KONABALLY VASANTHAPPA Vs. KONABALLY CHANNABASSAPPA

JUDGEMENT

(1.) This second appeal has its origin in a suit brought by the appellant who was plaintiff 1, for partition and possession of his half share in a property which at one stage belonged to his maternal grand father. That maternal grand father executed on November 12, 1919, Exhibit B-3, gift deed in favour of his two daughters Bandevva and Siddavva. Bandevva is the mother of plaintiff 1 and defendant 2, in this litigation. Siddavva died unmarried.

(2.) On September 28, 1935 that maternal grand father cancelled Exhibit B-3 and executed another gift deed, Exhibit B-2 . By the document, he made somewhat inconsistent dispositions. By the first part of that gift deed, he purported to make a gift of the suit properly in favour of defendant 2. He directed that the property should be under the management of the mother of defendant 2 attained the age of majority. But, by another part of Exhibit B-2 what the donor did was to direct the property which was the subject- matter of the gift to be enjoyed not only by defendant 2 but also by the other sons of Bandevva who might be born before the attainment of majority by defendant 2.

(3.) Plaintiff 1 was not born on September 28, 1935 and therefore , was not in existence on the date of the gift. But before defendant 2 attained majority Bandevva gave birth to him. Before the institution of the present suit by plaintiff 1 for the recovery of his half share which he claimed in the properties of his maternal grand- father, defendant 2 alienated that entire property to defendant 1 under the sale deed Exhibit B-1 executed on July 21, 1949. In the suit brought by the plaintiff of whom plaintiff 1 is the brother of defendant 2 and plaintiff 2 and 3 are the tenants, the plaintiffs claim that the suit property should be partitioned and that a half share therein should be delivered to the possession of plaintiff 1. The source of the title of plaintiff 1 as disclosed in the plaint was Exhibit B-2 under which what plaintiff 1 claimed was that interest had also been created in his favour.