The

appellants

who

are

the

plaintiffs

in

O.S.N.o.107/2010 are before this Court aggrieved by

the judgment and decree dated 22.04.2017 passed

by the Addl.Senior Civil Judge, Gadag sitting at

Lakshmeshwar (hereafter referred to as 8the trial

Court9, for short).

O.S.No.107/2010 had been filed for partition, the

plaintiffs claiming 1/3^rd share in the suit schedule

properties. The said suit came to be dismissed by

the trial Court with costs.

The parties are referred to by their ranking before

the trial Court for easy reference.

The case of the plaintiffs is that;

4.1. One Veerabhadrappa was the propositus who

had three children namely, Fakirappa, Mallappa

- 4 -

and Gundappa. Mallappa had a daughter by

name Neelavva of whom the plaintiffs are the

daughters.

4.2. Fakirappa expired leaving behind his sons

defendants No.1, 2 and 3. Gundappa expired

leaving behind his son defendant No.4.

4.3. It is contended that the suit schedule properties

were under the ownership of Veerabhadrappa

and subsequent to his death the said properties

came to be enjoyed by Fakirappa, Mallappa and

Gundappa as joint owners. Fakirappa having

expired

on

27.07.1955,

Mallappa

having

expired on 02.01.1977 and Gundappa also

having expired subsequently.

4.4. The sons of Fakirappa, namely, defendants

No.1, 2 and 3 succeeded to his property. The

daughter

of

Mallappa

namely,

Neelavva

succeeded

to

his

property.

The

son

of

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Gundappa namely, defendant No.4 succeeded

to his property. Alleging that upon the expiry of

Neelavva, the plaintiffs have succeeded to her

share and as such, partition in respect of the

share of Neelavva was sought for.

4.5. While praying so, it was contended that the sale

executed by Neelavva in favour of defendants

No.1 and 3 was illegal and not binding since

there was no family and legal necessity for such

sale.

Defendant No.3 filed written statement denying all

the contentions raised by the plaintiffs. It is

contended that;

5.1. There

was

partition

between

Fakirappa,

Mallappa and Gundappa, in pursuance of which

respective mutation entries were made. 1/3^rd

of the properties falling to the share of Mallappa

was succeeded to by Neelavva, the mother of

- 6 -

the plaintiffs and accordingly mutation entry

No.3317 and 1412 were made showing her as

the joint owner and consequently necessary

entries were also made in the record of rights.

5.2. This being made a long ago, the said properties

wear sold by Neelavva as under:

5.2.1.

Through a registered sale deed dated

11.12.1992, 1/3^rd share in R.S.No.81/1

to Mahadevappa Fakkirappa Shigali

(defendant

No.1)

for

a

sum

of

Rs.1,25,000/-

5.2.2.

Through a registered sale deed dated

11.12.1992,

1/3^rd

share

in

R.S.No.188/2

and

R.S.No.45/1

to

Gundappa

Veerabhadrappa

Shigli

(defendant No.4) for a consideration of

Rs.1,50,000/-

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5.2.3.

Through a registered sale deed dated

31.12.1992,

1/3^rd

share

in

R.S.No.466/1

to

Gundappa

Veerabhadrappa

Shigli

and

Mahadevappa

Fakirappa

Sigli

(defendants

No.1

and

4)

for

a

consideration of Rs.1,20,000/-.

5.3. In pursuance of the same mutation entry

No.3324 was made in the name of defendant

No.1, mutation entry No.3325 was made in the

name of defendant No.4, mutation entry

No.4352 was made in favour of defendants

No.1 and 4 jointly.

5.4. In pursuance of the said sale deeds, the said

Neelavva stood disowned and dispossessed of

her 1/3^rd share which had been bought over by

defendants No.1, 3 and 4.

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5.5. On that basis, it is contended that Neelavva

having sold her properties during her lifetime

and the said properties being her individual

property, the plaintiffs did not have any share

in the properties.

None of the Other defendants filed the written

statement.

On the basis of the pleadings on record the trial

Court framed the following issues:

7.1. Whether the plaintiffs prove that the suit

schedule properties are joint family properties

and they are in joint possession and enjoyment

of the same?

7.2. Whether the plaintiffs further prove that they

are entitled