SANJEEVA NAIKA Vs. SHANKARA NARAYANA NAIKA

JUDGEMENT

(1.) THIS appeal is filed against the Judgment and Decree dated 18-8-98 in r. A. No. 23/88 on the file of the II Addl. District Judge, Mangalore, D. K. , arising out of the Judgment and Decree dated 15-6-88 in O. S. No. 259/81 on the file of the II Addl. Civil Judge, Mangalore.

(2.) THE apellants are the defendant Nos. 4 and 15 before the trial Court. The first respondent filed a suit for partition and possession in the suit schedule properties consisting of agricultural lands and moveable properties. One Thimmanna Naika and the deceased first defendant are the parents of plaintiff and defendants 2 to 7. Defendants 8 to 10 are the L. Rs. and children of deceased defendant No. 3 and defendants 11 to 14 are the L. Rs. and children of deceased defendant No. 5.

(3.) DURING the lifetime of Thimmanna naika, there is a partition amongst thimmanna Naika and his sons, the suit properties were allotted to the share of thimmanna Naika. After his demise, the plaintiff claims a share in the suit properties. The contesting defendants are defendants 4 and 15, who are the father and son. During the lifetime of Thimmanna Naika, he executed a sale deed in favour of the 4th defendant as per Ex. Dl conveying Item No. 2 of Schedule A and the rest of the properties were bequeathed in favour of 15th defendant by Thimmanna Naika under a registered will Ex. D2. On the strength of these documents, the defendants 4 and 15 contended that the suit of the plaintiff is to be dismissed and that the plaintiff and other defendants are not entitled to any share in the property. The trial Court upheld the validity of the sale deed executed by Thimmanna Naika. But, however, held that the Will executed by thimmanna Naika is a suspicious document, as such held that the Will is void and decreed the suit of the plaintiff partly excluding item I of the A schedule property conveyed under Ex. Dl to the 4th defendant. The plaintiff had filed an appeal against the judgment and Decree of the trial Court in R. A. No. 23/88 challenging the exclusion of item I of A schedule property covered under ex. Dl by the trial Court. The appeals of the plaintiff and defendant are dismissed. The 15th defendant challenged the Judgment and decree. The Judgment and Decree of the trial court is confirmed. Hence, this appeal.