The main legal point established in the judgment is that unless prior partition is established, there shall be a presumption that the property is joint family property, and a family arrangement in the nature of partition would require the same burden of proof as if it were partitioned by a court decree.

JUDGMENT

1. Challenging judgment and decree dtd. 23/2/2006 passed by Civil Judge (Sr.Dn.) and Principal, JMFC at Ranebennur, in O.S.No.76/1996, this first appeal is filed by unsuccessful plaintiff.

2. Appellant herein was plaintiff in suit, while respondents herein were defendants no.1 to 6 respectively. For sake of convenience they shall hereinafter be referred to as per their respective ranks in original suit.

3. O.S.No.76/1996 was filed seeking for relief of partition and separate possession of plaintiff's 1/4 th share in suit properties namely:

A) Properties situated in Chapparadahalli, Hirekerur Taluk:

1. R.S.No.51/1+2 measuring 3 acres 27 guntas

2. R.S.No.57/1 measuring 3 acres 9 guntas

3. R.S.No.62/5 measuring 1 acre 29 guntas

4. R.S.No.62/1A+1B measuring 1 acre 16 guntas

B) House site and vacant plot in Chapparadahalli:

(1) V.P.C. No.51 (including house with tiled roof) measuring East " " West 30ft. and North-South 70 ft. bounded on East by property of Shivappa Ingalagundi, West by property of Dyavappa Banakar, North by property of Hanumanthappa Basappa Banakar and South by property of defendant's portion in V.P.C.No.52.

(2) Open plot bearing V.P.C.No.52 totally measuring East " " West 30 ft. North " " South 30ft. bounded on East by property of Hemappa Ingalagundi, West by property of Dyavappa Banakar, North by property belonging to plaintiff and defendants and South by property of Hanumanthappa Basappa Banakar and

C) Properties situated in Chikkamaganur village, Hirekerur Taluk:

(1) R.S. No. 8/8A+B+C measuring 3 acres 10 guntas

(2) Sy.No.40/1A+B+2 measuring 4 acres 8 guntas (hereinafter referred to as 'suit properties' for short)

4. In plaint, it was stated that Kenchappa - propositus and his wife Basavva (defendant no.1) had four children namely Parvathevva (deceased), Mahadevakka (defendant no.2), Shantavva @ Parvathevva (plaintiff) and Tirakappa (defendant no.3). Eldest daughter Parvathevva died during 1990 survived by three daughters viz., Anandavva, Renukavva and Shantavva (defendants no.4, 5 and 6 respectively). It was stated that during life time of propositus, all members of joint family were in joint cultivation and possession of suit properties. There was no partition effected between them and propositus died on 24/7/1978. Thereafter mother of defendants no.4 to 6 died in 1990. It was further specifically stated that there was no partition of joint family properties. As all other members were women, lands were being cultivated by defendant no.3, but income was distributed to all. It was specifically asserted that plaintiff had never executed any gift deed or relinquishment deed giving up their share in joint family property. It was stated that when partition was sought, defendants refused same on the basis of false mutation entries which gave rise to cause of action for filing suit.

5. Upon service of suit summons, defendants no. 2 and 3 filed written statement contending that defendant no.3 was still a minor when propositus became old-aged. At that time, plaintiff along with her husband left Nittur and came to Chapparadahalli to manage family affairs of propositus. It was further stated that one year prior to death of propositus, plaintiff was given Rs.1,00,000.00 in cash and 10 tolas of gold and other valuable properties towards her share, for which she had given up right over suit schedule properties in favour of defendant no.3. Likewise, defendant no.1, defendant no.2 and mother of defendants no.4 to 6 also received cash, gold and other valuable properties to give up their rights in suit property. Thus, there was partition effected in the year 1982 and name of defendant no.3 was mutated in revenue records as per M.E.No.705 of Chapparadahalli and M.E.No.569 of Chikkamorab village. Therefore, neither plaintiffs nor other defendants had any right, title, interest over suit property.

6. Defendant no.4 filed separate written statement admitting plaint averments. Defendants no. 5 and 6 filed memo adopting writt