SAROJA HOLLA W/O K. VISHNUMOORTY HOLLA Vs. SRI. MANJUNATH K. UPADHYA S/O KRISHNADEVA UUPADHYA AND OTHERS

JUDGEMENT

(1.) THESE two appeals are filed against the judgment and decree dated 2.4.2007 passed in O.S. No. 71/2000 by the Civil Judge (Sr. Dn.) at Kundapura. RFA. No. 1553/07 is filed by Defendant Nos. 1 and 3 while RFA. No. 1692/2007 is filed by Defendant No. 6 in the suit.

(2.) FOR the sake of convenience, the parties shall be referred to in terms of their status before the trial court.

(3.) ACCORDING to the Plaintiff, Govinda and Vasudeva were the only sons of Srinivasa Upadhya and they constituted a Hindu Mitakshara family which owned certain immovable properties and the same were partitioned between Govinda and Vasudeva by registered Deed of partition 24/6/1920 and under the said deed of partition certain schedule properties were given to the share of the branch of the family of Vasudeva which included Item Nos. 1 to 3, 5, 6, 12 and 17 of the 'A' schedule properties and 'B' schedule land was enjoyed by the family of Srinivasa Upadhya as mulgeni right and under the said partition, schedule 'B' herein was allotted to the share of Sri Vasudeva. That Vasudeva was cultivating the lands which fell to his share and out of the surplus income from the said lands, he had purchased Item Nos. 8 to 11 of 'A' schedule under two registered sale deeds dated 28/5/1962 and 12/8/1968 respectively, for and on behalf of his family by Vasudeva and that he died intestate in the year 1972 leaving behind two sons namely Ramachandra and Krishnadeva; that Ramachandra was working at Bangalore and Krishnadeva was in the management of the family properties; that Ramachandra had released his undivided half share over the properties in favour of Krishnadeva and his family as per release deed dated 22/8/1984. Thus, Krishnadeva's family became the absolute owners of the suit schedule lands; that after coming into force of Karnataka Land Reforms Act, 1961 (hereinafter, referred to as the 'Act'). Krishnadeva manager of the family had filed an application for grant of occupancy right over 'B' schedule land and the Land Tribunal by order dated 28/10/1930 had granted occupancy rights of schedule 'B' land in the name of Krishnadeva on behalf of the entire family, that Krishnadeva purchased Item Nos. 13, 14 and 16 in 'A' schedule in the name of the first Defendant by registered sale deed dated 16/6/1980 and that the first Defendant was not the real owner but only a benamidar for Krishnadeva and joint family as the first Defendant did not have any independent source of income to pay the sale consideration; that Krishnadeva entered into an agreement of sale on 5/2/1988 with one Sri Ratnakar Aithal by which Krishandeva derived right, title and interest over Item No. 7 of schedule 'A' land in lieu of two ether items of land; that Krishnadeva has made deposits in the names of Defendants 1 and 3 in joint stock companies and in bank deposits. That Krishnadeva was suffering from liver cancer for a period of one year prior to his death and the Plaintiff used to take Krishnadeva to KMC Hospital at. Manipal for chemotherapy but Krishnadeva died on 25/7/2004. He died intestate leaving behind the Plaintiff and Defendants 1 to 5 as his only legal heirs; that ten days prior to his death, Krishnadeva on the instigation of Defendants 1, 3 and 4 had transferred Item No. 8 to 11 in favour Defendant No. 6 and Item Nos. 13, 14 and 16 were also transferred by first Defendant in favour of Defendant No. 6 and the same are collusive transactions and Krishnadeva and the first Defendant had no right to alienate the said lands; that the Plaintiff is entitled to his share in the 'A' schedule lands free of the alienations made in favour of Defendant No. 6 as he is in joint possession in schedule 'A' and 'B' lands with Defendants 1 to 5. Schedule 'C' are moveables in the family house in which the Plaintiff is entitled to his share that after the death of Krishnadeva, Defendants 1 and 3 have been mis appropriating the income of schedule 'A' and 'B' lands and have been cutting down trees in the suit lands which have been sold for a sum of Rs. 35,000/ -and the same has been misappropriated; that prior to his death, Krishnadeva had executed will dated 16/7/2004 bequeathing schedule 'A' and 'B' lands in favour of Defendants 1 and 3 and that the said will was not executed by Krishnadeva out of his free will and therefore is not a genuine one; since the SSP are ancestral properties on the death of Krishnadeva, Plaintiff and Defendants 1 to 5 are each entitled to a share in the schedule properties and on 14/10/2004 the Plaintiff demanded his share from Defendants No. 1 and 3 but the same was turned down and hence, the suit was filed for partition and separation possession of 7/30th share in the suit properties.