The main legal point established in the judgment is the requirement for evidence to align with the pleadings, and the influence of previous legal principles on the interpretation of the Hindu Women's Right to Properties Act of 1933.

CHANDRAKANTARAJ, J.

( 1 ) THIS appeal is by the 1st plaintiff. She is aggrieved by the dismissal of her claim for partition and separate possession of the suit schedule properties. The facts pleaded in this appeal may be briefly stated and they are as follows, and in the course of this order, we will refer to the parties by the ranks assigned to them in the trial Court.

( 2 ) IST plaintiff and 2nd plaintiff her daughter, averred that they are the members of a joint family consisting of the deceased husband of the 1st plaintiff and defendant 1 who died during the pendency of the suit in the trial Court. They claimed that in terms of the Hindu Women's Right to Properties Act of 1933 of the erstwhile Mysore State, the 1st plaintiff was entitled to get share of what her husband would have got at a notional partition just before his death and, therefore, she was entitled to get th share of the suit schedule properties, while the 2nd plaintiff her married daughter who at the time of the death of her father was not married, would be entitled at such a notional partition to 1/8th share. They also alleged that the 1st plaintiff's thumb impression was fraudulently obtained by the defendant, her brother-in-law on the pretext that the same was required with reference to change of Karta of the joint family properties.

( 3 ) THE defendant resisted by filing a statement to the effect that his brother Nanjappa had died some 30 years before the filing of his statement; that all the suit schedule properties are not the joint family properties; that after Nanjappa's death, the properties have passed on to a single surviving coparcener is not correct as alleged by the plaintiffs. Plaintiffs are not entitled to between them to 3/7th share in the properties. There was a partition between 1st plaintiff and defendant on 8-5-1979 evidenced by a memorandum of partition which is signed by the 1st plaintiff and the defendant in the presence of panchayatdars. As there has been a partition, the suit for a second partition is not maintainable and it is liable to be dismissed. He denied that any thumb impression of the 1st plaintiff was obtained by the alleged representation said to have been made by him. However, after the death of the defendant, his legal representatives who were brought on record filed another written statement in substance reiterating what had been contended by the deceased defendant.

( 4 ) ON such pleading, the trial Court framed the following issues :- (1) Whether the plaintiffs prove that they are entitled to 3/7th share in the plaint schedule properties ?or (1)WHETHER the defendant proves that there is already a partition as alleged in the written statement ? (2) Whether the plaintiffs prove that they are entitled to partition and separate possession of their share in the plaint schedule properties ? (3) Whether the defendant proves that the suit as brought is not maintainable in law ?additional issue :- whether the L. Rs of deceased defendant have got 4/8th share independent of the deceased defendant ?

( 5 ) PLAINTIFF 1 was examined as P. W. 1 and as many as 12 documents were marked in support of the plaintiffs' case. The legal representatives of the deceased defendant examined 2 witnesses and got marked one document in support of their case. The only document got marked by the defendant was Ext. D1 the memorandum of partition.

( 6 ) THE trial Court permitted Ext. D. 1 to be taken in evidence despite the objection of the plaintiffs. It appears to us that there has been a separate order made in regard to its admissibility on the objections raised by the plaintiffs' counsel. We have not had the benefit of reading that order to know the reasons which persuaded the trial Court to permit the document in question in evidence. But a mention is made in the course of the judgement under appeal to such an order having been passed and that it has not been challenged by the plaintiffs either in this Court or somewhere else is not disputed.

( 7 )

Click Here to Read the rest of this document