SRIDEVI Vs. JAYARAJA SHETTY

JUDGEMENT

(1.) Plaintiffs who are the appellants have filed this appeal assailing the judgment and decree passed by the High Court of karnataka in Regular First Appeal No. 715 of 1988 to the extent it has gone against them. By the impugned judgment, the High court has affirmed the judgment and decree passed by the trial court. Facts :

(2.) One Padmayya Kambali was the owner of the disputed suit properties. He had four sons and three daughters. Appellant nos. 1 and 2 are the daughters and appellant no. 3 is the granddaughter through the third daughter who has died. Defendant-respondent nos. 1 to 12 are the grandchildren of Padmayya Kambali through his three sons and 13th respondent is his 4th son. Padmayya Kambali died on 13.4.1976. At the time of his death he left behind vast properties some of which he had inherited from his brother and includes properties which vested in the State of Karnataka in respect of which compensation was paid. He executed a Will dated 28.3.1976 (exhibit D-1) which was got registered on 11.9.1980

(3.) Appellants filed the suit being original suit no. 5 of 1981 for partition and separate possession of 7th share for each of the appellants of the properties described in the schedules 'a', 'b', 'c' and 'd' attached to the plaint. Schedule properties 'a', 'b' and 'c' are immovable properties whereas 'd' schedule properties are movable properties. It was alleged in the plaint that the suit properties are the Joint Hindu Family properties and the appellants being the natural heirs are entitled to 7th share each in the suit properties. It was also averred that respondents were enjoying the properties to the exclusion of the appellants and were not willing t'o partition the properties or come to a reasonable or amicable settlement. Nothing has been stated about the Will in the plaint as according to them it had not been brought to their notice prior to the filing of the written statement. Respondent nos. 1-7 in their written statement admitted the contents of the plaint. Respondent nos. 8-12, wife and children of dharmaraja Kadamba (a predeceased son of the testator) , and respondent no. 13 raviraja Kadamba contested the suit. According to them, there was a partition in the family under a registered partition deed (exhibit D-4) dated 4.1.1961. Under the said partition, the female members were allotted major shares in the properties which were in personal cultivation and enjoyment of the family whereas Dharmaraja: kadamba (deceased) husband and father of respondent Nos. 8 to 12 and Raviraja kadamba Respondent No. 13, were allot- ted properties which were in possession of the tenants. After the coming into force on the Karnataka Land Reforms (Amendment) act, 1973, Act 1 of 974, all tenanted lands vested in the Government and the two sons were left with no properties. In order to correct the injustice done to these two sons, padmayya Kambali bequeathed schedule properties 'a' and 'b' (which were not un- der the tenants) in their favour and the daughters i. e. the appellants were given the right to receive compensation in lieu of the lands which were with the tenants and had vested in the Government under the Land reforms Act. It was averred that padmayya Kambali executed the Will of his own while in sound disposing mind. At the time of execution of the Will, he was in possession of his physical and mental faculties. It was averred that except the properties which are the subject matter of this appeal and are shown in schedule 'a' and 'b' to the Will, other properties were amenable to partition. Insofar as immovable prop- erties are concerned, they were divided amongst the heirs soon after the death of padmayya Kambali. It was also averred that the contents of the Will executed by the testator were disclosed at the time of final obeisance ceremony of Padmayya kambali in the year 1976.