IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 15^th DAY OF JANUARY, 2021

BEFORE

THE HON’BLE MR.JUSTICE RAVI V.HOSMANI

REGULAR SECOND APPEAL No.6235/2012

BETWEEN:

Hoovi Kom Subray Marati,

Aged 63 years, Agriculturist,

R/o. Tenkanabail Sonda Village,

Tq. Sirsi (U.K.), Pin: 581402

... Appellant

(Sri. Anant R. Hegde, Advocate for Appellant)

AND

1.

Laxman Shivu Marati,

Aged 73 years, Agriculturist,

R/o. Tenkanabail Sonda Village,

Tq. Sirsi (U.K.), Pin: 581402

2.

Puttu Shivu Marati,

Aged 78 years, Agriculturist,

R/o. Tenkanabail Sonda Village,

Tq. Sirsi (U.K.), Pin: 581402

... Respondents

(Sri. S.V.Yaji, Advocate for R1;

Sri. K. Raghavendra Rao & Smt. V. Vidya, Advocates for R3 to R8)

2

This RSA is filed under Section 100 of CPC., against the

Judgment and Decree dated 29.06.2012 passed in R.A.No.37/2009

on the file of the Presiding Officer, Fast Track Court, Sirsi, partly

allowing the appeal, filed against the Judgment dated 11.06.2009

and the decree passed in O.S.No.211/1993 on the file of the

Principal Civil Judge (Jr. Dn.) Sirsi, partly decreeing the suit filed for

declaration.

This RSA being heard and reserved for Judgment on

08.01.2021, this day, the Court delivered the following:

JUDGMENT

The above appeal is filed challenging the Judgment and

Decree dated 29.06.2012 passed by Fast Track Court, Sirsi in

R.A.No.37/2009 and Judgment and Decree dated 11.06.2009

passed by Principal Civil Judge (Jr. Dn.) Sirsi, in O.S.No.211/1993.

2.

The

appellant

herein

was

defendant

No.3

in

O.S.No.211/1993 and appellant in R.A.No.37/2009. Respondent

No.1 herein was the plaintiff in the suit and respondent No.1 in

appeal. Respondent No.2 was defendant No.1 in the suit and

respondent no.2 in appeal. Respondent Nos.3 to 8 are legal heirs of

defendant No.2. They were brought on record after death of

defendant no.2 during pendency of R.A.No.37/2009. For sake of

3

convenience, parties will hereinafter be referred to as per their

respective ranks before trial Court.

3.

Brief facts leading to this appeal are that, plaintiff

Laxman Shivu Marati filed suit against defendants for relief of

declaration to declare that alleged Will dated 21.08.1984 executed

by Shivu Marati in favour of defendant No.3 as null and void and to

declare plaintiff has got 5/12^th share in plaint-‘A’ and ‘B’ schedule

properties. It was stated in plaint that property comprised of lands

bearing R.S.No.316-3 measuring 1 acre 20 guntas and R.S.No.314-

2 measuring 1 acre 31 guntas situated at Sonda village (Schedule

‘A’) and movable properties (Schedule ‘B’) were joint family

properties of Shivu Marati. Two other brothers namely Huliya and

Shannu got divided and had taken their share in joint family

properties during life time of their father, Shivu Marati and had

separated from joint family. Therefore plaintiff had share in

remaining properties along with defendant Nos.1 to 3. It was

further stated that, Shivu Marati died about two years prior to suit

and thereafter defendant no.3 began contending that she was his

legatee with respect to suit schedule properties under Will dated

4

21.08.1984. And when she filed application for mutation of revenue

records in her name, objections were filed by defendant Nos.1 and

2; a dispute was registered and it was held that ‘A’ schedule

properties were joint family properties. Against order of Deputy

Tahashildar,

defendant

No.3

filed

appeal.

The

Assistant

Commissioner, Sirsi, vide order dated 08.09.1993 allowed the

appeal and ordered that suit schedule properties are properties of

defendant No.3 and directed Revenue Authorities to enter name of

defendant No.3, in respect of properties. As defendant No.3 was

enjoying profits from properties, plaintiff sought for her 5/12^th

share which was denied and thereby giving rise to a cause of action

for the suit. On receipt of summons, defendant Nos.1 to 3 entered

a