K G CHANDRAMOULI Vs. K G NAGABHUSHANA

JUDGEMENT

(1.) These appeals are taken up together since the parties are one and the same and both the second appeals are arising out of the common judgment and decree passed by the First Appellate Court.

(2.) These appeals are listed for admission. Heard the learned counsel appearing for the respective parties.

(3.) The factual matrix of the case of the plaintiffs before the Trial Court that defendant Nos.2 to 5 are the children of late K Gopala Shastri and defendant No.1 is the wife of said K Gopala Shastri. The said Gopala Shastri originally hailed from Somavarasanthe, Tudur hobli of Thirthahalli taluk and subsequently he went to Pattalamane village to Thirthahalli taluk. After that he has separated from his brother Rama Shastri and settled in Pattalamane village in the year 1960. The plaintiffs and defendants are the legal heirs of late Gopala Shastri. The late Gopala Shastri after separated from his brother Rama Shastri, filed a declaration before the Land Tribunal Thirthahalli and got confirmation of occupancy rights in his favour on behalf of the joint Hindu family as head and Manager or Kartha of the family. As such, after enquiry, the said authorities have issued Form No.10 in favour of joint Hindu family. Some of the properties are purchased by late Gopala Shastri out of the joint family funds and hence, they are also joint family properties. It has come to the knowledge of the plaintiffs that defendant No.2 has secretly created a Will and on that basis, he applied for khata before Tahasildar and same has been opposed by the plaintiffs and defendant No.5. The Tahasildar, Thirthahalli has registered the dispute in R.R.T.S.H.R.14/2005-06 and holding enquiry, mutated the khata in favour of defendant No.2 and the said order was challenged by defendant Nos.1 and 4 before the Assistant Commissioner, Shivamogga in two appeals i.e., in P.D.A.Nos.140/06-07 and 187/07-08 and Assistant Commissioner held an enquiry on 30/8/2011 passing order and set aside the order passed by the Tahsildar, Thirthahalli. In terms of the order of the Assistant Commissioner, the properties were mutated in the joint names of plaintiffs and defendants. It is contended that defendant No.2, on the basis of alleged Will has filed probate in P&SC No.11/2011 before the Principal Civil Judge (Sr. Dn.), Shivamogga and the same is pending for consideration. It is also contended that alleged Will dtd. 15/12/2004 and the alleged gift deed dtd. 23/7/2004 are illegal, void and unenforceable and not binding on the plaintiffs' share in the suit schedule properties. Hence, sought for the relief of declaration and partition.