CAV JUDGMENT

RSA No.2123/2008 is filed by 5th defendant, challenging the judgment and decree dated 12.09.2000 in O.S.No.55/1991 on the file of the Senior Civil Judge, Hassan and also the judgment and decree dated 25.06.2008 in R.A.No.13/2001 on the file of the Fast Track Court at Hassan.

2. RSA No.2121/2008 is by 4th defendant against the divergent findings recorded by the First Appellate Court in R.A.No.13/2001.

3. The admitted genealogy is as under:

K.N.Nagesh - dead by LRs

K.N Viswanath

K.N Manjula

K.S.Valli - dead by L.R's

Kusuma@ Suma

K.N.Nagalakshmi @ Nagaveni

K.N.Radha

K.N.Subbalakshmi

Note: 1) D-1 Rukmini married prior to 1954

2) D-2 Kamalamma married prior to 1954

4. The suit is for the relief of declaration that the plaintiff is entitled to 1/6th share in the suit schedule property and also for partition and separate possession of the plaintiff's share. The plaintiff also sought mesne profits.

5. Defendants No.3, 4 and 5 filed written statement. Rest of the defendants did not file written statement.

6. Defendants No.3 and 4 claimed share and supported the plaintiff.

7. Defendant No.5 contested the suit and claimed exclusive right over the property on the basis of registered settlement deed dated 29.05.1963 executed by Venkatalakshmamma - mother of plaintiff and defendants 1 to 4.

8. BRIEF FACTS:

8.1 On 31.08.1926, Keshvaiah-father of the plaintiff acquired the suit property pursuant to the sale certificate issued by Hassan Town Municipality. Defendant No.5 claims that the said property was separate property of Keshavaiah.

8.2 The plaintiff, defendant No.4, made a claim that the suit property was subject matter of partition which allegedly took place on 28.10.1933, among Keshavaiah and his brothers, Krishnappa and Subbaraya. Defendant No.5 disputed the alleged partition dated 28.10.1933.

9. The document evidencing the alleged partition was not admitted in evidence for want of registration.

10. Kehavaiah died in 1954, and was survived by his wife Venkatalakshmamma, five daughters, and one son Keshavanarayana. Two elder daughters were married at the time of Keshavaiah’s death (This fact was elicited the cross examination of the Pw1). Plaintiff- Shyla Kumari is one of the daughters of Keshavaiah and Venkatalakshmamma. Defendant No.1 - Rukmini is the eldest daughter, defendant No.2 - Kamalamma is second daughter, defendant No.3 - Kalavathi is third daughter and defendant No.4 - Saraswathi is fourth daughter of Keshavaiah.

11. When the suit was filed in the year 1991, the only son of Keshavaiah viz., Keshavanarayana was no more as he had died on 25-1-1963. Thus, wife of Keshavanarayana viz., Rathnamma is arrayed as defendant No.5 and she died on 08.09.2020 during the pendency of this appeal.

12. Sathyanarayana the only son of Keshavanarayana and Rathnamma had died in 1964 when he was two years old. Venkatalakshmamma died in 1989.

13. Rukmini, the eldest daughter of Keshavaiah died during the pendency of the suit and her legal representatives were brought on record.

14. Plaintiff - Shyla Kumari filed the suit on the premise that after the death of Keshavaiah in 1954, she acquired right in the property along with all daughters of Keshavaiah, and Keshavanarayana - the only son of Keshavaiah. Plaintiff claims that she is also one of the sharers in the estate of Keshavaiah.

15. It appears that the plaintiff has made a claim over the property under the provisions of Mysore Hindu Law Women's Rights Act, 1933 (“Act, 1933”). As already noticed, only defendant No.5, the wife of Keshavanarayana - the sole son of Keshavaiah contested the suit.

16. Defendant No.5 claims that, after the demise of Keshavaiah in 1954, the Keshavaiah’s estate devolved on his o