Judgment:
ANANDA BYRAREDDY, J.
1. Heard the learned counsel for the appellant and the respondents.
2. The parties are referred to by their rank before the trial court for the sake of convenience.
3. The appellant was the plaintiff before the trial court. The suit was filed for partition and separate possession of half share in Suit Schedule "A" ‘B' and 'C properties. It was the plaintiffs case that one Rudrappa had two daughters, namely, Ningamma and Kotramma. Ningamma was married to Channabasappa and Kotramma was married to Kurleppa @ Ningappa. Since Rudrappa had no male issues, both his sons-in-law came to reside along with him and his daughters. Rudrappa had died seventy years prior to the suit and was survived by Ningamma and Kotramma. Basavanneppa, is said to be the son of Ningamma. Ningamma had died about three years after the death of Rudrappa. Basavanneppa was her sole legal heir. He was a young child at the time of his mother's death and had remained under the care arid protection of Kotramma. Basavanneppa had married Mallayya and the plaintiff was their daughter. Basavanneppa had died ten years prior to the suit and it was the plaintiffs claim that she was the sole legal heir. The plaintiffs mother had also died. The defendants were the sons of Kotramma and Kotramma had died thirty years prior to the suit, leaving behind the defendants as her legal heirs.
It was the case of the plaintiff that Ningamma, daughter of Rudrappa and Kotramma, his other daughter, had lived as a joint family and that after their death, the plaintiff and the defendants had continued to live as members of a Hindu Joint family. The suit properties were claimed as ancestral properties of Rudrappa. It was the plaintiffs case that after the death of her grand-mother, the mother of the defendants was the only adult member and the manager of the family. The suit properties stood in her name. In the year 1979-80, revenue documents pertaining to Suit 'A' Schedule properties, were, all of a sudden, changed to the names of the defendants, without notice to the plaintiff, though the plaintiff claimed half share in the said properties. Therefore, she had requested that her name be entered along with others. The defendants did not heed.
The plaintiff further contended that her father Basavannappa belonged to Chikkajogi village and his family members were at Chikkachouti village. As there were no heirs to that family, the plaintiff and her husband were in occupation and enjoyment of those properties and that the defendants had no right over the same. Those properties had been bequeathed by the plaintiffs father in favour of the plaintiffs husband under a will dated 5.3.1979 and therefore, he was the absolute owner in possession of the said properties. By way of abundant caution, the plaintiff further pleaded that in the event, the court should conclude that those properties, more fully described in Suit 'C Schedule, were also joint family properties, the plaintiff had no objection for partition of the same along with Suit 'A' and 'B' Schedule properties.
It was further denied that defendant 1(a) was the adopted son of the first defendant and since it was no longer possible for the plaintiff to live along with the defendants, she claimed her share by way of a legal notice and thereafter, had filed a suit.
The first defendant had filed a written statement contesting the suit and the second defendant had adopted the same. It was contended on behalf of the defendants that the plaintiff had not given the accurate genealogical tree. It was denied that Rudrappa had a daughter by name Ningamma and his daughters were Halamma and Kotramma. It was denied that the sons-in-law of Rudrappa had lived along with him and his daughters. The plaintiff s father was said to be the son of Halamma. It was denied that the plaintiff and the defendants were the members of a joint family. It was contended that one Basaiah had two sons, namely, Rudrappa and Kotraiah. Kotraiah was managing the Earhily affairs. He had performed the marriage of Halamma and Kotramma. After the marriage. Halamma was living with her husband Channabasappa in his house. Kotrappa had kept Kotramma and her husband were residing with Kotrappa in his house. After the death of Kotraiah, the family properties stood in the name of Ningamma. The family possessed the properties at Chikkachouti, Rudrappa and Kotrappa had enjoyed those properties. After the death of Ningamma, the defendant's mother and father had managed the affairs of the family. As Halamma had insisted for a partition, which was sixty three years prior to the suit, the partition had taken place orally between Halamma and her son Basavannappa and Kotramma, at which partition, Chikkachouti properties were allotted to Halamma and the suit properties were allotted to the share of Kotramma. Since then, they had enjoyed the properties separately. After the death of Kotramma, the defendants were enjoying the suit properties as absolute owners. As Kotramma and subsequently, the defendants were enjoying the properties separately from the year 1928. there was no substance in the claim that the plaintiff and the defendants were the members of a joint family. The defendants had raised a specific contention that the suit was also bad for non-inclusion of Chikkachouti properties and therefore, sought for dismissal of the suit.
During the pendency of the suit, the first defendant had died. His legal representatives were brought on record. Defendant 1(a) filed his written statement to contend as follows:-
That he was adopted by the first defendant and his wife under a registered document dated 30.9.1987 and he thus became a coparcener. Though the plaintiff was fully aware of the same, she had intentionally denied the said fact and his adoption could not have been challenged by the plaintiff. Since the father of the plaintiff had bequeathed all his movable and immovable properties to Siddappa, the plaintiff would have no right in respect of those properties and hence, the suit was not maintainable.
4. On the basis of the above pleadings, the following issues were framed:-
1. Whether the plaintiff proves that she is the daughter of Danaganahalli Basavanappa?
2. Whether plaintiff proves that Ninaamma is the mother of Danaganahalli Basavanappa and that the said Ningamma and Kotramma the mother of defendants are sisters?
3. Whether the pedigree given in the plaint is correct?
4. Whether the plaintiff proves that her great era id father - Rudrappa died leaving behind Ningamma and Kotramma as legal heirs?
5. Whether plaintiff proves that herself and defendants are members of joint family?
6. Whether the plaintiff proves that suit schedule properties are the ancestral joint family properties of herself and defendants?
7. Whether plaintiff proves that she has got share in the suit schedule properties?
8. if so, what is the share of plaintiff?
9. Whether defendants prove that there was a oral partition between their mother Kotramma and Halamma and in the said partition the suit properties situated at Huruli village were allotted to the share of Kotramma and the properties situated at Chikkachouter village were in allotted lo the share of Halamma the Is' daughter of Rudrappa?
10. Whether defendants prove that they perfected title to the Plaint 'A' and B' schedule property as owner by adverse possession.
11. Whether the suit brought without including the properties situated at Chikkachouti village is maintainable.
12. Whether the Court fee paid is sufficient?
Additional Issue:-
Whether the plaintiff proves that defendant 1(a) is not the adopted son of deceased - Kotrapa?"
The suit having in dismissed, the present appeal is filed.
5. The learned counsel for the appellant while taking this court through the record, would seek to point out that DW.I had admitted that Suit 'A' and 'B1 Schedule properties were ancestral and joint family properties and that Suit 'C Schedule property belonged to the father of Channabasappa, who was a resident of Chikkachouti village and that Basavannappa was the only heir of Channabasappa. That being so, after the death of Chantiabasappa, his son Basavannappa acquired the properties. Further, Exhibits -P.23 and P.25 also indicated that Suit W Schedule property and Suit 'B' Schedule property were ancestral properties. The court below has completely overlooked these material documents.
It is further admitted by the defendants that Kotrappa and Rudrappa were brothers the plaintiff claiming half share in the suit properties through Rudrappa. The oral partition that was set up by the defendant has been readily accepted by the trial court. The said partition was sixty three years prior to the suit. The defendants were not even born as on that date. The court below has accepted the case of the defendants that the Panchayatdars. Who were witnesses to the oral partition, were no more and has mechanically accepted the oral partition. When it is not denied that Kotraiah and Rudrappa, were admittedly brothers and that the property belonged to them and if the partition set up by the defendants is eschewed, the suit properties are certainly ancestral and joint family properties, which are available for partition.
Insofar as Suit 'C* Schedule properties are concerned, there is not much dispute that the properties had come to the plaintiff s father through his father. Though the defendants have stated that they were enjoying Suit 'A' Schedule properties, there is no specific averment as regards Suit 'B' Schedule properties. The factum of adoption of defendant no. 1(a) had also not been established beyond, all doubt.
6. The learned counsel for the respondents, on the other hand, seeks to justify the judgment and would submit that the above contentions have been squarely met by the trial court, with reference to other material documents, which is conveniently ignored by the appellant and therefore, would submit that the judgment of the trial court does not warrant interference.
7. Insofar as the controversy regarding the daughters of Rudrappa, whereby the plaintiff had claimed that it was Ningamma, the court below has however, examined the evidence of the parties and has arrived at a finding that Rudrappa died leaving behind his wife Ningamma and Ids daughters Halamma and Kotramma and therefore, has answered issue no. 1 in the affirmative, issue no.2 in the negative and issue no.3 and 4 partly in the affirmative.
Insofar as this adoption of defendant no.1 (a) is concerned, the court below has referred to the evidence of PW.1. who at several places admitted the case in favour of defendant no. 1 (a) and hence has answered the additional issue in the negative. Insofar as issues 5, 6 and 9 are concerned, it was firstly concluded by the trial court that going by the admitted sequence of events, the plaintiff, who was born subsequent to 1959, would not be in a position to state her family's affairs prior to 1920 and there was a further admission insofar as the plaintiff and her father having lived separately at Chikkachouti village, ten years prior to the suit. It was further admitted that her grand-father was also residing at Chikkachouti and had constructed a house therein. The plaintiff has further admitted having constructed yet another house at Chikkachouti. Therefore, it was concluded that, with the house constructed, which is one of the items of Suit -0 Schedule property, it could not be accepted that the plaintiffs and the defendants had been living together as a joint family and there was no evidence produced by the plaintiff insofar as her allegation that they had continued to live together as a joint family even prior to the admitted period of having lived separately and her father's will also indicated that even prior to 1976, the plaintiff, her father and grand-father were living at Chikkachouti. The court below has. with reference to Exhibits D.35 and D.36, concluded that Suit 'C Schedule properties were separately shown as in the name of Halarnma's branch and Schedule 'A' properties were shown in Kotramma's branch. The court below has further found that there were independent transactions in respect of the said properties by the two branches in monies having been borrowed on the security of the said properties and the properties having been mortgaged independently and has thus concluded that the plaintiffs branch was enjoying Suit 'C' Schedule properties and the defendants' branch was enjoying Suit 'A' and ‘B' schedule properties and therefore, answered the issues 5 and 6 in the negative and issue no.9 in the affirmative.
Insofar as issues 7 and 8 are concerned, the court below has found that it could not be said that there was an unequal partition in accepting the oral partition set up by the defendants and those issues were thus answered in the negative. The other issues were incidental and have been summarily disposed of. In any event, on a close examination of the record and the reasoning of the trial court, it cannot be said that the court below has committed any error in addressing the facts and circumstances and the material evidence on record.
Accordingly, the appeal lacks merit and stands dismissed.