SULABHA GOUDUNI Vs. ABHIMANYU GOUDA

JUDGEMENT

(1.) The plaintiffs whose suit for partition has been dismissed by the courts below are the appellants.

(2.) Khetra and Shyama were the two sons of one Ganga Gowda. Sulabha (plaintiff No. I) is the widow of Khetra and plaintiff No. 2 is the son of her only daughter. Defendant No. 1 is the son and defendant No. 2 is the widow of Shyama. Defendants Nos. 3 and 4 are the sons of defendant No. 1. According to the plaintiffs, though Khetra and Shyama had separated in mess and status, the land had not been partitioned and they were dividing the usufructs amicably in two equal shares. There was, however 3 division of the residential house, Khetra died about 30 years back, i.e., around 1941. After the death of Khetra and Shyama, the property stood jointly recorded in the name of plaintiff No. 1 and defendant No. 1. The plaintiffs alleged that after the death of Khetra, plaintiff No. 1 as his heir, was in enjoyment of the half share and she was in khas possession of the land and was paying revenue to the State. She executed a conditional deed-of-gift on 25-6-1969 in favour of her daughter's son under which the plaintiffs were to jointly enjoy the property till the death of plaintiff No. 1 whereafter the plaintiff No. 2 was to become the absolute owner thereof. As the defendants threatened to deprive the plaintiffs of the property, the suit for partition was filed.

(3.) The contesting defendants Nos. 1, 3 and 1 pleaded that out of the writ property. Survey No. 542/2 did not belong to the erstwhile joint family but belonged to defendant No 1. They alleged that Khetra died around 1933. The plaintiff No. I was a pre-1937 Act widow and could only be a maintenance- holder. Defendant No. 1 was all along in possession of the entire property. They controverted the rest of the allegations,