K. MUDDANNA SHETTY Vs. SAROJINI SHEDTHI

JUDGEMENT

(1.) This appeal is filed by the plaintiff challenging the judgment and decree dtd. 24/4/2009 passed in RA.No.24 of 1993 on the file of the Fast Track Court, Udupi, D.K., (for short, 'First Appellate Court') dismissing the appeal and confirming the judgment and decree dtd. 17/4/1993 passed in OS.No.719 of 1989 on the file of the Principal Munsiff, at Udupi, D.K., (for short, 'Trial Court') dismissing the suit of the plaintiff.

(2.) For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.

(3.) The plaint averments are that the defendant No.1 to 6 are the children of late Mahabala Shetty. The plaintiff, defendant No.7 and Sulochana Shedthi (wife of defendant No.8) are children of Radhamma Shedthi. The original propositus Korathi @ Venkamma Shedthi, had three sons and three daughters, namely, Narasamma Shedthi, Manjamma Shedthi, Mahabala Shetty, Sheenappa Shetty, Shivarama Shetty and Radhamma Shedthi. The parties are governed by 'Aliyasanthana Law' and Hindu Succession Act. Radhamma Shedthi died on 9/1/1960. Smt. Sulochana Shedthi (daughter of Radhamma Shedthi and wife of defendant no.8) died on 4/1/1987, having executed the Will dtd. 28/10/1986 bequeathing right in favour of her husband -defendant No.8. It is pleaded in the plaint that, there was a Partition Deed dtd. 6/5/1954, in the family of the plaintiff and defendants wherein, 'C' schedule property is allotted in favour of Radhamma Shedthi. The suit schedule property has been given to the Mahabala Shetty, for limited estate, which had been allotted in favour of Radhamma Shedthi, as per the Partition Deed. It is also stated in the plaint that, the Mahabala Shetty had agreed that, he shall not alienate any portion of the schedule property, which has been the portion of 'C' schedule property mentioned in the registered Partition Deed dtd. 6/5/1954. It is also stated that, in the event of any alienation is made as to schedule property, the possession of these properties will revert to his family on his death. It is the grievance of the plaintiff that, as the family members were not present in the village on the date of death of Mahabala Shetty, the defendant No.6, and her husband has taken the possession of schedule properties and continued in possession of the same. The plaintiff and defendant No.7 (son of Radhamma Shedthi) had demanded the defendant No.6 and her husband to transfer the possession of schedule property and same was denied and as such, the plaintiff has filed OS No. 719 of 1989, seeking relief of partition and separate possession in respect of schedule property.