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2023 DIGILAW 188 (KAR)

K V Rajakumar v. K V Adinarayana Shetty

2023-02-01

SACHIN SHANKAR MAGADUM

body2023
JUDGMENT/ORDER 1. The captioned second appeal is filed by unsuccessful defendant, who has questioned the concurrent findings of the Courts below, wherein the plaintiff's suit for partition is decreed granting half share. 2. For the sake of brevity, the parties are referred as they are ranked before the Trial Court. 3. The genealogical tree of the family is as under; 4. The plaintiff has brought in the present suit for partition and separate possession. The plaintiff is asserting that he has got half share in the property as he has acquired right and title to an extent of half share in the suit schedule site based on the registered sale deed executed by his brother Sathyanarayana Shetty on 2/12/2006. 5. The present suit is filed alleging that the defendant is trying to interfere with the plaintiff's peaceful possession over the half share in the suit site. The plaintiff has also indicated that defendant is asserting title over the entire suit schedule property based on the Will dtd. 6/8/1991 and hence, the present suit. 6. The defendant filed written statement and stoutly denied the entire averments made in the plaint. The defendant on the contrary claimed that his father has bequeathed the suit site in his favour on the basis of the Will dtd. 6/8/1991 and hence, sought for dismissal of the suit. 7. The plaintiff and defendant to substantiate their respective claims have led in oral and documentary evidence. Trial Court though answered issue No.2 partly in the affirmative, but however, held that bequeath made in favour of defendant by his father would be valid only to the extent of testator's half share in the suit site. While referring to the title documents as well as relinquishment deed dtd. 10/10/1974 executed by father of the plaintiff and defendant in favour of his brother Sathyanarayana Shetty, the Trial Court held that the plaintiff has acquired right and title to an extent of half share based on the registered sale deed executed by his brother Sathyanarayana Setty. Consequently, the suit is decreed granting half share. 8. Feeling aggrieved by the judgment and decree of the Trial Court, the defendants preferred an appeal before the Appellate Court. Appellate Court having independently assessed oral and documentary evidence was not inclined to entertain the grounds urged by the defendant. Consequently, the suit is decreed granting half share. 8. Feeling aggrieved by the judgment and decree of the Trial Court, the defendants preferred an appeal before the Appellate Court. Appellate Court having independently assessed oral and documentary evidence was not inclined to entertain the grounds urged by the defendant. The Appellate Court was of the view that in view of relinquishment deed executed by the plaintiff and defendant's father - Velur Venkataramaiah wherein half share was given to second son i.e., Sathyanarayana Setty, the Testator Velur Venkataramaiah could not have bequeathed entire suit site in favour of defendant. Therefore, Appellate Court has also held that Will would be valid to an extent of half share, which Testator had retained after relinquishing half share in favour of his second son i.e., Sathyanarayana Setty vide Ex.P.6. Consequently, the appeal is dismissed. These concurrent findings are under challenge. 9. Heard learned counsel appearing for the defendant and learned counsel appearing for the plaintiff. 10. The family tree clearly indicates that plaintiff and defendant are full brothers. Their father Velur Venkataramaiah under Ex.P.6, which is the relinquishment deed, transferred half share in the suit site in favour of his second son - Sathyanarayana Setty. Therefore, what emerges from Ex.P.6 is that the plaintiff and defendant's father had retained only half share in the suit site. The remaining half share was admittedly transferred to second son - Sathyanarayana Setty and he has, in turn, sold the said half share to present plaintiff under the registered sale deed dtd. 2/12/2006 vide Ex.P.1. Therefore, if father of plaintiff and defendant has transferred half share in favour of second son, he could not have bequeathed entire site in favour of defendant. Therefore, both Courts were justified in holding that Will, though proved, will be valid only to an extent of testator's half share in suit site. Therefore, both Courts were also justified in granting half share to plaintiff based on the registered sale deed executed by Sathyanarayana Setty vide Ex.P.1. The concurrent findings recorded by the Courts below is based on legal evidence, title documents and in absence of rebuttal evidence. Therefore, no substantial question of law arises for consideration. Accordingly, the appeal is dismissed. Since it is not a fit case for admission, question of entertaining LR application to bring the legal representatives of the deceased respondent on record would also not arise for consideration. Therefore, no substantial question of law arises for consideration. Accordingly, the appeal is dismissed. Since it is not a fit case for admission, question of entertaining LR application to bring the legal representatives of the deceased respondent on record would also not arise for consideration. Accordingly, I.A.Nos.12023 to 32023 are rejected. In view of the dismissal of the appeal, all pending interlocutory applications do not survive for consideration and accordingly, they are rejected.