SHRISAILAPPA Vs. MUTTAWWA

JUDGEMENT

(1.) This appeal by the plaintiffs is directed against the judgment and decree dated 28-1-1975 passed by the Civil Judge, Bagalkot, in R.A. No. 9/72 on his file allowing the appeal on reversing the judgment and decree dated 24 1 1972 passed by the Munsiff, Mudhol in O.S. No. 24/70 on his file decreeing the suit of the plaintiffs as prayed for.

(2.) Plaintiffs instituted a suit for partition and separate possession of their share along with mesne profits. According to the plaintiffs, the propositus of the family was one Mageppa. He had two sons, namely, Gurappa and Parappa. After the death of Mageppa, his sons Gurappa and Parappa lived jointly and enjoyed the suit property jointly. Gurappa, being the elder, was managing the joint family. Gurappa died on 29 -11-1933 leaving behind his son Mallappa, arrayed as first defendant in the suit. After the death of Gurappa, Mallappa and Parappa lived jointly and enjoyed the suit property jointly till the death of Parappa. Parappa died on 8-1-19-12, Plaintiff No. 2 is the widow of Parappa. After Parappa's death, Mallappa and Laxmawwa lived together till about the year 1960. Thereafter they did not pull on well together. Laxmawwa started residing in one portion of the suit house separately. She thereafter took in adoption the first plaintiff as son to her deceased husband on 23 2 1970. She also executed an adoption deed in favour of the first plaintiff. Thereafter, plaintiffs Nos. 1 and 2 together instituted the suit claiming half share in the suit property on the basis of adoption of the first plaintiff by the second plaintiff. The suit was resisted by the defendants by filing their written statements. They denied that Gurappa and Parappa were undivided brothers and that Gurappa died survived by his son. They denied the factum and validity of the adoption alleged. They submitted that the suit should be dismissed with costs. During the pendency of the suit, the first defendant died and his heirs defendants 1 (a) to 1 (d) have been brought on record.

(3.) The trial Court raised the following issues as arising for its consideration in the suit: