Full Judgment
1. This appeal JS directed against the judgment and decree dated 17.03.2007 In OS. No. 33/1996 passed by the Principal Civil Judge (Senior Division) at Udupi decreeing the suit for partition.
2. Appellants are the defendants and respondent is the plaintiff before the Trial Court. In this judgment, for convenience, the parties arc- referred to their status before the Trial Court.
3. Plaintiff and defendants are the children of late Koosu Poojarthi. Plaintiff contends that plaint A schedule property was granted by the Land Tribunal in favour of their mcthei - Koosu Poojarthi for the benefit of the family. After the demise of Koosu Poojarthi, plaintiff and defendants continued to joint possession and enjoyment of plaint A schedule property. Plaint B schedule properties are the movable properties belonging to the joint family. Since the defendants refused to partition the schedule properties, the plaintiff filed O.S. No. 33/1996 against the defendants for partition and separate possession of his l/3ru share.
4. Defendants entered appearance before the Trial Court, filed written statement inter alia contending that plaint A schedule property was granted by the Land Tribunal to their mother in her individual capacity. Further, the mother - Koosu Poojarthi, during her life time, executed a will bequeathing plaint A schedule property in favour of defendants and plaintiff. The defendants further contend that plaint B schedule properties are not in existence. On this ground the defendants prayed for dismissal of the suit. On the basis of pleadings, the Trial Court framed the following issues.
i. Does the plaintiff prove that the suit properties are liable for partition in between the parties to the suit?
ii. If so, to what shares the parties are entitled?
iii. Do the defendants prove the validity and execution of written statement stated registered Will dated 20.03.1992?
iv. Whether the plaintiff is entitled to share of income from the suit properties?
If so, how and from whom?
v. To what equities. he parties are entitled?
vi. What order or decree?
5. Before the Trial Court the plaintiff examined himself as P.W.I and another witness as P.W.2 and got marked Ex.P. 1 to Ex.P.13. The defendants examined three witnesses as D.W.I to D.W.3 and got marked Ex.D.l to Ex.D.5. The Trial Court after hearing both the parties and on appreciation of the pleadings, oral and documentary evidence on record passed the impugned judgment holding that plaint A schedule property belongs to the joint family and liable for partition. The Will executed by Koosu Poojarthi is proved. The Trial Court also held that the plaintiff has failed to prove and establish the existence of plaint B schedule properties. Accordingly the Trial Court passed the impugned judgment partly
Decreeing the suit. Hence, this appeal.
6. Though the matter is listed for admission, by consent of learned advocates on both the side the same is heard on merits and perused the entire appeal papers.
7. There is no dispute with regard to the relationship between the parties. It is not in dispute that plaint A schedule property was granted by die Land Tribunal in favour of Koosu Poojarthi. Ex.P. 1 is the order of Land Tribunal, Ex.P. 11 is copy of Form No. 7 filed before the Tribunal and Ex.P.12 is the statement of Koosu Poojarthi before the Land Tribunal. This documentary evidence establishes the fact that Koosu Poojarthi filed Form No. 7 before the Land Tribunal stating that from the time of her father plaint A schedule property was in their occupation as tenants. Further Koosu Poojarthi in her statement before the Land Tribunal also stated that from the lime of her father they are in possession of plaint A schedule property as tenants. The Trial Court by considering this 'admitted evidence on record rightly concluded that plaint A schedule property b not the exclusive property of Koosu Poojarthi cn the other hand the same belongs to the family of plaintiff, defendants and Koosu Poojarthi. This finding of the Trial Court is in accordance with law and the same is supported by evidence on record. I find no justifiable ground to interfere with this finding of the Trial Court.
8. Ex.D.3 is the registered will deed dated 20.02.1992. D.W.2 and D.W 3 are the witnesses who have attested the Will - Ex.D.3. In the cross-examination of D.W.I to D.W.3 nothing is elicited to disbelieve the registered Will - Ex.D.3. The Trial Court on careful appreciation of the oral and documentary evidence rightly held that the defendants have proved the Will - Ex.D.3. This finding of the Trial Court has not been questioned by the plaintiff and as such the same had become final.
9. As already stated there is no dispute with regard to the relationship between the parties. The joint family consists of four members, that is. Plaintiff, two defendants and their deceased mother - Koosu Poojarthi. On a notional partition each of them are entitled for l/4,h share. Accordingly, the Trial Court held that the Will - Ex.D.3 is valid to her extent of l/4LH share belonging to Koosu Poojarthi and the same was bequeathed in favour of defendants. Again this finding of the Trial Court is not questioned by the plaintiff and as such the same had become final.
10. The impugned judgment of the Trial Court is in accordance with law and I find no justifiable ground to interfere with the same. Accordingly, the appeal is hereby dismissed.