SRINIVASA M. Vs. DASAPPA M.

JUDGEMENT

(1.) The present appellant, since dead, represented by his legal representatives, was the defendant No.2, in the Court of learned XV Addl.City Civil & Sessions Judge, Bengaluru City (CCH-3), (hereinafter for brevity referred to as 'trial Court'), in O.S.No.4500/2011, against whom and four others, the present respondent No.1 had instituted the said suit for the relief of declaration and partition.

(2.) The summary of the case of the plaintiff in the trial Court was that the plaintiff and defendant Nos.1 to 4 are sons and defendant No.5 is the daughter of one late Sri Muthurayappa and Smt.Lingamma. Said Sri Muthurayappa had purchased the suit schedule property from one Smt.Gangubai under a registered Sale Deed dated 16.2.1970. The revenue records were made in the name of said Sri Muthurayappa. The plaintiff since was working as a Writer under the contractor, has also contributed his earnings to enable his father to purchase the suit schedule property. Muthurayappa died in the year 1973. Smt.Lingamma, the mother of the parties who had instituted a suit in O.S.No.5712/1996, in City Civil Court, Bengaluru, for cancellation of the alleged Sale Deed dated 28.5.1994, with respect to the very same property, succeeded in the said suit, which was further confirmed by this Court in Regular First Appeal. Thus, said Smt.Lingamma became the absolute owner and in actual possession of the suit schedule property. No partition with respect to the suit schedule property was taken place. After the death of Smt.Lingamma, the plaintiff requested for partition in the suit schedule property and for his separate possession to an extent of 1/6th share in the suit property. However, the defendants refused to accede to his demand. This made him to institute the suit.

(3.) It is only the defendant No.2 alone who filed his written statement in the trial Court. In the written statement, the defendant No.2 though admitted the relationship between the parties, but, denied that plaintiff had contributed any amount for the acquisition of the property. He contended that the suit schedule property was purchased by their mother Smt.Lingamma, who has executed a registered Will dated 16.5.1985, however, the said Will was withdrawn and she executed another Will dated 15.11.2000. After the death of their mother, it is he who is in possession of the property and enjoying the same, as such, the question of partition does not arise.