES)
AND:
1. SMT. JATTAMMA @ MASTAMMA KOM MANJAPPA NAIK,
AGED ABOUT 52 YEARS,
SAKIN, DARIMANE,
PO: HEBLE, TQ: BHATKAL,
UTTARAKANNADA - 581 350.
2. SMT. MASTI KOM MANJUNATH NAIK,
AGED ABOUT 55 YEARS,
DEAD BY LR's
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2(A) SMT. MANJAMMA MANJUNATH NAIK
AGED ABOUT 55 YEARS,
AT KEPPINMANE,
PO: MATADAHITLU,
TQ: BHATKAL,
DIST: UTTARA KANNADA - 581 320.
2(B) SMT. NAGU MADEVA NAIK
AGED ABOUT 52 YEARS,
AT: MALGADDE,
PO: BASTI, TQ: BHATKAL,
DIST: UTTARA KANNADA - 581 321.
2(C) SRI. VENKATESH MANJUNATH NAIK
AGED ABOUT 50 YEARS,
AT: GARADIGADDE,
PO: MURUDESHWAR,
TQ:BHATKAL,
DIST: UTTARA KANNADA - 581 350.
2(D) SRI. ISHWAR MANJUNATH NAIK
AGED ABOUT 45 YEARS,
AT: GARADIGADDI,
PO:MURUDESHWAR,
TQ: BHATKAL,
DIST:UTTARA KANNADA - 581 350.
(CAUSE TITLE AMENDED AS PER
ORDER DATED 18.04.2022)
3. SMT. TARA KOM RAJU NAIK,
AGED ABOUT 32 YEARS,
SAKIN, CHANDRAHITLU,
MURUDESHWAR, TQ: BHATKAL,
UTTARAKANNADA - 581 350. ... RESPONDENTS
(BY SRI. VENKATESH M. KHARVI, ADVOCATE FOR R-1;
R-2 - DECEASED; R-3, R-2(A), R-2(C) & R-2(D) - ARE SERVED;
R-2(B) - HELD SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 09.12.2016 PASSED IN RA
NO.12/2014 ON THE FILE OF CIVIL JUDGE (SR. DN.), HONNAVARA,
SITTING AT BHATKAL, PARTLY ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 25.03.2013 PASSED IN
O.S. NO.83/2011 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE,
BHATKAL, DECREEING THE SUIT FILED FOR PARTITION AND
PERMANENT INJUNCTION.
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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
11/04/2023 FOR JUDGMENT AND COMING FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
The present regular second appeal by the legal representatives of the original defendant No.1 assailing the judgment and decree in R.A.No.12/2014 dated 09.12.2016 on the file of the Civil Judge (Sr. Dn.), Honnavar sitting at Batkal, confirming and modifying the shares in O.S.No.83/2011 dated 23.4.2011 on the file of Prl. Civil Judge, Batkal.
2. The parties herein are referred to as per their ranking before the trial Court.
3. This Court, while admitting the appeal on 15.09.2022, has framed the following substantial question of law:
"Whether both Courts justified in holding that even daughters who were married before 1967 would be entitled to claim equal share upon death of their father after grant of occupancy rights?"
4. Heard Smt. Hemavati P.Mataguppi appearing for Sri Laxmesh Putta Mataguppi learned counsel for the -4- appellants and Sri Venkatesh M.Kharvi, learned counsel appearing for the respondents.
5. Brief facts of the case are that, the suit schedule properties are the landed properties which were held by the father of the plaintiff and defendant Nos.1 and 2-Badka, son of Naga Naik and on the death of their father, name of defendant No.1 was entered in respect of the suit schedule properties, subsequent to which defendant No.1 filed an application for grant of occupancy rights before the Land Tribunal and the Land Tribunal on considering the application granted occupancy rights in the name of defendant No.1 and accordingly, the mutation entries were effected. The plaint avers that when the plaintiff sought for partition of the suit schedule properties, defendant No.1 refused to give share and later, defendant No.1 sold "B" schedule property in favour of defendant No.3 in October 2010 and defendant No.1, though promised to give share to the plaintiff, is trying to alienate the other suit schedule properties and the cause of action to file the suit arose on refusal of defendant No.1 -5- to effect partition and hence sought for partition and separate possession to allot 1/3rd share and for the relief of permanent injunction in respect of the suit schedule properties.
6. Pursuant to the issuance of summons, defendant Nos.1 and 3 appeared and filed their written statement.
7. Defendant No.1 contended that the suit schedule properties were granted in his individual capacity and as such, the plaintiff does not have any share in the suit schedule properties. It is stated that, at the time of marriage of the plaintiff, defendant No.1 had spent substantial amount and the plaintiff is not entitled for any share. It is stated that the grant is exclusively in the name of defendant No.1 and the plaintiff is not the joint family member and she does not have any right over the suit schedule properties.
8. Defendant No.3 filed his written statement contending that the suit schedule properties are not the -6- tenanted properties of deceased Badka Naga Naik the father of plaintiff and defendant Nos.1 and 2. It is contended that defendant No.1 is the exclusive owner of the suit schedule properties as the Land Tribunal granted occupancy rights in his individual capacity. According to defendant No.3, at the time of purchase of "B" schedule property the records were verified, and finding the name of defendant No.1 being entered in the revenue records, has purchased the "B" schedule property under registered sale deed dated 29.06.2010 for a valuable consideration and that defendant No.3 is a bona fide purchaser of "B" schedule property. It is stated that on purchase of the "B" schedule property, defendant No.3 has constructed a residential house by obtaining loan from bank and defendant No.3 would be put to greater hardship if the plaintiff is allotted share in the suit "B" schedule property. It is further stated that without seeking cancellation of the sale deed, the suit of the plaintiff is not maintainable.
9. The trial Court based on the pleadings and documents on record, famed the following: -7-
ISSUES
1. Whether the plaintiff proves that suit properties are the joint family properties of the plaintiff and defendants Nos.1 & 2?
2. Whether the defendant No.3 proves that he is bonafide purchaser of suit "B" schedule property for value?
3. Whether the defendant No.1 proves that the suit properties are granted by the Land Tribunal in his individual capacity?
4. Whether court fee paid is proper and sufficient?
5. Whether defendants prove that this Court has no pecuniary jurisdiction to try and entertain this suit?
6. Whether the plaintiff is entitled to 1/3rd share in the suit properties?
10. In order to substantiate her claim, the plaintiff examined herself as PW.1 and got marked documents at Exs.P-1 to P-27. On the other hand, defendants examined defendant Nos.1 and 3 as DWs.1 and 3 and another witness as DW.2 and got marked documents at Exs.D-1 to D-10.
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11. The trial Court, on the basis of the pleadings, oral and documentary evidence and considering the material on record, held that the suit schedule properties are the joint family properties of the plaintiff and defendant Nos.1 and 2, that defendant No.3 has proved that he is a bona fide purchaser for a valuable consideration and defendant No.3 is entitled for equity by seeking for allotting the property purchased by defendant No.3 to the share of defendant No.1, that defendant No.1 failed to prove that the suit schedule properties are the exclusive property of defendant No.1 and the grant by the Land Tribunal is in his individual capacity and the trial Court decreed the suit of the plaintiff holding that the plaintiff is entitled for her legitimate 1/6th share as per the notional partition in respect of the suit schedule properties and the defendants were restrained by way of a permanent injunction from creating any third party rights or creating any charge or encumbrance in respect of the suit schedule properties till actual partition is effected by metes and bounds.
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12. Being aggrieved, defendant No.1 preferred regular appeal before the first appellate Court, during the pendency of the appeal, defendant No.1 died and his legal representatives were brought on record. The first appellate Court on re-appreciation of the entire evidence and while answering the point for consideration, held that the occupancy rights granted in favour of defendant No.1 was not for his exclusive benefit, but would enure to the benefit of the family. The first appellate Court taking note of the provisions of Section 24 and meaning of the family as enumerated under Section 2(12) of the Karnataka Land Reforms Act and taking into consideration of the enactment of Hindu Succession Act, 1956 held that the plaintiff being the daughter is entitled for partition and separate possession under Section 8 of the Hindu Succession Act. The first appellate Court also modified the shares by allotting equal shares to the daughter as that of the son by awarding 1/3rd share in the suit schedule properties.
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13. The unsuccessful legal representatives of original defendant No.1 have preferred the present appeal assailing the concurrent judgments of the Courts below.
14. Learned counsel for the appellants would vehemently contend that the Courts below fell in error in not considering that the suit schedule properties were granted exclusively to defendant No.1 by the Land Tribunal and the plaintiffs have no right over the suit schedule property as defendant No.1 is the exclusive owner of the suit schedule properties and the granting of occupancy rights in his favour was in his individual capacity. Learned counsel would contend that the plaintiff was not entitled for share in the tenanted properties as she was married prior to 01.03.1974 and the Courts below have failed to consider that the married daughters cannot claim share in respect of the tenanted lands as the definition of "family" as contemplated under Section 2(12) read with Section 24 of the Karnataka Land Reforms Act, 1961 excludes the married daughters. In support of her contention, learned counsel has placed reliance on the
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judgment of the Division Bench of this Court in the case of Nimbavva & others vs. Channaveerayya & others [ILR 2013 Kar. 6202].
15. Per contra, learned counsel appearing for the respondent - plaintiffs would contend that the father of the plaintiff and defendant Nos.1 and 2 were cultivating the suit schedule properties as a tenant and on his death defendant No.1 filed Form No.7 seeking occupancy rights and defendant No.1 now cannot contend that the grant of occupancy rights to defendant No.1 is exclusively for his benefit. Learned counsel would contend that the plaintiffs have right in the suit schedule properties in light of the amended Hindu Succession Act, 2005 which has an overriding effect and the first appellate Court, taking into consideration the definition of "family" as defined under Karnataka Land Reforms Act, 1961 and taking note of the omission of sub-section (2) of Section 4 of the amended Hindu Succession Act, 2005 by act 39 of 2005, has rightly held that the plaintiff is entitled for share in the tenanted properties and granted equal share to the plaintiff.
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Learned counsel placed reliance upon the following judgments:
(i) Ramesh Sangappa Ragha @ Raghannavar & another [RFA.No.100274/2017 disposed on 05.10.2020]
(ii) Girija & others vs. Ramanagouda & others [RFA.No.100194/2015 disposed on 03.03.2022]
(iii) Sri Arvind & another vs. Sunanda & others [RFA.No.100149/2014 disposed on 13.01.2020]
(iv) Dyamavva & others vs. Tulasavva & others [RSA.No.100389/2018 disposed on
16.12.2020]
16. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record.
17. The relationship between the plaintiff and defendant Nos.1 and 2 is not in dispute. It is also not in dispute that the suit schedule property was originally
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standing in the name of the original propositus Badka Naga Naik. According to defendant No.1, on the death of original propositus, his name came to be entered exclusively in the record of rights and on coming into force the Karnataka Land Reforms Act, Form No.7 was filed by defendant No.1 in his individual capacity and that the plaintiff is not entitled for any share in the suit schedule property as it is his individual property. The material on record would reveal that the name of the original propositus Badka Naga Naik appeared in the revenue records which are at Exs.P-10 to P-17 and subsequently, the name of defendant No.1 appeared as the eldest male member of the family at Ex.P-18, which is the revenue entry for the year 1965-66. As on the date, when defendant No.1 filed an application for grant of occupancy rights, the father of plaintiff and defendant Nos.1 and 2 was not alive, and on the application of defendant No.1, the occupancy rights were granted in his favour. The documentary evidence clearly establishes that till the death of the original propositus - Badka Naga Naik, his name found place in the revenue records and it is only
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subsequent to the death of the original propositus the name of defendant No.1 came to be entered. The Land Tribunal can only decide the tenancy, possession and entitlement and it is the jurisdiction of the Civil Court to decide as to whether the granting of occupancy right in favour of a family member is in his individual capacity or enures to the benefit of the family members. The trial Court and the first appellate Court, taking into consideration the material on record, held that the name of the father was entered prior to the name of defendant No.1 and the granting of occupancy right in favour of defendant No.1 enures to the benefit of the family members.
18. The trial Court in terms of the order rightly held that the suit schedule properties are not the exclusive properties of defendant No.1 and the plaintiff is entitled for share. However, notional partition was granted to the plaintiff awarding 1/6th share in respect of the suit schedule properties. The first appellate Court meticulously considered in detail regarding the grant of occupancy
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rights and held that defendant No.1 cannot claim exclusive grant in his favour and declined to accept the contention of defendant No.1 that the married daughters are not entitled for a share in the tenanted lands.
19. The first appellate Court, while re-appreciating the material on record, has considered the definition of "family" under the Karnataka Land Reforms Act and the overriding effect of Section 4(2) of the Hindu Succession Act, 1956 by omission of sub-section (2) of Section 4 by the amended Act 39 of 2005. Learned counsel for the appellant relied upon the judgment of the Division Bench of this Court in the case of Nimbavva stated supra to contend that the daughters who sought partition and separate possession were married and not entitled to claim partition in the tenanted lands within the definition of "family" as the married daughters are excluded from the definition of "family" under the Karnataka Land Reforms Act.
20. The subsequent judgments of the Division Bench in Arvind, Ramesh and Girija as well as the judgment of a Co-ordinate Bench of this Court in
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Dyamavva has considered and distinguished judgment rendered in Nimbavva's case. The Division Bench of this Court in the case of Arvind stated supra has held at para Nos.23, 24, 25, 26 and 27 as under:
"23. As regards the succession to the said tenanted lands by the plaintiffs upon the death of Sri Narasimha Venkatesh Kamat, the defendants contended that the plaintiffs being daughters of Sri Narasimha Venkatesh Kamat were married prior to 01.03.1974 and therefore, were excluded under the definition of 'family' in terms of clause 12 of Section 2 of the KLR Act. They also placed reliance on Section 24 of the KLR Act to contend that the rights of tenancy can be continued only to the heirs of such tenant on the same terms and conditions on which the tenant was put in at the time of his death to contend that the plaintiffs were not heirs of Sri Narasimha Venkatesh Kamat and thus, were not entitled to any share in the suit properties. Alternatively, it was contended that the plaintiffs were given money in lieu of they relinquishing their shares and that such a relinquishment was done when proceedings before the Tahasildar were pending. It is no doubt true that PW.1 admitted to have received a sum of Rs.2,00,000/- towards relinquishing her share, but she resiled and contended that she had accepted to relinquish her share subject to payment of Rs.5,00,000/- and
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meeting the cost of construction of a house. At any rate, relinquishment of a property by an undivided owner is to be in writing and is to be registered in accordance with Section 17 of the Registration Act, 1908. The defendants have not placed any convincing material to establish that there was a settlement or relinquishment between the plaintiffs and defendants and therefore, this contention is hard to believe and cannot be accepted.
24. Insofar as the contention that the plaintiffs being daughters, who were married prior to 01.03.1974, and that they were not entitled to inherit the rights of tenancy, the word 'Family as defined in clause (12) of Section of the KLR Act is extracted below:
"Family" means.-
(a) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any;
(b) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters;
(c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmarried daughters, whether in his custody or not; and
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(d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters;
Similarly, Section 24 of the KLR Act reads as under:
"24. Rights of tenant to be heritable.- Where a tenant dies, the landlord shall be deemed to have continued the tenancy to the heirs of such tenant on the same terms and conditions on which such tenant was holding at the time of his death."
Section 4(2) of the Hindu Succession Act, 1956 is also extracted below:
4. Over-riding effect of Act.-(1) Save as otherwise expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
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*(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provision of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings."
*Sub-Section (2) was omitted by Act 39 of 2005, sec. 2 (w.e.f. 9-9-2005). Sub Section (2), before omission, stood as above.
25. In order to pursue their contentions as stated above, the defendants relied upon the judgment of Division Bench of this Court in the case of Nimbavva and Others vs. Channaveerayya and Others reported in ILR 2013 KAR 6202 to contend that the daughters who were married were not entitled to succeed to tenanted property. The facts of the case on hand and the facts of the case that were involved in Nimbavva's case (referred supra) are completely different. In the cited case, the propositus died on 04.01.1974 i.e., prior to 01.03.1974, which was the appointed date under the KLR Act. One of the sons of the original tenant sought and obtained occupancy rights in respect of the land. It was therefore, pointed out in the cited judgment that the person, who was registered as an occupant became the absolute owner as the married
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daughters were not entitled to seek occupancy rights as they were not members of a family.
26. In the case on hand, the property in question was admittedly cultivated by Sri Narasimha Venkatesh Kamat as a tenant and he filed an application seeking grant of occupancy rights and the occupancy rights were indeed granted to Sri Narasimha Venkatesh Kamat. Thus the lands that vested in the Government were divested in favour of Sri Narasimha Venkatesh Kamat thus creating a fresh right, title and interest and therefore, these lands became the absolute properties of Sri Narasimha Venkatesh Kamat. He having died intestate on 01.04.1989, there cannot be any doubt that his successors, who are the plaintiffs and the defendant Nos.1 to 6 are entitled to an undivided 1/9th share in the suit schedule properties by operation of Section 8 of the Hindu Succession Act. The defendant Nos.2 and 3 / appellants herein were unable to show any provision in the KLR Act that determined the succession of the lands in question after the death of Sri Narasimha Venkatesh Kamat. As a matter of fact, there is no provision delineating the mode of succession to the lands that are conferred on tenants under the KLR Act and the only substantive provision that determines succession to such properties is section 8 of the Hindu Succession Act, 1956, which is a central legislation.
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27. The reliance of the defendant No.3 on section 4(2) of the Hindu Succession Act to contend that the provisions of the said Act would not affect the provisions of any law for the devolution of tenancy rights in respect of such holdings. It is to be noted that section 4(2) of the Hindu Succession Act was omitted with effect from 09.09.2005 and the present suit is filed in the year 2011. In addition, the relief sought for in the suit is not regarding the devolution of tenancy rights but relates to partitioning of an estate subsequent to confirmation of rights of tenancy. Therefore, this argument too does not take the case of the defendants any forward."
21. It is also relevant to state that the judgment rendered by the Full Bench of the Hon'ble Apex Court in N.Padmamma's has been referred by the Division Bench of this Court in the case of Arvind wherein at para No.28 it is held as under:
"28. In this regard, it is profitable to refer to judgment rendered by Full Bench of the Hon'ble Apex Court in the case of N. Padmamma and Others vs. S. Ramakrishna Reddy and others reported in (2015) 1 Supreme Court Cases 417, wherein it is held as under:
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"The suit in the present case was filed after the grant of occupancy rights. The question here is whether the grant of such rights is for the benefit of one of the members of the joint family or for all the heirs left behind by Ramachandra Reddy. Our answer to that question is in favour of the appellants. In our opinion, the grant of such occupancy rights in favour of Respondent 1 was for the benefit of all the legal heirs left behind by Ramachandra Reddy. Reliance upon Lokraj case (Lokraj v. Kishan Lal, (1995) 3 SCC 291), therefore, is of no assistance to the respondents. We are also of the view that the decision in Lokraj case, does not correctly apply the earlier decision of this Court in Bhubaneshwar Prasad Narain Singh Case (Bhubaneshwar Prasad Narain Singh v. Sidheswar Mukherjee, (1971) 1 SCC 556). With utmost respect to the Hon`ble Judges who delivered the decision in Lokraj case, the law was not correctly laid down, if the same was meant to say that even in the absence of a plea of ouster, a co-heir could merely on the basis of grant of the occupancy rights in his name exclude the other co-heirs from partition of the property so granted."
22. The Division Bench of this Court held that in view of the law declared by the Hon'ble Apex Court in
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N.Padmamma's case (stated supra), the law declared in Nimbavva's case by another Division Bench of this Court was not a good law and arrived at a conclusion that there is no provision delineating the mode of succession to the lands that are conferred on tenants under the Karnataka Land Reforms Act and the only substantive provision that determines succession to such property is Section 8 of the Hindu Succession Act, 1956 which is a Central Legislation. Therefore, the reliance placed by the appellants on the judgment in Nimbavva is unacceptable to the present facts and circumstances of the case.
23. In the present case, undisputedly the suit properties were standing in the name of the original propositus and on his death, defendant No.1 filed application seeking occupancy rights in respect of the suit schedule properties and therefore, the suit properties cannot be the exclusive properties of defendant No.1, but it has to be held that it was the property of the father of the plaintiff and defendant Nos.1 and 2 and the plaintiff and defendant Nos.1 and 2 being the successors are
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entitled for equal share in the suit schedule properties under Section 8 of the Hindu Succession Act. It is relevant to state that Sub-Section (2) of Section 4 of the Hindu Succession Act has been omitted with effect from 09.09.2005 by amended Act 39 of 2005 and the suit is of the year 2011 and thus, the contention of the defendant that in light of Sub-Section 2 of Section 4 of the Hindu Succession Act would not affect the provisions of any law for the devolution of the tenancy rights is not acceptable.
24. For the foregoing reasons, the contention urged by the appellant-defendant that the plaintiff being a married daughter is not entitled for share in the granted lands is not sustainable and this Court is of the considered view that the Courts below have not committed any error in decreeing the suit and granting partition and separate possession in respect of the suit schedule properties and the substantial question of law framed by this Court is answered accordingly.
25. Since defendant No.3 has purchased "B" schedule property from defendant No.1, defendant No.3
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can seek equity to allot the purchased portion to the share of defendant No.1.
26. In the result, this Court pass the following:
ORDER
(i) The regular second appeal filed by the legal representatives of defendant No.1 is hereby dismissed.
(ii) The judgment and decree of the first appellate Court is hereby confirmed and the plaintiff and defendant Nos.1 and 2 are entitled for 1/3rd share in the suit schedule properties.
(iii) The purchaser-defendant No.3 is at liberty to work out his remedy in the final decree proceedings seeking to allot the purchased property to the share of defendant No.1.
No order as to costs.
Sd/-
JUDGE Ac/S*