K MADAYYA SHETTY Vs. DURGAPARAMESHWARI

JUDGEMENT

(1.) This Second Appeal is directed against the decree and judgment in A.S. 12/1986 of the District Court, Kasaragod, which arose out of the decree and judgment in O.S. 98/1979 of the Additional Sub Court, Kasaragod. Defendant No. 10 before the Trial Court is the appellant before this Court.

(2.) The above suit was filed by the plaintiffs for partition and delivery of 1/13 share in the plaint A schedule properties. The plaintiffs and defendant No. 33 are the widow and children of K.P. Narasimha Shetty. They claimed 1/13 share over plaint A schedule properties which, according to them, belongs to the joint family of Narasimha Shetty. They claimed their share as per the provisions of the Hindu Succession Act, as he died after the commencement of the said Act.

(3.) The suit was resisted by various sets of defendants setting up earlier oral partition. The second defendant raised a contention that K. P. Subbayya Shetty had executed a Will Deed, Exhibit B3, in the year 1966 and hence she is entitled to get the share of Subbayya Shetty. The plaintiffs and defendant No. 33 denied the execution of the Will. The Trial Court on a consideration of the relevant aspects passed a preliminary decree holding that the execution of the Will had not been proved. It was also found that the propounder has not explained the suspicious circumstances surrounding the alleged execution of the Will. Therefore, the Trial Court allotted the share of Subbayya Shetty to defendant No. 10. Defendants 1 to 7 filed appeal. The lower appellate Court confirmed the finding of the Trial Court that there was no oral partition. Regarding the execution of the Will, the learned first appellate Judge reversed the finding of the Trial Court and held that the Will alleged to have been executed by Subbayya Shetty has been duly proved. Aggrieved by the said decree and judgment, this Second Appeal has been filed by the 10th defendant.