G. GOPALA RAO S/O SRIPATHI RAO Vs. SMT. KUSUMA V SHETTY W/O VASUDEVA SHETTY D/O LATE D.G. KRISHNA HEGDE AND OTHERS

JUDGEMENT

(1.) THIS regular first appeal under Section 96 of CPC is filed by the legal heirs of the first defendant in O.S.No. 53/1994 on the file of Court of Principal Civil Judge (Jr.Dn.), Shimoga being aggrieved by the judgment and decree dated 22 -08 -2005 decreeing the suit for partition and declaring that the plaintiffs are entitled for 1/28th share in the suit schedule 'A and 'B' properties. The suit was dismissed in respect of the claim relating to suit schedule 'C' property. The brief facts leading to the above appeal in the suit are that: The plaintiffs 1 and 2 claiming to be the daughters of one late T.G. Krishna Hegde had filed a suit for partition of the suit schedule properties impleading their six brothers as defendants 1 to 6 and had claimed 1/8th share each being eight children of T.G. Krishna Hegde. It is the plea of the plaintiffs that all the properties were joint family properties and that they had been improved upon during the lifetime of their father and after his demise in the year 1985, the plaintiffs became entitled for their respective shares. But the defendants ignored the claim of plaintiffs, particularly the first defendant who was enjoying the property to the exclusion of other children of late T.G. Krishna Hegde. In spite of a demand through legal notice, as the defendants particularly the first defendant was not ready to yield to give share to the plaintiffs, the plaintiffs were constrained to file the suit.

(2.) THE defendants contested the suit. The first defendant filed a separate statement and defendants 2 to 6, the younger brothers of the first defendant filed a separate statement in common.

(3.) DEFENDANTS 2 to 6 in their common statement while supporting the plea of the plaintiffs to the effect that 'A' and 'B' schedule properties are family properties and the plaintiffs and defendants each are entitled to 1/8th share and prayed for passing a preliminary decree accordingly The first defendant having sold an extent of 3 acres of land in Sy.No. 30 in favour of one Gopal Rao son of Sripathy Rao as per the sale deed dated 27 -12 -1996 i.e. during the pendency of the suit before the Trial Court and this purchaser in turn having sold some part of the same in favour of defendants 8 and 9 by subsequent sale deed, all these persons were added as defendants 7, 8 and 9 by an application made subsequently.