NAGAMANI @ S. NAGARATHNA Vs. S. RAJASHEKARA MURTHY

JUDGEMENT

(1.) This Civil Revision Petition is filed by defendant No.1 in O.S.No.8855/2012, aggrieved by the rejection of the application filed under Order VII Rule 11(a) & (d) of Code of Civil Procedure.

(2.) For the sake of convenience, the parties shall be referred to in terms of their ranking before the trial court.

(3.) The suit was filed by the respondents herein with a prayer to restore P & SC No.19/1982; to set aside the certificate issued by the District Court in P & SC No.19/1982, by order dtd. 12/8/1986 and to decree the suit for 1/3rd share out of one half of the suit schedule property by metes and bounds. Defendant No.2 is the mother of the plaintiffs. Obviously the suit was directed against defendant No.1, who is the sister of defendant No.2. Defendant No.1 filed an application under Order VII Rule 11 (a) & (d), contending that the defendants father late Sri B.N.Shamanna had left behind a Will bequeathing the suit schedule property in favour of defendant No.1 and that the P & SC case was contested by defendant No.2 and the District Court, after holding an enquiry, concluded that the petitioner therein was entitled for grant of Probate, while rejecting the objections raised by defendant No.2 herein and proceeded to issue Probate in favour of defendant No.1. Thereafter, the 2nd defendant herein filed a suit in O.S.No.565/1996 seeking declaration and possession and partition and separate possession of the suit schedule property, while arraigning defendant No.1 herein as the sole defendant. The suit was partly decreed on 22/2/2006, declaring that defendant No.2 herein (plaintiff in the said suit) was entitled for partition and separate possession of one half share in plaint 'C' and 'D' schedule properties. It was clearly declared that 'A' schedule property, which is the present suit schedule property was the self acquired property of Sri B.N.Shamanna and by virtue of the Will executed at the hands of Sri B.N.Shamanna, defendant No.1 herein became the absolute owner and the plaintiff cannot contend that the Will is unenforceable. The 2nd defendant herein filed RFA No.1301/2008 and the same was dismissed by this Court on 16/11/2011, while observing that defendant No.2 contested the matter in P & SC case and succession certificate was issued in favour of defendant No.1 herein. Thereafter, the plaintiffs have filed the present suit in the year 2012, seeking to set aside the certificate issued in favour of the 1st defendant, in the P & SC case.