RAVIKIRTHI SHETTY Vs. JAGATHPALA SHETTY

JUDGEMENT

(1.) IN the suit for partition brought by Jagathpala Shetty (plaintiff)against his brother Ravikirthi Shetty (defendant 1) and his two sisters vijayamma and Nagarathnamma (defendants 2 and 3 respectively), the court below by the judgment and decree dated 22-10-1993 decreed the suit. Being aggrieved by the said judgment and decree, defendants 1 to 3 have preferred this regular first appeal.

(2.) FOR the sake of convenience, the parties will be referred to by their ranks obtained in the Court below. Few facts, which are essential for the purpose of disposal of this appeal may be set out as under:

(3.) THE plaintiff Jagathpala Shetty and defendant 1-Ravikirthi Shetty are the sons of late Raju Shetty. Defendants 2 and 3 are the daughters of late Raju Shetty. The relationship between the parties is not disputed. The case of the plaintiff being that B Schedule properties to the memorandum of plaint were acquired by the late father of the plaintiff and the defendants under a registered partition deed of the year 1927 and that upon the death of Raju Shetty who died inter-State on 15-2-1980 leaving behind the plaintiff and the defendants as the sole surviving heirs, himself and the defendants succeeded to the estate of the deceased. The plaintiff has further contended that defendant 1 who was his elder brother and was an influential man both in the family and in the locality managed to bring about a document purporting to be a bequest by his father of the property in favour of plaintiff and defendant 1 with certain obligations fastened on the 1st defendant to pay the annuities to the daughters defendants 2 and 3. The plaintiff contends that a lion's share is taken over by the defendant 1 under the Will, which consists of very valuable properties including garden lands, whereas barren and worthless lands were purported to be bequeathed in favour of the plaintiff. The plaintiff has alleged that the Will was brought about without the knowledge of anybody and the same was not genuine. It is the case of the plaintiff that his father Raju Shetty was seriously ill and was admitted to the Hospital and he was later operated upon and the alleged Will was not executed by him while he was in a sound disposing state of mind and health. Contending that after the death of Raju Shetty - the father, the plaintiff continued to be in joint and constructive possession of properties although defendant 1, behind his back got his name entered in the revenue records pursuant to the will executed, the plaintiff has brought the suit seeking his share in the joint family property alleging that the defendant 1 was not allowing the plaintiff to share the income derived from the lands in question. The plaintiff has also sought for mesne profits, past and future.