D.S. JAGANATH Vs. S. SHANTHA

JUDGEMENT

(1.) This appeal is filed challenging the judgment and decree of dismissal of suit in O.S.No.1939/2008 dated 05.04.2013 on the file of XVII Additional City Civil and Sessions Judge, Bengaluru.

(2.) The parties are referred to as per their original rankings before the Court below to avoid confusion and for the convenience of the Court.

(3.) It is the case of the plaintiffs before the Court below that late Desai Suryanarayana Rao and his wife Lakshmamma had no issues and hence, the said Desai Suryanarayana Rao married Jayamma. After the said marriage, the first defendant was born and subsequently, the plaintiffs were born to Desai Suryanarayana Rao and first wife, Lakshmamma. The second wife Jayamma gave birth to defendant Nos.1 to 14. Desai Suryanarayana Rao had acquired the suit schedule property under a registered sale deed dated 14.05.1951, as he was Kartha of Hindu Undivided Family. He passed away on 25.05.1979 leaving behind the plaintiffs and the defendant Nos.1 to 14 as his legal heirs to succeed to the suit schedule property. During his life time, he had executed a Will dated 28.05.1973 behind the back of the plaintiffs bequeathing the suit schedule property to his second wife, Jayamma and the same is illegal. The said Jayamma in turn executed a Will dated 28.06.1984 creating a life time interest in favour of the first defendant, which is also illegal. In order to defeat the lawful claim of the plaintiffs, the defendant Nos.1 to 14 hatched a conspiracy and jointly executed an absolute sale deed dated 13.07.2007 in favour of 15th defendant, selling there under the suit schedule property. The very execution of the sale deed is also illegal. The plaintiffs are entitled to an equal share in the suit schedule property. The cause of action for the suit arose when the sale deed was executed in favour of 15th defendant. Hence, prayed the Court to grant the relief of partition in respect of the suit schedule property by metes and bounds and allot separate share and order to deliver possession and so also order for enquiry into mesne profits.