Judgment:
Hakeem, J.
1. This Appeal by the legal representatives of Defendant-4 Sri K.Venkata Rao, is directed against the Judgment and Decree passed by the learned Second Addl. City Civil Judge, Bangalore, dated 25.8.1987 in O.S.No. 7977 of 1980, whereby the plaintiff's suit for partition and possession of his 1/4th share in the suit schedule immovable properties, was decreed.
2. For the sake of convenience the parties are referred to by their status and ranking in the suit.
Late Dr. Gundopanth and K.V. Kupparao along with the plaintiff and defendants 1 to 4 constituted a Joint Hindu Family. The first defendant is the adopted son of Dr. Gundopanth, while the plaintiff and defendants 1 to 4 are the sons of K.V. Kuppurao. The joint family owned extensive properties in Bangalore City, including the suit schedule property situated in Gundopanth Street, in the heart of the City of Bangalore. Earlier, the plaintiff had filed O.S.No. 70/1958 in the Court of the District Judge, Bangalore, seeking partition of his 1/4th share in the Joint family properties. In the said suit, the present suit properties were shown as Item Nos. 4 to 6 of Schedule 'B'. The said suit came to be disposed of on the basis of a Compromise Petition dated 29.6.1961. Under the said Compromise, the plaintiff having received certain movable assets gave up his rights in respect of certain properties which were exclusively owned by Dr. Gundopanth; and the suit schedule properties, which had been dedicated for charitable purpose by the family were excluded. Subsequently, the said Dr. Gundopanth filed a partition suit in O.S. 47/70 in the Court of the Civil Judge, Bangalore, against Kuppurao and his sons, inter-alia, seeking partition and possession of his share in the properties mentioned in the schedule thereto. Among other properties the instant suit schedule property was also included for partition between the parties thereto. It is pertinent to note that the plaintiff was not a party, to that suit allegedly on the ground that he had no subsisting interest whatsoever in any of the properties sought to be partitioned since he had relinquished his right and interest therein under the Compromise Decree in the earlier suit.
3. O.S.47/70 also ended in a Compromise on 11.12.1975 whereby Defendants 1 to 3 and 4 to 7 partitioned the instant suit schedule property among themselves. It is the case of the plaintiff that since he was residing at Bombay all along, he was ignorant of these developments and that he came to know about the partition between his father and uncle only when he came to Bangalore to attend to the obsequies of his uncle - Dr. Gundopanth, who died on 17.3.1980. Having thus narrated the entire course of events, right from the filing and disposal of the first partition suit - O.S.70/1958 to the date of the instant suit, the plaintiff has asserted that in the circumstances he was wrongfully excluded from sharing the suit property, and that he is entitled to 1/4th share therein, and equitable partition and possession thereof, and for recovery of the mesne profits.
4. Defendants 1 to 3, who constitute one branch of the joint family through Dr. Gundopanth, inter alia, pleaded in their written statement that since the suit property constituted a private trust, it was not partitioned in the earlier suit O.S.No. 70/58. As the plaintiff had separated himself from the family in pursuance of the terms of the decree in O.S.No. 70/58 he had no subsisting right to claim any share in the property left by Dr. Gundopanth. However, if for any reason the plaintiff is held to be entitled to a share in the suit property, it would be only out of the share allotted to the branch of the joint family comprising of defendants 4 to 7, for which they had no objection.
5. Defendants 4 to 7, however, are the main contesting parties who resisted the suit on various grounds. In brief, their plea is as follows: that, the plaintiff having included the instant suit property for partition in his earlier suit O.S.70/58 and having given up his right therein in lieu of the movable assets received by him in accordance with the Compromise Petition, has no right to re-opening of the earlier partition to claim a share in the suit property. It is further pleaded that the suit property had been dedicated along with certain other properties for charitable purposes under the earliest family partition dated 8.8.1906, under which Dr. Gundopanth and Kuppurao had reserved to themselves exclusively the control and management of the suit property and the right to terminate the Trust and appropriate the property to themselves. And, having terminated the Trust the said parties were perfectly within their right to partition the suit properties among the members who constituted the joint family, by excluding the plaintiff, who had already separated from the joint family by taking his share by virtue of the Compromise Decree in O.S.70/58. They have further denied that the suit property was excluded from the partition in the plaintiff's suit - O.S.70/58, either by mistake or fraud as averred in para-8 of the plaint. As such they sought for dismissal of the suit.
6. On the above pleadings, as many as 16 issues came to be framed by the trial Court, as follows:-
'1. Whether plaintiff's uncle and father mislead him (plaintiff) that the suit properties were charity properties and thus practiced fraud on him?
2. Whether the fraud came to light and became known to plaintiff in March 1980, as alleged?
3. Whether plaintiff could seek re-opening of the partition affected in O.S.47 of 1970 and whether he is entitled to the said relief?
4. Whether plaintiff is entitled to 1/4th share in the suit property?
5. Whether the relief prayed for re-opening of the partition in O.S.47 of 1970, without seeking for re-opening the partition effected in O.S.70 of 1958, is tenable in law?
6. Whether the suit brought only in respect of one property is maintainable?
7. Whether plaintiff is entitled to the declaration and equitable division and enquire into future mesne profits as prayed for?
8. To what reliefs are parties entitled?
ADDITIONAL ISSUES
9. Whether the suit is barred by limitation?
10. Whether defendants 4 to 7, have perfected their title by adverse possession.
11. Whether the court fee paid is sufficient.
12. Whether plaintiff has given up all his claim in respect of all the properties mentioned in the schedule to the plaint in O.S.70 of 1958.
13. Whether the portion 'none of the parties have any interest therein' appearing in clause 3 of the compromise petition in O.S.70 of 1958, is void in law?
14. Whether suit property is joint property between plaintiff and defendants 1 and 4, and plaintiff has a claim to a share in it, and whether it got revived in view of the decree in O.S.47 of 1970?
15. Whether there was an exclusion of present suit property as alleged in para 8(a) of plaint?
16. Whether the said exclusion was on account of any honest mistake on the part of father and uncle of plaintiff as alleged?
7. Issue Nos.3, 5 and 11 were deleted by the Court below by consent of parties. Issue Nos. 1, 2, 9, 10, 12, 13, 15 and 16 were answered in the negative; Issue Nos.4, 6, 7 and 14 were held in favour of the plaintiff. In the result the suit came to be decreed as prayed for.
8. Sri M.R. Narasimhamurthy, the learned Counsel for the Appellant has challenged the judgment and decree on the ground that on the facts and circumstances, the trial Court was not right in holding that the suit property was available for partition and decreeing the suit. Elaborating his arguments, it is urged that the plaintiff having sought for re-opening the earlier partition on the basis of mistake and fraud committed by his father - Dr. Gundopanth and his uncle Kuppurao and the said plea having been later abandoned and held against him, there was no cause of action for the suit. As such, the impugned judgment and decree cannot be sustained. In any event, it is urged, that a bare perusal of the Compromise Petition in O.S.No. 70/58 makes it clear that the plaintiff had consciously relinquished all his rights, inter alia, in respect of the suit property and the same had been subsequently partitioned between the continuing members of the joint family in O.S.47/70.
9. On the other hand, Sri Kumar, learned Counsel for the Plaintiff sought to support the decree, mainly on the ground that the suit property which was kept apart as being impartible in the earlier suit and subsequently being available the plaintiff is entitled to his legitimate share therein and hence the suit filed by him is perfectly maintainable in law.
10. In order to appreciate the rival contentions it is appropriate to extract relevant portions of the Compromise Memo on the basis of which the plaintiff's suit in O.S.70/58 was disposed of. The Memo reads as under:-
'The difference in the above case between the plaintiff on the one hand and the defendants on the other hand are settled as follows:-
1. That the plaintiff separates himself from the defendants by taking for his share in the family properties, the following, namely:
(a) Forty Mysore Bank shares shown as item (1) in the A Schedule of the plaint, having been since converted into 80 shares of the State Bank of Mysore 45 of these latter shares shall be taken by the plaintiff for himself. The concerned share certificates shall be delivered to the plaintiff and necessary transfer documents shall be signed by the concerned defendants and also other acts which may be required to be done by them to effectuate a transfer of the said 45 shares to the name of plaintiff, shall also be done by them, the cost of transfer, however having to be borne by the plaintiff himself,
(b) A sum of Rs. 1060/- having been received by the Second defendant as dividend for the said shares; in one year subsequent to suit, the second defendant shall pay to the plaintiff 5/8th share of the said amount viz., Rs. 662.50 np.
(c) A sum of Rs. 2613/- having been found to be in deposit in the Salem Bank, which is covered by item 3, of the plaint A Schedule, the Second defendant in whose name the said account is kept, shall pay to the plaintiff, one third of the said deposit, namely Rs. 871/-.
(d) The compensation amount granted by the Government in respect of the Jodi villages of Mahantha Lingapura and Deevatige Ramanhalli viz., items 7 and 8 of the plaint 'B' Schedule having been deposited by the 2nd defendant in the joint names of himself and the third defendant in the Canara Bank, Bangalore, that is item (5) of the plaint 'A' Schedule by means of four fixed deposit receipts for Rs. 9750/- Rs. 975/- and Rs. 5,000/- and Rs. 8,000/- the said deposits shall be taken over completely by the plaintiff. The said fixed deposit Receipts shall be handed over to the plaintiff immediately and defendants 2 and 3, shall sign all necessary forms and write necessary letters to the concerned Bank to effectuate the transfer of the said deposits to the plaintiff's name.
(e) An additional sum of Rs. 8,000/- having also been given as compensation for the above villages, in the form of four Government Bonds, three of the denomination of Rs. 1,000/- each and one of Rs. 5,000/- all the aforesaid Government Bonds shall be delivered to the Plaintiff and needful action taken by the Second defendant or such others in whose name or names the Bonds at present stand, to see that the Bonds are assigned to the plaintiff in the prescribed manner.
2. The plaintiff having taken the above mentioned properties in lieu of and in full and final satisfaction of his share in the family properties, inclusive of mesne profits, he hereby gives up his claim in the rest of the properties shown in the two plaint Schedules, the defendants being at liberty to live together, as heretofore, or separate themselves, if they so desire, taking their respective shares in the properties, left over, in which the plaintiff states, he has no claim whatever.
3. It is hereby agreed that the first defendant was divided from defendant 2, so early as 1906, by means of a Registered partition deed, that items 3, 9 and 10 shown in the B Schedule of the plaint belonging to defendant 1, exclusively and that plaintiff and defendants 2 and 3 have no manner of interest in the said items. It is also agreed that items 4, 5 and 6 of the said Schedule belong to the family charities and that none of the parties have any interest therein.
4. The parties shall bear their own cost.'
This application was obviously settled by the learned Counsel for both the parties, and signed by the parties to the suit and their Counsel. It is pertinent to note that the 4th defendant Sri K. Venkat Rao himself was an Advocate. The decree was directed to be drawn up in terms of Compromise.
11. It is seen that under the Compromise the plaintiff has separated himself from the defendants by taking only the movable assets towards his share of the family properties. The said assets are: Mysore Bank shares, which form Item-1 of the 'A' Schedule Property valued therein at Rs. 12,320/-, apart from certain share in the dividend income and deposits in the Salem Bank and certain amount payable under the Government Bonds, which were delivered to the plaintiff. That apart, he was entitled to receive compensation in respect of certain agricultural property, which got vested in the State by virtue of the relevant Legislation.
12. A perusal of para-2 of the Compromise Petition apparently discloses that the said movable assets were received by the plaintiff in full and final settlement of his share in the family properties, and that, he had relinquished his right in other properties shown in the two plaint schedules. In para-3 of the Compromise, it is, inter alia, agreed that items 4, 5 and 6 of the suit property, corresponding to the instant suit property, constituted family charities, and that none of the parties to the suit have any interest therein. The entire dispute in the suit revolves round the interpretation of the Compromise Petition. While, according to the learned Counsel for the Plaintiff, by virtue of the specific term in Para-3 of the agreement, the suit properties, among others, were excluded from the purview of the partition; Sri Narasimhamurthy, learned Counsel for the contesting defendants, contends that Para-2 of the Compromise Memo determined the rights of the parties in respect of the entire properties, including the instant suit properties. It is urged that even assuming that the last sentence in Para-3, can be read as a separate Clause (excluding the suit properties), the earlier portion of the Compromise would be dominant to determine the rights of the parties. On this point reliance is placed upon the Decision reported in A.I.R 1963 S.C 890 1. Ramakishorelal and Anr. v. Kamalnarayan, which was followed in : [1968]69ITR139(Cal) . The Decision is also relied upon by the other side. The principle settled therein reads thus:
'The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words in their ordinary, natural sense. To ascertain his intention, a Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has, to a trained conveyance a clear and definite significance and one can be sure about the sense in which such conveyance would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyancing. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is clear conflict between what is stated in one part of the document and in another. In cases of such a conflict the earlier disposition of absolute title should prevail and the later direction of disposition should be disregarded as unsuccessful attempt to restrict the title already given. It is clear, however that an attempt should always be made to read the two parts of the document harmoniously, if possible; it is only when this is not possible e.g. where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, that the later-provisions have to be held to be void.'
13. In view of the conflict between the parties it is incumbent upon the Court to make an honest attempt to read the two provisions in the Compromise Petition harmoniously and only when it is not possible to do so, as stated in the above Ruling, the earlier provision would prevail and the later becomes otiose.
14. In CHINNATHAYI v. KULASEKHARA PANDIYA NAICKER AND ORS. 2. : [1952]1SCR241 , the Supreme Court has stated the principle thus:-(Para-34):
'The whole emphasis of Mr. Raghavan who represented Kulasekhara was on the words of the deed contained in Clause 5 set out above. Sundara Pandiya by this clause stipulated that he will have no right to the property shown as belonging to the widow. Sundara Pandiya was then agreeing that the widow should retain the Zamindari absolutely, his mind being influenced by the will. Later on by the compromise made in Kandasami's suit what had been given absolutely to the widow was converted into a life estate with the exception of the pannai lands and Kandasami was acknowledged as the rightful heir. The recitals in the release deed, therefore, have to be read in the light of the terms and conditions of the deed of compromise and the proper inference from these is that Sundara Pandiya relinquished his rights to succeed to the Zamindari immediately as the seniormost member of the family but that he did not renounce his contingent right of succeeding to it by survivorship if and when the occasion arose. It is well settled that general words of a release do not mean release of rights other than those then put up and have to be limited to the circumstances which were in the contemplation of the parties when it was executed.'
15. In HABIB MIAN AND ANR. v. MUKHTAR AHMAD AND ANR. 3. : AIR1969All296 (FB), a Full Bench of the Court has stated the principle thus:
'I think it necessary at the outset to examine the provisions of the compromise decree and to ascertain how the several rights and liabilities between the parties have been distributed under the decree. In doing so, the principles of construction of a compromise decree must be borne in mind. There is authority for the proposition that a compromise decree is a creature of the agreement on which it is based and is subject to all the incidents of such agreement, that it is but a contract with the command of a Judge superadded to it and in construing its provisions the fundamental principles governing the construction of contracts are applicable.'
40. 'One of the cardinal principles in the construction of contracts is that the entire contract must be taken as constituting an organic synthesis, embodying provisions which balance in the sum of reciprocal rights and obligations. It is through the prism of that principle that the terms of the compromise decree must be analysed.'
16. In order to appreciate the rival contentions as to the real intention of the parties in respect of para-3 of the Compromise Petition, it is pertinent to refer to the relevant pleadings in the earliest suit (O.S.No. 70/1958). In para-3 of the plaint, the plaintiff has stated that the family owns and possesses the movable and immovable properties described in A & B schedules. 'B' schedule pertains to the immovable properties and items 4 to 6 are the instant suit properties.
In their written statement, defendants 1 and 4, (i.e. late Dr. Gundopanth and his adopted son Ramachandra Rao), have stated inpara-VI(c) thus:
'Items 3 to 9 and 10 all these exclusively and entirely belong to them under the terms of the partition deed and that the 2nd defendant and his sons have no share in them.'
In the subsequent para they have pleaded thus:
'By common consent, items 4, 5 and 6 in schedule B were set apart and given for the charities and belong to 'Dharma' as set out in the partition deed. They do not belong to the family and are not liable to be divided. The first defendant has been managing the Dharma as provided for in the deed of 8.8.1906. No member of the family can claim to have any interest or the share in these properties.' .
Similarly, in the written statement filed by the 2nd defendant, K.V. Kuppu Rao, whose branch is represented by the contesting defendants herein, it is stated thus in paras 2(iii) & 2(iv) as follows:
'(iii) Items 3, 9 and 10 belong to the first defendant according to the terms of the partition deed of 8.8.1906.
'(iv) Items 4, 5 and 6 belong to charities and the family is not the owner thereof. Hence, are not therefore liable to be divided.'
17. In O.S. 47/1970 filed by Dr. K.V. Gundopanth (the plaintiff therein) has stated thus:
'The plaintiff submits the premises bearing No. 97 (and the shops attached to it bearing different numbers) situate in Gundopanth Street, Bangalore, though is ancestral, is indivisible in view of the fact that the premises belong to a Trust, formed by the ancestors of the plaintiff, more than 100 years back. Hence, this property is not included in the suit. The plaintiff has got other properties, which are hot ancestral, but are his self acquisitions.'
18. With regard to items 4, 5 and 6 of the 'B1 Schedule (in O.S.No. 70/58), Sri Gundopanth has stated that they do not belong to the joint family and are not liable to be divided. He (Dr. Gundopanth) is managing Dharma as provided for in the Deed of 8.8.1906. That, no member of the family can claim to have any interest or share in the properties. Similarly, he has referred to the written statement filed by his brother K.V. Kuppu Rao, in which a similar pleading had been made.
19. The plaintiff's grievance in para-6 is that contrary to the specific stand taken by the defendants resulting in the Compromise Decree in O.S.No. 70/1958, the defendants colluded in obtaining a Compromise Decree in O.S.No. 47/70, without impleading him as a party, and that he came to know about this fact only when he arrived from Bombay in or about the year 1980, to attend to the obsequies of his uncle - Dr. Gundopanth, which according to him, amounts to a fraud. The plaint has been amended by including paragraph-8(a), wherein the plaintiff has alternatively pleaded thus:
'that even if inclusion of the suit property did not take place on account of any misleading by his father and uncle, the inclusion was however, due to an honest mistake on their part, that the properties in question had been dedicated to charity, and they had no intention then to stop, even if they could do so.' Meaning thereby that the defendants had no intention on the date of the compromise decree in O.S.70/1958, to terminate the charitable trust.
However, the plaintiff has further pleaded that the schedule property did not belong to charity, since the father and uncle treating it as a joint property got it partitioned between themselves in the suit O.S.No. 47/1970.
20. As stated earlier, the plaintiff did not press his plea of fraud against his father and uncle in including the suit property for partition in O.S.No. 70/1958, and his stand appears to be that the said property being utilised for 'Dharma' under a Charitable Trust subsisting at that time, was indeed not available for partition. Examining the relevant terms in the Compromise Petition in the background of the clear stand of the parties emerging out of the irrespective pleadings, which are reiterated in their evidence, leads to the irresistible conclusion that para-3 thereof was in the nature of a proviso to paragraph-2, and therefore, has to be read accordingly. In para- 3, items 3, 9 and 10 shown in the 'B' schedule to that plaint are recognised as the properties belonging exclusively to defendant-1 (Dr. Gundopanth) and that the other parties having no manner of interest therein. In addition it is further specifically provided that the instant schedule property belongs to the said charities, and that none of the parties to that suit have any interest therein.
21. Having come to the conclusion that para-3 of the Compromise Petition in O.S.No. 70/1958, has to be read independently, the only question that remains for consideration is whether the instant suit filed by the 1st respondent can be construed as a suit for re-opening the earlier partition or whether it is for partition of properties excluded by consent of parties in the previous partition suit?
22. The case of the appellants appears to be that the exclusion of the suit properties from the purview of the partition in the plaintiff's earlier suit O.S.No. 70/1958 has to be treated as relinquishment of his right therein, whereby, the defendants will get vested interest entitling them to seek partition of the said property. A perusal of the pleadings in the earlier suits, especially the portions extracted above and the clinching evidence in the instant case, clearly indicates that the parties had intentionally excluded the suit properties from the purview of the partition in the earlier suit on the ground that the said properties are dedicated to charities and they are not partible or available for partition. In this context, we may refer to the observation of the Supreme Court in Chinnathavi v. Kulasekhara Pandiya Naicker and Ors. (Para-34) :
'It is well settled that general words of a release do not mean release of rights other than those then put up and have to be limited to the circumstances which were in the contemplation of the parties when it was executed.'
As such, it is not possible to read Clause (2) of the Compromise Petition as a relinquishment of the plaintiff's right in the suit properties.
In SAVITRI BAI v. DEVENDRA BALAPPA PATIL 1964 Mys.L.J. (Supp) 474 @ 475, dealing with the question as to when a suit for partial partition is maintainable, this Court has held thus at para-5:
'It is a well settled rule that a suit for partition of property belonging to a Hindu joint family like a suit for partition of property belonging to more than one co-owner, must comprise all the properties which are available for partition or division. But it should be remembered that during a long period of time there has been a recognition by the Courts of many exceptions to that rule, and those exceptions are what are demanded by reason and justice. While the insistence on a claim for partition in the first suit of a property then unavailable for division or was outside the jurisdiction of the Court cannot have the support of reason, the refusal to entertain, the second suit when the non-inclusion of a property in the first was induced by mistake, accident, fraud or a like reason does not promote justice. The main purpose of the rule that normally there can be only one suit for partition between Hindus is to bestow on a partition the attribute of finality, but if there could be a partial partition by consent, which is permissible, the view that a second suit for partition can never lie cannot be sound.'
Similar view is taken in KASHIBAI AND ORS. v. SMT. PUTALABAI 5. Al R 1987 Karnataka 156'. In that case, it is found that the plaint averment made it clear that what was pleaded was partial partition on an earlier occasion and not general partition of all the properties of the family. That partial partition is valid and what remains is joint family property held by the persons who hold such property as tenants in common. Where there is evidence to show that the parties intended to sever, then the joint family status is put an end to and with regard to any portion of the property which remained undivided the presumption would be that the members of the family would hold it as tenants-in-common unless and until a special agreement to hold as joint tenants is proved. In the facts and circumstances of that case, it was held that partial partition of the properties is permissible and the partition of the remaining properties can be sought and the family can be deemed to have continued in a joint status in so far as the properties are concerned and as such the presumption was never rebutted by the defendants. Similar is the situation in the instant case.
In THIMMAPPA SHAMBUL v. RAMACHANDRA KRISHNA AND ANR. 6. 1980(1) KLJ 329, it is observed that:
'Plaintiffs withdrew from the earlier partition suit two properties on the representation of the defendants that permission of the Charity Commissioner was necessary for partition of those two properties. Subsequently plaintiffs applied to the Charity Commissioner and contested the matter upto the Revenue Appellate Tribunal and after final orders were obtained presented the present suit for partition of those two properties.'
It was held:
'That the suit was not barred by Order 2, Rule 2 or Order 23, Rule 1 C.P.C.'
It was further observed that:
'An acceptable explanation should be given in the second suit about the incompleteness of the first suit and if the explanation is satisfactory, the second suit is not barred.'
The facts of this case appear to be similar to the said case. The properties in the cited case had been excluded in the earlier suit on the ground that permission of the Charity Commissioner was required for effecting partition, and the second partition suit was filed later when the said objection was removed. In the instant case, as stated earlier, by consent of parties, the suit properties were intentionally and deliberately excluded from the purview of the earlier suit. As such, a second suit for partition thereof was clearly maintainable. Hence the view taken by the learned trial Judge in this behalf is unexceptionable.
23. The only other question that remains for consideration is regarding the mesne profits? While, the plaintiff himself has sought relief regarding mesne profits to be calculated from the date of the suit to the date of delivery of his share in the suit property, the trial Court has granted the same with effect from 29.11.1975; that is, the date of the decree in O.S.No. 47/70. This part of the decree cannot be sustained.
24. It is submitted by Sri Narasimha Murthy, that since the Will stated to have been executed by Dr. Gundopanth, is not the subject-matter of these proceedings, the same has to be excluded from the purview of the suit. There cannot be any dispute regarding this proposition for obvious reasons.
25. Before parting with this Appeal, we have to refer to the specific contentions raised by Sri Gunjal, learned Counsel for respondents 2 to 8, it is urged that the portion of the suit property already allotted to these respondents has to be affirmed as per the earlier decree in O.S.No. 47/70 in which event there cannot be any objection for carving out the plaintiff's one fourth (1/4th) share by metes and bounds out of the property allotted to K.V. Kuppurao. This contention, in our opinion, is misconceived for the simple reason that when the entire property is open for partition as the partition arrived at between Sri Kuppurao and Dr. Gundopanth in O.S.No. 47/70 is not binding upon the plaintiff, the share of the parties has to be carved out by metes and bounds from the entire suit scheduled property in accordance with law. As such, the said contention is rejected.
26. In the view we have taken above, we make the following order:
The Appeal is allowed in part. While affirming the Judgment and Decree, it is clarified that the plaintiff would be entitled to seek mesne profits only with effect from the date of the instant suit and not from the date of the decree in O.S.No. 47/70.
Having regard to the relationship between the parties, we direct them to bear their own costs in this Appeal.