This appeal by the plaintiffs is filed against the

judgment

and

decree

dated

July

22,

2008

in

O.S.

No.400/2005 on the file of III Additional Civil Judge (Senior

Division), Mysore, dismissing the suit for partition.

2.

For the sake of convenience, parties shall be referred

as per their status before the Trial Court.

3.

Heard Shri.Madhukeshwar, learned Advocate for the

plaintiffs/appellants.

Respondents

though

served

have

remained absent.

4.

Plaintiffs’ case is, one Shri.Narayana Rao was the

owner of the suit property. He had five children namely,

Geetha.R.Pai,

N.Ramachandra

Rao,

Bhageerathi

Bai,

Prananatha

Rao

and

Laxmana

Rao

(defendant

No.1).

Rathnakar Pai (Plaintiff No.1) is the husband of late Geetha R.

Pai alias Rama Bai (hereinafter referred to as ‘Rama Bai’).

Satyanarayana Pai (plaintiff No.2), Manjunatha Pai (plaintiff

No.3) and Nagendra Pai (plaintiff No.4) are their children.

4

Geetha Bai (defendant No.2) is the wife of Prananatha Rao

and Sachidananda Pai (defendant No.3) is their son. N.K.Pai

(defendant No.4) is the husband of Bhageerathi Bai and

Ashok Pai (defendant No.5), Ashwin Pai(defendant No.6) and

Aruna Pai(defendant No.7) are their children.

5.

The Genealogical tree is as follows:

V. NARAYANA RAO (died on 03.01.1979)

Sundari Bai (wife, died on 12.05.1994)

Rama Bai

Ramachandra Rao Bhagirathi Bai Prananath Rao Laxman Rao

(died on (died on (died) (D1)

13.10.91) bachelor)

Geetha Bai (wife)

(D2)

Ratnakar Pai Sathyanaryana Manjunath Nagendra Sachidanand Pai (Son)

(husband) Pai (P2) Pai (P3) Pai (P4) (D3)

(P1)

N.K. Pai Ashok Pai Ashwin Pai Aruna Pai

(husband) (D5) (D6) (D7)

(D4)

6.

Narayana Rao had executed a Will dated 06.11.1974

bequeathing the suit property in favour of his wife creating life

interest in her favour. After her death the property would

devolve upon two his sons Laxmana Rao and Prananatha Rao.

5

Narayana Rao died on 03.01.1979. His wife Sundari Bai died

intestate on 12.05.1994. His daughter Rama Bai died on

13.10.1994.

7.

Plaintiffs’ specific case is that by virtue of Section 14

of Hindu Succession Act, 1956, life interest created in favour

of Sundari Bai had become absolute. Therefore, all heirs have

equal share in the suit property. Defendants are in possession

of the suit property which has 43 shops and the rents from

those shops are collected by them. The building constructed is

out of Sundari Bai’s funds. Plaintiffs’ request for partition of

the suit property has not been acceded to by the defendants.

Hence, plaintiffs have filed the instant suit seeking partition of

the suit property.

8.

Defendant No.1, admitting the relation between

parties and also the ‘Will’, resisted the suit by filing a written

statement contending inter alia that the ‘Will’ states that

Sundari Bai shall appropriate the income that may be derived

out of the property and the property shall devolve equally

upon their sons Laxmana Rao and Prananatha Rao.

6

9.

Defendants No. 2 to 5 have adopted the written

statement filed by defendant No.1.

10.

Based on the pleadings, the learned Trial Court has

framed following issues:

1.

Whether plaintiffs prove that the suit schedule

property were became absolute properties of Sundari

Bai wife of Narayna Rao in view of Sec. 14 of Hindu

Succession Act?

2.

Whether plaintiffs prove that they entitled for

partition and separate possession of their share in

suit property