MALLAMMA Vs. NANJAMMA

JUDGEMENT

(1.) This appeal is by the 1st plaintiff. She is aggrieved by the dismissal of her claim for partition and separate possession of the suit schedule properties. The facts pleaded in this appeal may be briefly stated and they are as follows, and in the course of this order, we will refer to the parties by the ranks assigned to them in the trial Court.

(2.) Ist plaintiff and 2nd plaintiff her daughter, averred that they are the members of a joint family consisting of the deceased husband of the 1st plaintiff and defendant 1 who died during the pendency of the suit in the trial Court. They claimed that in terms of the Hindu Women's Right to Properties Act of 1933 of the erstwhile Mysore State, the 1st plaintiff was entitled to get share of what her husband would have got at a notional partition just before his death and, therefore, she was entitled to get th share of the suit schedule properties, while the 2nd plaintiff her married daughter who at the time of the death of her father was not married, would be entitled at such a notional partition to 1/8th share. They also alleged that the 1st plaintiff's thumb impression was fraudulently obtained by the defendant, her brother-in-law on the pretext that the same was required with reference to change of Karta of the joint family properties.

(3.) The defendant resisted by filing a statement to the effect that his brother Nanjappa had died some 30 years before the filing of his statement; that all the suit schedule properties are not the joint family properties; that after Nanjappa's death, the properties have passed on to a single surviving coparcener is not correct as alleged by the plaintiffs. Plaintiffs are not entitled to between them to 3/7th share in the properties. There was a partition between 1st plaintiff and defendant on 8-5-1979 evidenced by a memorandum of partition which is signed by the 1st plaintiff and the defendant in the presence of panchayatdars. As there has been a partition, the suit for a second partition is not maintainable and it is liable to be dismissed. He denied that any thumb impression of the 1st plaintiff was obtained by the alleged representation said to have been made by him. However, after the death of the defendant, his legal representatives who were brought on record filed another written statement in substance reiterating what had been contended by the deceased defendant.