AND

DECREE

DATED

11.01.2019

PASSED

IN

R.A.NO.252/2017 ON THE FILE OF THE V ADDITIONAL DISTRICT

JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE

JUDGMENT

AND

DECREE

DATED

18.09.2017

PASSED

IN

O.S.NO.2/2014 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE

(SENIOR DIVISION) AND CJM., MYSURU.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

3

JUDGMENT

This appeal is filed by the defendant Nos.1 to 6 in

O.S. No.2/2014 challenging the concurrent finding of fact

recorded

by

both

the

Courts

that

the

suspicious

circumstances surrounding the execution of the Will -

Ex.D1 were not purged by the defendants.

2.

The parties will henceforth be referred to as

they were arrayed before the Trial Court. The appellant

Nos.1 to 6 herein were defendant Nos.1 to 6 respectively

while the respondent Nos.1 to 3 herein were the plaintiffs

and respondent No.4 herein was the defendant No.7 before

the Trial Court.

3.

The suit in O.S. No.2/2014 was filed for

partition and separate possession of the plaintiffs9 1/3^rd

share in the suit schedule property. The plaintiffs claimed

that Smt. Shivamma and Sri Channaiah had three sons,

namely, Sri C. Bhyranna, Sri C. Somashekara and Sri

M.C.Chandrashekara (defendant No.6). Plaintiff No.1 is

the wife and plaintiff Nos.2 and 3 are the daughter and son

4

respectively of Sri C. Somashekara while the defendant

No.1 is the wife and defendant Nos.2 to 5 are the

daughters of Sri C. Bhyranna. The plaintiffs claimed that

during the lifetime of Smt.Shivamma, the family properties

were partitioned in terms of a partition dated 04.11.1981.

At the said partition, the suit schedule property was given

to Smt. Shivamma to be held by her during her lifetime. It

was also stated therein that after the death of Smt.

Shivamma, the suit property would be divided amongst

her three sons equally. The plaintiffs alleged that after the

death of her eldest son 3 Sri C. Somashekara, Smt.

Shivamma was residing with the defendant No.6 till her

death. During the lifetime of Smt. Shivamma, the

defendant No.7 had taken the suit property on a monthly

rent of Rs.5,500/- to run a play home in the suit property.

After the death of Smt.Shivamma, the plaintiffs requested

the defendant Nos.1 to 6 to partition the suit property, but

the defendants postponed the same on one or the other

reason. Thereafter, the defendants filed a caveat petition

in which they claimed that Smt. Shivamma had executed a

5

Will dated 02.02.2010 and that the suit properties were

divided between the legal heirs of Sri. C. Bhyranna and

defendant No.6 on 11.01.2013. The plaintiffs were

therefore constrained to demand their 1/3^rd share in the

suit schedule property and when the defendant No.6

replied claiming that the plaintiffs had no subsisting right

in the suit property, they filed the suit for partition.

4.

Defendant Nos.5 and 6 contested the suit by

filing the written statement, which was adopted by the

defendant Nos.1, 3, 4 and 7. Defendant Nos.5 and 6

admitted the relationship and contended that under

partition deed dated 04.11.1981, the limited right given to

Smt.Shivamma blossomed to absolute right and she was

the absolute owner of the suit property. They denied that

the plaintiffs were entitled to claim share in the suit

property. They also denied that the suit schedule property

was leased to the defendant No.7 on a monthly rent of

Rs.5,500/-. They claimed that just the way the sons of

Smt.Shivamma enjoyed their property separately, Smt.

6

Shivamma was also enjoying the suit property absolutely

and therefore, she became the owner of the suit property

by virtue of Section 14 of the Hindu Succession Act, 1956

(henceforth referred to as 8the Act of 19569). They claimed

that the defendant No.6 and his family members took care

of Smt. Shivamma and she was residing with them. They

claimed that defendant No.6 and his family members

maintained and protected Smt. Shivamma during her old

age. The defendant No.5 also claimed to have h