GANGADHAR SHETTY Vs. ANNAPPA SHETTY

JUDGEMENT

(1.) Plaintiff's second appeal aggrieved by the judgment and decree dated 25.06.2002 of the Civil Judge (Jr.Dn.) and JMFC, Sullia, dismissing O.S.No.91/1994 and judgment and decree dated 09.07.2009 dismissing R.A.No.40/2002 on the file of the Additional Civil Judge (Sr.Dn.) and JMFC, Puttur.

(2.) Appellant instituted O.S.No.91/1994 on 02.06.1994 arraigning his father Annappa Shetty as first defendant and his brothers as defendant Nos.2 to 7 for declaration, partition and separate possession of the plaint 'B' schedule properties being agricultural lands, on the premise that the joint family possessed ancestral properties, having inherited by the first defendant from his father by name Thimmayya Shetty (grand father of plaintiff). That suit was opposed by filing written statement of defendants, while the first defendant filed a separate written statement denying the plaint assertions specifically asserting that plaintiff is not entitled to a share in the plaint 'B' schedule properties, though not disputing the relationship but contended that plaintiff and defendants were divided members of the joint family. The first defendant, denied that his father, by name Thimmayya Shetty purchased plaint 'B' schedule properties on 07.01.1937 from out of joint family fund. That Thimmayya Shetty, it is stated, conveyed the properties on 10.08.1939 jointly in favour of Krishnayya and Narayana Rao, to repay the loans, while balance sale consideration was retained by Thimmayya Shetty and thereafter did not leave any properties to his two sons. According to the first defendant, along with his younger brother Seshappa Shetty, a minor purchased plaint 'B' schedule properties on 28.08.1940 and subsequently, in a partition on 16.01.1951, the said properties fell to the share of first defendant, hence the absolute owner of the said properties. Therefore, it was contended that the properties were self acquired properties; since not acquired from out of the joint family exertions. Thus it was denied that the properties had come from Thimmayya Shetty, his grand father, as also the assertion that the properties were enjoyed, in joint, by all members in the family. In addition, the first defendant contended that plaintiff separated from the family some 16 years ago and was leading his life at Bellare town carrying on business for which part of the finance was funded by the first defendant and having flourished in the business, purchased several properties. The first defendant further asserted that remaining defendants were residing in the plaint 'B' schedule properties assisting in the agricultural work and that plaintiff was a trouble monger and always troubled the first defendant, while 2nd and 3rd defendants were employed at Kudremukh; the 6th defendant a driver, nevertheless helped the first defendant. The 5th defendant, it was stated, though had a shop, assisted the first defendant. In the circumstances, it is stated that the first defendant with an intention to deny the plaintiff any share in the said schedule 'B' properties after his death, executed a Will bequeathing the said properties to defendant Nos.2 to 7, which the plaintiff having come to know, instituted the suit.

(3.) The suit was opposed by defendant Nos.3 to 5 in their respective written statements reporting the death of first defendant on 03.02.1999 and propounding the Will of the first defendant registered on 25.06.1993 with registration No.14/1993-94 bequeathing plaint 'B' schedule properties in favour of his children excluding the plaintiff. Defendant Nos.2 and 6 adopted the written statement filed by defendant Nos.3 to 5.