The court affirmed the plaintiffs' rights to familial legitimacy and entitlement to property through admissible testimonial evidence, rejecting challenges based on perceived inadequacies in marriage proof.

JUDGMENT :

M.G.S. KAMAL, J.

1. This appeal is by defendant Nos.1 and 2 being aggrieved by judgment and decree, dated 28.09.2004 passed in O.S. No. 109/1993 on the file of the Civil Judge (Jr. Dn.) Ramdurg (for short “the trial Court”) which is confirmed by the judgment and order dated 18.02.2006 passed in R.A. No.61/2004 on the file of the Civil Judge Senior Division, Saundatti (for short “the First Appellate Court”).

2. The above suit is filed by the respondent No.1 herein as plaintiff No.2 along with his mother Smt.Yellamma, as plaintiff No.1, who died during the pendency of the suit, seeking partition and separate possession of their 8/27^th share in the suit schedule property and for the relief of permanent injunction against defendant Nos.1 to 3 restraining them from alienating the suit property by metes and bounds.

3. The plaint schedule properties consist of eight items of landed properties described as schedule A to the plaint. The house property is described as schedule B to the plaint and certain movable properties are described as schedule C to the plaint.

4. The case of the plaintiffs is that, one Yellappa Yankappa Birasiddi, the propositus of the family, was the owner of the suit properties, who passed away on 29.08.1983 leaving behind his two sons namely defendant No.1 and defendant No.2 and a daughter, defendant No.3. Smt. Satyavva wife of said Yellappa Yankappa Birasiddi predeceased him. Plaintiff No.1 is the son born to plaintiff No.2 and defendant No.1. Defendant No.3 was managing the affairs of the family of the plaintiffs as well as defendant Nos.1 to 3. Defendant No.1 was not aware of the worldly affairs. With an intention to deny and deprive the share of plaintiffs, defendant Nos.2 and 3 were causing hardship to the plaintiffs, constraining them to file the above suit for partition and for separate possession.

5. Defendant Nos.1 to 3 filed written statement denying the claim of the plaintiffs that the suit property being in the joint family properties; also denied that plaintiff No.2 being the legally wedded wife of defendant No.1 and plaintiff No.1 is the son born to plaintiff No.2 and defendant No.1. The claim of the plaintiffs being the members of joint family and being entitled for the share is also denied. Accordingly, sought for dismissal of the suit.

6. Based on the pleadings, the trial Court framed the following issues for its consideration:

ISSUES

1. Whether the plffs. prove that the suit properties were of the ownership of deceased Yallappa Yenkappa Birasiddi, who expired on 29-8-1993 at Ghatakanur and further plaintiffs and defts 1,2 and 3 are the legal heirs to deceased Yallappa?

2. Whether the genealogy shown by the plffs. in para 4 of the plaint is genuine one?

3. Whether the plffs. further prove that plffs. and defts 1 to 3 constitute a joint Hindu undivided family and the suit properties shown in schedule A & B are the joint Hindu ancestral properties? and whether they are in joint possession of these properties?

4. Whether the plffs. are entitled to 8/27^th share in the suit schedule properties, if equitable partition is effected by metes and bounds?

5. Whether the defts prove that there is no cause of action for the suit?

6. What decree or order?

ADDL. ISSUES

1. Whether the plff. proves that plff - 1 is the son of deft-1 and plff-2?

2. Whether