SUSHEELA AND OTHERS Vs. BHASKAR AND OTHERS

JUDGEMENT

(1.) The maintainability of an execution petition in Execution Case No. 480 of 1993 (Out of O.S. 611 of 1987), on the file of the Court of Munsiff at Udupi, which has been upheld by the executing Court, is assailed by the Petitioners herein in the above revision petition.

(2.) ONE Thunga Sherigarthi, the mother of Respondents 1 to 5 (though Respondents 3 and 5 are deleted in the CRP) filed a suit for possession of the plaint A Schedule premises against her son Rayappa Sherigar, the husband of the first Petitioner and father of Petitioners 2 to 6 and 6th Respondent in O.S. 611 of 1987 on the file of the Prl. Munsiff, Udupi. Defendant Rayappa died during the pendency and his widow and children who were Respondents in the execution survived. The widow and children were brought on record as supplemental Defendants in the suit, ultimately the suit was decreed granting six months time to the supplemental defendants to vacate the plaint A Schedule premises. Though an appeal was filed, it was not pursued. Subsequently, Thunga Sherigarthi the mother died on 18.8.1992. After her death, the children of Rathna Sherigarthi who is the daughter of the decree -holder Thunga Sherigarthi, namely, Respondents 2 to 6 herein, filed the execution seeking delivery on 13.12.1993. An objection was taken by the 4th Petitioner herein on 25.6.1994 contending that after the death of Thunga Sherigarthi, the plaint property along with other properties have devolved by the intestate succession on the execution Petitioners and the opponents and one Thyampa Sherigara, the last son of Thungu Sherigarthi, as tenants in common under Section 15 read with Sections 17 and 19 of the Hindu Succession Act, 1956, and as such the decree has become infructuous. It was further contended that the Petitioners and Respondents along with Thyampa Sherigara are the co -owners in respect of A Schedule premises and the only remedy for the execution Petitioners is to file a suit for partition of the properties. It also appears a registered Will dated 26.8.1987 purported to have been executed by Thunga Sherigarthi was introduced and under the alleged Will the testatrix Thunga Sherigarti, the original deed holder, appears to have bequeathed the schedule property in favour of her daughter Rathna Sherigarthy, the mother of Respondents 2 to 6. Ratna Sherigarthy, the legatee, admittedly pre -deceased her mother. In fact, the bequest under the Will is in favour of Ratna Sherigarthi alone. Under the circumstances, it was contended that the execution is not maintainable. The executing Court however repelling the contentions that the Will has lost its sanctity and relying upon Section 109 of the Indian Succession Act, upheld and further held that the execution petition is maintainable. It is this order that is being challenged in the above revision.

(3.) HEARD the learned Counsel.