VENKATESH Vs. DEVINDRAPPA

JUDGEMENT

(1.) THE present appeal is filed under Section 96, C.P.C. challenging the judgment and decree passed by the Civil Judge (Senior Divn.), Yadgir, in a case in O.S. 48/04 dated 26.6.2006. This appeal is by defendants 1 to 5 in the said suit. The 3rd defendant -Mallamma (3rd appellant) died intestate and hence her son is brought on record. Appellants 1, 2, 4 and 5 are defendants 1, 2, 4 and 5 in the suit. Respondents herein are plaintiff Nos. 1 to 3.

(2.) THE suit was filed for partition and separate possession in respect of the properties mentioned in the schedule to the plaint apart from seeking a share in respect of 32 guntas of land in Survey No. 261 of Ashinal village. It is this judgment and decree dated 26.6.2006 which is called in question on various grounds as set out in the appeal memo.

(3.) SEVERAL grounds have been urged in the appeal memo contending that the learned judge having answered issue No. 1 in the negative, the suit could not have been decreed in favour of the plaintiffs. It is further argued that from the age of defendants 1 and 3, it is very evident that the marriage of Mahadevamma had taken place with Mahadevappa prior to the coming into force of the Hindu Marriage Act and that 3rd defendant -Mallamma was born prior to the coming into force of the Act. It is argued that plaintiffs 1 and 3 are born to Basamma and Mahadevappa after the coming into force of the Act and this aspect has been virtually ignored by the trial court. It is argued that trial court has adopted a wrong approach to the state of affairs and has not assessed the evidence in the right perspective.