JUDGMENT :

Mr. Anant Ramanath Hegde, J. - This appeal is by the defendants in O.S.No.20/2009 on the file of the Addl. Senior Civil Judge, Ranebennur.

2. The suit was one for the relief of partition. Plaintiffs claimed 1/3rd share in the suit schedule properties. The genealogy of the parties is as under:

3. Originally, the suit properties belonged to one Yallappareddi, who died in the year 1953. His wife predeceased him. Yellappareddi is survived by four sons and one daughter. Since Yallappareddi died in the year 1953, his four sons inherited the properties equally. Among them, Ramappareddi is the elder son. He died in the year 2005. He was a bachelor. The second son of Yallappareddi died in the year 1980 leaving behind his wife Gouramma and two sons namely, Yallappa and Manjappa. Manjappa died unmarried. The last son of Yallappareddi namely, Hemareddi died on 06.12.2003 and he is survived by his wife Janamma and two sons namely, Yakareddi and Hanumreddi.

4. The suit is filed by Gouramma and Yallappa, who represented the branch of Ramchandrareddi and Janamma, Yakaraddi and Hanumareddi, who represented the branch of Hemaraddi.

5. The suit was opposed by the defendants, who represented the branch of Laxmappa. The defendants raised a contention that Ramappareddi, who inherited 1/4th share in the suit schedule properties bequeathed his 1/4th share in favour of Guddappa, one of the sons of Laxmappa. The other members of Laxmappa's branch supported the claim of Guddappa. They did not dispute the execution of the Will by Ramappareddi. Defendants alternatively also took a contention that the properties bearing survey No.49/2A measuring 1 acre 23 guntas of Mustur Village, Taluk Ranebennur, is the joint family property acquired from the income of the joint family properties, though they are purchased in the name of Yallappareddi and Hemareddi and contended that the suit without including that property is not maintainable.

6. The trial Court has held that the Will of Ramappareddi is not proved and granted decree for partition and separate possession of 1/3rd share in all the properties as claimed by the plaintiffs. The trial Court also held that the properties in the name of Yallappareddi and Hemareddi are self acquired properties of Yallapparaddi and Hemareddi and not liable for partition.

7. Aggrieved by the aforementioned judgment and decree, the defendants are in appeal.

8. Heard Sri. Shivaprasad S. Patil, learned counsel appearing for the appellants and Sr. T. R. Patil, learned counsel appearing for the respondents.

9. Both the learned counsel jointly submit that the parties have arrived at a consensus and it is agreed between the parties that Ramappareddi executed a Will on 24.01.2005 in respect of his 1/4th undivided share in favour of Guddappa, in respect of all the suit properties. They further submitted that Ramappareddi has mentioned the property bearing Survey No.49/2A standing in the name of Yallappareddi and Hemareddi as the joint family property and that he has got 1/4th share. The claim in respect of the said property is not pressed by the defendants and the defendants admit that the property bearing Survey No.49/2A is the self acquired property of Yallappareddi and Hemareddi.

10. Further statement is made that, since Guddappa is entitled to succeed to 1/4th share of Ramappareddi, the loan raised by late Ramappareddi will be discharged by the legatee Guddappa.

11. Learned counsel for the parties have also filed a joint memo in this regard. The joint memo is also placed on record.

12. For the aforementioned reasons, this Court is of the view that the judgment and decree passed by the trial Court are to be modified as under:

ORDER

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