VIRUPAKSHA MURTHY AND ORS. Vs. MAHADEVA AND ORS.

JUDGEMENT

(1.) HEARD the learned counsel for the appellants and the cross objector.

(2.) THE appellants were Defendants 2 and 4 before the court below. Defendant No. 2 is said to have died during the pendency of these proceedings and his legal representatives have now come on record. The suit was filed by Respondent No. 1. It was his case that he and the defendants were brothers and sisters and were children of Mahanthappa and Mallamma. According to the plaintiff, they constituted a Hindu Undivided Family and all the properties purchased by any of the family members was thrown into a hotchpot of the joint family properties. It is claimed that during the lifetime of Mahanthappa, he had purchased a property in the name of Mallamma, the mother bearing No. 42, Suarashtrapet, Bangalore, under a registered sale deed measuring East to West 25 feet and North to South 25 feet, totally measuring 625 sq.ft. as described in the schedule to the suit. It was also contended that at the time of purchase of the suit property, it was a vacant site and after purchase, the father and mother of the plaintiff along with the parties to the suit, had constructed a residential building on the said site, out of the joint family funds. It was also contended that one other property which was standing in the name of the mother at Jayanagar was sold and the proceeds of the sale was utilized in the purchase of the suit property. Though the property sold stood in the name of Mallamma, the mother, the property had been purchased by the father Mahanthappa. It transpires that Mallamma died on 1.3.1986 and Mahanthappa died on 8.11.1990, leaving behind the plaintiff and defendants 1 to 5 as their legal heirs. During the lifetime of Mallamma, all the parties were residing in the suit property and as and when the sons got married, the family grew and Defendants 1, 2 and 5 moved to a rented premises and were residing separately, as the suit property was not sufficient to accommodate all of them. Defendants 2 and 4 are said to be educated and others are said to be uneducated and they were all depending on Defendants 2 and 4 for the management of the suit properties, for all of them had contributed in the construction of the property. The defendants 2 and 4 had themselves leased out the suit property to third parties and were enjoying the benefits thereof. When plaintiff approached Defendants 2 and 4 seeking partition of the suit properties, they had refused to do so and continued to enjoy the benefits. Later, they had sought to place reliance on a got -up document which was styled as "Last Will and Testament" of Mallamma, the mother and claimed exclusive possession of the suit property. Hence, the suit by the plaintiff.

(3.) WHETHER the defendant No. 2 and 4 prove that the suit schedule property is the self -acquired property of their mother Smt. Mallamma?