V K THIMMAIAH Vs. V K PARVATHI

JUDGEMENT

(1.) THIS appeal is by defendants 1, 2 and 4 challenging the judgment and decree passed by the Court of the Civil Judge (senior Division) at Virajpet in O. S. 22/1995.

(2.) THE parties in this appeal are referred to as they are arrayed in the trial Court.

(3.) THE plaintiff who is respondent-1 in this appeal has filed a suit for partition and separate possession of 1/10th share of the suit schedule properties by metes and bounds and also sought for an enquiry under Order 20, Rule 12 CPC to ascertain the mesne profits. Plaintiff is the 2nd daughter of late Sri Kunnaiah. Defendants 1, 2, 3 and 4 are the sons and defendants 5, 6, 7 and 8 are the daughters of late Kunnaiah. Defendant 9 is the son of the first daughter of late Sri Kunnaiah. From the plaint averments it is seen that Kunnaiah died on 9-1-1993. According to the plaintiff the suit schedule properties are the self acquired properties of her father late Sri Kunnaiah and therefore, she is entitled for 1/10th share in the suit schedule properties. The defendants 1, 2 and 4 have jointly filed a written statement claiming their share in the suit schedule properties by paying necessary Court fee. According to them the suit schedule properties are the ancestral properties of their father late Sri Kunnaiah and therefore, they are entitled for 1/5th share in the suit schedule properties. The case of defendant No. 3 is that the suit schedule properties are the self acquired properties of late Sri Kunnaiah and he bequeathed the same in his favour under a will dated 14-6-1991. the further case of defendant No. 3, is as per the will he is entitled for a total extent of 32 acres 55 cents in respect of which the plaintiff and other defendants have no right whatsoever. The other defendants (other than defendants 1, 2 and 4) have not filed any written statement. The trial Court on the basis of the pleading has framed the following issues :-