1. The appellants herein are the defendants in O.S.No. 8533 of 2001. The suit was filed by the plaintiffs seeking for partition and separate possession of their share in the suit schedule properties. The Court below after considering the rival contentions has decreed the suit in part granting one-fourth share in the suit schedule properties and 25% of terminal benefits of deceased K. Chandrashekar Naik to the second plaintiff. The claim of the first plaintiff is dismissed. The defendants are therefore before this Court assailing the judgment of the Court below insofar as granting a share to the second plaintiff.

2. The parties would be referred to in the same rank as assigned to them before the Court below for the purpose of convenience and clarity.

3. The second plaintiff is claimed to be the minor daughter born to the first plaintiff and late Chandrashekar Naik on 4.5.1991. It is contended that the first plaintiff was the legally wedded wife of late Chandrashekar Naik. The marriage is claimed to have been performed on 17.5.1989 at K.P.S. Kalyana Mantapa, Tirupathi, according to Hindu Rights and Customs. After the marriage the first plaintiff was living with her husband in Bangalore. The said late Chandrashekar Naik was working as Deputy Director of Industries and Commerce, Government of Karnataka. He died on 17.5.2001. The second plaintiff, as on the date of filing the suit was studying in St. Ann’s Convent, Bangalore. It is averred that the father of the second plaintiff acquired the suit schedule property during his life time. It is the contention of the plaintiffs that when this was the position and after the death of late Chandrashekar Naik, they learnt that the husband of the first plaintiff had an affair with the first defendant and had begotten defendants 2 and

3. The defendants are residing in the suit schedule ‘A’ property and on approaching the BDA authorities have secured the sale deed in their favour by misrepresentation. It is contended that the defendants have no exclusive right to the property and as such the plaintiffs have approached the defendants and sought for their share in the suit schedule properties. Since the claim of the plaintiffs has not been acceded to by the defendants, the suit is filed seeking partition and separate possession of the suit schedule properties.

4. The defendants on being served with suit summons have appeared and filed their written statement. The claim made in the plaint that the second defendant is the daughter of late Chandrashekar Naik and that the first plaintiff had married him is denied. The fact that late Chandrashekar Naik was working as a Deputy Director of Industries and Commerce and that he died on 17.5.2001 is not disputed. The properties being owned by late Chandrashekar Naik is admitted but, the right to the said properties as claimed by the plaintiffs is disputed. The first defendant contends that she is the legally wedded wife of late Chandrashekar Naik and their marriage was performed on 6.5.1979 at SLV Kalyana Mantapa, Uppinangadi, Dakshina Kannada as per the customs of their community. At that point, he was working as Assistant Director, Fishery Harbour, Government of India. Subsequently he joined the Karnataka State Government in 1982 and worked till his death. From the wedlock, defendants 2 and 3 are born and they are studying in Diploma and primary school is also stated. The defendants contend that the plaintiffs are not related in any manner to late Chandrashekar Naik and as such the defendants have succeeded to the schedule properties as his only legal heirs and they are presently the owners in lawful and peaceful possession and enjoyment of the suit schedule properties. The companies suit in O.S.No.4778 of 2001 filed by the plaintiffs is also referred and is therefore contended that the present suit is not maintainable as barred by res judicata. The defendants have therefore sought for dismissal of the suit.

5. The Court below on taking note