Padmanabha Shenoy vs Dr Premachandra Shenoy on 21 December, 2010

D /0″‘K_RISHNIA S-.H’EI’3I.*E)Y

I, _;’R/0 K()I)’AN(;o HOUSE

” A . MAINCNILQREW575 005. .. RESPONI’)EN’iS

IB3%_Sir:”fiI3…I,.A§:wI:IARY’A, ADV FOR R1)

‘1’=1 {1S*’RI«’A I«.*II.I U/S. 96 R/W. ()RDER XLI R 1 OF

cpc A(;;AINsT ‘I’HE JUI)(}MEN’I’ ANI) I)EC’REi€ :71″. 8.7.99

t”ASSI£I§ IN ().S..N(). 200/.<a<3 BY 'I'I~IE PRL. CIVIL J'[§D{}}.'<3,

_§3R_.I5}N. AND CJM, MAN('3AL(.)RI'AI-ITLY IDECREEING

THEA sun’ FOR I>ARTI’I'()N, Si€I’AREA’1’E POSSESSION AND
% __Iv1I«:sNIa PR(.)FI’1’S.

K/–

\/\/Er

RFA NO 784 OF 1999
IEEETVVEIEN

I. PREM CHANDRA SHI%IN()Y
S/O.I..A’I’E KRISHNA SHENOY
AGED ABOUT 47 YEARS
MANJUNATE–I CLINIC, KONCHAI)Y

MANGALORE W575 008. «_ .7.._. A£>:51i;:,.i’_ANT

[By sn : B.L. ACE-IARYA, ADV)
AND V 4′

1. PADMANABHA SH–ENOY,~”‘
S/O mm KIQISPIN;A”aSE*Ii$NOY’ ”

ADULT, RESIDING A’1f’FI.’.A’I?’»1§Io.5€» —
FLAT N010, IIIRD_E’LO()R,_ u –

KANJEERA Co~«op£«:RAUV_E’HQIJsII~J(3~
SOCIETE’; ”

EAST__M1’E\/_IBAI’§– 4’G(;._Q”7»8. ‘

H,AM};<:SH1Ls1–;1EN(;y —

S /0 . LATE’ £:£Us’I~IN’A. 51- 1 ENOY

ADUII1′. R*:::31Dfj1NG’1gyE~&o1)ANGI«: HOUSE
P0s*’F:1<:U:,:s£'ii13r<;A1~1_
"

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V. , 3. C ‘K/IJAy;A.. SH 1§1\z0″y’ ”

S/O..I.A’l’-E KRISHNA SHENOY
~ _ ” R./AT K()D.AN(}E HOUSES
._ PO’sf1=:..E§1:.:;sraEKAR,

‘MANG;AVLOREw5

‘ V 4. SHAMBAW SHENOY

wizmw OF KRISHNA SI–IENOY

” _ V “AI)1II.’1’, R/AT K()DAN{_}E<3 I~I()USE,

" KU'LASI':!EK}*-{AR,
MANCEALORE 575 005

"W:

YASIEIODA E3 RAD

W/O SR1 B I::3A.LA’K1-{IS}-{NA RAO

AI)UL’l.”, RESIDING AT K()I.)ANGE HOUSE
KU’I_.SI–IEKARA,

MANGALORE 575 005

GULABI sE1’«:’mARAMA PRABI-TU
W/O SEETHARAMA 1>RA131~1U. ADULT,
R/AT A125, K.R.E.C.STAI~’F V’ = ‘
POST SRINIVASANAGARA, SLImymKA«I, -1’
_MANGALORE TALUK. ‘ .

LAXMI G0I>ALAKR1_sHNA1>.ATI1, V
W/O GOPALAKRISHNA P;a..r:*1~L, ADU1..T
R/OF PATIL STORES, SARALAB.fj3Ti.U;’ ‘
SHIVAPADY, MANLPAL 5?’6″ 1.119,
UDUPITALUK. ‘ T

MALA’1’HIG,PRABI}U’ ._ ”

w/0 SHR1 Gui)!->A1,;.’ 1>RA1’~3%.1+1LI;’«AI)’LIL”1: ‘
R/AT TRIVENE ‘ C01. 01? H’OUSIN”G”S()CII§IY,
N(). 18,4’GANGA’. I21»;-.jA;I”I-PA’fIi;–«’RAMVAGAL
DOMB1VE.LL_I

MUMBA: V4 2 if -53:01, 7′ h

VEENA ::IJf{£._SH pR}L_.z3I–{I}

W/0 sURI+;sH’–PRAB’HU, ADULT,
,, .j R/AT G0’VA_LANI ;~JI\/As, I CROSS

– “1*L:yApANA1–1ALL1; 4TH I BLOCK,

JAYANAGAR,

“’13Az3{(;ALQR.E 560 041

‘ R9331?–1}: RAO
wxo SADASITIIVA mo, ADULT,

R/Q1: NO. .1. 10/79,
BALAI NIVAS, 11 MAIN,

n ‘T ” ~..CI–iAMARAJPE’I’,

.. ‘I%3AN(}AL()R.E 560 O .18

-5-

:1. 91.131–11>/x EN NAIK
1:)/0 IATE KRISHNA SI;1E.NOY’
ABULT, R/AT KODANGPZ 1«1c)Usi:«:

POS’i’:KULSI*lEKAR/\,
MANGALORE 575 005 .. RESPQF€DEN’~I’S

(By Sri 2 C.(}.C:OPALASVVAM’Y, ADV FOR R1]

T1-{IS RFA FILEI.) IS U”/S. 9e:13,..()»F CF’_C “A(§A1.1§ST’* Tj{‘1~’~EE ” ”

JUDGMENT AND 1)E(:REE m”.8.j’z.99″ms-$125) – .Qv,VS;I\j0’;«
200/96 BY THE PRL. CIVIL .J1JII)GE§”E~:12.D;N;’*_z&2JDfEJEi1;

BANGALORE, DEC1’aE1a1NG,_THE\sU1T TPART-L?
PARTITION, SEPARATE ‘E()E5Ess’1-0151 . _ ANI’; ‘ ~M}:*3SNE” V

PROFITS.

THESE I~1z£\’ri1\i(3i.. BEEN AND

RESERVED FOR JUDG”ME1′-J’1’~,_ _’Ii£4i’:1S SATYANARAYANA
J., DELIVERED THE FOLLOWIN_G:f ‘

E <Ii;Q§Mi:NT V
iifherse "filed by 1st d€f€fl{1.':H1t and
plaintiff E; 0s_N'a_.£2<§<;»;}"s;.s3'(3. 'If'he said suit. was fiied. by

p1aj1_§iii'I'fEADr.1Prém;iEhari=:1.ra Shenoy for the relief of partition

by_»n;€:téS¢ L!I'i(§.. bounds, for separate possession of plaintiffs

share azi€'i.VvVf<)ri'Vv'tEie relief of mesne profits and consequential

ber1s:fit.,.__~";i'i*-IE" Asaid suit came to be allowed partially by

:"'jAAz.1gign1.ev:;t": aucl clecree-2 dated 8.? .1 995'). The plaintifl' being

' -..22£"ggriéve(1 by rejecztioii Oi' portion of his prayer has come up in

_,v_£.':3[)§)(,'23.i agziirast the same in RFA.N0.784/1.999. The 1st

%.,<§_':'z,*'%

-7-

(leferidarlt, in the saiti suit being ag§grieve(1 by the partial
tlecree gratiteci in {‘av0u..r of plaintiff has ehalleiiged the same

in RFA.No.782/ I999. I”30th appeais are taken i41;_3i.t_t)get.1%1er

for consideration since they arise out of troiriirionjtitigrtierit;___ .

2. The parties to both appeais being (t(.V)’f_i1″I”i~3.V(.)I’1~,;A_Tft’.)’a”1?t)iC1_

confusion in their ide1’1tifieatioi1 with ,refe;er1(_:e’it0._eaeh_ef

appeal they are referred to by t.i1eir.. r(‘;«.{iI)ectixkeiA

original suit for the sake of tt()11i’»reiiien(:e.

3. Brief facts lc:ai:i:i’rig t0_«th1’sAap.pea;Lare as iiritier:

{ta} :V€<it:feIgi'(v£'%'1r11..s -'1 to 3 are sons of Krishna
shenoy} git}; defei1tiarit'i1is widow and defendants 5 to 11

are his dai'ighters. contention of plaintiff is that

;)1ai.ri'ti£f;.tle1endarits""i to 3 aiong with their father Krishna

Sh:_c5VI'i0f:5:/V"'..'V'(T('iVfiS%fit1lt€(i _]'0int .Hir1du. famiiy governed by

Mitakshai'a':.V_iaw of I_nh.e1fitar1ce and Succession. Krishna

Sheneyi kartha of his joint family acquired suit B and C

sttheziule properties uritier registereti sale deed dated

V'1;2.7. 1.964 vide d()eurne.ni. N0.tO55/ £964 registered in his

aw;

name. Thereafter in the year .1971 there was partial
partition in the family wherein each of the sons, nameiy,

plaintiff, defendants 1 to 3 were given few items’~.o’f~._j’o.int

family properties to their share. The said partially

was reduced into writing as fanailyymigararl’tlatoti ”

and confirmed in judgment and ciegccree ‘slated’ E382

passed in OS.No.522/1982*’ on the-,_

Munsiff of Mangalore.

{b} Since said partition v.p1ai_’_tition the family

continued to joint. resfigtot of other properties

mentioned to the piaint. Subsequently,
he came to knoxy”i.hat”‘hi’swfather entered into partition on

28.’35.1_V984,flwhere1n he gate an extent of 25 cents of land to

each’ of-r,hisy.daugh’t’ers, defendants 5 to E1. According to

1’ilai1;tiii2 rats 5 to 1} have no right in the joint family

profierties;-ssilnthey were married prior to Hindu Succession

(Karns.tai:xa Amendment Act) coming into force. Therefore,

f.;he'”‘said docunient is invaiiri and inoperative as partition.

Egny disposition made therein is only gift. Since the

‘Ni

properties (lezilt under the said cioeiiment ciat.e<'i 28.i_§.'lS384

(ire joint. f:Eii"ri.i]y pI'O1)(']'U('.'.S, his fE1.l'.hCI' Kartha 0f'_joir1t.

féililily 11:11.1 no riglit; to ggive away the satiric. '_l'1:'1(2rcé'i'oif'e, the

same is required to be ig.i.1()I'(?C1. V p — , _ .
(C) it is his case that his father' tlieil ir1t,est:;2.t2_ on or

about 19.2.1989. Aceor(1iI,1g tovhifn, suitf sehe(1'uler.

properties are joint family fifiipeifties an.r_1 suit C schedule

properties are his f21U'lv('.:'I"S_ iritiiviftiixgil pf'roflper't.iesfas'Vf1)er decree
dated 5.8.1982 in <)s.No.5.22/-:2982.__._ iltfAis,fz1l_s() his case that

his father had.~1/ 3"}?-11 sitizire stiit 1:32 scliedule properties at

the time of _liis'.tle;ith. Vsanie shouid devolve equally upon
plaintiff anti ptlefentl-:i11t:s"aiiitier the provisions of Sections 8 to

10 ()f..HlI1(1ii ysfucseessioné:/Xct. He is also entitled to 1/ 12″‘

share if’i’ASl’)1i,.t C schedule properties. Since plaintiff does not

iiesire_fIio,C’oi’rt.ifii1(: with defenclants he sought for severance

to by fiiing the aforesaitl suit. He also claim that

he e1i1_.tiI.led to fE1tl..iI’E,’ profits in suit B aml C selieciule

p1fop_erties from the (.12.it:e ofsuit ixiil date of his share.

zfbms
«

..I{)..

4. To the said suit 4111 defendant, mother of plaintiff,

(lefer1d.ar1ts l to 3 and 5 to II filed cletailetl _written

stateriient, whereiri she denied each and every ave~.’1’n’i’eIi’l:.V of

plairit except the relationship between

defendants and acquisition of suit _sehe_dule’ ;V)’ro’pefrties h-gjr V’

husband, Krishna Shenoy under itegisiteredlii

12.7.1964. According to Sheinoy?.:.d–:.;ring

lifetime had sold about: 60 _ lafl(l’ by him
under two different saA1r.§..V:i;l(-:A(:;AtVls?; the 1965 and 1966.
Subsequently ir1__197}. differences arose
between th_ei_: of }:£enee with the
wishers of the family said
(ii-fference£s”viiere__settleri~reeiilung in effecting partition and

recording the same 7111 family karar arrangement dated

1.9″L”?’1.”l*’.I”l1e sarrie” in full and firial settlement of the

e_la_.irn Varzrl ~ riv.a.l_j..elairr1s of all the family members. Wherein

ib:,_1_r sovris'”of’:Krishr1a Shenoy were allotted with separate

shares, Aiirishna Slienoy was also allotted with one share.

The”j.rer1’iaining properties were allotted. to tlaughters and

lcirishna Shenoy. Aeeorcling to her, plaintiff is a party to said

“\,€_,~*§

-1.}-

family karar arlci has a(‘tc.rc;’)t.e(‘I. the same \vi.th()t.:t clemul’. O11
2-xilotrrlerlt of sepa.I.’at(‘ sE’Iarc-.>s to ])1a.iI1t,ii’f, (“left-2r1(1aI1t.s _.._l to 3

and their father zmd deferlcizmts 5 to 8, piaintiii7._ amt

defendants 1 to 3 came to be separateci i”1’0_t1′;–. thé”farni§y.,’ ~

there was division in status and Jpr<)perti_ss'VbyfmétesAeuadtiV'

bounds.

(a) In the said t1iViS.iOIt:tiI{‘g,:. tfiiezlts was
aiiotted to plaintiff i.(~’,.V, in Sy.No.25’7/2
and 7 cents in aiiotteri 43
cents in aiiotted 43 cents
in atlotted 43 cents in
‘bf 25 cents was aiiotteci to late

Krishna ‘in.v”Sy.§’Ns:;258/4. In addition to that, he was

it alsoiigfifen “11nc1iviciéd'”figE1t. with daughters in the rémaining

t”i:1_d_§:r the said family karar”, it was agrceci that

E'(;’:I§’l.VE’1il’1ivI1g):’fi’i1)Zk)€’fI’Tii(i’S shalt be hc>Idj0i11tly by Krishna Shenoy

and his A’? (izuightrrrs, zmxnely, tic-fericiants 5 to .1 it’ According

to defendant, ineluciing pIair1t.iff all her sons got separate

‘«/gag

-12-

share, which was aeeepiecl by each of them and recorded in

the said family karar.

(b) It is further statecl by her that in _

there was misu.n(.le.rstan<iir1g in eonneetiori.wiih"~tlie,:ri«ght_to

use common path reserved 1}inder_ jthe_ .'farnily"-.il<arar.

'Therefore, Krishna Shenoy plaintiff " ,

and 3 as plaintiffs 2 and 3 for 'declaration
and injunction against: 'p.1_ain_t'iff .defen(lan"i herein as
defendants I and 2 in the suit was filed in

the Court of ;II"A_dditio_I1z1l ?3iri1.ii1si'ff–,:_"'Mangalore, D.K., which

Carnegie uper _*judgment and decree dated
5.8.1982: 'in tiiefsaidbst_.aif;"1:he family karar dated 10.8.1971

was ilplield title" eo'eii'i§: The plaintiff beirxg a party to the

V' saidastiiii fuilyfaware of the judgment and decree passed

_ tl1ei'ein"'«and"toheiysaine has become final, wherein the right of

way reservéeii under the said family karar was also

confirmed. Therefore, the same is binding on plaintiff and

" otieiegr parties.

-13..

[(1) it is also I”l(:’I’ Case that Krishiia Shozloy wh.ilc he was
alive in sound ami (iisposizig state 01′ mind iiaci exc(_:u_t(>d 21

Will datc.d 7.6. 1982, b€;'(1li(32:1U’1iI’1g 25 cents of land e:Iidf.’t{:ti* _in

his favour i.m(iei- family karar in favour of 5.11} (1€f1vV_t?’.’T:’l”(i-‘rll.f.i’f’-,, *

namely Yashoda B.B.Ra0, which is…register.é”tlV’ ‘a~.<3{ .r_1'ly% : .!(:l'(3’f_(V'{Ii'(:1′:1{}t.s 5 to 11 were
alloited with 25 cents… land was
allotted to A%>;ii%i”p23izi’titi0r1 is valid and
a.11()tI’l”;£(%l!t’,V ().”f to 1 1 is justified, as said
pr0per’iies__ wei(~i in favour of Krishna Shenoy

and,hi.s dau§;h_iers vunfi-er Tfamily Kara in the year 1971.

aIi(_?g£i1′.i.Qi’.1 of d.aughi.ers having 110 right in suit

‘ I3″;:;r1(i»C”s(:’}i’1ed:”.;1e pr0pei’t:ies and shares given to daughters

atI1()=1iI}tS 33- gift were ail denied false-.. It was also

(:o.n.ie.r1(i€:’;(il that right. of (lz;u1g11t.(=.rs in the present case springs

(3u’é—._.(&)f féirnily ka1’ar of 1.971, which is €l1′}’iV(:'(i at in full and

E4″.-*/’k’v%

-14-

final settlenient of clisputes of family members and which is
also confirmed in (_)S.iNo.522/ 1982. It is also the ease of 4th
clefeiiclant. that subseq1,1ei11.}y there were proceedings initiated

by Urban Land Ceiling Authority, wl1(‘reir1 the p21I’ti_4r:>sV_lto_fs.11it

had representeti and shown to said authorit;i_Wthe.l_’ V’fa2I’11~3′.§)5′ .

karar.

(e) It is also her case thatv~p’l’ai-n.tiffaoeepted

share given to him u1’1(iE’I’ fa1nj1y”i«kai=iar;’l isfesitopgzed_l:’iro’rn_

contending to the contra. ti’ie_’brotiiersfViiieliiding’VV

plaintiff had consented for allottingvsharta to tl’1e.Ada1ighters at

the tizne o_flA’eln_t.e_ri.i31.g i.rjite.’__1’a:.nily karar. Tire contention of
piaintifflregardingfianlily’ (fated 10.8. 1971 being partial

partition infrfzespeaclt of few items of joint family properties

we1*e{‘de”n.ie’d., Denialmof rights to defendants 5 to 11 and

under partition dated 28.3.1984 and the

(:ontentionl”$tliat Krishna Shenoy died intestate was also

denie(‘i,V it was speeifiea,l1y pleaded that after the partition in

there no llintlu Ur1divid(‘d joim: family status,

f$:.fi.SI’lI’12;l Shenoy was not tile Kartha and plaintiff and

– ’15 ..

(.1efen(.iz1.r’1.ts i to 3 were not the. rueiriibers ()f_j0i:1t. family. On

the z1t’01’esa,i(:i grotmds she sought for rejection of the plaiut.

5. Ifiased on the aforesaid pleadings initially on
17.8.1998 the court below proeeetled to fralne the,

iSSIl€S.’

ijwhether the plaintiff provesthzlt, tite
took place between himself, tieie;r1(lztnt’ii.Ny0:illtol
and their father late KfE’ShI1a. Shefioy ineV.ti*ie.. 3
19′? 1 confirmed by the d’eefee it
OS.N0.522 / 1982 Jen theV..filevvQi’ ll Adcleitieofinal

Munsiff of Mangaltiféa _is’«__a p_a1tia.l

further proves that the
I)ziititiot1 deed’ e_>{eet1’tJc:(1 by his father dated
V.23.8.’ij9s’4 V1.21.’-fairotiifs of defenclant No.5 to 11 is

ricit hVi.x1di1’i§;”‘ C1.’_1_._t’he plaintiff’?

plaintiff further proves that after
the tltjealtli of Krishna Shenoy his 1/ 5th interest
infltlig-:'”;B schedule properties devolved upon the

filgtintiff and cleie11(.1ant.s equally’?

-15-

4)Whether the (iefe1e1(.1z1r1ts prove that the

partition took place d11riie1g_; 1237.1 is 21 final

partition as such the plaintiff has no right

seek partition once agaiii?

5)Whether the (.1efe1’1(.izmts further pro_\(e»t’i:ai.’

late Krishna Shenoy hacl eygeeizteci all

7.6.1982 w.}:1ere 1.1nder tile:25j_”i:~evnt§._Of

allotted in his favour urlder the fafnily iwas

bequeathed in favour o£§?’asi1c)da”

5th defendant’? . l A’ I

6)”/hether the (iei’en(i::11it:s’:frjirt;h.et’fp{oV_:e that the

s1.1bseq1ie::1Vt 11_)d§tii,i£5:1~’} :1§e{i–.,__(-iatm’ 28.3.1984

l’:e:t«-‘.irgé1*i_Iat’e;.Krt’s.t111_a S”11e:1.ey and (Iefendants 5

to 1′ .1– ievvaligl’?aS<vt.:3't)ii1_taine(l in para No.9 of the

W1'i tten sta,tei'1'i'er1t's'._¢_ 3 " 2

. — .7)Whether't.lIe clefeficiarits further prove that late

Krishria has executed a last Will on

bequeathed the properties held by

wife — !She.mbaVi, the 4th cilefendarlt

V a1j(1.(i:.(3f(éI1(lz1I1{.S 1 to 3'?

“8)_Wi1e1:her the 1′)iaii1t,1*fi’ proves that stitl the

it plaint I3 and C sehetluit-2 properties are the joint.

A’ family propert’.ieS oi’pEz;1.i.r:t.ifi’ and tiefendants’?

-17-

Qjwhether the plaintiff c-.’.n.titIe(i for [)aI’tiT;i()I1 ar1(l___
separate possessiorx’? if so, what. is £119 qt12u1tuxr’n_

of share’?

1())What order’? or decree’?

‘I’hereafi,er on 3.1.3. “1999 the f”011()wif1g »2’1’,(1″d.vit’i0r:ai-.i.ss-L.g@.$”\i{erE:*
framed.

ljwhether the tleflarxciaifit, pr–Q_\Vr(-}’s
father Krishna Shcnoy .(Exetf’t;1te(l 1a”stvx.2s/i.1.1’anc1
bequeathed Sy.N(},3’5’~’2′._IHi§aSiI{i}3,§”Obf56 Cents in

extent of B scherdglé 1’1V:iS..\f:’:lVOI,II’ and

ass”‘s!.1{$I’1. hé’:::;j.s;. tin; ‘-exciiisixrszowrzer for the said

2)Wh..(jtherV}1.&\ fi11″‘t1’.1_”3

-13-

(lefentlzirit, namely (flulabi Seetlriaramaprabhu was exarriiried
as DW. lo and in support. of their case they pI'(}(11£(‘.f3(lw§fl,§.ill.v 6

(lo(:ur:1ents and got tliem r.r1a.rke(‘l as l+3xs.i) ‘1 to I36. Cf.” .l l”

7. On appreciation of tile ::’pleadlin_gls._, or-ak.oo.___AaIa;t.l

documentary evidence 21vaiiabie_or1 recorri ti1,ve'”o<3v2.irt bolow_*

proceeded to answer issue between
plaintiff and clefenclaritshi. Slienoy in the
year 1971 lf)€iI1g,'(3OI1fiI'vI'I.l.F?.(.£'iii passed
in os.No.5212:fiaeaix;Elle_;1itn¥fna'ti~{;e;–mend issue regarding
binding of 2€l.3.l984 executed by
Krishrlial defe1'1(:lar1ts 5 to 11 in
affirInatnre." claim of plaintiff for 1 /5th

share in B s'cm§d:;1§a properties was partly held in affirtnative.

. – -é£tI'i—issue which wasufrarned against. defendants wherein they

Werel ¥Vi[)or'i to prove that the partition took place in the

yearld 197}."ilé;. 'final is held in negative. 5th issue regarding

exeeutiori of Will dated 7.6.1982 by Krishna Shenoy in

resp'c:;t(':t. of 25 cents alloiiecl to his share in favour of 5th

dfiefezlolant was held in afi*irma.tive. 63th issue regarding

xx-J';

-19..

vaiidity of parti’t:io.n deed dat:ed 28.3.1984 between Krishna
Shenoy and clefenciarits S to 11 heid in the negative. 7th
issue regarding exr::cut,ion of Will dated 18.4.1984 by Krishna

Shenoy in favour of defendants 1 to 3 held in the affirirnative.

8th issue regarding plaintiffs joint possession o:i”‘sufit.__E”5

C schedule properties was held partly in $3.4,

as additional issue No.1 w11erein1;l)ur_der; was ‘castspvonlfirci

defendant regarding Krish11a.Sher1oyAhequeathising E36

in Sy.]\Eo.36n2 in B schedule propert:ies”.ir1″*h.is favour was
held in affirmative. .”rviciiui)”‘:iai’ ~-i.ssVu”e._No.2 was held in

negative. Consequently 10 the suit of

plaintiff The plaintiff being aggrieved by
the said lj«-.idgrrie1itj~Vandlkieeree so far as it pertains to
rejecting ».prayer’._see5kir1g share in suit C Schedule
Iiroperties was. filed RFA.No.’784/1999. The 1.st

‘- (iefer1(iEaT1’3t. being aggrieved by ti’1e_juc1gmen.t and. decree so far

pi./r.i.2’–” share to piaintiff in suit B schedule

propertiesxéhallcangecl the same in RFA.No.782/ 1999.

-9.0-

8. The groumls urg.r,e(.i by the 1st (ieferida1’1t in
I-{I?~’A.Ne.’?”82/ 1999 are ti-12.11:. the ‘inciing on issue Nos. 1 , 4, 6

and 8 are not based on proper appreciation of fa::ts.._:1nci

material on record. ‘Elie same is contrary tothe ~

(.)S.N0. 522/ 1982, which (:0nfir1ned_ fanci upheiiei .\iali(li.ty or ”

family karar of 1971. The finding in re§a:7d’ii.ig

family arrangement being upi’1lei:1_V is bimling ()1i_ail.: theparties–. V *

including plaintiff. The wife til-‘1(vl -.V(_iaught.–ers of Krishna
Shenoy being not t,0′._th«::¢i saiVr_.i’V.siiit, the said decree
does not have uI_1iversal..applitxzttioifidgés not alter the

rights of un(l.eif” th’e”i”amily arrangement.

The fiinding 1982 could not be pressed into
servicetq a.ffeCt».VtI1e”rigi:1ts*6l’ the parties under the family

arrangement. ._Tne7’sa1’°d suit being instituted and concluded

V’ i&E1″v;;€Sf),é1.1’3 8 (iziys””witl10i.1.t notifying the 1st defendant in

1:133 outcome of the same is not binding on the

a[i;._i_>ell:1:1t/Qilfstfldeferltlaiit. The “family arrangement. of 197′}

was e’0nI1plet’.e and total. Those of the properties which were

zriotlggiveri to the share of plaintiff and other ciefentiarits were

a1l0t.te(i to Krishna Shenoy ant} his daughters who had. joint

iflfiw
E

– 21 –

rights of possession and enjoymeni.. Clause 4 of the
memorandum of partitiozi dz:1,ted 10.8.1971 termed as__fa.mily

karar discloses that ali the pro1.)ert.ies of the joint ‘f?lI’E].:i13-?_’Ii-E_1(1

been partitionetl ie:-wing riothing for alieged joint “of ~

i’Lzt.ure partition. _

9. The conduct of the”-~.o[)arties es1)eeia}Ily*…_I§risi1r1a–.V’

Shenoy made it clear that fa:/11113?’ -arrangement wasficomplete
and total and had beer1._é{et.ed u;pori:{‘Is”pursuanee of such
arrangement, a _iWi1I was-.e’xeei;ate(oi “I:S3r Kiiisfihna Shenoy on

7.6.1982 bega§_ea;1~ii§1gV;;;1 €i_t.e.n1 §s£.p’1?5’perty which had faliera
to his1.s11areiAi’1fif_the :”i'”‘g1’IIi_i§§f””£§ii’I’21Ii§§€Il’1€[1t, the partitioii effected
on 28.E3A;’J.§)8éI5 is ‘jlroperty jointly held by Krishna

Shenoy and”det’e;1(.iar1ts to 11 as joint owners pursuant to

fz’1iniiy iktariéir, there£’ift.er in respect of his share executed a

Wfili 984. The partition between Krishna Shenoy

€{ii.(_T¥’V'(1€{v”l3′.T’1′(i’¢E*j..i1KV:tS 5 to It is binding on plaintiff aiso. The

allegation regarding Krishna She:/my dying intestate or that

p1_21.iifi«i’.iff having I /5′” Sh£li'(‘. in suit {-3 sehetiule properties is

v§rit;ho:.1t substar’iee. The fi;21’11.ily arrar1gez.:1’1ent being complete

4
,…N_}”_

-22-

and total arid the pariiiflioii effeetecl in 1984 being division
joint owners of the properties, the properties which fellio the

share of Krislina Shenoy therein was his personal .«p”ro{2–ei’ties

which he could dispose of without reference

Such disposition under the Will ..a(lrnitt§;-filth’to:’.’;vhéiv€:”‘Aheenu

executed by him is binding on plair:;tiff.” ‘l’he ‘(leVoi’u:tiori?1.iof

Krishna Shenoy’s pro[)erties’was by te’stainei1’far3i ‘S«!l.QCf§SSiOI1. V L’

and the suit filed by him e_;if1ri()t–.t_»be f)1’oceedel3:l without
seeking relief of sett.irig._ the; dated 28.3.1984,
without challenging the..s.r.a:ji¢1ity5–.o13,w’i1’i cléitetill 18.4. 1984.

a_JlO. in RFA.No.784/1999 which
was filedowby the denial of share in suit C

schedule propeertiies is on the following grounds. The court

V’ below ha.vii1g corneultodthe conclusion that piaintiff is entitled

ltio. of suit I3 schedule properties erred in

negatingliis. ‘eiaim in respect of C schedule properties. The

finciirig of the court below that plaintiff having not chosen to

questiori the Will, it is not open t.o him to eliallerige the same

at this stage is illegal, as in the court below on issue No.5

./Viv:

E

..23..

the burden was on the (lefendants to prove that Krishna

Sherioy had e;xeeuted a Will on ‘?’.6. 1982 and the Cl€f€I”1′(‘i8.I’ltS

were required to prove the ggeiiiiiriericéss of the saici”ii”‘–in

aceorclaiiee with law. Si.r.1(:e they failed to prove”i;iieAs’aii1e ~

leading evidence through attestors_tti.e”court:”below dugiix to

have rejecteci their claim base(‘l or; tire’iWil1}»The’firidi:a,g”*to

the contrary, is illegal and (;*_op«:J_Vse(l to settled_ 1i.ri;.:eipl.es of

law. That the party who pro(l1,1lees-vliaxre to prove
clue execution, attest:a:t.i.e’r; A genuineness.
Merely because plaintiff»r1it’1 j:r.io’t–.Vl_t’iie same is not a
ground to accordance with

law.

1 1..=Ti’he c0t:rt”?oel0w—-laaving regard to the averments in

0874522/#15382 oral evidence ought to have come to the

‘ACQIl’€tll1§i:Of!.’th.at suit B schedule properties were ancestral

pm’_pert-E.es._ofiirislina Sherioy. The finding is contrary and

illegal, share gI’E:lI’l’t,€C] by court below to an extent of

Al ,1 121-” xiii suit. B se1ie(1.i1ie ;.>ro;.><_:rty is lesser than what he is

'–.leni:i.f:rle(l t.o and the (:r1eli..isi()11 of the (:oui1: below that

vv,

3

-24..

Krishna Shenoy had only 1./12″” share in B schedule
properties and not 1/5th share, is incorrect. The finding
that defendants I to 11 are also entitled to equal sharein B

schedule properties is illegal. The court below has_Wfaile.d”‘to

appreciate that Krishna Shenoy did. not have absoleiiteiilllriightl ‘

in the properties bequeathed 1mder.Wii.|_ it it

court below having held that Will :’t.1at’.e_d .6:

proved, plaintiff is entitled ‘to_v”‘1./12″i”~share l'{j”‘vs.ehe(iule’w.l’

properties also. The court b¢l.Qlil\’r~,hé5c$v erred in holding
defendants 5 to 11 arelnot. ,eia.titledshare in the suit

schedule properties. Vapppreeliation of oral and

doeumentaify’lvlevidenceris-_v also not proper. There is no

applicationof pri.;ieilp’Ees”‘iaw to the facts on hand.

_ £2. lfi.,th’eSe ‘vappea’is, this Court on appreciation of the

urgedir1’vthe«’appeals and the finding of the court

V blelow “W}g7%i”l1’:l””~l’jCéi’€I’e}’lC€ to issue Nos.1 to 10 and additional

eeee moi gee 2 framed therein hold that the following

points arise for consideration in these appeals:

W”?

-25-

1) Whether 2.110 I’i.1.’1di:1g given by the €’.()1.1I”t below
regarclirig partition midcz-21″ family karar dated._
l(‘).8..1.9’?l is Iyartial pzufiiiiiori, is just E3.v{xld__”!fl.

proper?

2) Whether the findirig of_mtV.ib1e ooe’jm;–

holding pamuon clatetl 28.3,19s%lT’a,s”«in:&a1i§1;’.:sV_p””‘__l]

just and proper’?

3) Whether the ‘fin(lirig«l.:of the’
regarding beqiiesf; inagie “‘E£rishna’vvSh.en()y
under Will “‘*ir;.a:fa\(our of 5″‘
defendant and favour of

his w1’fe_ ..ang._1 ‘s.o:1s, are _}fali(l”aijidubinding?

*4) xzsrirlariie-.s«.;l%;mr¢:aiig._of 1/12111 share to plaintiff

in’B sQli1e’r:1.iilo.jp:’op{;i’E:i-as, is just. and proper?

* ‘E1 Wl1uetl’1Aef’i*ejéCting the prayer of plaintiff for
shareppin s1iit”‘C”sc}1e(ii1Ie properties, is just and

V’ ” pro~;)e:j’?’* ._

‘ }3.A.’J_?¥._eaT3’€i thc-2 (.’.0E.lI’1SC1 for appellants and respondents

in both”*t,h(3; appeals, peifuseci the §_;;’o1.in(1s of appeals, Fimling

of below in _;’1,1(1gxI1{>r:.i. passed in ()S.2()O/1996 and the

“ora1’an(i ciocumcntary evi(‘l(:z’1<:e therein. On reappreoiation of

.,\w

-25-

the saI1’1e this Court E1i’lSW(:’.1″ point .Nos..l., 2 and 4 in the
negative and point Nos.3 and 5 in the E1ffiI’I{1€-1t.i\f_'{;’.~~,f(“;If’ 7:._he

following reasons:

14. The relationship 1)(3tW._v{3t?1′},”t’a1;h(a«*,zlsfifid

defendants is not in disp1.1t,e.’ -._f1’he f’a.e1′.” that”siiit.__sc}1edt:1e_

properties were acquired under
registered sale deed not dispute. It
is further not in clisptitg-::”thatdavs 1971 plaintiff,
defendants ‘1 formed members
of joint that in the year 1971
due partition was effected
in the v’i’2;-inilyi which was reduced into

writing as ti§’z1ra’r 10.8.1971. This is the doeunient

_ unéér ‘}?\”Ihi(§’i’1’t1″I(? of the parties wiil have to be decided

as,itrhas_h(:o1ne’:,inl.o place at an undisputed point of time

the progierties of the joint famiiy was divided.

..1’ui’*3«,_ The division in the joint family in the year 1971. is

r1ot;’«..in dispute. It is 3.330 not in dispute that in the said

5′

F

-27..

paititioh plaintii.”f is awarded 45 Cents of land which is B
selieclule in the family l<a,rar,"ist. (l€f('.Il(l'c'irli. was allotted 43

cents, which is A S(_'.l'IE.?(1l.l1G', the 2nd de.i'er1da.r1t, wasv_all_o':ted

43 eeots, which C schedule. the 13rd cleife;ri(il«afjt__:'xirgsx

allotted 43 cents, which is I") schedule father

Krishna Shenoy was allotted 25 cegzitsgwhiielh is 'ref: s'el1etitJ$lTe.i'

Now coming to the family .l:e11ffa:'_'cIatefi 1.91721. oars 5*it r

is stated that other than A t:0 E"s..el1e(iuleV'prof)ei*ties: all other
immovable properties .f)e.§o11g:§l't()"' s1s_t._'oiT. the gviartives in the
family karar [Krishna Shehoy who are at

No.6 to 12 in iarhilykarzirl ltisflalso made clear in

the said far1_1ilyTls:ararV£",l1atvKrishr1a Shenoy and his daughters
who a.re"at"6 'are-..__j'oih"t. in possession and enjoy the

samein eq1i.al._rightZ's. ll"-'1't1le: said family karat' and the recitals

– rriade’ tl*l”‘t?,E’E3Vi”I1′, is noun’ dispute.

s.l6._A”.i7Itier;efore, as on 10.8.1971 there is division in the

j€’)il1tf’f21I{1.ily’:._Of£ Krishna Shenoy and joint family properties

were (livi;_r_.i.ed by motes and bo1.m(‘1s. The eor1t:er1ts of said

family karat’ clearly discloses that the same is full and final

34/)”,-fig”?

-23-

partition between all the members of the family. Since the
remaining properties of the joint family other than schedule

A to E stated therein are allotted to the share Of”‘Kfi§s}il1a

Shenoy and his (l2,1ugl1t,ei*s, they eontiiiue to be in ;)os’:}{e’ssit5n_’ .

thereof as joint. owners and not as 7iiQiI1f. li1I?i’1ily”r3ri’erIil3ers. ‘/_It”VV

is to be seen that this is the (1o’c;u1’r_ie;1t’, w,h_ieh”‘ is” lE3x.l:Z*.:1;

which decides the right and s4t,at.iis of the parties; Tl_V1eref’cn’ie,_’ 1

as on 10.8.1971 there is totial”.,se\.ruera.neei_of joint family
between plaintiff and Cl€:_fe*:i(lz§§_;1ts.v the contention
of plaintiff that partiti.o1j’_ ‘–I,.1r1t1€i’_ f’a.n1ilyiVV~-ltarar is partial
partition is ”

i’_l’he eoliterition efplairitiif is mainly based on Certain

averments “made {..3b__.”5f32/”1982, which was filed by

Krishna Sl1ei’ioy’ ll years. after the parrtitiosi of joint family

properties “taking The pl-aint in 08.522/I982 relied

tipolnei and made much about t.he pleadings stated

tthefein Vxviiiijiiaver to be looked into in the light of the family

kararflrilaiietl 10.8.1971 and not the other way, ie., the family

cannot be lookecl into in the light of the plaint

a§.vermer1t’s in ()S.522/1982. First of all the eireurnstarice

_ 2.9-

1in(;ler which the said suit IlIGII1bu(»)I’S ofthe family as per
famiiy karat’. A reziti~i.;ig; of pifa’iI1lta averments in its
entirety does not give… 11:3′-V. iti(iir:ationV”‘=t112it there is an

admission ri’iaitlell3:ySheno3fi:h’at”the partition dated
10.8.1972 _

17. ‘i;iie._:e11tire f’eaEli1’1g of the plaint clearly indicates

the ]i1aintift’l””éii’id 1st clefendarit herein from the

Bfifgivflfllilig’af€~,_tfQ1,1bl€ mon.gers not only to defendants but to

the otlicjririenibers of the family. It also seen that it is at

their ‘1ivnsta:’1(:e partition has taken place, When once

pVartitioi’1 has taken place in the year 1971, there appears to

no rriiitiiality between them right from 1971 to 1982

g/U/Au-‘E

– 39 _
the date when suit in ()S.522/ E982 was filed by their father
and brothers against t.heir1 for deckaration that partition
dated 10.8.1971 is valid and birldirig. In the said suit,

nowhere it is me1:1t.ioned that suit B and C schedule

properties are to be treated as joint family prope_rfties–«’ ,l_1e_l:d y

Krishria Shenoy. it is also not in atliriissioifiii ‘tl7:1’e._said

plaint that joint family does exist izljetweeri

plaintiff and defendants 1 to.*3.,_ The’refL:re, refeteiicde to l.’I’i’3.”_>

portion of pleading in paragraph _2 the remaining
agricultural properties!”werej:f(le_ei€1e_(l_’ito. be kept as joint

family properties of the __if:t1eai1 that joint

l-Hr1(lui_U11(.iiyi(1é:d_ family of . Krishnei Shenoy and his four sons
exist. ‘Ii’1js”pleading”will-.t_ha’fe to be read and understood in

the light of ‘E3 of family karar dated 10.8.19? 1.

The-.t:efofre, faiiiilyv as meant and stated by Krishna

tlie>._s§;:id plaint refers to himself and his daughters

to the said property is allotted. The plaintiff

(.:anr1ot make much out of it and can elaim the same as joint

V’ ‘ — .’7a_mi’ly property.

‘L/=.,”v’§=

-31-

18. The coricept of partial partit.ion is alien to Hindu
Law. When once there is severance of status between the

parties by way ()f’pa1’t.iti()11 by rnetes and boun(.1.s, :’it.h–as

taken place in this case on 10.8.l£I)’71., it is_.”n()t_fo*peI-i

plaintiff or “Est defendant. in the 1)rest:rit sui_’£’.”t.oV’

suit B sclieelule property is joint :fa1ni’ly..*ipropert.y’

have a share in the said property_, The v.«:onteI1’tio1é§ o.f_p1:1.i11tii’f–_l’

that as on the date of filing o_fTt;l1:is–..s1iit..i’11.l_l996v}tl1e joint
family of Krishna Slienogfantl P§jin’tft1_hL?A.nttiyided. joint family
of Krishna Shermy exist;~-betvyeenp VVhir’nseV1:i”~.a;’id his four sons

cannot be aeé§ept&;eicl,. Iiliéss co_;.51t;c2r1tio1i’that the partition dated

10.8.1971 r1lriti’er _far1ii13r’vl'<ai_'_z.1r is partial partition also canriot
be accepteti. court below on this aspect is

without EEAI1(1V"j.ilS{ifi()ati()l"i. Probably the court

beloiv Zrriust haVe..__earried away by a reading of a stray

.' seritenee.ofévzplairit in OS522/1.982 without giving credence

H to' .t£1eVV'(ioet_irne,nt. under which severance between Krishna

Sl—£.ei1oy.lr:is sons has taken place way back on

.E..0.8.:i $371.1. 'l'here.t'ore, this Court answer the 1*" point" for

2 ., '(torssi('1ei'at:ion in tile 11c-rg:–itive.

'«<.,"'§,x;

f

-32..

’19. Now coming to félmi point for consicleration, when

once it is held that. the pz1.rtii:ioIi which has taken p1;’£er§ on

10.8.1971 is total partition by metes and bou11_d.s_’4″:iVet{§a’ee’iw.x

the parties and in terms of clause 5 of

than schedule A to E to said fa111i1y’1{éi.rar. aiipother”prop’e-fiiens;

of joint family are stated to be of

Shenoy and his daughters, riariridejiypdefendants this 11

proceedings. In the light-iof such eLVp_’i’eoi4_g1 in “f’E1i}’1J’,}_\JI~’3k3I’3.I’ the
father of plaintiff narneiigf arid defendants 5
to 11 are entitled to tjiiemszirne divided amongst

themselves:’=pa:’tition of the said properties.
Therefore: the between them on 28.3.1984

under_ a registered’. partitioii deed is just and proper. The

” ‘~ eliiottped of defendants 5 to 1 I in the ratio of 25

een,ts of-l;u’i(‘£~–.ir1 the said partition is just and proper and

be inva1i(1.. ‘Fherei”()re, the finding of the

cotirt t)e1o*x_7+Lij’..oAn this aspect is required to be set aside in this

z~1ppezii..__’3 ‘ITl:1erei’ore, this Court answer the 2″‘? point for

” (;onsiderati.o_n in the negative.

20. Now eoniirig to the SW1 point for c:()r1si(le1fai.ior1

regarding execution of the Will, admittedly an _eXt*e1*1;:;

cents of land was allotted to the share of VVSii:ei1oy’liat ‘

schedule E in the family karar (late(.l:_:Ali(J}8′;.l

has bequeathed in favour of his_ list l(ia1’ighter.1.51;h :defer9}g(iant”” *’

under a registered Will (iated in his
pleadings has not cllaliei’1geti Vi:h”(;’.:’ Wherevas in his
exa1nination~ir1~chief dai;etl_ li8§§)1biET~9ii3’l1as stated as

under:

” ‘fati”ler had executed
Zallflfilli ll3’fia;>lVV.:’1982u_”VihVflfavour of my elder
é;istei9 c’Iefe’fif(lzif1tvlVio__.V5* in respect of 25 cents of
land out of. property B schedule

~pifopei’E3J., amt} l7 have not questioned the said

aaaaa

‘ ‘i’l1e.Vsa_i(i~eex{ilt}e11c:e of piaint,iff in his exami:1ation–in–chief

‘clearly i.ai€”osVa\ivay his right to challenge the same. So far as

the”‘2ii(§’.”Wi1vi”iS coilcernecl, it is a registerecl Will. plaintiff

it tiioughlll he was aware of the same has not challengeci the

except: making a referericze that exeeutiori of said Will is

E
ifzjum

– 34 –

not within his kn0w’ieclge. 2.1.n(1 his father has no right to
execute the Will. The said eonteiition is taken by him in the

light of the fact that he was contending that suit

schechile properties are the properties of .~_4}:C)iIl_tA °fziirniiy: *

(:(:ansist:ii’ig of himself, his hirotliers (lef7e.n(1a.r1_’tis”:iV’ 3 .?a;:i4ti.Vhi-s

father Krishna Sheney. “l”here’f0re, “his1e()iiVtenti()’1is_is théithis

father had no right to e.xec:1t§e__t.i*:.e said-Will and ..sax<i1e is 2 L'

not binding on him.

21. In View of ‘.tF:3§a#:. has given a
finding to the effieet. tliziig family between
Krishna to an end on
ex(?cL1tidnV_ the contention of
I)1aiIItif’f”ff1f1t si:’.w.i_l.’V property being joint family

pr(>pert.y is iiegateti. When once it is negated then it is not

opei’ fcér him to chwsiilevngge the right of his father to execute

the it is not his contention that the Will is not

exee1ited.hy_.his father or that the ex.eeution of the same is

unde.f_s(‘ispici01is cireiimstariee or that the same is not the

W_i1ui””A_0f his father. The ehallerige to the Wili is on the basis

‘ thait his faither has no right to execute the Will. In the light

-35-

of the ii1’1d.i.1.1g given by this (fiourt on issue Nos.1 and 2 the
COI’1t(‘,l’ll.l()I1 of plEl]’l’1′[i.ff that suit B and C schedule properties
are joint family properties being negated and his claim to the

same is put. to rest. Theri his contention that his fatl’ief»ehas

no right to execute the Will does not have

‘i’he1-efore, the Will exec:utec.1 by his father

valid and the validity of the sarnehlcarirliot the -iqueVstioi’ie’d iii?

this suit. If plaintiff had CEOI1V1L€Er1Cli:?d..l.li$,1t the “has

into CXiSl,CI.’lCC under sus1)i(:ioii’sVE:ir(:1.1.II1star1ee.or tlie Will is

not executed by his father orttitl iaila e’o.1_1cocted”arid created

document, then probahlyl’ l:ile~~E’\2i.;’ioii__1y:(i”‘–hays had right to

conterid tha”t’l5f_-tltief3.sar.tie~« ifequired to be proved and
establisliecll’ by’ttie~lprof)o:iintl(ar of the Will. Here what is

being ..challehgeci~l)y hiih: in the suit and as well as in the

W – 2ip”p–e.a1:,.i’g, the riglitflotl his father to execute the Will, which is

1’§iit,li.e)~h’ye. flE1(1i.I}§__.§ given by this court on point Nos.1

ampl l”‘l’lieref()1″£:, this Court answer 3?” point for

eonsicler}:ti<)r1 in the affirmative and hold that the Finding of

"ii "c:_ou11, below that the Will dated 7.6.1982 and 18.4.1984

it

t –. t:h(:s—-rieg§atiVe,.

-36-

<*,xeCl,1t.e(l by K;:.'isl*1nz;1 Sllenoy is valid and bintiing on all the

parties.

light of the fact that oral partition which is’7«’:r__e(ivii’eeV(i

writing as famiiy kart-11′ on .10.8.;i’9″7I”is’ as’-finvai.

partition between the rnernbers oigf-Ii*;_1cit1 [J.i’1r_.1ivitied –,{.J’oint._

Family of Krishna Shenoy of he.”w_as that’

in the said partition suit B V.sei1e(i.11’1’e»_propertvies-Ware being
allotted to the share of 4′ ‘i{:i’s_?’i:3;;f=_§’i’1e}ioy,a:;d his daughters,
defendants 5 ‘ .11 iflw pro’eeedi.n’gs’V the question of

granting 1 tAI’2*%§ s1*i3a,prt:–.’i’r1~«.’Vthe saici properties or any other
share Ijiaintiff ‘”(:lefen(1a,i1t does not anse for

eor1si«:ieratio’n…, ‘I”‘ne’rel”ore.,f tfrle aforesaid point is answered in

” 23. Fizlally coming to 5″! point for ().O1’1Si(i€l’&tl’OIl, in the

light oi”, the finding given above when partition dated

2 1();8.,.1 is eonsicierecl as final partition among the

Aixnenibers of the joint famiiy of Krishna Shenoy in the iight of

22. Now coining to 4*” point for consiclerationuinathe

%:i.

.37.

family karar and u.:’1der clause 5 of family karar the suit B
and C schedule properties falling to the share of Krishna

Shenoy and his daughters they had right to

partition on 28.3.1984 and a1l()t.ting schedule–p.r0j)le§~f.i’esltd ~
the share of Krishna Sheney which the is ent.it1″ecl’_’t..0ll’beq1,iestll”
the same under the Will. ‘l’l’1er.ef0r_fe…~ln0’=.shai’e ‘clja-.1 “tie-

awarded to plaintiff in the sa~it1’p’ropertj.es. Hence; ‘title C,’0urt–_’

answer the aforesaid point ll”f.r)lr ,c0nSicler_ati0n} in the
affirmative.

24. In effect this _(..’.0.t1_r–t. while up all the five

points for c0;fisiC§i-sratigjn is hr the ‘qsinion that plaintiff in

C)S.2037:D/19S’)’6’l~h.£1$V no man.n_e1’_0f right, title or interest in suit
B and §>,c3t1§:d:.:1§9′ on the date of filing of suit

for the rezietjri_:tI1atfHii’i(ilil.Uricliviclecl Joint family of Krishna

A.dissnl\fetlla1’acl separated as on 10.8.1971 when

effected and all the properties of the said joint

family wa.’3″l{litri(lc>c1 by met:-:5 and bounds under the said

fan1ily~ Igarar, which is at Ex.Di. Therefore, in the light of the

afere«sai(i finding of this. Court, the appeal filed by 1st

cleferitilarit. in RFA.782/ “5999 is allowed. the judgn’1ent and

U./\»’§_

3.

– 38-

(‘1e(‘:rc:c passed g1’211’1t.ir1;_>; 1/12″? sharcr to ple1int1’.ff in B

9.-che(.iuEe propertios in (_}S..N(>.2()O/1996 is set aside ancl the

suit is ciiS11’11’ssed. C()11s(:q11cn’i.iy, the appeai flied

in RFA.N0.784/ £999 is (iis.r1.1isse(1 without a11; I:”0rc.1Tt:§r’L :is; to

costs.

Sa/:

3uD@E

kmj§UDG§