This regular first appeal is filed by defendants 1 to 3, challenging the Judgment and Decree passed by the trial Court decreeing the suit of the plaintiffs for partition and separate possession of their shares in the suit schedule properties.

2. For the sake of convenience, the parties are referred to as they are referred in the original suit.

3. Suit is in respect of four landed properties and one house property, described in the schedule to the plaint as item Nos.1, 2, 3, 4 and 5 respectively.

4. The case of the plaintiffs is that they and late Mahadevappa, the husband of first defendant and father of defendant Nos.2 to 4 are the children of one Sannamadaiah. They along with defendants 1 to 4 constitute undivided Hindu Joint Family owning ancestral agricultural lands and house property at item Nos.1 to 5 of the suit schedule. The katha of these properties was recorded in the name of their brother Mahadevappa and he used to share the agricultural yield from the said properties, during his lifetime with them. After the demise of Mahadevappa, defendants 1 to 4 failed to share the crops and refused to accede to their lawful demand for share in the schedule properties. Further, defendants 1 to 4 trying to alienate the schedule properties as the land prices escalated. On approaching the revenue authority, they came to know that their brother Mahadevappa had sold some extent of land in item No.3 of the suit schedule without their consent and knowledge. As such, the said Sale Deeds are illegal and not binding on their interest.

5. After service of summons, defendants 1 to 3 filed written statement admitting their relationship with the plaintiffs and that the katha of the schedule properties stood in the name of Mahadevappa. However, it is their specific defense that, Sannamadaiah and Mahadevappa did not share cordial relation and therefore the joint family properties were divided between them; and the terms of partition was reduced into writing, in the form of unregistered partition deed. The katha of the schedule properties continued in Sannamadaiah’s name till his death and afterwards, Mahadevappa got the khata of the properties fallen to his share as per the unregistered Partition Deed of the year 2000. Sy. No.26/2 and some other items of the suit schedule, that had fallen to Sannamadaiah’s share, was sold in favour of defendants 5 to 7 during his lifetime. The plaintiffs, therefore, are not entitled for any share therein. The suit schedule properties are the properties fallen to the share of Mahadevappa. After the death of Mahadevappa on 07.11.2005, defendants 1 to 4 being his legal representatives got the katha of the schedule properties mutated in their joint names. The suit is not maintainable for noninclusion of all the joint family properties.

6. Defendants 4 to 7 have remained exparte.

7. The trial Court on the basis of aforesaid pleadings, framed the following issues:

1) Whether the plaintiffs prove that the suit schedule properties are their joint family properties?

2) Whether the defendants 1 to 3 prove that the joint family properties were divided between Sannamadaiah and his son Mahadevappa under registered partition deed and Sannamadaiah sold his share in favour of defendants 5 to 7?

3) Whether the defendants 1 to 3 prove that this is a suit for partial partition and therefore not maintainable?

4) Whether the plaintiffs are entitled for the relief sought?

5) What Order or Decree?

8. The plaintiffs in order to substantiate their claim, examined plaintiffs 1 and 3 as PWs 1 and 2 respectively and got marked Exs..P1 to 12. P.W.1’s evidence was discarded as she did not offer herself for cross-examination. However, defendants neither cross-examined PW2 nor entered the witness box to adduce oral or documentary evidence in support of their defense.

9. The trial Court on appreciation of the evidence on record held that the plaintiffs have proved that the suit schedule properties are joint family properties; the sui