This second appeal is by Sangapa’s wife Suvarna and

her five children who were defendant Nos.2 to 7 in the

suit.

Sharanamma, Vijayalaxmi, Basamma and Danamma

the four daughters of Parutappa and Mahadevi, instituted

a suit against their sister-in-law Suvarna and her five

children

and

also

against

their

brother

Gurunath

(defendant No.8) and two sisters Shivubai and Savitri

seeking for partition in respect of land bearing Sy.Nos.26

and 25, apart from a house property and an open plot.

They contended that the suit properties were joint

family properties and their father Parutappa had acquired

the same in the year 1975-76 and on his death, they had

succeeded to the same and were enjoying the property

jointly. It was stated that their brother Sangappa had

nominally got mutated his name in respect of half the

portion of the suit property (B) and the remaining half was

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mutated in favour of the other brother Gurunath. It was

stated that on the death of Parutappa, since they had

succeeded to the same equally, they were entitled to an

equal share.

The suit was contested by their sister-in-law Suvarna

(defendant No.2) and her children. In the written

statement filed by Suvarna, the relationship was admitted.

It was stated that the suit A and B properties land bearing

Sy.No.26 and 25 were the self-acquired properties of the

deceased Parutappa.

It was stated that during the life time of Parutappa,

there was a partition between Parutappa her father-in-law

and her husband and in the partition, 4 acres 25 guntas of

B schedule properties had fallen to the share of her father-

in-law Parutappa and the remaining extent of 4 acres 29

guntas had fallen to her husband’s share. It was stated

that after the death of her husband, her name had been

mutated in the records. It was also stated that suit item

No.A schedule properties had been mutated in the name of

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her mother-in-law Mahadevi and since the marriage of the

daughters of Partutappa had been celebrated a huge

expense, they were not entitled to claim any share in the

suit properties which were the self-acquired properties of

Parutappa.

Their brother Gurunath, their mother Mahadevi

(defendant No.1) and sister Savitri did not contest the

proceedings. Shivubai the other sister (defendant No.9)

consented.

The Trial Court on consideration of the evidence,

came to the conclusion that the four sisters had proved

that the suit properties were ancestral properties.

The Trial Court, on consideration of the evidence,

came to the conclusion that four sisters had proved that

the suit properties were ancestral properties and joint

family properties and they were entitled to 1/27^th share

each in item Nos.A and B of suit properties and her sister-

in-law and her children were entitled to 10/27^th share. It

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also held that Gurunath, their brother, was also entitled to

10/27^th share. In granting the said shares, the Trial Court

applied the theory of notional partition and effected a

notional

partition

between

Parutappa,

Suvarna

and

Gurunath.

9.

Being aggrieved, the four sisters preferred an appeal.

10.

The Appellate Court, on re-appreciation of the

evidence proceeded to come to the conclusion that the

theory of notional partition could not be applied and came

to the conclusion that the daughters were entitled to an

equal share and proceeded to grant all the children of

Parutappa an equal share.

11.

The Appellate Court granted 1/9^th share to each of

the children and also 1/9^th share to the widow of

Parutappa i.e., Mahadevi (defendant No.1).

12.

It is against these concurrent judgments, the present

second appeal has been preferred.

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13.

Learned counsel for the appellant, who appears for

Suvarna and her children, contended that the Trial Court

could not have decreed the suit in the light of the clear

evidence which established that in a partition, half the

property had been granted to Sangappa, the husband and

father of defendants No.2 to 7. He submitted that the

evidence on