G.H. PREMAKUMARI C/O G.H. CHIKKAVEERANNA Vs. SWARNA GOWRAMMA @ SWARNAMMA W/O G.H. RAJANNA, MAJOR, NO. 7, GIRLS SCHOOL ROAD, NEAR TOWN HALL, CHICKBALLAPUR AND OTHERS

JUDGEMENT

(1.) APPELLANT who was the 2nd defendant in O.S. No. 116/1939 on the file of Civil Judge (Sr.Dn.) 6 JMFC, Chickballapur is questioning the legality and correctness of the judgment and decree passed therein. Heard the counsel for the parties.

(2.) THE facts leading to this appeal are as hereunder: Plaintiffs filed the suit for partition and separate possession of 14/15th share in all the plaint schedule properties. According to the plaint averments, 1st plaintiff is the widow and plaintiffs 2 to 4 are the children of one G.H.Rajanna. Rajanna was the only son of Nanjamma who was the 1st defendant and died during the pendency of the suit and one late Chikkaveeranna. 2nd defendant Premakumari is the only daughter of Nanjamma and Chikkavearanna. The suit was filed by the plaintiffs claiming partition and separate possession of their share, on the ground that the plaint schedule properties were acquired by late Chikkaveeranna and some of the properties were also acquired with the aid and assistance of deceased Rajanna. On the ground that after the death of Chikkaveeranna and Rajanna, the properties are not divided, suit was filed. Defendants who are the mother and daughter filed a common written statement contending that they have no objection for partition and separate possession of the properties which are available for partition. However, it was contended that suit item No. 1 of A - -schedule property was acquired by the 1st defendant and her husband under registered sale deed dated 10.3.1940 and that entire consideration was paid by the 1st defendant and Chikksveeranna's name was included in the sale deed to enable him to manage the properties on behalf of the 1st defendant. It was contended by them chat suit item No. 1 is the exclusive property of 1st defendant. It is also contended that suit item No. 2 was acquired by deceased Chikkavearanna by way of gift which was executed in his favour by his maternal aunt and therefore it was contended that it is the self -acquired property. Similarly, it was contended that 2nd defendant acquired suit item Nos. 5 to 7 under registered sale deed dated 20.4.1960 and it her self -acquired property. Similarly, it was contended that 2nd defendant acquired the suit item Nos. 5 to 7 under registered sale deed dated 24.1.1966 and that she is the absolute owner of those properties. It was further averred that 1st defendant has executed a Will on 21.1.1988 bequeathing suit item No. 1 of A -schedule property in favour of 2nd defendant and similarly 1st defendant has also executed another Will on 2.8.1989 in respect of suit Item No. 4 of plaint A -schedule property and that she has bequeathed the same in favour of one Arundhati who is her stepdaughter. Therefore, it was requested by the defendants to dismiss the suit. Based or the above pleadings, following issues were framed:

(3.) COUNSEL appearing for the Respondents supporting the judgment of the trial court contends that even though trial court, has not considered the fact that plaint item No. 1 was purchased by late Chikkaveeraiah along with 1st defendant and 1st defendant is only a name -lender and that the suit property could not have been bequeathed by Nanjamma in favour of the appellant herein as it was not her property at ell. According to him, plaint item No. 1 of A -schedule property was purchased by Chikkaveeraiah in the year 1940 out of the joint family income and that 1st defendant could not have claim the same as her self -acquired property in order to bequeath the same. In the circumstances, he requests the court to dismiss the appeal.