MAHADEV MAHABALESHWAR HEGDE Vs. NARAYAN MAHABALESHWAR HEGDE

JUDGEMENT

(1.) THE present appeal filed under Section 100 of CPC is directed against the concurrent findings given in the Original Suit No.60/1970, which was pending on the file of the Court of Additional Munsiff, Sirsi and affirmation of the same in Regular Appeal No.58/1992 by the Court of Senior Civil Judge, Sirsi. The appellants herein were the plaintiffs and the respondents herein were the defendants in the said suit.

(2.) THE appellant Mahadev Mahabaleshwar Hegde died during the pendency of the First Appeal and hence his legal representatives have been brought on record. Plaintiffs and defendants 1 to 3 are direct brothers. Defendant No.4 is their mother and defendant No.5 is the elder sister of plaintiffs No.1 to 3. Prior to 1958, all of them constituted a joint family and the scheduled properties shown in the plaint were the joint family properties of the plaintiffs and defendants, and their father Sri. Mahabaleshwar Hegde, who was the manager of the joint family.

(3.) A partition was effected by the father Sri.Mahabaleshwar Hegde, allotting some properties to Mahadev Mahabaleshwar Hegde vide registered partition deed dated 12.06.1958, but the remaining properties were retained by the father and his three sons and the joint family managed by Sri.Mahabaleshwar Hegde continued. On 08.12.1958, Sri.Mahabaleshwar Hegde chose to execute a Will bequeathing his undivided share in favour of the defendants 1 to 3. According to the plaintiff, the said Will is the outcome of undue influence and coercion. Therefore, he had alleged that the said Will executed by his father on 08.12.1958 bequeathing his share in favour of defendants 1 to 3 does not bind him and that he had no right to dispose of suit properties under the Will or alienating the same in any manner. After the death of Sri.Mahabaleshwar Hegde, mother continued to be the member of the joint family. It is specifically averred by the plaintiffs that, Sri.Mahabaleshwar Hegde could not have bequeathed the property, as himself and his wife i.e., the mother of the plaintiffs had only a limited interest during their life time. Even on that ground, the said Will is stated to be not binding.