MARUTHI Vs. THIPPESWAMY

JUDGEMENT

(1.) This is a plaintiff's Regular Second Appeal against the judgment and decree dated 05th August 2014 in R.A.No.13/2014 on the file of the Senior Civil Judge and JMFC, Challakere, confirming the judgment and decree dated 02nd January 2014 in O.S.No.50/2009 on the file of the Prl. Civil Judge and JMFC at Challakere, dismissing the suit of the plaintiff for declaration of title.

(2.) The appellant who is the plaintiff before the Trial Court filed O.S.No.50/2009 for declaration of title to declare that he is entitled to his share in the suit schedule properties in pursuance of the registered Will dated 07.07.2004 executed by Sanjeevamma holding judgment and decree dated 31.01.2008 in O.S.No.81/2004 on the file of the Addl. Civil Judge (Jr.Dn.) and JMFC, Challakere, as null and void and not binding on the plaintiff and defendants contending that one late Bellamkonda Bheemappa of Jannenahally village, Challakere, had five sons including the plaintiff and two daughters. Suit schedule properties are the self acquired properties of Bellamkonda Bheemappa. The first son of said Bellamkonda Bheemappa viz., Jayanna took his share in the joint family and went out of the joint family long back during the time of his father. Bellamkonda Bheemappa during his last days, transferred ownership to his care taker wife Smt. Sanjeevamma. Thereby, Smt.Sanjeevamma acquired absolute right, title and interest over the suit schedule properties claiming self acquired property. It is the further case of the plaintiff that defendant No.1, in order to make wrongful gain and to cause wrongful loss to the exclusive self acquired properties of Sanjeevamma, has filed O.S.No.81/2004 against Sanjeevamma, the plaintiff herein and defendant Nos.2 to 5 herein, which came to be decreed on 31.01.2008. The plaintiff further contended that he was the only one person taking care of his mother Sanjeevamma. She was residing with the plaintiff at plaintiff's home. On 05.11.2008, Sanjeevamma passed away. After the death of Sanjeevamma, her brother in the month of December 2008 has for the first time brought to the notice of all the elders of the family and also the defendants and plaintiff that Sanjeevamma had executed a Will dated 07.07.2004 in respect of suit schedule properties during her life time and same was registered at the office of Sub Registrar, Chitradurga. Plaintiff has also no knowledge of the said fact. Without knowledge of the same, he participated in O.S.No.81/2004.

(3.) It is further case of the plaintiff that a perusal of the registered Will dated 07.07.2004 executed by Sanjeevamma, it is clear that the suit schedule properties are the self acquired properties of Sanjeevamma and she executed the said Will in favour of plaintiff out of love and affection, allotted the suit schedule properties to the plaintiff and defendants 1 o 3 herein. Suit schedule properties are the self acquired properties of Sanjeevamma and the same was not amenable for partition under law. Smt. Sanjevamma had chosen to execute the registered Will dated 07.07.2004 allotting the shares to all the sons out of love and affection. Thus the registered Will dated 07.07.2004 is final and conclusive authoritative document, binds on the plaintiff and defendants. The judgment and decree dated 31.01.2008 made in O.S. No.81/2004 is without knowledge and notice of the registered Will executed by Sanjeevamma. Hence the same is null and void and not binding on the plaintiff and defendants. The judgment and decree is passed on assumption that the suit schedule properties were ancestral properties of Sanjeevamma. However, now it is clear that the suit schedule properties are the self acquired properties of Sanjeevamma and not ancestral properties of Sanjeevamma and also contended that the suit came to be decreed due to non participation of Sanjeevamma in the said suit. After knowing the fact of the said Will, defendants also accepted to receive the properties and elderly persons also advised the 1st defendant to withdraw the case pending before the Addl. Civil Judge (Jr.Dn.), Challakere, in FDP No.7/2008. However, the 1st defendant, without withdrawing the same, is trying to proceed with the proceedings. Therefore, plaintiff was constrained to file the present suit.