NINGEGOWDA Vs. K B DODDEGOWDA

JUDGEMENT

(1.) .This appeal is by the plaintiffs against the judgment and decree dated October 9, 1974 of the Addl. Civil Judge, Tumkur, in O.S. No. 36 of 1972 on his file. The suit was for partition of the suit schedule items of properties consisting both immoveable and moveable properties. Plaintiffs claimed that four of them were the sons of defendant-2 and the 5th of them was the wife of defendant-2 and mother of first four plaintiffs. They further claimed that the suit schedule items of properties were all joint family properties of the joint family consisting of defendants 1 to 3. Plaintiffs further alleged that the alienations made by their father defendant-2 were not for legal necessity and that he was having illicit relation with another woman to the exclusion of the 5th plaintiff, his legally wedded wife and, therefore, such alienations should not in any way bind them. They prayed for partition of the suit schedule properties by metes and bounds and separate possession of the same.

(2.) The first and third defendants resisted the suit claim denying the plaint allegations in general. They particularly asserted that the plaintiffs had no cause of action against them as there was already a division or partition and the joint status had ceased as far back as 1951 and that the second defendant then had been given his one third share of the properties and separate possession thereof. They also asserted that the woman said to be living illicitly with the second defendant was really his wife and it was, in fact, the plaintiffs who are not the sons and wife of the second defendant. In the result, they prayed for dismissal of the suit. Defendant-2, father of plaintiffs 1 to 4 remained ex parte in the Trial Court.

(3.) On the above pleadings, the Trial Court framed as many as six issues in the first instance and one additional issue which are as follows : (1) Whether S. Nos. 45, 56/3, Khaneshumari Nos. 54, 103 and houses bearing Nos. 103/3 and 116 belonged to the Hindu joint family of plaintiffs and defendants? (2) Whether there was partition of the joint family properties among the defendants 1 to 3 in the year 1951 and the properties mentioned in the schedules-A and B mentioned in the written statement fell to the share of the first and 3rd defendants? (3) Whether the second defendant sold for legal necessity and benefit of his family 16 guntas of land in S. No. 83, 3 guntas of land in S. No. 19/2, 32 guntas of land in S.No. 5/2, 24 guntas of land in S. No. 35, 7 guntas in S. No. 38/2 and 3 guntas of land in S. No. 45, to the 1st defendant on 2-6-1959 and 26-11-1971 and the sale is binding on the shares of the plaintiffs? (4) Whether the Hindu joint family of the plaintiffs and defendants possessed moveables mentioned in the plaint "B" schedule? (5) Whether the plaintiffs are entitled to any share in the plaint schedule properties and if so to what share they are entitled? (6) To what future mesne profits are the plaintiffs entitled? (7) To what reliefs are the plaintiffs entitled? Addl. Issue : Whether the 5th plaintiff is the wife of the second defendant and the plaintiffs 1 to 4 are the children of the second defendant?