MALLAPPA AND ORS. Vs. RUKMAWWA AND ORS.

JUDGEMENT

(1.) THE 1st defendant in O.S. No. 145/1995 on the file of Prl. Civil Judge (Sr.Dn.), Jamkhandi, has come up in this second appeal impugning the concurrent finding of both the Courts below in decreeing the suit of the plaintiff for the relief of partition and separate possession.

(2.) THE undisputed facts leading to this second appeal are that plaintiffs and defendants are children of one Ishwarappa who is propositus of his joint family consisting of himself, his wife Ningavva and 6 children out of that 2 are the sons and 4 are daughters. The suit in O.S. No. 145/1995 is filed for the relief of partition by one of the daughters of Ishwarappa along with her sister -in -law Smt. Rukmavva i.e., the wife of 1st plaintiff's younger brother Melappa. Incidentally the 1st plaintiff and 2nd plaintiffs are daughter and mother for the reason that Sayavva's daughter is given in marriage to her younger brother Melappa. The suit for partition is filed after the death of propositus Ishwarappa and his wife Ningavva. In the said suit 1st defendant is the remaining male son of propositus Ishwarappa namely Mallappa. The other defendants namely 2 to 4 are his sisters.

(3.) IT is seen that based on the rival contentions issues were framed and the matter went into trial wherein the 1st plaintiff got examined herself as PW.1 and in support of her case she produced several documents to demonstrate that the suit schedule properties are the properties of propositus Ishwarappa in which she has a share as widow of Melappa the 2nd son of propositus Ishwarappa and in addition to that she also sought a share for her mother who is one of the daughters of Ishwarappa. In the said suit the date of birth of Rukmavva is shown as 10.4.1961 as per Ex. D.13 birth certificate. However the date of death of her husband is shown as 5.11.1970 indicating that as on the death of her husband she was aged about 9 1/2 years. In that view of the matter the 1st defendant contended that unless the marriage is established between the 1st plaintiff and deceased Melappa, the relationship cannot be accepted.