M.D. Harijyothi Kumar and Robin Prakash vs Master R. Abhishek and Smt. M.D. Sudhamani

S.N. Satyanarayana, J.—Defendant Nos. 1 and 2 in O.S. No. 801/2007 on the file of I Additional Senior Civil Judge, Mysore, have come up in this second appeal impugning the concurrent finding of both the Courts below in decreeing the suit of the plaintiffs for 1/3rd share in the suit schedule property.

The admitted facts are that the father of first plaintiff and husband of second plaintiff, namely Rathna Kumar is one of the sons of deceased R. Vasanth Raju @ R.V. Raju, who was the sole and absolute owner of residential property bearing No. 102 situated at 12th Cross, 4th Main, Fort Mohalla, Vidyaranya Puram, Mysore, which is morefully described in the schedule in the original suit. Further the undisputed fact is that R.V. Raju had in all three sons, i.e., aforesaid late R. Vasanth Raju and defendant Nos. 1 and 2 in the original suit. R.V. Raju, who is owner of the suit schedule property died intestate on 16.12.2000. Thereafter the present suit for partition is filed in the year 2007 in O.S. No. 801/2007, wherein the plaintiff Nos. 1 and 2 sought for partition and separate possession of 1/3rd share in the suit schedule property and also for cost of the suit.

In the said suit, defendants took up a defence that the plaintiffs have executed Ex.D-1, relinquishment deed in favour of first defendant by receiving a sum of Rs. 50,000/-and Ex.D-1 is executed on 28.06.2003, which is denied by plaintiff Nos. 1 and 2. When this matter went into trial, the Trial Court based on the pleadings and documents available on record, answer the issues holding that the plaintiff Nos. 1 and 2 have established that the suit schedule property, has opened for succession on the death of R.V. Raju and that they have together 1/3rd share in the suit schedule property. While answering the issues in the aforesaid terms, in favour of the plaintiffs, has held that Ex.D-1 which is filed and relied upon by defendant No. 1 is not duly stamped and execution of the same is not established by the defendant Nos. 1 and 2 inasmuch as the said document being inadmissible, the same would not enure to their benefit to demonstrate that 1/3rd share of plaintiff Nos. 1 and 2 is released in favour of first defendant. In that view of the matter, the defence that was raised by first defendant was struck down and the suit of the plaintiffs is dismissed, which is affirmed by the Lower Appellate Court in R.A. No. 39/2011. As against the concurrent findings of both the Courts below, the present second appeal is filed by the defendant Nos. 1 and 2.

Heard the counsel for appellants. Perused the Judgments of both the Courts below. On going through the same, this Court is of the opinion that decreeing of the suit filed by the plaintiffs in granting 1/3rd share in the suit schedule property in favour of plaintiff Nos. 1 and 2 is just and proper in the facts and circumstances of the case and that the finding of the Trial Court and as well as the Lower Appellate Court in not accepting Ex.D-1, unregistered relinquishment deed by the second defendant on her behalf and as well as her minor son, first defendant in the original suit, is inadmissible. As against the concurrent finding of both the Courts below, no grounds are made out to admit this second appeal inasmuch as no substantial question of law arise for consideration. Accordingly the same is dismissed, without any order as to costs.