R RAJESHWARI Vs. VIJAYALAKSHMI ASHOK

JUDGEMENT

(1.) The defendant Nos.2 to 4 filed the present writ petition against the order dated 21.9.2017 made in M.A. No.2/2014 on the file of the I Addl. District Judge, Mysuru dismissing the appeal and confirming the order passed by the trial Court dated 10.9.2013 on I.A. filed under Order 22 Rule 10 r/w Section 151 of Code of Civil Procedure made in O.S. No.427/2010 on the file of the Prl. Senior Civil Judge & CJM, Mysuru.

(2.) The respondent Nos.1 and 2 who are the plaintiffs before the trial Court filed O.S. No.427/2010 for partition and separate possession of 1/4th share to each of the plaintiffs in item Nos.1 to 10 of the suit schedule properties; for declaration that the sale deed executed by defendant No.1 and Mr. Suresh in favour of defendant Nos.5 and 6 is not binding on the plaintiffs to the extent of their half share in item no.10 of the suit schedule properties; to direct the defendants to pay proportional share of rent and income from item Nos.1 to 10 properties to the plaintiffs and for enquiry into future mesne profits from the date of the suit till the date of delivery of the share in item Nos.1 to 10 properties to the plaintiffs. It is the case of the plaintiffs that they are the daughters of defendant No.1 and defendant No.2 is the daughter-in-law of defendant No.1 and sister-in-law of plaintiffs being the wife of late R. Suresh, who was the son of the 1st defendant and brother of plaintiffs. Defendant Nos.3 and 4 are daughters of defendant No. Defendant No.4 is a minor represented by her mother and natural guardian Smt. Rajeshwari, the 2nd defendant. The family of the plaintiffs, 1st defendant and the said late R. Suresh constituted an undivided Hindu family with the 1st defendant as the kartha of the said joint family. Both the plaintiffs and defendants are Hindus governed under the provisions of the Hindu Succession Act, 1956. The plaintiffs contended that there was no partition in the joint family properties and they are entitled for the share as sought for in the suit.

(3.) The defendant Nos.1 to 4 filed the written statement, wherein they did not dispute the relationship, but contended that wife of the 1st defendant i.e., Jayamma died on 9.6.2004 and until her demise the plaintiffs were visiting the house of the 1st defendant (father of the plaintiffs) and after the death of Jayamma (mother of the plaintiffs), the plaintiffs abruptly stopped visiting the house of the 1st defendant and started to make false claims with respect to the properties belonging to the 1st defendant and his son R. Suresh. The only son of the 1st defendant by name R. Suresh had an untimely death and died on 17.12.2006 leaving behind his wife - 2nd defendant and his two daughters - defendant Nos.3 and 4. Ever since the death of the only son of 1st defendant, the defendants 2 to 4 are in care and custody of the 1st defendant. The defendants further contended that item No.1 of the schedule property is the property belonging to the 1st defendant, having acquired the same under a registered sale deed dated 12.12.2003 in the name of his wife V. Jayamma. It is contended that the said property is the self acquired property of the 1st defendant since he has paid the entire sale consideration for acquiring the said property. Insofar as item No.2 of the suit property is concerned, the said property is self acquired property of the deceased son of the 1st defendant by name R. Suresh, who acquired the same under a registered sale deed dated 19.8.1997. The other properties are ancestral properties of the plaintiffs and the defendants. Therefore the plaintiffs are not entitled to any share in item Nos.1 and 2 of the suit schedule properties and sought for dismissal of the suit.