RAJESH S M Vs. U J MAHABALA

JUDGEMENT

(1.) Petitioners are the plaintiffs in O.S.No.78/2009 on the file of the I Additional Senior Civil Judge and Chief Judicial Magistrate, Shimoga. Being aggrieved by the rejection of I.A.No.29 filed under Order VII Rule 14(3) read with Section 151 of CPC, they have filed this writ petition.

(2.) The plaintiffs filed a suit seeking for partition and separate possession of 1/6th share each or in the alternative for declaration, declaring that the registered gift deed dated 23-02-2005 executed by the first defendant in favour of the second defendant in respect of suit item Nos.2 and 3; registered sale deed dated 5-11-2007 executed by the first defendant in favour of the third defendant in respect of suit item No.1, the sale deed dated 25-2-2008 executed by the second defendant in favour of the third defendant in respect of suit item Nos.2 and 3 are void ab initio and not binding on the plaintiffs and also sought for permanent injunction restraining the defendants from interfering with the peaceful possession of the suit schedule properties.

(3.) In the plaint, it was contended that Smt.Girijamma, mother of the plaintiffs and wife of the first defendant is the absolute owner of the suit schedule properties. She died intestate on 13-11-1994. Since the parties are governed by 'Aliya Santhana' Law, as per which, the plaintiffs alone have inherited the properties of late Girijamma. However, the first defendant being the husband of Smt.Girijamma, after her death married the second defendant and bequeathed the properties by way of gift as per the Gift Deed dated 23-02-2005 and started alienating the ancestral properties of the plaintiffs. In view of that, the plaintiffs filed the suit seeking for partition and separate possession and other reliefs.