GIDDAMMA Vs. VENKATAMMA

JUDGEMENT

(1.) This appeal arises from a suit for partition brought against the appellants by the respondent and another in the Court of Principal Civil Judge (Sr. Dn.), Kolar. Defendants in the suit are the appellants and respondent (dead) represented by her legal representatives, was the 1st plaintiff. For the sake of convenience, the parties will be referred to hereinafter, with reference to their rank in the suit.

(2.) The material facts in regard to the relationship of the parties, which are not in dispute are that, one Muniyappa and his wife Nasamma, who have died, have left behind three daughters namely, (1) Venkatamma (1st plaintiff) (2) Chinnamma (2nd plaintiff) and (3) Giddamma (1st defendant). Said Venkatamma and Chinnamma filed the suit for a decree of partition and separate possession of their 2/3rd share in the plaint schedule property against their sister Giddamma and her son B. Nanjappa, inter alia contending that, the second defendant is attempting to alienate the suit property without effecting partition and allotting the shares to them. Defendants in their written statement, disputed the right and claim of the plaintiffs inter alia contending that, the suit property belonged to Nasamma. who bequeathed the same in favour of the 2nd defendant under a Will dated 10-11-1960 and after her death, the 2nd defendant became the owner and he is in possession and enjoyment of the same, in view of which, the suit for partition is not maintainable.

(3.) During the pendency of the suit, Chinnamma. the 2nd plaintiff passed away, her legal representatives were not brought on record and the suit as far as she was concerned, stood abated. On the basis of the pleadings, the learned Tribal Judge framed issues. Plaintiffs examined PW-1 and Exs. P1 to P3 were marked and the defendants examined DWs 1 to 3 and Exs. D1 to D10 were marked. The learned Trial Judge has held that, the defendants have failed to prove that Nasaramma executed the Will- Ex. D1, in respect of the suit land in favour of the 2nd defendant and consequently, the plaintiffs are having 2/3rd share and they are entitled to partition and separate possession of their 2/3rd share in the suit land.