(1.) The legality and correctness of the judgment and decree passed by the Additional Civil Judge (Sr.Dn.), Hubli dated 16.9.2004 in O.S. No. 88/1999 is challenged in this appeal. The appellant is the plaintiff who has lost his suit before the court below. The plaintiff filed suit for partition and separate possession of his 8/21 share in all the plaint schedule properties and to further declare that the Will dated 20.6.1995 alleged to have been executed by Mallanagouda V. Rayanagoudar is null and void and the Will is not binding on the plaintiff and to further declare that he is the absolute owner in possession of the newly constructed R.C.C. building and for perpetual injunction.
(2.) The plaintiff and defendant No. 3 are two sons of late Mallanagouda Rayanagoudar. Defendants No. 1, 2 and 4 to 6 are the married daughters of late Mallanagouda Rayanagoudar. Mallanagouda Rayanagoudar was earlier working in Army thereafter he joined South Central Railway at Hubli and he retired after attaining the age of superannuation on 31.10.1977. According to the plaint averments, Mallanagouda Rayanagoudar was drawing a meager salary of Rs. 550/- per month and that he had ownership of 1/3rd share in the agricultural land situated at Kiresur village of Hubli Taluka and had a residential house in Byahatti village and that he was getting a considerable income. Out of the agricultural income, he acquired a site bearing No. 18 at Nagashettikoppa village of Hubli as a member of the Vijayanagar Co-Op. Housing Society Limited, Hubli which site is measuring 80 feet X 75 feet and was registered in the name of Mallanagouda Rayanagoudar on 3.12.1958 and thereafter out of the amount invested by the plaintiff and defendant No. 3 a house was constructed in a portion of the said house and that the plaintiff has been residing with his family by looking after his late father Mallanagouda Rayanagoudar till his death. Mallanagouda Rayanagoudar was not keeping good health and had lost his mental balance on account of plaintiff's mother left the house. According to him, the house property situated in CTS No. 1893 Vijayanagar, Hubli is a joint family property that the plaintiff is also having equal share along with his brother and father and that defendants have created a Will as if the entire house situated in Vijayanagar, Hubli has been bequeathed to his sisters. After the death of Mallanagouda Rayanagoudar, he came to know of the creation of the Will later the matter was referred to Panchayat. In Panchayat, it was held that all the children are having equal share. Instead of accepting the decision of the Panchayat the defendants No. 1, 2 and 4 to 6 claim that they alone are entitled. Hence, the suit was filed for the aforesaid relief.
(3.) The sisters-defendants contested the suit. The brother of the plaintiff who is 3rd defendant did not contest the suit. According to contesting defendants, Mallanagouda Rayanagoudar was the absolute owner of the house situated in Vijayanagar and he acquired the same out of his self earning and that he was not getting income from the agricultural lands situated in Kiresur village. By borrowing the loan from Railways he had constructed a house in a portion of the property. As both the sons of Mallanagouda Rayanagoudar were gainfully employed in railways, as the financial conditions of his daughters was not sound, he bequeathed the house property in favour of his five daughters under registered Will dated 26.9.1995. Later he died on 10.4.1998 and they came to know of the registered Will ten days after his death when DW. 1 was searching the treasury. Therefore they contend that suit filed by the plaintiff claiming share in respect of house property which is the subject matter of the Will is not maintainable. Accordingly, they requested the Court to dismiss the claim of the plaintiff in regard to property contained under Will.