JAYALAKSHMAMMA Vs. ANJINAPPA

JUDGEMENT

(1.) This regular first appeal is filed by plaintiff No.1 challenging the judgment and decree dtd. 22/9/2007 passed in O.S.No.6014/1997 by the I Additional City Civil and Sessions Judge, Bangalore City.

(2.) Heard the learned counsel appearing for the respective parties.

(3.) The factual matrix of the case of plaintiff Nos.1 and 2 before the Trial Court that Smt. Ammayyamma is the absolute owner and in possession and enjoyment of the suit schedule property which is morefully described in the plaint schedule. The said property is the joint family property of the plaintiffs and defendant since the said Ammayyamma is the mother of plaintiffs and defendant. It is contended that the said Ammayyamma lost her husband and she used to maintain her family by selling vegetable and she had purchased a property at Yelahanka and the said property was acquired for the purpose of construction of a hospital and in lieu of the said acquisition, she had given the present suit schedule property which is morefully described in the suit schedule. The suit schedule property measures 40 x 60 feet and she had put up three portions in the suit schedule property. The said Ammayyamma died on 6/9/1991 leaving behind plaintiff Nos.1 and 2 and the defendant as her legal heirs. It is also the case of the plaintiffs that Ammayyamma had executed a Will bequeathing the portion of the suit schedule property measuring 20 x 18 feet AC sheet house in favour of the daughter of plaintiff No.1 namely Kum.Maheshwari and remaining two portions were bequeathed in favour of the defendant. But the plaintiffs are also the legal heirs of said Ammayyamma. After the death of Ammayyamma, the defendant is not ready to allot the shares of the plaintiffs in the suit schedule property. Moreover, he has taken the portion of the suit schedule property which is bequeathed in favour of the daughter of plaintiff No.1 by giving the said portion on rental basis and receiving a total rent of Rs.3,60,000.00 from the year 1992. Hence, the plaintiffs are constrained to file the present suit for the relief of partition and separate possession claiming 1/3rd share each in the suit schedule property.