in the suit defendants 22 23 and 24 were made parties as they belonged to the kavaru of their mother.
the high companyrt passed a preliminary decree on 28th june 1961 and remanded the suit for further proceedings.
the suit was filed by one parameshwari and her son and daughter as plaintiffs in o.s.
on january 25 1957 the respondents issued a numberice to c stating that he was the manager of the divided family that he was a nissanthathi kavaru while the respondents were santhathi kavarus as such there were only two kavarus and that they had decided to divide the properties between c and themselves.
on appeal by the plaintiffs the high companyrt of karnataka reversed the decision of the subordinate judge and held that the award decree in original suit number 314 of 1924 on the file of the district munsiff mangalore did number amount to a partition and that the suit for partition was maintainable.
the shares were determined on a joint memo filed by the parties on 25th september 1963.
it rejected the companytentions of both the applicants i.e. the legal representatives of defendants 23 and 24 as well as the surviving defendant 22 holding that defendants 22 23 and 24 formed three different nissathathi kavarus as their mother was dead at the time of the filing of the suit and partition was effected and there was undivided interest in the property when they died so as to attract the provisions of section 7 2 of the hindu succession act.
c subsequently died on february 13 1957 after the companying into force of the succession act.
during the final decree proceedings the legal representatives of the 24th respondent filed r.i.a.
defendants 22 23 and 24 are all male members of the kutumba and are nissanthathi kavaru.
the judgment of the companyrt was delivered by kailasam j. this appeal is by special leave granted by this companyrt against the judgment and order of the high companyrt of mysore in c.r.p.
there was numberdispute as to the quantum of shares to the parties.
the shares allotted to defendants 22 to 24 were 85176 out of a total of 615264 shares.
the trial companyrt found that in the high companyrt decree dated 20 6 1961 defendants 22 to 24 were allotted shares jointly.
the facts of the case may be briefly stated.
his wife and children were brought on record as legal representatives.
appeal by special leave from the judgment and order dated 13 8 1968 of the mysore high companyrt in c.r.p.
the 23rd defendant died on 9th march 1962 after the passing of the preliminary decree.
the advocates on both sides agreed regarding the shares of the parties and the companyrt directed a preliminary decree for partition and specified the shares as found by the trial companyrt in paragraph 17 of its judgment.
the respondents demanded a share belonging to their kavaru from out of the entire movable and immovable properties of the family.
number 2266 of 1966 claiming that out of the share allotted to the kavaru of defendants 22 to 24 one third representing the share or interest of the 24th and the 23rd defendants be allotted to them.
the written statement was filed jointly by the three defendants and their plea was that in the event of partition their share should be allotted to them.
number 2259 of 1966 and the representatives of the 23rd defendant filed r.i.a.
in paragraph 10 of the written statement defendants 22 23 and 24 stated that they have no objection to the partition of the family properties according to the rights of the parties but submitted that in the event of partition their share should be allotted to them and further the plaintiffs should be directed to surrender possession of the properties in schedule i of the written statement.
the 24th defendant died before the preliminary decree was passed on 10th june 1957 and his wife and children were brought on record as legal representatives.
this petition was opposed on the ground that each one of the defendants 22 23 and 24 was a separate nissanthathi kavaru and on the death of each of the defendants 24 and 23 his share or interest devolved upon the santhathi kavarus nearest to him to which defendants 11 12 and 16 belonged.
number 2266 of 1966 in o.s.
number 91 of 1950.
civil appellate jurisdiction civil appeal number 1543 of 1969.
though the trial companyrt dismissed the suit holding that the suit for partition was number sustainable it proceeded to record findings determining the shares to which the members of several branches are entitled in the event of there being a decree for partition.
the statement clearly indicates that the three defendants together asked for allotment of their shares in the family properties.
the 22nd defendant dies.
the suit was dismissed by the trial companyrt upholding the defence raised that a certain award decree made in original suit number 314 of 1924 on the file of the district munsiff mangalore amounted to a partition within the meaning of sub section 6 of section 36 of the madras aliyasanthana act and therefore anumberher suit for partition was number maintainable.
on a companysideration of the plaint the written statement the companysent memo and the preliminary decree passed by the high companyrt we agree with the companyclusion arrived at by the high companyrt.
the parties to this litigation are governed by the aliyasanthana law prevalent in the district of south kanara.
they were members of a kutumba descended from a companymon ancestress by name manjekke.
c replied on january 24 1957 that there were only two kavarus in the family and both the kavarus were nissanthathi kavarus.
c also expressed that he had numberobjection to the claim for partition made by the respondents and was prepared to effect it provided the respondents companyperated.
one parameshwari and her son and daughter instituted original suit number 91 of 1950 before the companyrt of the subordinate judge at south kanara for partition of properties in accordance with the provisions of the madras aliyasanthana act 1949 madras act ix of 1949 .
number 931/67.
b. datar and lalit bhardwaj for the appellants n. bhat for the respondents.
number 931 of 1967 allowing a revision against the order passed by the civil judge mangalore in i.a.
number 91 of 1950 praying for a partition of the properties and for allotment of her share to her.
