PADMAVATHI, SINCE DEAD BY L.RS, CHANDRASHEKAR S/O. PADMAVATHI AND LATE SHIVAKUMAR Vs. SMT. AKKAYAMMA WIFE OF LATE MILLIAPPA, C/O SRI. NARAYANAPPA, KILARI PETE, HOSKOTE TOWN, BANGALORE DISTRICT-562114 AND SRI. ANJANAPPA, S/O. LATE SRI. KUTUMAIAH,

JUDGEMENT

(1.) THE appellants are challenging the legality and correctness of the judgment and decree passed by the Civil Judge (Sr.Dn.), Bangalore Rural District in O S No. 1030/96 dated 19.3.2005 wherein the suit filed by them claiming partition and separate possession of their one -third share has been dismissed. The facts leading to this case are as herein under: (i) The appellants are the daughters of one Milliappa and Akkayyamma who was the first defendant in the suit. Milliappa was the son of one Doddanagappa. Doddanagappa had three sons by name Chikka Siddappa @ Kutumaiah, Chil Venkatappa and Milliappa. The plaintiffs' father died in 1965 leaving behind him the plaintiffs and his widow the first defendant. On the date of his death, Milliappa was living in a joint family along with his brothers. (ii) After the death of Milliappa, the first defendant being the widow of Milliappa and mother of the plaintiffs executed a registered release deed on 12.8.1966 in favour of other two brothers of her husband, Milliappa by receiving 17 items of immovable property towards share of the plaintiffs and the first defendant, which are the suit schedule properties. (iii) It is the case of the plaintiffs that the first plaintiffs marriage was celebrated on 7.3.1971 and second plaintiffs marriage on 17.5.1972 and after marriage they are residing with their respective spouse. The second defendant who is the son of late Sri Kutumaiah and the cousin of the plaintiffs has obtained a registered sale deed in his favour from the first defendant on 18.11.1982 as if the first defendant sold all the suit: schedule properties for a sum of Rs. 5.000/ - behind the back of the plaintiffs. According to the plaintiffs, they came to know of such transaction only in the year 1996. In the circumstances, they filed a suit for partition and separate possession.

(2.) THE second defendant contested the suit admitting the relationship between the plaintiffs and the defendants. He also admitted the release deed dated 12.8.1966 and allotment of the plaint schedule properties to the first defendant and her children. He admits that in the year 1982, the first defendant has sold the property to the second defendant as a Manager of the family and that he has been in possession of the property for over a period of 16 years and therefore the suit is not maintainable and liable to be dismissed.

(3.) IN order to prove their respective contentions, the second plaintiff was examined as PW -1. She relied upon Ex. P5 to P9. The second defendant was examined as DW -1 and he also relied upon evidence of one Sonnappa who was examined as DW -2 and relied upon Ex.D 1 registered release deed of 1966.