PARVATHY AMMA Vs. THIMMAYYA @ THIRUMALESHWARA BHAT

JUDGEMENT

(1.) The plaintiffs in O.S.No.294/1996 on the file of the Munsiff Court, Kasargod are the appellants herein.

(2.) The suit was filed by the plaintiffs for recovery of possession and mesne profits. The case of the plaintiffs in the plaint was that the plaintiffs and the defendants belong to Hindu undivided joint family governed by Mitakshara law and the properties belonging to the family was partitioned as per Ext.A1 partition deed dated 22.07.1943. The case of the plaintiffs was that the property originally belonged to the common ancestor Appayya Thimmayya Bhat and he had three male children by name Rama Bhat, Govinda Bhat and Thimmayya Bhat. Rama Bhat had two children namely, Thimmayya alias Thirumaleshwara Bhat, original first defendant in the suit and Narasimha Bhat. Narasimha Bhat died while he was a minor. Govinda Bhat died without children and his wife is also no more. Thimmayya Bhat's wife and children are the present plaintiffs. As per Ext.A1 partition deed 'A' schedule properties were allotted to defendants branch, 'B' schedule allotted to Govinda Bhat and 'C' schedule allotted to the plaintiffs' predecessor. The 'D' schedule to the partition deed was created as a trust for the purpose of the affairs doing the Devatha Viniyogas mentioned in the document, that property was shown as plaint 'A' schedule. It was handed over to the 1 st defendant's father Rama Bhat for performance of the Devatha viniyogas. After the death of Rama Bhat, 1 st defendant is in possession of the said property, he has to perform the Devatha Vinyogas properly with the concurrence of other sharers. He had no right to transfer or alienate the plaint schedule property. If the terms of the partition deed are violated with respect to plaint 'A' schedule property, the other sharers are entitled for recovery of possession. Govinda Bhat died issueless and his right devolved upon his wife Gangamma. The said Gangamma leased the property allotted to her husband as per the partition deed to the husband of the 1 st plaintiff. Thereafter, Jenmom right of that property was obtained through the land Tribunal by the predecessor of the plaintiffs in respect of that property.

(3.) Since the first defendant and his father were not performing the viniyogas, the husband of the 1 st plaintiff filed O.S.No.172/79 for possession of plaint 'A' schedule property and the suit was decreed, though the appeal was filed by the 1 st defendant that was also dismissed against which 1 st defendant filed second appeal before this Court as S.A. No.44/1986. During the pendency of that appeal, the predecessor of the plaintiffs died and the present plaintiffs were impleaded in that appeal as additional respondents. This Court by Ext.A2 judgment found that 1 st defendant in this suit who was the 2 nd defendant in the earlier suit was in possession of the property as a trustee and on the death of the husband of the plaintiff, he happened to be the senior most member of the family, is entitled to conduct the viniyogas and other members are entitled to interfere and get possession only when the person in management acts against the interest of the family. Recording a finding on that aspect, this Court allowed the second appeal and dismissed the suit filed by the predecessor of the plaintiffs. It is thereafter that the present plaintiffs filed the suit on the ground that even after the disposal of the second appeal, the person in possession who is the 1 st defendant herein is not properly managing the property and plaintiffs being the members of the family entitled to get recovery of possession of the trust property for proper management. The 2 nd and 3 rd defendants are the children of 1st defendant.