MAHADEVAMMA AND ORS. Vs. NEELAMMA AND ORS.

JUDGEMENT

(1.) THE case of the plaintiffs is that the 1st defendant is the mother -in -law of the 1st plaintiff and grand mother of plaintiffs -2 to 5 and 2nd defendant. The properties are the ancestral properties of the 1st plaintiffs husband and other plaintiffs and the 2nd defendant. The husband of the 1st plaintiff died leaving behind him the plaintiffs and the defendants as his legal representatives. That the plaintiffs and the defendants were jointly cultivating the schedule properties as the absolute owners. The 2nd defendant, even though being the daughter of the 1st plaintiff, was arrayed as defendant since she was not available at the time of filing of the suit. That the 1st defendant was trying to alienate the suit schedule properties with an intention to defraud the legitimate right of the plaintiffs and the 2nd defendant. Hence, the suit was filed by her seeking for partition and separate possession of the suit schedule properties. On service of notice, the 1st defendant entered appearance and denied the suit averments. Defendants -3 to 5 have adopted the written statement filed by the 1st defendant. They have denied para -1 of the plaint. Their claim is that certain properties have been left out from the suit schedule properties. That the husband of the 1st defendant died about 25 years back leaving behind him the 1st defendant and the son of late Somanna and three daughters. A legal notice was issued to plaintiffs -1 and 2 and also to the intending purchaser by one K. Ramaswamy. In the year 1973, the 1st plaintiff and her husband demanded for partition and it was effected. Item Nos. 1, 2, 4 and Sy. No. 24/2 measuring 1.01 acres, Sy. No. 100/4 measuring 0.30 guntas and country tiled house measuring 4 ankanas were allotted to the share of first plaintiffs husband. Item No. 3 and Sy. No. 94/1 measuring 4.17 acres and Sy. No. 94/6 measuring 1.05 acres and Mangalore tiled house measuring 2 1/2 ankanas were allotted to the share of first defendant and her daughters. Subsequent to the partition, the 1st defendant had incurred huge amounts of loan to perform the marriage of her unmarried daughters. Subsequent to partition, the 1st plaintiffs husband and the defendants were enjoying their separate share. That the 1st plaintiffs husband had sold Sy. No. 24/2 measuring 1.01 acres in favour of one Chethana Shetty and mortgaged the house measuring 4 ankanas of country tiled house in favour of one Mallanna. After the death of the 1st plaintiffs husband, Katha of Sy. No. 101/4 measuring 4.03 acres has been transferred to her name and that she has tried to sell away the same to third parties. Subsequent to the partition, the 1st defendant has been in separate possession and enjoyment of Sy. No. 94/1 measuring 4.17 acres, Item No. 3 of the schedule property and Sy. No. 94/6 measuring 1.05 acres and 2 1/2 ankanas of Mangalore tiled house as absolute owner and that she has executed a registered Will bequeathing Sy. No. 94/1 measuring 4.17 acres and 2 1/2 anakanas of house in favour of one Basavaraju, attested by her three daughters.

(2.) Learned counsel for the appellants submits that both the Courts below committed error in misreading the material evidence on record while dismissing the suit. The contention of the appellants is that there is no material produced by the defendants to show that a oral partition had taken place between the parties. No document is produced to substantiate that the 1st plaintiffs husband is the son of the 1st defendant and he is entitled to a share. Hence, the trial Court committed an error in dismissing the suit.

(3.) On hearing learned counsel, I' am of the considered view that there is no merit in the appeal. No substantial question of law arises for consideration. The material on record would clearly show that substantial properties have been granted to the husband of the 1st plaintiff prior to his death. What has been pleaded by the defendants is that a oral partition has taken place. Therefore, necessarily there cannot be any document for the same. Subsequent action of the parties in giving effect to the terms of the oral partition has resulted in the 1st plaintiffs husband receiving various properties. That until and unless the partition has taken place, the specific properties allotted to the 1st plaintiffs husband could not have been identified. The very fact that identifiable properties have been handed over to the husband of the 1st plaintiff would clearly establish that there was a oral partition between the parties. When a partition has taken place and properties have been divided between the plaintiffs and the defendants, the question of filing a suit seeking partition of the property fallen to the share of the defendants therefore would not arise for consideration. The trial Court has rightly held the issues against the plaintiffs. No suit can be decreed when once it is established that a prior oral partition has taken place between the parties.