BABITA Vs. NEELAVVA AND ORS.

JUDGEMENT

(1.) THE plaintiff in O.S. No. 643/2002 on the file of II Addl. Civil Judge (Jr. Dn.), Belgaum, has come up in this appeal impugning the concurrent finding of both the Courts below in dismissing her suit for partition and separate possession in the suit schedule property by judgment and decree dated 29.1.2005 on the file of II Addl. Civil Judge (Jr. Dn.), Belgaum, which is confirmed by the Court of Addl. District Judge and Fast Track Court -III, Belgaum, in R.A. No. 546/2009 by judgment and decree dated 19.9.2009.

(2.) THE brief facts leading to this second appeal are that the appellant herein who is the plaintiff in the original suit is daughter of Fakirappa Kadolkar @ Burud through his first wife Neelavva. It is stated that Fakirappa had taken 1st defendant Neelavva as his 2nd wife after the death of plaintiff's mother Neelavva (incidentally the mother of plaintiff who is first wife and the first defendant, who is second wife of Fakirappa, the names of both of them are Neelavva only). Fakirappa had in all five children in his second marriage with Neelavva the 1st defendant. It is stated that Fakirappa died on 8.5.1995 i.e., after the amendment to Hindu Succession Act coming into force on 30.7.1994. After the death of Fakirappa, plaintiff filed suit in O.S. No. 643/2002 seeking the relief of partition of joint family properties which were standing in the name of her father, seeking 1/7th share to her in the suit schedule property. In the said suit defendants 1 to 6 who are none other than the step mother, step brothers and sisters of plaintiff entered appearance, filed written statement denying her right to seek share in the suit schedule property on the ground that she was married prior to the amendment of Hindu Succession Act 1994 (Amendment Act) coming into force and as such she has no right to seek a share in the suit schedule property and that the suit properties are available for distribution among themselves who were in the joint family as on the date of amendment act coming into force. In the light of aforesaid pleadings, the trial Court proceeded to frame the following issues.

(3.) WHETHER the plaintiff is entitled for the relief of partition and separate possession?