KRISHNABAI Vs. KALAWATI

JUDGEMENT

(1.) This appeal brought on behalf of defendants 1 to 3 is directed against the judgment and decree in OS.85 of 1972 on the file of the Court of the Civil Judge, Chikodi, decreeing the suit of respondent-1 for partition and separate possession of her 1|3rd share in the suit schedule properties together with mesne profits and costs of the suit.

(2.) In OS.67 of 1969 on the file of the Court of the Civil Judge, Belgaum, the suit properties were jointly allotted to the shares of defendants 1, 2 and the plaintiff, the other share having been allotted to one Kashibai and Balesha, who are defendants 5 and 4 in the present suit. The previous decree in OS.67 of 1969 has been marked as Ex..P1. The genealogy showing the relationship of the parties appears in the genealogy given in Ext.P1. The plaintiff Kalawati alias Kallawwa and defendant-2 Laxmibai are sisters being the daughters of defendant-1 Krishnabai. Deft-3 is the son of defendant-2 Laxmibai. Defendant-1 is alleged to have taken defendant-3 in adoption after the coming into force of the Hindu Adoptions and Maintenance Act, 1956. The validity of the adoption by Deft-1 was in dispute in the Court below. Since nothing turns on the validity of the adoption of Deft-3, it is not necessary to further refer to this adoption.

(3.) In the prior suit OS.67 of 1969 the present suit schedule properties were jointly allotted to the shares of the plaintiff and defendants 1 & 2. Defendant-1 is the mother and the plaintiff and defendant-2 are the daughters. They are not the members of a joint family, but have taken the properties as tenants in common. This legal position is not disputed and cannot be disputed. After the passing of the decree contained in Ext.P1, the parties were enjoying portions of the properties separately, but they could not effect partition by metes and bounds amicably. Therefore, the plaintiff brought the above suit, out of which the present appeal arises, for partition and separate possession of her 1/3rd share.