NAGENDAR Vs. DATTARAM

JUDGEMENT

(1.) This appeal is filed against the judgment and award dtd. 15/7/2005 passed by the Prl. Civil Judge (Sr.Dn.), Karwar, in O.S.No.25/1998 questioning the decree declaring that the plaintiff and defendant Nos.1 to 3 are entitled for 1/4th shares each in the suit schedule properties with metes and bounds, wherein the original plaintiff who happens to be the father of defendants 1 to 4 and husband of defendant No.5 had sought for a decree for partition and separate possession of 1/5th share in the suit schedule properties.

(2.) The case of the original plaintiff before the trial Court is that the suit schedule properties are the joint family properties of plaintiff and defendants. The plaint properties originally belong to joint family and propositus of the family is plaintiff/Narayan Uttam Kolvekar who was the Kartha and Manager of the joint family properties of plaintiff and defendants. The original plaintiff passed away during the pendency of the suit and hence, the 4th defendant who is one of the sons of the plaintiff was transposed as plaintiff.

(3.) The defendant No.1 made the claim that Sy.Nos.272/4B and 202/2 and a suit residential house schedule 'C' of the plaint are his self-acquired properties. The transposed plaintiff also has claimed that his father had executed a Will in his favour and hence he is entitled to 2/5th share over the suit schedule properties and he has claimed 1/5th additional share and in view of transposing the plaintiff, additional issues were also framed as to i)whether plaintiff has got any locus standi to proceed with the suit and without seeking for declaratory relief regarding genuineness and due execution of alleged Will executed by late plaintiff and whether he can continue the proceedings.