MANJULA CHELLUR, J.

( 1 ) HEARD the learned Counsels on either side.

( 2 ) THE appellants in R. F. A. No. 347 of 1998 are none other than the plaintiffs and the appellants in R. F. A. No. 922 of 2001 are the defendants before the Trial Court in O. S. No. 9 of 1976. The plaintiffs sought for 1/10th share in all properties described in the schedule to the plaint as 'a' to 'h'. The learned Trial Judge, decreed the suit declaring that second plaintiff is entitled for l/10th share in the plaint 'a' to 'e' schedule property and she is entitled for partition and separate possession of that share in the said property. So far as property 'if schedule is concerned it was declared as the exclusive property of Smt. K. C. Saroja. 'f' and 'g' schedule properties are concerned, the Trial judge held them also against the plaintiffs.

( 3 ) THE brief facts that led to the filing of the suit by the plaintiffs are is under: plaintiff 1-Smt. Hanumakka is the second wife of late Patel Hanume gowda and second plaintiff is the daughter of late Patel Hanume gowda. First defendant Mr. Narasimhaiah and defendants 2 and 3, smt. Muddamma and Lakshmamma are the daughters of late Hanume gowda through his first wife. Smt. K. C. Saroja is the wife of muddukrishna S/o. Mr. Narasimhaiah. Defendant 5 (c) is the wife of narasimhaiah and other defendants 5 (a), 5 (b) and 5 (g) are the children of late Narasimhaiah.

( 4 ) IT is the case of the plaintiffs that late Mr. Patel Hanume Gowda was owning several moveable and immovable properties which are none other than joint family properties, more fully described in the schedule. As on the date of his death i. e. , 6-2-1965 he left behind 2 plaintiffs and 3 defendants as his legal representatives. Except first defendant Mr. Narasimhaiah, Patel Hanume Gowda did not have other male issues. He had two daughters through his first wife and one daughter through the second wife. The second wife and her daughter are the plaintiffs. After the death of Mr. Patel Hanume Gowda, the first defendant narasimhaiah became the Kartha of the joint family.

( 5 ) THE first plaintiff all along was living with her husband and after his demise she was residing with first defendant the only male member of the family. Her stepson sent her away from his house during her old age. Therefore, she was forced to live with her daughter who is the second plaintiff. They demanded their legitimate share in the joint family properties, but the 1st defendant did not effect any partition. On the other hand, when late Patel Hanume Gowda was unconscious suffering from disability on account of paralysis, by playing fraud and undue influence on him got a Will dated 16-6-1962 executed favouring mr. Narasimhaiah and his son. In the year May 1962 when he was supervising the work of a tank at Srinivasapura he sustained paralytic stroke. He was brought home with the help of Kadirappa one of his servants. Dr. Narasimha Murthy from Doddaballapur attended on him. Mr. Patel Hanume Gowda was unable to move out of his bed till his last breath on 6-2-1965. In that situation the first defendant's son who had dominant control over deceased Patel Hanume Gowda secured the said will detrimental to the interest of the plaintiffs.

( 6 ) THE income from the joint family properties was made use by the son of the family and started 'parijatha' a business in film production and distribution for the benefit of 4th defendant. The plaintiffs have a share in the said property as well. The first plaintiff died on 7-7-1978 and entire obsequies and last rights was done by second plaintiff, as the first defendant refused to do any of the ceremonies. Item 8 of the property described as 'h' schedule was purchased in the name of wife of muddukrishna out of the joint family funds. Therefore, plaintiffs have a share in the said properties also. With these averments, they have sought for partition and separate possession of the properties, to render accounts, to pay funeral expenses of Rs. 2,326.

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