K YAMUNA Vs. GANGU

JUDGEMENT

(1.) THIS appeal is filed by the plaintiffs 1 to 3 in O.S.157/1992 on the file of the Sub Court, Kasaragod. Respondents 1 and 2 herein are the defendants 1 and 2 in that suit, which was filed by the above plaintiffs for partition.

(2.) THE case of the plaintiffs is briefly as follows : THE plaint A schedule properties originally belonged to deceased Krishna Saphalya and his wife and children of tenancy right under M.Ramachandra Shanbogue's family. Krishna Saphalya obtained the same for and on behalf of his family and the land tribunal has issued a purchase certificate in his capacity as head of the family. Krishna Saphalya died on 15.2.1990 at the age of 88. For some years prior to his death he was confined to house and could not move out due to rheumatism and parkinson disease. THEse ailments had affected his thinking capacity also. Plaintiffs are married and are residing away. During the last years of Krishna Saphalya defendants were residing with him. Plaintiffs were regularly visiting the father and contributing their labour for the cultivation of the property. Until 1990 plaintiffs were participating in the income. THEreafter the 2nd defendant has not been paying any income. Disputes arose and the plaintiffs demanded partition. 2nd defendant refused to partition and the suit is filed in the above background claiming partition of the 3/5 shares of the plaintiffs in the A schedule properties with past and future profits.

(3.) IN the Sub Court, on the side of the plaintiffs, PW1 and PW2 were examined and Exhibits A1 and A1(a) were marked. On the side of the defendants, DW1 to DW3 were examined and Exts.B1 to B6 were marked. The learned Sub Judge, on considering the evidence found that Ext.B1 will dated 24.8.1988 was executed by Krishna Saphalya in favour of second defendant in respect of plaint A schedule properties and as such, that properties are not available for partition and the suit was dismissed with costs. Against that judgment and decree, plaintiffs 1 to 3 filed this appeal.