H R SARASWATHIKAR Vs. H R SHYAMALA KUMARI

JUDGEMENT

(1.) Defendant Nos.1, 4 and 3 in O.S.No.9/2012 have preferred this second appeal assailing judgment and decree passed in R.A.No.27/2013 on the file of the Prl.District Judge, Hassan dated 10.3.2017 by which, dismissal of suit in O.S.9/2012 by the judgment and decree dated 21.11.2012 passed by the Senior Civil Judge & JMFC, Sakaleshpur has been set aside and R.A.27/2013 has been allowed in part by granting respondent No.1-plaintiff 1/5th share in the share of her father (1/20th share in the suit schedule properties) in respect of item Nos.1 to 7, while alienations made by defendant Nos.1 to 4 in respect of item Nos.8 and 9 in favour of defendant Nos.5 to 7 have been held to be valid.

(2.) For the sake of convenience, the parties herein shall be referred to, in terms of their status before the Trial Court.

(3.) Respondent No.1 herein is the plaintiff. She filed the suit seeking the relief of partition and separate possession of her share in the suit schedule properties. That plaintiff and defendant Nos.2 to 4 are the children of Late H.K.Ramachandraiah and his wife H.R.Saraswathi, defendant No.1 and that the plaintiff is the only daughter of the couple and defendants 2 to 4 are her brothers. Her father died leaving behind the suit schedule properties which are ancestral properties so as to be divided amongst his heirs. There has been no partition of the suit schedule properties nor allotment of share to the plaintiff. Defendant Nos.1 to 4 have neglected the rights of the plaintiff in the suit schedule properties and they have entered into a registered partition deed dated 5.7.1999 in respect of the suit schedule properties without allotting any share in favour of the plaintiff and even without the knowledge of the plaintiff. According to the plaintiff, she is entitled to 1/5th share in the suit schedule properties. But, ignoring the rights of the plaintiff, defendant Nos.1 to 4 have sold suit item Nos.8 and 9 in favour of defendant Nos.5 to 7. Suit item No.8 has been sold to defendant No.7 who has inturn sold to defendant No.6 and further defendant Nos.1 to 4 have sold suit item No.9 in favour of defendant No.5 and hence, defendant Nos.5 to 7 have been arrayed as parties to the suit. Plaintiff has contended that said sale transactions are not binding on her. According to her, legal notice was issued to defendants seeking partition and separate possession of the suit schedule properties. But, defendant Nos.1 to 4 gave false and untenable reply to the said notice. Hence, plaintiff was constrained to file the suit seeking the relief of partition and separate possession.