GIRIJA POOJARTHY Vs. MAYYU POOJARTHY

JUDGEMENT

(1.) This appeal is filed by defendant Nos.6 and 7 praying this Court to set aside the judgment and decree dtd. 12/9/2006 passed in R.A.No.118/205 by the First Appellate Court and confirm the judgment and decree dated 08.082003 passed in the O.S.No.325/1999 by the Trial Court.

(2.) The factual matrix of the case of the plaintiff before the Trial Court is that the husband of the plaintiff and father of defendant Nos.1 to 5 i.e., late Chakka Poojary acquired plaint 'A' schedule properties through the order dtd. 29/8/1981 in TRL No.273/81-82 by the Land Tribunal, Karkala consequent upon his declaration filed praying confirmation of his chalageni right of tenancy by virtue of the Karnataka Land Reforms Act. It is the case of the plaintiff that the said Chakka Poojary died intestate on 8/11/1991 leaving behind the plaintiff and defendant Nos.1 to 5 as his successors. The plaintiff and defendant Nos.1 to 5 are in joint possession, cultivation and enjoyment of plaint 'A' schedule properties since the death of said Chakka Poojary having joint legal right, interest and title over the same. The plaintiff is not getting her reasonable and equal income in the plaint 'A' schedule properties. Therefore, she does not wish to continue her joint possession, cultivation and enjoyment of plaint 'A' schedule properties hereafter. It is her case that she requested for amicable partition among herself and defendant Nos.1 to 5 and the same was ended with futile. It is contended that plaint 'A' schedule properties are the agricultural properties consisting of paddy fields. The entire plaint 'A' schedule properties are liable to be divided into six equal shares and the plaintiff is entitled for one such share. Defendant Nos.6 and 7, who are the younger sisters of the plaintiff's husband are in occupation of one of the farm house situated in the plaint 'A' schedule properties since they were permitted to reside therein. They had make false claim over the plaint 'A' schedule properties. Hence, they were made as parties to the suit and sought for the relief of partition.

(3.) Defendant Nos.1 to 5 appeared and given consent to pass a decree in favour of the plaintiff by filing a written statement. Defendant Nos.6 and 7 totally resisted the suit by filing their common written statement by admitting the acquisition of plaint 'A' schedule properties by Chakka Poojary as asserted by the plaintiff. They denied the entitlement of partition by the plaintiff and defendant Nos.1 to 5 contending that the said Chakka Poojary had acquired the absolute right, interest, title over the plaint 'A' schedule properties. Defendant No.6 is the sister and defendant No.7 is the niece (Sister's daughter) of late Chakka Poojary. The said Chakka Poojary died on 8/11/1991 bequeathing the plaint 'A' schedule properties in favour of the plaintiff and defendant Nos.6 and 7 by allotting 'A' to 'C' schedule properties in the registered Will dtd. 28/11/1986. The property described as 'A' schedule in the registered Will is allotted in favour of the plaintiff; the property described as 'B' schedule in the Will is allotted in favour of defendant No.6 and the property described as 'C' schedule in the Will is allotted in favour of defendant No.7. It is also their case that the said Chakka Poojary was governed by Aliyasanthana law for custom and usage even though the plaint 'A' schedule properties belonged to him absolutely. The female and female children are dominants in Aliyasanthana custom. As such, late Chakka Poojary had bequeathed the portion of plaint 'A' schedule properties in favour of defendant Nos.6 and 7 who are his sister and niece respectively out of love and affection. The said registered Will was executed by late Chakka Poojary with free disposing state of mind and volition. The said Will is not executed with coercion, undue influence, fraud and the same is a free Will. The respective parties of the Will have changed the Records of Rights in their names in respect of their share. The plaintiff is fully aware of the registered Will dtd. 28/11/1986 as there was a revenue appeal in RRT.SR.290/1995-96 on the file of the Assistant Commissioner, Kundapur. The plaintiff has contested in the revenue appeal and the same was allowed. As per the order of the Assistant Commissioner, the Records of Rights of the suit schedule properties were changed as per Will in the name of the respective parties. The plaintiff has suppressed the fact of execution of Will by Chakka Poojary in the said suit. The plaintiff, defendant Nos.6 and 7 have taken possession of their respective shares in the plaint 'A' schedule properties as per the registered Will. Defendant Nos.6 and 7 denied the fact that said Chakka Poojary died intestate and also contended that the plaintiff has not challenged the said registered Will which is acted upon.