ROBERT FERNANDES Vs. LOUIS FEMANDES

JUDGEMENT

(1.) this is a second appeal filed by the plaintiff, defendant 2 and defendant 3. The suit of the plaintiff was for partition of his 1/4 share in the plaint properties and mesne profits. One marcel had four issues. The plaintiff and defendant 1 are his sons whereas defendants 2 and 3 are his daughters. They are christians and it is not disputed that the wife of marcel is no more. There are six items in the plaint schedule. The first item was owned by marcel and his brothers and the plaintiff and defendants 1 to 3 have only 1/4 shares over it. 1/16 shares has been alloted over this item to the plaintiff and defendants 1 to 3 each and there is no dispute in this regard. Defendant 1 has claimed item no. 6, as his own chalageni holding, over which occupancy right has been conferred upon him. Both the courts have accepted this contention and this is not challenged in this second appeal. With regard to item no. 4, there is serious dispute. Defendant 1 claims it as his own whereas the plaintiff and defendants 2 and 3 claim 1/4 share each over that item. The first appellate court has held that item no. 1 does not belong to defendant 1 exclusively.

(2.) the trial court held that the plaintiff and defendants 1 to 3 are entitledto 1/4 share each over item nos. 2,3 and 5. But, in appeal, the learned civil judge modified this order. He held that defendant 1 is entitled to the shares of defendants 2 and 3 in addition to his own in view of relinquishment deeds executed by defendants 2 and 3 as per exhibits d-28 and d-29.

(3.) the appellants are challenging the allotment of defendant 2 and defendant 3 's share to defendant 1 in this appeal whereas defendant 1, in his cross-objections, has challenged the finding of the first appellate court holding that item no. 4 is a divisible property.