LAKSHMIDEVAMMA @ VARALAKSHMAMMA AND OTHERS Vs. MAHADEVAMMA HINDU

JUDGEMENT

(1.) THE appellants herein are the Plaintiffs No. 5, 6 and 7 in O.S. No. 3634/1984. The plaintiffs No. l to 4 died during the pendency of the suit and as such, they are deleted since the other LRs i.e., remaining plaintiffs are already on record. The suit is filed seeking for the Judgment and Decree of partition and separate possession of the plaintiffs ™ share which was claimed at 7/8th share at that stage. The Court below after considering the rival contentions has dismissed the suit by its judgment and decree dated 15.04.2009. The surviving plaintiffs are before this Court in this appeal.

(2.) THE suit was earlier decreed on 25.07.2002 but the same was assailed by the defendant herein in RFA No. 1176/2002. This Court by its judgment dated 17.12.2008 remanded the matter to the Court below. Reference is also required to an earlier suit in O.S. No. 966/80 between the parties. Hence, for the purpose of convenience and clarity, the parties would be referred by their names.

(3.) THOUGH the material issues framed in that suit were held in favour of Smt. Javaramma and children holding that they are the legal representatives of late Andanappa and that defendant - Ms. Mahadevamma is not the wife of late Andanappa, the decree for absolute ownership of the entire property and eviction thereof was not granted but, it was held that Ms. Javaramma and children should seek for partition and separate possession. The said conclusion was for the reason that Ms. Madamma i.e., the mother of late Andanappa who was alive and was examined in that suit No. S. No. 966/1980 had executed a gift deed dated 16.08.1973 in favour of Ms. Mahadevamma after the death of Andanappa which was on 14.05.1973. Hence, the share to which Ms. Madamma was entitled as the mother of late Andanappa was held that it would get transferred by the said gift deed to Ms. Mahadevamma. Therefore, Ms. Mahadevamma was entitled to that share of Ms. Madamma. It is only for that reason, the declaration for the entire property was declined. Though the suit was dismissed with an observation to seek for partition, the findings attained finality and in that view, the instant suit was filed by Javaramma and children seeking for partition and separate possession of their respective shares as had been held in that suit.