GANESH BHANDARY Vs. AMBUNHI

JUDGEMENT

(1.) PLAINTIFF in O. S. No. 5 of 1976 on the file of the Court of Munsiff, Hosdurg is the appellant in this Second Appeal. This Second Appeal came before us on a reference by Dr. Kochu Thommen J.

(2.) THE appellant filed a suit for partition on the allegation that plaint schedule property belonged in leasehold right to one veluthambadi, the father of the respondent herein, that by a registered Will ext. Al dated 30-8-1955, Veluthambadi bequeathed the property along with other items to the thavazhi of his nephew Kannan with a direction that the properties would be held and enjoyed as thavazhi properties of Kannan, that the members of the thavazhi of Kannan assigned their right in favour of the appellant and that kannan's share was obtained by the respondent herein under a sale deed from kannan.

(3.) ON appeal by respondent, learned Subordinate Judge took the view that in the earlier pan of the Will evidenced by Ext. Al, there was an absolute bequest in favour of Kannan and that in the circumstances, the restriction that the property would be enjoyed by the thavazhi of Kannan was inoperative and invalid in law. He also held that in any event Kannan had prescribed title by adverse possession and limitation. Accordingly the Subordinate judge allowed the appeal and dismissed the suit.