Being aggrieved by the judgment and decree

passed in OS No.4390/1998 dated 17.02.2007, the

defendants have preferred this appeal.

The parties are referred to as per their ranks in

the Trial Court.

Brief facts of the case are as under:

The plaint averments reveal that one Muddamma

and J.S. Venkataramanappa had five children namely (1)

V.S.Ramu, (2) V.S.Muniswamy, (3) Balakrishna, (4)

Venkatappa

and

(5)

Bhagyamma.

Sri

J.S.

Venkataramanappa died intestate on 26.07.1961 leaving

behind the defendants 1 & 2 and the father of plaintiffs 2

to 5 as legal heirs. The plaint averments further reveals

that

among

them,

J.S.

Venkataramanappa's

wife

Muddamma

and

their

children

Venkatappa

and

Bhagyamma are dead. The aforesaid Venkatappa and

Bhagyamma died unmarried. V.S. Muniswamy, father of

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plaintiffs 2 to 5 had two wives with the same name Smt.

Sampathamma. First plaintiff is the second wife of V.S.

Muniswamy and they had four children who are defendant

Nos.2 to 5. Defendant Nos.1 & 2 V.S. Ramu and

Balakrishna are the sons of J.S. Venkataramanappa and

defendant No.3 Sampathamma is the wife and defendant

No.4 Smt. Sujatha is the daughter of V.S. Muniswamy.

V.S. Muniswamy died intestate on 05.07.1991 leaving

behind the plaintiffs and defendant Nos.3 & 4 as his legal

representatives. It is further contended that the suit

properties are the joint family properties of the plaintiffs

and defendants and therefore, the plaintiffs are entitled for

1/3^rd share along with defendant Nos.3 & 4 and when

demanded, the defendants refused to grant share which

necessitated the plaintiffs to approach the court of law with

the aforesaid suit seeking their share in the suit properties.

During the pendency of the suit, second

defendant died and his legal representatives are brought

on record. Defendant No.1 and legal representatives of

7

defendant No.2 filed a joint written statement denying the

genealogy

and

relationship

and

also

other

plaint

averments. Further, they contended that defendant Nos.1

& 2 became the absolute owner of the suit property as per

the partition that was effected between plaintiff Nos.1 & 2

with defendant No.3 late V.S. Muniswamy. It is further

contended that second defendant sold the portion of the

suit properties that has fallen to his share in the partition

between himself and his two brothers. It is further

contended that V.S. Muniswamy had two wives by same

name Smt. Sampathamma and Plaintiff Nos.2 to 5 are

children born to V.S. Muniswamy through second wife

Sampathamma was denied subsequently. The only

admission

in

the

written

statement

is

that

J.S.

Munivenkatappa died leaving behind the suit property.

Defendant Nos.3 and 4 filed a joint written

statement denying genealogy and relationship of plaintiffs

with the family. It is further contended by them that

though defendant Nos.3 & 4 are the wife and daughter of

8

V.S. Muniswamy and there is no difference of opinion

between

defendant

No.1,

V.S.

Muniswamy

and

Balakrishna. They denied the joint possession of the

plaintiff in the suit property. They denied the joint

possession of the plaintiffs in the suit property along with

these defendants and sought for dismissal of the suit.

Based on the rival contentions of the parties,

learned Trial Judge framed the following issues:

"1.

Do the plaintiffs prove the pedigree mentioned

in the plaint?

2.

Do the plaintiffs prove that suit property is the

joint family property?

3.

Does defendant No.1 prove the Will executed

by late Muniswamy in his favour?

4.

Is Court fee paid insufficient?

5.

Are plaintiffs entitled to 1/3rd share in the suit

property?

6.

What Order Or Decree?"

In order to prove the case of the plaintiffs, first

plaintiff got examined herself as PW-1 by filing an affidavit

in lieu of her examination in chief. A witness by name

K.M. Lakshmivenkatesh was also examined as PW-2 on

9

behalf of the plaintiff to establish the relationship of

plaintiffs with other defendants. On behalf of the plaintiffs,

as many as 26 do