NIRMALA Vs. NEMICHAND TAVANAPPA KUDCHI

JUDGEMENT

(1.) this appeal is preferred by the appellants who were theplaintiffs in the trial court against the judgment and decreedated 17-2-1987 passed by the first additional civil judge,belgaum, in o.s. no. 183 of 1984 dismissing the suit of theappellants for partition and separate possession, of the suitschedule properties.

(2.) we have heard the learned counsel for the appellants andthe learned counsel for the respondents 2, 3 and 4 fully andperused the records of the case.

(3.) the appellants as plaintiffs have filed the suit for partitionand separate possession of their share in the properties shown inpara l(a) on the following averments:that plaintiff no. 1 is the wife of defendant no. 1 andplaintiffs 2 to 5 are the daughters of plaintiff no. 1 anddefendant no. 1 and plaintiff nos. 6 and 7 are their sons. Theplaintiffs and defendant no. 1 constitute an undivided hindufamily. The suit properties are the joint family properties of theplaintiffs and defendant no. 1 and there is no severance of thestatus between the plaintiff and defendant no. 1. Defendant no.1 is addicted to vices and he is squandering the family propertiesand he has alienated some of the properties. He illegally andunauthorisedly sold agricultural lands bearing r.s. no. 704/1,658/2, 5/1, 223/4, 659/3-a, 318 (western portion) situate atangol and r.s. no. 96/2 and 97/1 situate at belgaum in favour ofdefendant no. 2 who is the natural brother of defendant no. 1and the same was not for the benefit of the family or for anylegal necessity. The said sale deed is null and void and notbinding on the plaintiffs and the sale deed in favour of defendantno. 2 by defendant no. 1 is an outcome of the fraud and undueinfluence practised by defendant no. 2 on defendant no. 1.defendant no. 1 has also illegally and unauthorisedly sold aportion of the house bearing corporation no. 377 situate attanaji galli, angol, belgaum in favour of defendant no. 2.defendant no. 2 in turn has unauthorisedly sold r.s. no. 96measuring.3 acs. 36 gs. And r.s. no. 18, measuring 1 ac. 15 gs.in favour of defendants 3 and 5 and they are not binding on theplaintiffs as the said transactions are null and void. Plaintiffs 2to 7 have got 3/4 share in the suit schedule properties. Thatthough they called upon defendant no. 1 to effect partition andgive the share of the plaintiffs to them, he has been postponingand hence the plaintiffs have been constrained to file this suit.the defendants 1, 3 and 5 remained ex parte. The defendant no.2 filed his written statement and during the pendency of the suithe died and his l.rs. D. 2-a to d. 2-c have come on record andthey have adopted the written statement filed by defendant no.1. Defendant no. 6 came to be impleaded at a later stage.