1. Appeal filed under section 96 of the C.P.C by the seventh defendant in O.S. No. 117/2001, on the file of the II Addl. Civil Judge (Sr. Dn.), Davanagere. The suit was by the first respondent, who was the plaintiff in the suit, arraying the legal representatives of her elder brother by name M.M. Doddabasappa as defendants 1 to 7, being the wife and children respectively of M.M. Doddabasappa.

2. Case of the plaintiff was that one Murugendrappa son of Maganahalli Sangappa, was the propositus of the family, who owned several properties; that he had two children namely M.M. Siddamma, the plaintiff and one M.M. Doddabasappa, her elder brother, who was no more at the time of filing the suit, and therefore, the plaintiff had impleaded the said M.M. Doddabasappa’s wife and children as defendants 1 to 7 and had filed the suit seeking judgment and decree for dividing the family properties and to allot her share as under:-

“Claim:- The plaintiff has filed the suit against the defendants for the relief of partition and separate possession of her legitimate share in the suit schedule properties for permanent injunction, restraining the defendants claiming under them from alienation of the suit schedule properties by way of sale, gift, lease or any other mode of transfer, for further mesne profits and for court and such other reliefs.”

3. The suit was contested by defendants 1 and 7 and the first defendant having died during pendency of the suit, defendants 2 to 7 who also constituted legal representatives, to represent the estate of deceased first defendant, have doubled up in this capacity also.

4. Though the first defendant had entered appearance through his counsel has not filed his written statement. The seventh defendant alone filed written statement and contested the suit, while defendants 2 to 6 remained unrepresented and were placed exparte.

5. Defendant No.7 did not dispute the relationship and the number of members in the family as indicated by the plaintiff. The father of plaintiff namely Murugendrappa died during the year 1941 (as indicated at paragraph 7 of the judgment), leaving behind his wife Shivagangamma, daughter- Siddamma (plaintiff) and father of defendants 2 to 7 and husband of defendant No.1 – M.M. Doddabasappa.

6. It was the case of the defendants that while family was joint one and partition took place during September, 1984 and the plaintiff had full knowledge of the partition and she had been married to one Chandraiah prior to the partition and therefore in the partition, no share had been allotted to the plaintiff.

7. It is also pleaded that the plaintiff had sold the suit item No. 4 property to one Shankaraiah Basaiah Yogimath, leading to further litigation in the form of O.S. No. 212/2001 by the purchaser etc. On such pleadings, Defendant No. 7 prayed for dismissal of the suit.

8. In the wake of such pleadings, the trial Court framed the following issues:-

1) Whether plaintiff proves that the suit schedule properties are the joint family properties?

2) Whether defendant proves that the plaintiff has married before the partition deed?

3) Whether the defendant proves that the suit of plaintiff is bad for non-joinder of necessary parties?

4) Whether the plaintiff is entitled for the share in the suit schedule properties? If so, what is the share?

5) What Order or decree?

9. Parties went to trial on such issues. On behalf of the plaintiff, R. Chandraiah and R. Narasimha Swamy have been examined as PWs1 & 2 respectively. The documentary evidence comprising of Ex.P.1 to Ex.P.10 in the form of RTC extract, khatha extracts, F.I.R., charge sheet, wedding card of original plaintiff, a letter of correspondence and positive photos were marked on behalf of the plaintiff.

10. On behalf of contesting defendant No.7, he himself deposed as DW1. Documentary evidence being Ex.D.1 to Ex.D.4, significant Ex.D.1 – Partition Deed, Ex.D.2 to Ex.D.4 - property extracts and enquiry report, which constitute copies of the