(1.) This Regular Second Appeal is filed by the plaintiff challenging the judgment and decree dtd. 17/12/2005 in Regular Appeal No.165 of 2004 on the file of the District Judge, Dakshina Kannada, Mangaluru, partly allowing the appeal against the judgment and decree dtd. 17/12/1994 passed in Original Suit No.1229 of 1989 on the file of the II Additional Munsiff at Mangaluru, Dakshina Kannada, dismissing the suit of the plaintiff.
(2.) For the sake of convenience, parties in this appeal are referred to with respect to their status before the trial Court.
(3.) Relevant facts for adjudication of this appeal are that, the plaint 'A' and 'B' schedule properties belong to one Salvador Lobo who died on 17/2/1971. It is the case of plaintiff that the said Salvador Lobo lived post centenary and was deaf for many years and also was not in a sound state of mind, at least, ten years prior to his death. It is further stated that pursuant to the death of his wife, the said Salvador Lobo stayed with his crippled son-Sylvester Lobo. It is stated that taking undue advantage of the infirmity of both, Salvador Lobo and his son-Sylvester Lobo, one of the sons of Salvador Lobo i.e. Louis Lobo (defendant No.21), along with his wife Dulcine Lobo (defendant No.23), had obtained power of attorney from Salvador Lobo in the name of Dulcine Lobo to manage the properties of Salvador Lobo. It is the case of the plaintiff that the defendant No.21 was a tenant under Salvador Lobo and defendant No.23 was a Teacher by occupation. It is further averred that, defendants 21 and 23, in respect of the suit schedule properties, have fraudulently got certain documents in their favour and are claiming that they are the owners of the said properties. It is the specific case of the plaintiff that Salvador Lobo was not capable of executing any document, at least ten years prior to his death and defendants 21 and 23 have played fraud against the said Salvador Lobo and got certain documents in their name, which are not valid and not binding on the plaintiff and therefore, it is the case of the plaintiff that the said Salvador Lobo died intestate. It is also pleaded in the plaint that, apart from Schedule 'A' and 'B' properties, said Salvador Lobo had liquid assets including deposits in Bank and the plaintiff being the daughter of Joseph Lobo (elder son of Salvador Lobo), is also entitled for share in the property left by the deceasedSalvador Lobo. It is further stated by the plaintiff that her father-Joseph Lobo pre-deceased Salvador Lobo, and as such, she is entitled for one-sixth share in the estate of late Salvador Lobo and as such, the plaintiff stated that defendants 21 and 23 have no absolute right or interest over the suit schedule properties and hence, filed suit in OS No.1229 of 1989 before the trial Court seeking relief of partition.
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