BASAYYA Vs. MADOLAYYA

JUDGEMENT

(1.) This second appeal is by the defendants in CS No. 60/1/1964 on the file of the Munsiff, Humnabad. Therein they had succeeded, in the sense that the suit filed against them by the plaintiffs in the said suit (respondents herein) came to be dismissed by the Munsiff by his judgment and decree dt. 27-6-1967. The plaintiffs preferred an appeal before the Civil Judge and succeeded. That judgment and decree of the Civil Judge, Bidar, dt. 31-3-1975 in RA No. 74 of 1967, on his file, is under challenge here.

(2.) The plaintiffs, of whom the first claims to be the cousin brother of the husband of a certain Shivamma and the second, son of another cousin brother of her husband, filed the suit in question for a declaration that they were entitled to succeed to the estate of that Shivamma and for possession of the plaint schedule property. Their case was that they were the nearest heirs to Shivamma.

(3.) It is not in dispute that Shivamma was the last holder of this property and that her only daughter, Siddamma, had pre-deceased her. This Siddamma was the wife of the 1st defendant, Basaiah. The 2nd defendant is his son and the 3rd his daughter-in-law, being the wife of the 2nd defendant. The 1st and the 2nd defendants hotly contested the claim of the plaintiffs stating that they were the nearest heirs. The case of the defendants is that at the time of Shivamma's death she hap expressed a desire that her son-in law, the 1st defendant, who had served her during her life time and who had looked after her estate should take her properties. They further pleaded that out of love and affection towards him (the 1st defendant) she had executed a will dt. 28 -1- 1963 bequeathing the suit land in his favour. It may be noted that the plaintiffs had also set up an oral will stating that at the time of Shivamma's death she had orally stated that they should enjoy the suit land and that accordingly they, having obtained possession of the land, were enjoying the same in their own right. This is denied by the defendants.