B. N. Agrawal, J. - (1.) In this appeal by special leave, appellants, who were defendants Nos. 1(e) and 2, have assailed the judgment rendered by Karnataka High Court in appeals whereby it has been directed that plaintiff is entitled to 11/30th share in the properties described as Item Nos. 1, 2 and 3 in the Schedule appended to the plaint and thereby modifying the decree of the trial Court which directed that the plaintiff shall be entitled to 1/8th share in the said properties.
(2.) Plaintiff filed a suit for partition claiming 1/7th share in the properties described as Item Nos. 1 to 4 in the Schedule and for rendition of accounts in relation to joint family business carried on by defendant No. 1 in the name and style of M/s. Pissey and Sons and his case, in short, was that one P. Eswar Rao had three marriages and from the second marriage, he had two sons, namely, P. E. Sadasiva Rao (defendant No. 1) and P. E. Panduranga Rao. From other two marriages also, P. Eswar Rao had children and he acquired various properties during his life time which were his self acquisitions but the same were put in common hotchpotch. On 29th November, 1947. P. Eswar Rao executed a deed of family arrangement whereby properties bearing holding No. 35 in Commercial Street in the city of Bangalore (described as Item No. 1 in the Schedule) and holding No. 262 situate in Cavalry Road within the same city were jointly allotted to P. E. Sadasiva Rao (defendant No. 1) and his brother P. E. Panduranga Rao. Subsequently, a suit was filed by P. E. Panduranga Rao in which a compromise was arrived at and item No. 1 property was allotted to defendant No. 1 whereas the other property was allotted to P. E. Panduranga Rao under a compromise decree dated 22nd January, 1963 passed in O. S. No. 56 of 1961. P. E. Sadasiva Rao had two marriages. From his first wife-Godavari Bai, he had a son P. S. Ramarao Pissey, who is the plaintiff, besides four daughters viz., P. Asha Devi (defendant No. 1(a), P. Jayalakshmi (defendant No. 1(b), P. S. Lalitha (defendant No. 1(c) and P. S. Shantha (defendant No. 1(d). From second wife-Sumitra Bai (defendant No. 1(e), P. S. Sadasiva Rao had a son, namely, P. S. Sai Ram (defendant No. 2) besides three daughters, namely, Rekha (defendant No. 1(f), Mala (defendant No. 1(g) and Prabha (defendant No. 1(h). Defendant No. 1 started a joint family business of textiles and tailoring in a portion of item No. 1 property and out of the income of the said business, he acquired item Nos. 2, 3 and 4 properties. Further case of the plaintiff was that even though the suit properties belonged to joint family of defendant No. 1 and his two sons, namely, the plaintiff and defendant No. 2, defendant No. 1 executed a deed of settlement on 23rd February, 1978 whereunder he settled item No. 1 property in favour of defendant No. 2. Thereafter, defendant No. 2 obtained a Will executed by defendant No. 1 on 29th January, 1993 bequeathing thereunder Item No. 3 property in favour of defendant Nos. 1(e) and 2 which was fabricated one. As the parties were having difficulty in joint enjoyment of the properties, the same necessitated filing of the present suit.
(3.) In the said suit, the defendants filed written statement contesting the case of the plaintiff. According to them, item No. 1 property was self acquisition of P. Eswar Rao and, consequently, of defendant No. 1, who, after raising funds from the market, started his separate business of tailoring in the said property with which the joint family had absolutely no connection whatsoever, more so when the joint family was neither possessed of any fund nor any fund was at all invested in the said business by it at any point of time. According to them, out of the income from the said business, defendant No. 1 acquired other properties which are described as Item Nos. 2, 3 and 4 in the Schedule and, therefore, the same are also his self acquisitions, consequently, he had every right to deal with it. Accordingly, deed of settlement dated 23rd February, 1978 and the Will dated 29th January, 1993 executed by defendant No. 1 were genuine and valid and, consequently, the plaintiff was not entitled to claim any share in the suit properties. It may be stated that during pendency of suit, defendant No. 1 died in February, 1994 and as his first wife predeceased him, four daughters from her were impleaded as defendant Nos. 1(a) to 1(d), second wife as defendant No. 1 (e) and three daughters from her as defendant Nos. 1(f) to 1(h).;