NEELAWWA Vs. BHIMAPPA

JUDGEMENT

(1.) This is the plaintiffs appeal. For the sake of convenience, parties would be referred to as per their status before the Trial Court.

(2.) One Neelawwa filed the suit for partition and separate possession of her half share against the respondent's defendants in O.S.204/1995 before the Prl. Civil Judge (Sr. Dn.), Belgaum. According to the plaint averments, plaintiff Neelawwa and Yellawwa were daughters of Kallappa who was the absolute owner of the suit properties. Kallappa died on 3.1.1947. Plaintiff s mother Shivavva died on 18.6.1995. Plaintiffs younger sister Yellawwa died on 5.8.1994. 1st defendant is the husband of Yellawwa and defendants 2 to 6 are the children of Yellawwa. Plaintiff filed the above suit claiming half share in all the suit properties by separate metes and bounds on the ground that after the death of Kallappa and Shivawa suit properties are to be divided between the defendants who are the legal representatives of her sister Yellawwa and herself. Defendants contested the suit denying the right of the plaintiff to claim half share in the suit properties. According to them, mother of the plaintiff has executed a Will by bequeathing all the properties to defendant No.3 and that the plaintiff on an earlier occasion had filed a suit in O.S.191/1989 and later on has withdrawn the suit on 11.3.1991 and therefore they requested the Court to dismiss the suit. During the pendency of the suit, plaintiff Neelawwa died on 1.1.1997 and after the death of Neelawwa her husband was brought on record. Thereafter, 3rd defendant filed an additional written statement contending that after the death of Neelavva her husband Irappa has no right to prosecute the suit as Neelawwa died issueless. Therefore, 3rd defendant contended that the suit filed by the plaintiff has to be dismissed.

(3.) Based on the above pleadings, following issues were framed by the Trial Court: