GANGAMMA Vs. BENNE SIDDAPPA

JUDGEMENT

(1.) Plaintiff Nos.1 to 5 in OS No.379 of 2007 on the file of the learned I Additional Civil Judge (Sr.Dn.), Bellary (hereinafter referred to as 'the Trial Court' for brevity), have preferred RFA No.3046 of 2009 and defendant Nos.1 and 2 in OS No.54 of 2008 (old OS No.353 of 2007) have preferred RFA No.3017 of 2010, being aggrieved by the common judgment and decree dtd. 9/2/2009, decreeing OS No.379 of 2007 in part and holding that plaintiff Nos.2 to 5 and defendant No.1 are entitled for 1/5th share each in the suit schedule properties, while denying their claim in respect of Sy.Nos.77-A, 88-D, 141-B, 230-A/1A, 230-A/2A and 212-C of Gonal village; and decreeing OS No.54 of 2008 in favour of plaintiffs and permanently restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule properties by the plaintiffs therein.

(2.) For the sake of convenience, the parties are referred to as per their ranks and status before the Trial Court in OS No.379 of 2007.

(3.) Brief facts of the case are that, in OS No.379 of 2007, schedule 'A' to 'O' describes the landed properties with their survey numbers, extent and boundaries as mentioned therein. It is contended that plaintiff No.1 is the legally wedded wife of defendant No.1 and plaintiff Nos.2 to 5 are their children. The schedule properties were acquired by Benne Gangappa, who is the father-in-law of plaintiff No.1 and the grand father of plaintiff Nos.2 to 5. It is contended that defendant No.1 being the husband of plaintiff No.1 contacted second marriage with defendant No.2 during the life time of plaintiff No.1 and during subsistence of their marriage. Defendant No.2 started interfering with the family affairs of plaintiff No.1 and defendant No.1 and there was frequent rifts in the family. Defendant No.1 at the behest of defendant No.2 planned to deprive the plaintiffs from their legitimate share in the suit schedule properties. Defendant No.1 willfully concocted a document styled as Memorandum of Family Partition dtd. 10/9/2005. It is only at the instigation of defendant No.2, defendant No.1 relinquished his rights over the schedule properties in favor of defendant No.2. Defendant No.2 in turn bequeathed the property shown in schedule-I in favour of defendant No.3. Since the said property is the ancestral property, defendant No.1 had no absolute right to relinquished his rights in favour of defendant No.2. When defendant No.2 has not acquired any right over the said property, she could not have bequeathed the same in favour of defendant No.3. Apparently, the conduct of dendant Nos.1 to 3 disclose that they are willing to oust the plaintiffs from getting any share in the schedule properties and therefore, those documents relied on by defendant Nos.1 to 3 are not binding on the plaintiffs. It is contended that the plaintiffs demanded defendant No.1 to effect partition by metes and bounds and allot their shares, but defendant No.1 is reluctant to do so. Therefore, cause of action arose for the suit.