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2007 Supreme(Ker) 44

K.A.ABDUL GAFOOR
H. N. Padmanabha Hegde, Kasaragod District – Appellant
Versus
Suneetha J. Rao, Kasaragod Taluk – Respondent


Judgment :-

Abdul Gafoor, J.

This Second Appeal is by the defendants 6 to 13. The only substantial question of law raised and urged before means as follows:

“On the facts and features of the case, whether the lower appellate court was right in not drawing a presumption on due execution of Ext.B1 will, which is 30 years old, as contained in Section 90 of the Evidence Act?”

2. The entire case set up by the appellants/defendants 6 to 13 centers around Ext.B1 Will, which is taken as a defence against the claim for partition by the plaintiff, one among the sisters of the appellant. The facts are as follows;

3. One Narayana Hedge, the father of the partied died in the year 1979, leaving his widow, defendant No.1 who died during the pendency of the suit, plaintiff and defendants 2 to 5, five daughters and the appellants/defendants 6 to 13, 8 sons. The parties are governed by Mithakshara Hindu Law. According to the plaintiff, her share in the property was not given to her in spite of the persistent demand. Finally it resulted in Ext.A1 suit notice for partition. This was replied to in Ext.A2 notice sent on behalf of the appellants, who took up the plea that the plaintiff was not entitled to pa













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