Jawad Rahim, J.

The 1st defendant is in appeal against the judgment and decree in O.S. 6692/99 granting to the respondents half share in the schedule premises along with the 2nd defendant-Venkateshaiah.

2. Heard. The appeal is admitted and taken up for final disposal by consent of the learned Counsel on both sides.

3. From what the learned Counsel on both sides have urged and on perusal of the records, the following contextual facts manifest:

a) The 1st respondent-Smt. Varalakshmi along with her children (respondents 2 to 7) filed suit seeking division of properties described in the schedule to the plaint to assign unto them and the appellant herein half share therein.

b) In support of the relief so sought, she averred she was married to the 2nd defendant-Venkateshaiah who is arrayed as respondent No.8 in this appeal and during the matrimony with him, begot respondents 2 to 7. Venkateshaiah was engaged in the business of selling juices and eatables in Bangalore; he shifted to Bombay for better prospects. While living there, he incurred heavy debts and secreted himself; since then he has not been heard of.

c) It is averred appellant's father-Subbaiah and father of her husband-Venkateshaiah had acquired the schedule premises; Subbaiah mortgaged the premises to raise loan in favour of one Rukkamma as evidenced from a deed dated 24.3.1971. She further contended, Subbaiah is not alive and upon his death, the properties are divisible amongst the appellant and her husband-Venkateshaiah, but partition has not yet been affected. It is her case that from the time of her marriage, she and respondents 2 to 7 (her children lived with Venkateshaiah in the schedule property and are in physical possession and enjoyment uninterruptedly. However, 1st defendant with ulterior motive took advantage of the absence of her husband and started acting adverse to her interest; in one such attempt, he initiated eviction proceedings against Venkateshaiah in HRC 10400/93 knowing well that Venkateshaiah was not heard of for a long period and she and her children were in physical possession of the property. It is alleged, having come to know of such sinister design of the appellant to evict them, she had no choice but to file the suit seeking division of the properties to allot unto her, her husband and children half share in the properties along with the appellant herein. She also alleged, when partition was demanded, appellant herein put forward an untenable contention that he has purchased the property from Rukamma and thus he is the owner. In the circumstances, she filed the suit for partition.

d) Appellant who was 1st defendant in the suit, entered contest. While admitting genetic relationship between him, Subbaiah and 2 defendant-Venkateshaiah, he contended during the lifetime of Venkateshaiah, appellants are not entitled to any share and therefore the suit was not maintainable. The second ground urged to negate the suit claim is, though Subbaiah was the owner of the property in question, he had sold it in favour of Rukamma by sale deed dated 24.3.1971 and had entered into an agreement with the plaintiff for re-conveyance stipulating four years as the period to seek re-conveyance of the property on payment of the price. It is his case that Subbaiah did not take benefit of the right under the agreement of re-conveyance and therefore the transaction of sale between him and Rukamma is binding on him, and his right to re-purchase the property has diminished. Consequent to such event, Rukamma became the absolute owner and by virtue of the sale deed vide Ex.D3 dated 18.10.1999, she sold the property to him. In short, he claimed to have acquired lawful title from Rukamma to the exclusion of his brother-Venkateshaiah and respondents herein. Relying on 6 documents, he sought dismissal of the suit.

e) Based on the material propositions in the pleadings, learned trial judge framed the following issues:

1. Whether plaintiffs prove that suit property is the joint fa