A child cannot maintain a suit for partition and separate possession of properties that are the absolute property of the mother during her lifetime.

THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 16.04.2013 PASSED IN R.A.NO.32/2010 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, CHINTHAMANI AND CONFIRMING THE JUDGEMENT AND DECREE PASSED BY THE ADDITIONAL CIVIL JUDGE (JR.DN.) AND JMFC, CHINTAMANI, IN O.S.NO.101/2006 DATED 22.07.2010 AND DECREE THE SUIT.

THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH

ORAL JUDGMENT

In this Regular Second Appeal, the appellant is assailing the judgment and decree dated 16.04.2013 in R.A.No.32/2010 on the file of the Senior Civil Judge and JMFC, Chintamani (hereinafter termed as 'First Appellate Court'), allowing the appeal and setting aside the judgment and decree dated 22.07.2010 in O.S.No.101/2006 on the file of the Additional Civil Judge (Junior Division) and JMFC, Chintamani (hereinafter termed as 'Trial Court'), decreeing the suit of the plaintiff.

2. For the sake of convenience, parties are referred to as per their ranking before the Trial Court.

3. The relevant facts for adjudication of this appeal are that, the defendant No.1 is the mother of plaintiff and defendant Nos.2 and 3. It is stated that the defendant No.1 is the adopted daughter of deceased Thimmakka. It is also stated that the suit schedule properties are the joint family properties of plaintiff and defendant Nos.1 to 3 and that the deceased Thimmakka had executed a registered Settlement Deed dated 03.06.1959 in favour of defendant No.1. It is the contention that the said deceased Thimmakka had no right to execute the alleged Settlement Deed and the suit schedule properties are the joint family properties of the plaintiff and defendant Nos.1 to 3 and as such the plaintiff is entitled for her share in the suit schedule properties. Accordingly, the plaintiff has filed O.S.No.101/2006 seeking relief of partition and separate possession in respect of the suit schedule properties.

4. After service of notice, the defendants entered appearance and defendant Nos.1 and 2 have filed a memo stating that they have no objection to allot the share in favour of the plaintiff. Defendant Nos.4 to 6 were subsequently impleaded in the suit. The suit is contested by defendant No.3 alleging that, the deceased Thimmakka had adopted the defendant No.1 and she had acquired the suit schedule properties through her own income. It is also stated that the said deceased Thimmakka had executed the registered Will dated 13.06.1972 in favour of the defendant No.3 and thereafter the Khatha of the suit schedule properties have been mutated in favour of the defendant No.3 and therefore, the defendant No.3 has sought for dismissal of the suit.

5. Based on the pleadings on record, the Trial Court has formulated the issues for its consideration. In order to establish their case, the plaintiff herself was examined as P.W.1 and got marked nine (9) documents as Ex.P1 to Ex.P9. Defendant No.3 was examined as D.W.1 and got marked twenty three (23) documents as Ex.D1 to Ex.D23.

6. The Trial Court after considering the material on record by its judgment and decree dated 22.07.2010, decreed the suit holding that the plaintiff is entitled for ¼ share in the suit schedule properties. Feeling aggrieved by the judgment and decree passed by the Trial Court, the defendant No.3 has preferred R.A.No.32/2010 on the file of the First Appellate Court. The said appeal was contested by the respondents therein. The First Appellate Court after re-considering the material on recor