ANNANTMA Vs. PATTAMMA

JUDGEMENT

(1.) this appeal by the plaintiffs is preferred against the judgment and decree dated 4th october, 1991 passed by the learned 19th additional city civil judge, Bangalore in o.s. No. 2762/1990. The respondents are defendants 1 to 3 in the trial court. There are two suit properties. But the plaintiffs have confined their claim only to item No. 2 in the schedule to the plaint. The plaintiffs have claimed 1/5th share each in item No. 2 on the ground that the said property was the self-acquired property of their late father by name srichinnappa mudaliar, who died in the year 1952 leaving behind bis widow, two sons and two daughters. The plaintiffs are the two daughters of chinnappa mudaliar. Defendant No. 1 is the widow of chinnappa mudaliar. The sons are not made parties to the suit on the ground that they had alienated their share along with defendant No. 1 in favour of defendant No. 2. Therefore, they are not necessary parties to the suit. According to the plaintiffs as item No. 2 of the suit schedule was the separate and self-acquired property of chinnappa mudaliar, succession to it was governed by sub-section (2) of Section 6 of the Mysore hindu law women's rights Act, 1933 (here in after referred to as the 'act') therefore, the property was to be divided among the five heirs left by chinnappa mudaliar namely the widow-defendant No. 1, two sons and two daughters-the plaintiffs.

(2.) on the contrary, it is the case of the defendants that no doubt the property wasthe self-acquired property of chinnappa mudaliar, who died in the year 1952, but the succession to it was governed by Section 4 of the act; that under Section 4 of the Act, the heirs could be determined whether male or female. Therefore, it is contended by them that the daughters are excluded; that it is only the sons who became entitled to entire property. As such the plaintiffs are not entitled to any share in item No. 2 of the suit schedule properties. According to the learned trial judge the decision in Mallikarjuna, t.c. v Kallamma and others, 1982(1) kar. Lj. Page 17 governs the case. The trial court has held that even in the case of succession to the properly falling under Section 6(2) of the Act, Section 4 of the act is applicable. Therefore, the daughters are excluded. Accordingly, be has dismissed the suit.

(3.) the following issues were framed in the suit having regard to the pleadings of the parties: 1. Whether the plaintiffs prove that they have got right, title and interest over the plaint schedule property and are co-owners? 2. Whether the plaintiffs prove lhat plaint schedule property are in joint possession? 3. Whether the plaintiffs prove that they are entitled for 1/5th share in item No. 2 and not effected by sale dated 21-9-1987?