Karnataka High Court
Sharadamma vs K G Jaganath By L Rs on 21 December, 2010
Bench: V.G.Sabhahit, S.N.Satyanarayana
1,; _1_
IN '1';-'1:1s«: I--1:01-«:1. (:(.){,%1.a'1' or KAI-{NA'.1"AKA AT E3ANGA.1;{)R_1:i' _
1)A'1'1':1)'.1.'1TiIs'mI+: 21557 DAY OF Decavx-35%..'126713'*'
1-'RESE'.*3.NT M b
T1--1142 HON'F3LE MI{...}IJS'FICE_ ff- _ ~ 7
A!\11)._
ma I-iON'BLE MR.J1Js*1*1c:ii "s,;N..sATYA:\._iAIéAY;1NA
REGULAR Ar'>;1)1a:g-\_1§ NQ1382/ 1997
BE 1 WEEN.' H
1..
W / 0 L;s1.t;_(:._PiJ.Iaf.Swg1;7{1y.,MajorV
No.16, H Ma_§rI,». Sr£'pt1.1f:31:1f1, Sesélafiripurarxl
Bang_al_Qré'* V ' ' '
Since Dwriaci by his
1(a)%m1..*{{(3:na1a._ ' . < "
W/0 SE1 ..1{;1'.!Ia1iappa "
R/ 0, N0. 1432, K11'c11a.;_)pa1.)et.
E?é)dd&ba11a[St1r.T0wn 56 1 203
'._ . .1'(b) Snat. S.'J,Dakshayin1 Devi
* S."C_.V§shwesI1wara£ah
' ._ /0 Vlaijfe. Srn;t;Sh21rad21II11z1a
' R/0 N_Q.3-88; 1.539% cross, 21"" Stage
2"" Phas:r','
Weat of Chord Road
' .. .1f.3ar2gz.11()re=»~ 560 086.
1 2.1 -- S1111. M'.S. I-Icr1'1aIa1.h:'2
1 W / 0 Late Sri 1-{z1_]a.r1r}.a
I.)/0 Late Smt.S11ara(lz'mu1'1::1
[Sri R.B,Sac£ashivappa, Ac!.y.)
-3-
R/a Oid No.21, New No. I6
2"'? Cross, Sripuram
Sashaclripuram
I-3zmg._{alc)re - 560 020.
Smt. Parvathamrlla
W/ o P.Chowdappa
Maj or, residing near I3 Type Quarters
BEMI. Nagar, Vasaniihanagar Posy... _
Smt. K.R.Vishaiaksha.mma
W/0 Late Sn' K.N.R11dramu_t1iyappa.A
Maj or, 2958, Elepet
Dockiaballapura
AND:
1.
Sri.K.G.Jagan « I _ V.
Since Deceasedgrby t'1,is'.LRs
1 [Pl] (i_;;1Ti1VfI1;1< ' ~., _ .--
WV/o Late K.'G'.~Jagana__fh .
1(1)) smt.z:;J..Nir;'né:1a"
_ D / 0 Late _Sri V F;.G .L-iaganath
.. «.gBoth are r/o. at No.2658
" VCIi1'is:kp(3t, I)oddéiballap1_1r Town.
SfI:t.zVI8._ya;ri1z11éi'..
" ._ Vi?/<) uSri'fV_.S~.:}T{é1Ir121(:handraiah
Maj or,_ residirxg at Kuolnalznpapet.
I)'o(i(ia't):11l'é1pu1~ Town.
' V. K _» .'1'if):I:){31l1E§Iif1/{S
. . .Respondents
G.'V'e(iavyasaohar, adv. for R1 (21) :'md Rub) "Sfi V.F.K:.1mba1', Adv. for R2} a,»JkJ\ -3- This §{I'~"'A filed U/ 96 of CPC, ziggainsi; the _j11(.ig_ii'1er1t and cieeree dated 31.03.97, passed in O.S..l\§o.33/92, ohzthe file of the ii acldl. Civil _ju.(1ge, Ii3ai.'iga.lore Rural _;£)iS-i_;i'I'e_t:, Bangalore, disrnissing the suit for partitiori. ' . V This Appeal having been heard and 'reserveti hi'or_f judgment, this clay S(1ty(z:'z(1raya:'za J.,""(1€§li}.'f¥:?bI'(E£,i Qt.1i.(_3 following:
JUI)GMI+:N'f',__ T A Plairitiifs in OS.N0.33/ 'en utlge, Bangalore Rural DiStri{:t..;x1I'(.¢ eiiaii.e§4§iir1é§._«the Liitvitigihjent and decree dated of plaintiffs for partition of the granting 1/5"' share to eaeh suit is dismissed.
The parties referred to by their rank in the <.:ourtbe1ow." r V 2
2. Brieffaets i:§a(.i.i1'1g...iIo this appeal are as under:
f45¥P1@iiii'.,iyffs i""to......'3vare sisters. Iii defendant is their 't)roth(ér--vai'i<i"Z55' r._1efe.ndarit is their sister. They contend that fimihritiffsv ' uciete11.t.iai.1ts being the chiidren of late j K.C.(i}oyi'i1tiar)pa eoristitute themselves a joint H.i.I1(1i.1.
"V.:"UnF1(;ii-§{'i(1CVt'i Family. The suit; scrheciiiie properties originally to th.e.i.r father iatfe KC.(.}oviridappa, who (hed 'L'\,-xi' -4- intestate lee-iving him su.:'vivi;'ig plaintiffs and <'1efendants. W- defenriarit being the only I'i1£:I.l(3 member, he is nianaging the properties left behind by tijieiiz.' father. One of SCl"1('?(.iE1i(3 properties is in occupation of W? plainiiifi" Ai:"'(515jos/c%i<----.t = 20 years prior to filing of the suit. __It.is the joint family properties left behind-,byf"th.eir7father divided and the same .rerr1ari1':'ed«--.._as ;{m..1{ fan1i§,y"pi'vopert§iesA, each of them have share 15* defendant is acting cietrir-nei1tAt;o and is refusing to give them their 'suit schedule properties irisfjite f;}f' 'repeatedreques'E;s'."it" is their case that wtierievpr th.ere."vwas"?. '<V'1en41ar_1(i for partition of suit schedule properties, .1551 de:fer1(§ant.'*we'1'irt" on postponing the same. He did r1_ot_ deeiineiv share'*.'r.o«'"plaintiffs at any point of time. at"vHowet?eri,A'-rwrien ttiejfinade an attempt to seek partition in defendant declined to give any share to piaintiffs suit schedule properties. Hence, they filed vprc.-.sent~ vsitit for partition of suit sehedute properties by "«ki;et.es'~_an<.1 i:>onr1ds é1l'Id for grarit of their respective share in the said properties.
i/'<.;x,¥_§ I U! I
3. 111 the sa.i.(.l suit initially ai0r1g with plair11__,_ two a.pplieat.i0r1 were filecl. In 0110 a;)plieat.ioI1 tlley had s(.;'1:g}1..ii_ 'For an oxfcler of permar1er1t i1'1j1.1neti01'1 1'estra1'ni11g c1e'f'e1f1'c12ii1t._ ' 1. from alienating any of Eihe suit _se1»1_ec111lr-..:""p1"<>.;g)erfi'es'..V 1:1 another application iilecl 1,111cler ()r(l'er 3_.9R'11.lles_l 1-. aml"
sought for permanent i11j11r1eti('m_ 1"est1'.ai11i11g*'vl5*-A..9:rl£%fen_éla11t from interfering with peaceful Iliessession ai1ell (1ee1,1_i§)ation of one of the suit seheclailelllprefierties plair1tilf. To the said applieati0nsA._i*=" (lele.n.rl:a.1--1.t personally on 2.7.1992. '111'¢:f¢l;§1fiei.r'_. 19*Ac1&:_fé'l1c1'§11:f5,V'e1'i.e1~1--V»ar1 14.8.1992. On an applicatioe representatives of W-
ciefe11d:';:1lIll11\\\\\Vl_.e/i\ and his married daughter', record as clefendants 1(a) and A1-(b). ale-d iheil? written statement; on 18.6.1993 < ..,r:Q1ite11('ii'ng that a1llVtl1elVp1*0perties m.er1t1'0r1ed in suit Schedule ;451*rJ_f)_j«.3rf;ies of late K.C.Govi11dappa. Plaintiffs (lid r1()};__ls1.1ceeecl:_.te any of the properties left behind by late 'i._K;.(3.(}c;Vif:ciappa as averrecl in the plairit. 15*' <lel'e.1'1cia.1.i1t is the 'E"o1{1l3f"'_1i1r()i.lr1e1' of pla':1.'11'.i1'.'£s, b111, he was not mariaging the l 1'>1}'operties left. behinci by (}(1vi11cla;)pa for and on behalf of :.,~.,j..;§ i -5- ;:)1ai1'1tiffs. 15* (i(',f('.[}(l£,1IIT was enjoying the properties in his own right and aftei" his (Ieath they are in e1"1joyment, of said properties in their own right. On humaI1it.a.ria:1 grtitirids 18' plaintiff was allowed to continue in occupation properties by 1*" defendant out of love and affetstiion V' his sisters and not with an iritentioiiwio After the death of Govindappa qi,l(,':f'3IViO:i."iV()'ll' arise for eonsitleration, as t't;ey"~V.were."n,otthe-V Vfamily ' properties. Neither plaintiffs ~.22ir¥.,_vdefenrianyt any ri ht or title to the suit sftliecitile 1»:-o .)eri:ies; Defelr1ti'antsVA3r1'{a}. ;'a*n';1 lib} also took--up a stand to the effect thatlate not keeping good company, he h£§(i_(le\'Cl0p_e('l' intirriaey with another women. Hence, he ' ._Vl78.Sv~..S4:'€I'15.,t'i~.()13"C'Of his 'fad-,her's family by giving him some paltry __prop'ertie5:».iy iiftezr he exeeiited. a release deed in favour of his (}ovi1i(iappa was driveri out of the family '',_by his *~fati;3er, his father kept, his daughter~in~law and all the ":i:'eliillt"i1~*en of Goviridappa with himself. Subseqtieritly, 18* l (.lefencia:_1t. joined his father, both father and son togetlier 'W:
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earned properties. 'I'I'1.ough (}ovinda.ppa belongs to Devariga eommur1i'::y he had ahantloilecl the family trade long ago and both of them were (1()ing their own trade and there was no mixing of earning of each of t.hen'1, they were cz1r1yi:1_g'a.on their own trade ir1(iepen(ier11Iy. Afier some time, (3'C}i*i.h{f.app_a entered politics and became Town Ml1f1iC,iv{'iE1.1V'(::O£;.I1{Ei1"
President of Dodciaigrallapur Town. After jioiziirig f--)_(>'i;':i¢;s"1,;A1Te abandoned all his trade. There w'as----r1o. tu'ade.--'1,:a[5ita1 which he was carrying on bilsihess and Vih._er'e --?Jvasv_no good will and no assets t.11at;~~..wc:1'e passednii'-on to his son. 15* defendant continued business on' his_.~«o§w.'1;',~.W_'hieh his father was doing eai"1_a'er.V3V.V I-11;"<.a(i(1_it::§or1 to that, he also had inrlependehtf bi1sine'sses,' " --- it "
5. S1,:.bseq1ie<.nt1;r." Qovinriappa passed away in 1956. At time of (ile_a3t.}.1, properties that were possessed by were 'o1'11yitein Nos. .1, to 3, 1.1 and 12 of suit A schedule. (,}i,1f-Wf t:I*1z§fm,'si1'i1 sc:he(1ule item Nos.1 to 3, were useless
-- prop4'(':ri':ies, which were not giraeiieaily of any use to anybody. H11: i'€_4..'()l1vij!/ in .1989) 1*"; ziefer1(i:1.r1i out. of his own. earning -3- <:on.strueted a coxnplex. on one of those properties, which is exclusive property of i~'="- defendant. It is their case that other properties are self acquired properties of 13' defenclant. One of the properties S.h()\VI'1 in suit A schedule is the property that was acquired by 1-*"- defeI1da.nt personally in _.tiheI _ his wife Ariaridarrima i.e., deferidarit 1(a) as_--h~e.--h'ad"uti}.ise:(pi"
the jewels beionging to his wife .for=__Iriis..tra;d'e, 'rlefei1c.iai:§t .« gave the said property to his wiiein the._ye'ar 1976 is their' ; case that in suit schedule item to *1 {arid :12 which were joint family ;)rope_rt;i'es.. of Iate 'C'i'o«\r_ir,ivtii=a_.1)pa, 1;" tieferidant had half share in that. in the said properties w*eret'V_giye:ri aufagrv by f.7iovindap1:)a in favour of 1-'-*1 (iefericiarfi V 1.'m.der._a7 ..tfVWi1'1;~"Therefore, he has become the absolute 0w'1ie;i_of isaiti family properties. V also their case that late Goviridappa left lot of (Iebtshwhichritexeeeded the value of assets bequeathed to 1*"
he,giefer1darit';_11nder Will. It is their further case that the buses §_"wIr1i(:h«.211"e referred to in suit 8 schedule were belonging to 15' ' <'iefen(ia1:1t,, which were his self aequ.ired property. The said i'*'\;'% /i buses by themselves are not assets unless they are eoiipled with permits. l"em1its are st.21r1('1i1':g in the 1321113.:-:~._V()£f_ 'lf-H defer1(iant., as such they are the absolute. pr0]._.1e:rties'--'off 1?..»ef.._yX C.l(3f(')I1dE1Ill, and the plaintiffs did not have ;1r;y's2;:.£re in t§.1a'ti,v Further the buses, which were possessezjl by 't'n'eir" lfa€=l1'E1t'_' were said by him long ago as *t_hey ti-aye: bee'oi1i:eiv.Ql§l fand , L scrap. It is also eoriteridcd looriisyrrierivtioned in suit sehecluie properties~-lseloriég 1(a), as she is from weaving family by herself.
She s;i.:I1e5 out of her self-
exertion Since the said looms ioV1_.(l,w in the year .1975 and all in suit, C schedule are her alisolutefluproperties'arid:'are her Sthree Dhana properties. their case that tenants are unnecessarily mélrlellas polities and suit against them should be dismissed. lx_l11 effeot, tlriey (l(;?i'1i€('l status ofjoint farnily ariri suit schedule fi}"iry()l;)é?rties as joim. fzirniiy prope1'i.ies. They set up 21 elztim ' t;h.§1t only half portion of some of the suit properties were " s 5]V'What decree or orclcr?
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jointly held by 1*' (l(¥f('I'E(l£1I'll arid his fEll,l'1CI' G0v'ir.i(la1.)pa. !\fi.er the (ieatli of Govindappa, by virtue of the Will ex.ec:__ut(«zd by him, W clefericlant became abs01t,:1:e (.}ovi:(adappa's slmre also. A _ _
8. With these pl.(3£1{Ill1IgS, the court l)€l_f,3-'vi?'}'llf0(3(§E!§ilC{:l ll frame the fo.1I0wing iss'--:s;<=se:
1) Whether the plaimiffs p19oy§é" tl'Ia\§tuh':e' ;)l';1ilf1L schedule properties afeliiie jointfamily jirofieiiies of plamtiffs and defengi.an_ts? ll 3
2) Who:-:th<=:r the [ilailri'tiffs_figioxiémihggt _they have got H ill/t"3'=i*%i:'a.l1z3ir'é:iéa.(§h» ti1é_"f)l;*iin't scheduie properties?
3) W.héther"'--t1?ielA" E,l.:l%sj"'l)£" .13' (lefendani. proves that . H (l€C"€lE:iS_'b(.l.'(;OVlf1dE;.pp?} bequezithed item N0s.1, 2, 3, E___,:E.1..y_ andl"*l2--«~'l')y Will in favour of his son , V' J ag§;§lf1n;1tha;)p;a?
' 4) the suit is barre(l by limitation'?
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9. Thereafter, matter went. into trial, wherein. plaintiff No.3 got herself exa.ri1iriv(i as PW.1 arid her husband K.l\l.Rudramuniyappa was exaI.I1iI1cd as PVV.2. In sa,:;§'po_i't.voi' their case plaintiffs produced and market: in" '.34 . documerits as Exs.Pi to P34. (),riV bbei1a.ii"0i"-- .:(i«:fer1dants,"' defendant 1(a) A11an(1amma was eXg'i1I1j_n<?.d' as,DW I1 éiritl__ti::ey produced in all Exs.D1 to aldditiori witnesses and documents . have relied upon Exs.C1 to C6, were produced and marked as Aexhibitsixi No.94}/1957 filed in the jfii' the death of his fathera:vt}oirirI(ia{)pa:: [)_i1itiose of securing succession (:ertificate. " Eri a<idi.ti0ii,"i.h'e«defenclants have also examined 4 witnesses Vor1e.'DW.2 "Swarr1avarnacha.1' who is said to be orie..of?..fthe'"witnesses"'to the Will said to have been executed ' by: it ' T. .C4{o1{ir"1§lappa duriiiig his lifetime. One I).1}/[.A(i.i_r1a:9a,ya11a, a document writer who is said to be the scribe of alleged Will was examined as DW.3. One " Lai§s_hr11inaraya1.1 who is said to be a sig1'1aiory' to the alleged Will of G()\/'iI'i(fE1i)I)a is exa.r11.ine(1 as DW4. One
-«.,,_ 3:, ., E _ 12 -
K.G.i')ay2.manda, who is none other than the sonwinwlaw of 15* defendant. and cieferidant Ha), Jagannatlriappa __ and Aiianclanima and husband of K.G.Nirma.Ia, (ielendant-«._'il'(b) was exazniried as I'JW.5.
10. The sum and substance of the °eyi(!ene'e "off ' plaintiffs is more of less reiteration the eivt-érr11;ents<made in". the piaint. 'K.C.GoVindappa c:onstit.1ite(i"azjointivifiin-rim along with his Son, 1:91 defendz1.i1..f,:51;.rid (:'ieu1ghte.rii,e:;;bhiéii.ntiffs and 2"" defendant. Ail-=' t}'1e pi:o';'iei;tfe.s""i;f1 the 'suitA"sehe(1uIe are the properties, which 'Were: :1(xe§1i'ireiii'hy_f3,ther of plaintiffs and (ie.fen(ian"te-'_--oLit 101' {-.he-,b1.1si:'iess that he was carrying on during his Iifetimef -.,biis'i.i1ess was commenced by their father from oiii;.:»of the 1:i:.:eie11s ofjoint: family funds which fell V"-ito his s'hare..&whenVV'"he'vgot released himself from the joint i__f:ii;1iiyA and his ihiiier, Chowdappa and his other bro.i,i1ersV.hf,? i'e;xec1i.ti:1g a release deed on 5.5. 1930 wherein he *._reeeive:v iii; sum of Rs.5()()/-- and jeweis to his share. He V"<.::)ir1:i3en(:e(1 his business in Jziwali with the said amourit in i.S;)3(). '!'i1erea;fter, he z.-iiso did other business in seiling <»:,~§
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pettroleurn products, 1't,2.[1:1i11g txransportation business, runi'1i1'1g looms and various other businesses with Whi.f?f_} he acquired suit schedule propt-.=..rt:ics, which were avail;3.hic:"with him at the time of his death. It is also the casaof 1 V' that since their father had taken 2i_I10fi'i(?IfW0~ifl6I1!'iii:.§I1éi1'37'i:;l.gE.., he was living separately and therxiselves"and"--defendan:ts_Ait». and 2 along with their rnotherucoiritiritrccl to iive"~wi'thV their * grand father. Their brother iSi«AV(iic;iA('n(i:1nt not. dioiiig any independent business, father in petrol bunk business, ir1 rt_ini.ii11g.. other business that was time when their father married and after the death uxtheir' defendant continued all the businesses for on htbchaif of the children of Govindappa. 1, ,...(}ovinda;§')pa'"died intesi.ate. life had not executed any Will _(1t'1ri.f1'g. ii~fetiI_I§e.
it is also their that immeciiateiy after the of their father, Ii..='-'E defendant filed petition in ' M§sc.No.94/1957 for the purpose of securing succession _ 14 _ c:erti.fieate. in the said pi'(){'.E',("('iiI1gS, no notice was issued t.o plaintiffs. in the said [)i'0C("E_'(1il"lgS aiong with 3*' defenciarit, plaintiffs grarici father Chowdappa was also a party to the said proceedings and both of them stated that Govirifiappa died intest.ate. The succession certificrate wasigi _ respect of money due to the est:at.e of Govinc{appa':".£ro'in: State"
Bank of Mysore. Aeeordirig to the_r_n, .A that there was no W111 in ex.ist.en(:e has '(:o111d_»{'ie seen ij:hat both 13:. deferxdant. and their grariasiiihfatheritogetiier stated so in the said II1iSCE311«'?,'L1'l(3(}!::t:'-.3"";I}Cti'f.i€)i1;L/§t,:ti'}.€ timeiofi death of their father petrol bunk there was huge iiivheomeiiabozit -- per day from the said
t)usinessar1C1Vtheirfatliééi"-.._h'adf' left more than Rs-:..5,00,0()O/-- cash and left. aii' the tfiises and suit schedule item Nos. 1 ."t0 3» Was. aiready star1('iing in the name of their father. ,.{\ég(_;riiiri'g_yV'o-the_ri§., suit seheciule item Nos.1 to 3, 1 is and 12 xveiethe. aeqziired by their father during his *..1ifetime._IAt-er'n Nos.4 and 5 were aequireti by 1-'*1 defericlarit "Cf1'orr1 "out of the income derived from the aforesaid properties. ' Item Nosfi and 7 are also acquired by ES' ciefericiarit from out of the joint: family in(:()n1e and given to his wife. Itern___N0.8 was purchased by W defendant in the name of his ciaiigtit-ei- defendant 1(b) and item No.9 was purchased i.
father during his lifetime in the r'1ai'ne of .iiis"'se_e0nd "wife Lakshminarasamma. Item N0.1.() being; p3t;r0i=.b11n'R._ i't1-:i't=i_aIiy'_' it was in the name of t}ieir.*ia.ther, after 11i3V"(1A.§:£it1_j1, it is transfer.red to the r1a1i'1§.; of is it Nosii and 12 were in the name of these 'gin-operties are acquired. by (1eféfn_dar1t. own income and aii these by him in his name and anididaughter are the joint family a share.
of 13' defendant have given f;?4\'}id§ii1C€.fa(.ifiii£fi.flg relationship between plaintiffs ../anti-iiiciiefendants. 'i'hey"der1ie(1 existence of joint hindu family between"'--vpia.in'ti:fi"s" and ('I(3fEI'ldElI'1{S. According to DW.l, she get t'r'iari'ie,(i'tr.; d.ei'endant. in the year 1959 when she was "aged ah0:_zt. 13 years. By that time, plaintiffs and 2""
fde.fef1d21rit were aiready married. They were residing in the " he-iuse of their respetittive spouses. Fmrii the day of her n1ui1'i(:i[)3aiAi.tyi; ..A -16- m21rr.iage Govir1(lappz1. was in polif..ics. Goviridappa was president of the Town ivluiiieipzilitty. He was not (ic;i'r}.g*«..;?i'r?y business. Since (}ovi1i(i;;ippa was in politics tjhele1'.:jij5lEjyees-1t~ were i()okir1g:»;' after the petr()l btmk. if; 13 her"ea"se'_':i.héi't vézifterv her marriage her husband was 1nar'iagirigtE1eafffixirs. I3eis§'e'-wz1frs_' aiso doing business in petroit axial kerosene.7fXtAv..:itk121tV time -. L there were no buses in the rioé«.e1wareVfiwhe'the:' there were buses in ti1e;«.ji;:tj;1_iAl§§V: 0; to her marriage. That her liiisbztmi was himself by borrowing "1;~:iei left only three properties slso left 3. loan of of petrol bunk business which he was riiiirii_t1g after his death and the place in which petroI"b"ur1k was running was beionging to A. the deatin of (}ov_ir1d.appa her husband 'V start.ed Engsiréiess in his .r1ame by taking a separate licence. hiherefore, the business of 1'>ct:r()I, keroserle which was run by
-- I"ier'hi.zsbzir_1c1 was their irldepeilclerlt property and it is not U°"x.='\*;= S -17- the property of her lmzher in izxw '}ov'ir1dap;)a. The said business was run by her husband from out of the rr1(>i'i_ely<l1e had borrowed. I---ierself and .15' defendarit had t.\v:-0*--(:hil'§iiiierir Out of them one was son and another was glat:£ghi.cs'§;' 'Son died due to heart problem and is on.Iyt_ciau.ghter_ who survived and (:or1tir1ued to live twitch tltierri-.._ A.ft(?IE."tlie"('l'Ef£1Till.'(}f'V' Govindappa 151 (iel"en(.lai1t wz1s""irian.e1gingthe hlisriness by himself and out of the Vi£'i~€7:_OII1('3."f;llat.:f1'fi'alias earnledffrorn the said business he acquired .i_s'uit-»sehediile}itern Nos.4 to 10 which are thei.:u:_excligjsive_:;an.(i"'~.ii1(le}aendent properties. Neither the ;p'lai_ntiffs'1'_V_.nor_V'2"<'i~~.defendant have any share in that. The loonisiri the --'§*jar13ily were. given to by her parents, with that"sh'eM was «V1ri12nin.g2§"'1:l'ii(é lmsiness in looms and the ineorne, der.ivled_ from that was invested in acquiring the "vpro}";er'tie,s. in her :1;::r1e'by her husband. All the jewels that is'V'stai.e(i"'inl siiit, sc:he(:iule and silver articles were given to her her .i$arer1ts and the buses which were run during the rglays of Govinclappa having become old and not being '=.roaciw*orth_y were disposed of scrap. There is nothing ' z,wailab1<? to plaintiffs for partition. W'}1ei:1 151- deferidant % -18- attairied 30 years his materr1al aunt Anasuyamma in the presence of ail the relatives announced that G-ovinciappa during his life time had executed a Will and had the said Will with Anasuyamrna with iristmction * be given to is' defendant after he e0.m,plete,S"3'()"
the said day it was given to him by L=iaid;'Arsasi1yairiinaV' presence of her father C110wda§ipa:.whieia ivas ti) 2 V L' her nephew in the presence of ..faiher virho father of Govindappa and graVr1tf:i"ather 1~:st'j';nie1"ei1dant. It is her case that when ;_Sai{i :]V'Jii.f_ and 2*"
defendant we_i'é%.:v';:::a'e:ser1€:_ In support of the said _theWe0vcalled witnesses to the said V i'.e,iA:-:1Swamavarnatrhar and another Lakshminarayaha,D.M;A(iinarayana said to be the scribe of wjil an.ii"""Kf.VG.Daya11arida who is husband of son in law of 1*" defendant and defendant
1.(é}.._w , K14. The evidence of DWK5 K.G.DayaI1anda is that, he vvé_s friend of Govindara_.§u 3/0 is' defendant and defentiant bsjx./1.
3. -19- E(z.1.] and brother of (.1(-'i'eri{.lz:1i.11. iih). He knows aE)()11I. the fiunily of Govin(.la.ppa from his yoiuager days being close friend of GO\7iI1(1£-1.I'E1jI1 and as husbaiid of his sister deienrlarit. 1(1)). Ae<:ording to him, entire business of trzi11s1)ortzit:ioh 'Le, running and managing 121 route buses and 12 _ business of petrol bunk and complex was "
defendant from out of the ir1c()II;e hey«Cie1';ived" *by=. 'clioi13,g f business in his individual riaintt, "l'he'o_niy properties' wfgieh were available in the family v'Vl':::.i'l'the t:irue° of death of Govindappa were th1*ee7s'i~tes i_fe.,_ Vite.rn..N~os.i to 3 and two properties in Bangalore Leg; iteiiiNt)s--9«..l"iA--'j;1r}.d 12 in suit A schedule. iproperizicesfw'e_re_ the properties of joint family of Govindappap am.1"ié;sr:3::._§;i1i 'properties are acquired by his fath€f,~iI1~l3W"f1'O'i}'1' out oi" his business. According to him, the Vioiisessj' which wereVV""i*Li:'1 by 151 defendant were his self e(':qiii'rer.l"g}ref)erfi~;rs, Power looms were belonging to his r.11other~in_~1i;iv§§_ ariri gold and silver articles were given to his '.ijnother>ip{~':1aw by her parents in her wedding. It is also his "i:«h:;1t since eriiire suit, A sciieduie item. 1\¥os.l to 3, 11 ' arid 12 being Elie joint. family properties Goviridappa had i/g_'_.
-30- 50% share in that and his son, 15' <.lefen<lar1t had 50% share as members of the joint family. In view of the Will executed by (}ovindappa (luririg his life time 1.5' (leferuiant I'1as.'t>eeof:';e absollite owner of all the properties and therefoie, ;)la£[fI*tif?~;- ~ and 2"" defeiiclant does not have any share.
15. So far as issue Nos.,1 ar1«ti.5"'i;1rc:
deal with whether the suit _oi'opert;_ies joint family properties, whetl1Aefi~plaintiffs":haye.1/6"! in the joint family properties is barred by limitation. lssue'Nos'=;1 antig2=are~ooneer11f§f(l the court below based ;;311 the f}plea1:jjiI1g,'goral and documentary evidence available'-on.recor(i<hj,r_an_swer>ir1g them in the negative has held that séuitl' s.oI:ie(h:_1e"~'properties not joint family ._prop:e}*~ties: of plaintiffs-«azid defendants, hence, the plaintiffs do not h.aVe_"1 share in the said properties. So far as limitationfisfeoitcerned, the court below held said issue in flfavouur plaintiffs; i.e., th.e suit is within the period of ,.f:1.in1ita.:.i<)ri. Coming to issue. Nos. 3 and 4 which were framed
-- agairist 18% <_lefen<i.a11t so far as item N0s..l to 3, 11 and 12 of " silit: A s<:hedn.Ee, the Court. below held that they are the only 3*-._;"~ '\.
- 2'1. --
propert.i.es of joint {'2-irriily and 1111 View of exeeiition of Will by (1}ovin('ia') 121 be 1,l(".E.ll,l'liE}'5 the some in favour of W defendant, 1 ea 18' defeiiclant is the 2-ibsollite owner of the said prop'eri.ies, acoordingiy, said issues were held in the ;>:ffiri'ri;_it.i]ve[ Consequently, the suit of the plaintiffs was (lisi7oi'seec1:.A_l."~ in
16. Being aggrieved by the same. the Iireeent 'appe'al*isll '-- filed on the ground that t}1(i'f1.1(i"gIIiE?fl{ aI1(.l.(.l€'Cf:.f}'€ fiaséeti by the court below is erro:iie()i:s;3;nci,1t;r1¥3'i.ist.a.ir1zible"on facts, there was no proper a1f);:.)li%eoi:;itionoiffeikideiice i.e., 18' defendant being-lnot and having no indeper1denf_eolo_rceof iiieoirie acquired properties other joint family properties i._e.:,..'s1tii'i-eetietliile item Nos.-4 to 8 and 10. Simiiariy, hie" diil.igY1ter also had no independent ' '"ineoi--rie. 3-Ti'hc:refore, iii:-sy' could not have purchased any of the ,$ii.it. VF'-,'~(Tl_1l'E'-i4'jVlii"lf.§'x.I)ifsf)p€1'l.i€S in their name as their personal prop4<erties,. V'/hieli the court below has not looked into. There errorvoii the part of the court below in not taking into V"c_:or;si('l«eratior1 the a(lntiss:~sio1"i made by W deferidant in the rm;seellaoeo1.is pro(:eedings initiated by himself and their
-22..
grand fat'l'ier umier E-3~e<:tior1 372(1) of the India}: Su.(:(:ession Act, wherein both l'11'ii1sc->lfa;.i(l his grand father have staterl that G()vin(iappa had died ii'1i.e.st.ai'.(:. Court: below has not looked into the i"a.ct that all tlie properiies which are zicqijirecl frorn out of the joint farnily funds are being er1j()ye.(.i._iiyfiliirri' parties. The plaintiffs aisicl 2*"! defenclarit beéingllihe vrj'i1ill'(iren_<l of K.C.Govi:1dappa liaving Iegitir.riate"'sEiai:e .;iriV:"£;he"suit". schedule pI'O})€J:'ti€S are denied of the4's_a,:r:1_e. alsolanl' error on the part of the (zoziriglfaelow i1'2..é1p.preci'e.tinVg the evidence and answering :isst.ies¢.Al"'anV§i' Zlagairistlpiairitiffs and 3 and 4 in favour of delferi(:la-His; whi.Ch i1as resulted in II11S{3aI'Ii'18.g'(2 ¢i';?u:_'stic'¢,.V _1,7. This ,_Cou:t on securing the entire records of the "vtrial~CoL51_i*ii on goinglgvltlirougii the findings of the court below on Vall'the«._iss1vies éiriti also the grounds urged in this appeal is of ' that me following points arise for *..c.oi1si(i€:rai1.i0n in this appeal.
_ 3.3-
1.) Whether tIr"1c..' c(:)urL below was just.ifie(.1 in holding that suit sc:l'1e(iu3e item Nos.4 to 10 are the self aequ1're(l propert.ies of(1efen(iar1t:s 1, Ma) and .1 (b)? 2} Whether the court below was justified in a(:(:ep't1r1g the alleged WEIE dated 3.11.1956 V. executed by G()vir1clappa during his 1ife"tE_mejV'saml in the said Will the j'p1Ir1'c'1'i~.xig_leci .g K.C.(,':ovi11(1app:1 in suit 'A' se,he_dt.11.e its-m"Nos.n 3, 11 and 12 of suit w*erVe.ppbeqtierathedfv_iIrV"fet{%o1jr of 181 defendant'?
Heard the 'Co1.;r1:-3ef'--e.rto'r 'appellants and respondents, perused tIV*1'e__' ppieail.ir1gs," ._oral and doeu.Ir1enta1y evidence .. _ availsfiolet on record. p3.n(i_*..he grounds of appeal with reference t:'o"i;E.1e fi_;1(ii1;gs"~--:)f the court beiow while dism.issing the suit. C-:1x'reapprec:i_atioii of the pleaciings, oral and documentary _ evide"n<:e~'--.ipr1 use light of the grounds urged in the appeal and ._as well es the findirlgs of thc-: court below this Court; answer V'y'v§
-24, the aforcsaitl points for eoI'1si(]erati()I1 in the negative for the following reasons.
18. The fact that Govinclappa is one of the e¢;ne,or Chowdappa is not in dispi.:te. It is also not in said Govindappa was separatecl from the j().i_r.1t.,fainily:"oif his"
father in the year Il93() by executing a release(lee'd_.:ir1-- of his father giving up all his right, tit-!,e"an(I ir1t?*1<es't lhelfhad V in the joint: family of his "by siini of RS500/e and some _jewe;é1e..«_u_nde'£ the release Eieea. As on the (late when he <:xec11i;eci tiiie dn_ee(l on 5.5.1930 plairitiffs E ()1 "3T',_'ev-i.:'_1a('lV¥.dei's;r1rlaI1ts~ 1 and 2 were born to said (}0vin(lappa"with .l1is..jfIiitzifri_aig<%" to his wife Puttachowdamma. it is also an iii:c_lispLited- faet that said Govindappa had taken .°2"" ""W.if('1':."i'Aby' .. name""Lal«;sh1'11inarasamma from a different .ec'5z;1rV11"u;i'ity 2it1<1_ such. after taking his share he was living separately. airing with second wife. lt has come in the V._evideric':e mat. though he was living separately with second '~5w:;e 'the relatjoriship of ifather and children that is betweeri ' " G(;wir1dappa and plziititiiils, (lei'er1dar1t..s E and 2 was cordial
-25, ancl was cxoritinuing as they were iritvracitirig [O§_5,E3U'1E?I.". It is also not in dispute tiiat (}ovir'i<'i.appa initially started jawaii (doth) business. _
19. Thereafter started business in sale of petrr.)ie--uin products. He was rumiirig bus service and car_i*yir1gr:"er1-« business in weaving. Over a period of tirne he '~;=teppe.ci"iritre.'_"i politics and beeanie i1>resi<.1er1t of ""1jio«ri(i:,1.bai.1.a'i5t:t_' '1"o:\Ir.rri'§ Municipality. It is also not in cliispiitei' that _h1S_ soi;j:"'l.=f1V'i defendant joined him and both iitherii iiirere 'c..gny1ii.§"'o1~;_ said business. It is admittetiihat ('ia_irii:1"g_t1is_ life from of the inc0me:,gent2rai;e§i fmm his~,1v:)usiness Goviiidappa purchased item N0s.*i to 3,'L1"aiir1"i..2'""ef"siiit A schedule properties in his nai:r,1e. E-iOe.yeverv," the dTiSpl1t€(1 facts are that in the suit "vpiaiii«tiffsJ'have&taker:Vaisvpettifitr contention that 18' defemlaiit glitfi riot ii:i.yt.s_». ;;;i1y";;v()c_:z1t;ior1 of his own, he was not (Icing any ir1d'e.per1cie.t1t.i' :-bl.:ISiIl€SS, he was assisting his father in the 'business which was started by his father and continued by "him after his "father entered poiities. As Govindappa became ' bugsy in politics all his business activities were carried. on by lfi K{'x_,3- -25- .1 5*' defeiidarii even during the lifetime of Gr()ViEI(1E1[)pEi. It is the case of plaintiffs that b1.1.si.r1esS of weaving and I'uf_,1.I.}iIlg 1')et,r01 bu1;1.k which were (xmimerieed by (}OViI'1('1a}'J§'}8:."W213 eoritinued by 153- ('1eferi('iant. after the death of (}(>*Vir1(1a'pf§'ai in ~ the year 1956. it is alsso their case _Lhat_t,hei:r.Vfa't'I1ieI}f .1eI"t_ huge sums of money at the time (if hiS'd.*eafi1, £1-;sm"oTm; ' which 13' defendant purehasec? prgperties i1'}V1'1ISv_1'l'8'..:l'1'i<'I¢',, "iris the --. L' 17181116 of his wife and daughter, i_._eV;',-.Vdefe11dai1$sd_ dvinfa) arid '1. (b). it is their case that neitl.1ef" 15' 'fin: defendants 1(a) or 1(b) had any Ai_nde;)en{.1e.r1t;. i1'J.eQn'1e"'0f "'*d:1*e'.ir own or any iraclependem: bE_isii_;eSS. All the-F"pr(jper*t..iesthat are standing in their nanle ared.ip.i.i;e}1a.sedA-from out of the inee:)me generated by business' rut; E55'athe.if'*fat1'iei' Go\n'nda;)pa during his iifetinfre, 'ITi'e;'efor§.'--tj'1'ey Tiave equal share in all the suit dV'"VSehediile'upropertieaf """ in support of their ease they relied 'tE"1e'<fQ}iduti_fig ('leeisiorisi 'A 1) vAi'i§{'?._1§52 sc: 324 2]_'A1I-2 1990 SC 396 --~ Kalyan Singh vs. Chhoti 11.12 2007 §'*~iAR 247 -- S.B.1i.tigi 35: Ann, Vs. S,V'.Su]0(.:}'1at1a. étiz (>35-
-27..
20. Per contra, del'en(1ants contend that Govindappa during his lifetime had borrowed huge sums of rnonelyeas loan for running business, there were no t)uses,a.s"_»or_1'e-the' date when he died, the petrol bt.n1l<; that he was 'r 1._1ur11'ii_I'1.gl'wa;s on a land taken on iease from iIiiuii(.%i;§é1'1ity'and .the._li_oeo'ce"'. given to run the petrol bunk was cancelled after 'h~is'~dVeath,"
i~'*'- defendarit secured fresh iieer1:le.E"in lHSf8~sIl"C€d business, he I)urehase(l ltifstes iroin flown ftinds and started running the san1e)Vt}je become old were sold as scrap.,_ ,i0i\ .,f1:w,ilg't'l1ling looms was startedgby defeo[(_iai1tQ1tallastlie said looms were given to her by her parents, she .was"reui:'ir1irig that business, she earned s11bst;_aritiz1l ine.on1e,F from "out of the income derived from "'vr11niv:if1g3-.iootns she §§Lirei'121s<e(i some of the properties of suit .A'V'sehed:€a1el ~ite:I_1l'VNos.4 to 10 in her name and also in her daughter's. liisgne. However, defenciants have agreed that HtleceasegiI3}-ovinc.1appa and 1%' defendant constituted joint Undivideti I¥'am.ily and suite schedule. item 'I\§os.i to 3, and 1.2 are the properties of joirit family. They also ax': ,5" "3 W E
-28..
(:0i'iten(1e(i that in the said pr()perties IS' (1efen(lzmt ha(i___50% shzircz arid ('}0vir1c*1::-11)p21 had 50% share riieIr1berS.'0f' j«Qi'ht farriiiy. if--§11_t the {act {[1511 (..}<)vi,r1<1appa duririg his--}ii'etif:1é%L:'htaiii. . executecl a Wili on (it 1.1956 bequezithiiig iiis"s-hare"'i1'i"the joint family properties in favour of 1*%*f(1.e}'feric1ant" :s;1._i(fi:1i_' after his death 181 defericiant has__ beedine' 9.k)s(;1iite v{)_x;grne:§r" of the said properties. 'l'herei"0re nefiriiaiiner of right to seek share Slipgioit of their Case they relied upon the
1) ILR Rtéiriietfifiva---VI:iasa{);)a Pailed vs. vs. Narayan Alt? 999 ~' "Rammi vs. State of Madhya Pradesh.
1?._VNOi5b~,_(3Gfl1iIlg to the evidence available on record it that fs:'()m. 5.5.1930 ie, the day when "V£.}c)vir1(iap1A3:i got sepa.x'at:er1 from joint faunily of his fat.her ":C3E1ve§ift*:}.:1;);)a till his death on 10.1 1.1956 he was ..._"":ii'l(1€§)€Il(i€I1I,§y doing vz2,riou_s ibusiness right from Cloth ':/'w_ v';
-29- business in "1930 w1'1i(:h later clevelopecl into runriirig of private buses, petrol hiink and also ruririirig of looms. Admittedly the busiraess was eomme.riee.d with the m_1(:!e'1-:s'of fund provided by his father when he executed .
favour of his father by aeoept.i1e1g 500/W a_:'1(l"gol'_cl,jewelry It is also aclinjttetl that lei (leie11(iaI1t.._wa:_s' assistinglhis"fa.!_heif_' in doing business in petrol E)1i:-ilc other nothing on record to est.ab1ish:'» he." doing any business imiepericlently which his father started. In._some Anandamrna says that of 13* clefenclant (:ont'inuel(lHt,o_A well as business of his father arid 9téftliigi=propert.ies from out of his own earnirjg, 1:i4"a_i1othver"piaee she says that business was by her hust§:::n'§1 iriciependeritly. To show that 1*"
_cj'lei"e_ri(iaifi'i:._hat}.hgzlepenclent. business there is nothing on reeoiftl. (v)_r.1-- leontrary, all the evidence that is available on hreczord " shows that after the death of Govindappa 1~""« "'.E.lefen'(:}_«aht coritiiiuecl his business. Similarly, though tlefenclant ifa) has stated that the power looms were in V:
~ \ -30-
l)eior13'i1'1f to her that the 5211.110 was Given to her b her in . €72» pa1'er1ts there is 1':1.()i..h.i1.1g_§ on r<..=(:o;'d 1.0 Support. the sz1rne__. On the (:om,ra.r"y, it has came in the evidence of 1')ia.ir1i.vi{lfS=.;i1~a.(i also cross examination of ('Eet'e1'1c1ants' w_i*cneS5s'<' ' .
(Iefenciants '1 (21) is riot": from al'fl1,1ent family. I;i(%r'1>ai.rezi'ts were not well to do to provide with power 'looms ..;:§r1d»lz1rge q1"1:{:1':.1_t1'iy' of jewelry and gold as sta?:e(l hyxher. T.heref()re'," ti'1e.re is no truth in the pleadings and eviilelfiee of (lefe:1cl_ai1tsV}l{a) and 1(b) that defer1(.lar1i:s 1V[e2\lE:"Vt1S'_ gi;v'ei1" looms and gold jewelry by her parents. :--si1e._w:;1s"ln(lefij§e--fi'tle11tly runriirag power looms aricl 'i1]ijOuflI€.'l"E'.(lIll'U'i£t=:0f that and helped her l"li11f%3b€iI1(.11AV§*iHl_'Vtl'lC :s;vij'ri.'__f:1_I1(ls, are not established with reasonable Etnd aeee;5ftal3lei_'evidence.
'tse..e;_1___t:l'1at. immediately after the death of Goviriciappa'iii"the year 1956 11'1isoelia.t1eous case is filed by 13? hcic.-*;£"°er1Vciz1'1"1t for S(:?(',11i'll'lg ssimoession (:e11,lfi(:a,t.e. 111 the Said
--V proeéeclirigs' the had arrayed his grar1{l--fai.l1er Chowdappa V;1i1rl..4_l1isflluneles Cllikkai)zisaxzaiali and I'1.it:1:a,iai'1 and other tnerliloers of the fzzimily i1.1clu.1c_lir'1g ;')lair1tiffs as ressporidents to
-.31..
the said proceeclings. He has init.ia'i:c(.i said proceeclings stating that his father died :':1te.sta.t.e.. The order sheet of said proceedings is ;.)ro(iuce(.i in this proeee(ii1'1gs as exhibits. iertifieci copy of notices, surety affidavits and surety botids are also produced and nrlarked in this prc)cee(ii;1'rgs_y'Whif;1i clcariy disclose that as on 1957 when the pr_ocee~dings were initiated by 13' (iefendzsim there '1"Cf€'_V.'[.'C':.r:(':{',_.:
Ineidentaiiy 1"" (iefend2mt's ijumt _Anasu_yzizIn1'ia w.i10:i's"sai1ci.io V be the custodian of Wiii is ofie'e4i.oE'.the riesponderiii in said miscellaneous proceed.i£11g§s. ."i'f1'1o:.ii,gh'V"i'sa,i(1 Afiasuyainma participated in said proceedings say anything about tile V\'»_'A'i117I.i;1c:i_;1§.Viexectiiieri by her brother, Govindappa during Ifi'1rE}VVlii"€'ti1'I:1€3V.€lI:iV(}. it to her for safe custody. She silcr1tj3r.. ".i.:1i'": the said proceedings which ' '*eu1r:;:1.i£1afr_.e.(i in iss:,:i1'1"g"oi' succession certificate in favour of 15'- _§iefe_ri(ia:ni.;€'.i2iireeeive a sum of Rs.14,00()/M which was lying witli1__ 'State of Mysore.
23';_VItis ir1i.eres1':ir'ig to notice that on the (mic when "jsuii.i---yvasi filed by ls' defendaiit. 1*' defen(ia.nf. was alive, summons was duly se,rv»:=:('l on him. He emered appeaijance through counsel in the said proceedings. 1nfa.ot'«._. dis' defendant filed S{at(?E1"lt3l1t of objectior1s to . applications which were filed by themplai:1ti..ffs"'un(ler'=Oi'de::
39 Rules 1 and 2. In tlie said ()bjec4_iion's i:l1e're"'is"{1'ot whisper about the ext-:out.ion 'Will '('}ovi11r1:app:§..V his lifetime in his favour with to"5{:)9/oflshart: in the joint family pr()pertA*i.es". _A :.a/ht}/,i'.,y'Qtwnsl are filed irmnediateiy a.fter,U1e S*1yII1rI:i9F1s.'jV-\lVo,$ In View of the undertaking 1;'§'::'-- has no intention of selling no was passed on the said 'il,.~Wié'vSB€I1 that subsequently before could be filed 1::-1. defendant died. _'.F'he wife ancl.r.ia1igl'1ter of W defendant came on record ll."-as tleleiisjclariits 1 [a)V""é1'1?i('i Nb) and filed written statement.
tlrie first time they took up contention that riniing 'lift31ji:;II1(3 of Gcivindappa he had executed a Will on "V.,3.1l.1£?5'6:. i.e, 7 days prior to his death loequeathing his '.share"_i.n sui1:.A schedule item Nos.l to 3, .1 l. ancl. 12 in favour ' ot'1**'- defen<.lar1t.
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24. Incidentally, 13' (Ilt_'f(EI'l(.iE1I'l.t was represented in the suit by different counsel. After his death defentlants Ma} and Nb} were represented by different ()O1.II'lS(:'.1._m'TflC'l;i.;<.3Il'xiii} the evidence DW.1 says that her husband Ci?i.iring.V:hi'sd time had instructed the Counsel }2Viio"was',representing:V.Vhiin regarding the Will that was execiite(:1--._l5y his._i°ather"
favour neither it was n'1ei'1tion_ec1 in, the ",state"n1ent oft"
()1')jt3Cti().I.lS prepared by, said co--i.insel'"nor the saidcoiinsel is examined in this proceedings frto gthat 13* defendant during his life_tii.ne iiatl vhirdiito file statement stating that _Wiii" executed in his favour.
Interestingly, of 15' defendant for the first timehis _ar1d.v'(lai';giAi'ter who entered appearance in the said"pro.ec3et:lings through a different counsel have come up with' at-.h'isddefentt(? that there was a Will in existence being ';:G0V'iIld3.[)pé11 on 3.11.1956 and given to the custo*dy";of his sister Anasuyarnrna with instruction that she "id shonltl give it to i$'- defendant after he attains the age of 30 years and till such time it should be maintainecl secretly. 5'/-'g:V.'\J 9 -34- The errtirc plearlizigs and evirlerice in stipport of the said aspect: appears to be more ciiiematic in raaiure. There appears to he no truth in it. The fact that i\r1astiy:;iIr3.rria'i--s one of the resporicients to miscellaneous 1)roce,-'e£iiri'gs3e:'anti-----1l~ though she appeared in the said pro.ceedings'['sh_e.ltiidnotv choose to say anything about the Will beiiag eisgectitecll'by--her' brother during his lifetime. .:3she accepts the contentiori of 15' effect that Govinclappa died irate-:st21Ait.€_-if ;_oiily.._alt'er_btiie tlieath of 1*-'-is defenciant said Anasiiyaigiiria an(i daughter of 1*" defendant' of Will being executetlhy iifetime and which she handed ove_r"to his 30*" birthday. All these clearly go to shoivthat of Will being executed, given to ."'Anas.iiyai'rirri'a.. for safclltriistocly with instruction to her to _q__1isclose_"i:h_e*saute after 15' deferidani. attains the age of 30 yearslzirev but a i'igr1'1ent of lies created by defenclzints
(a) and lib) to deny the legitimate right of plaintiffs and 2""
"'.€£.efe.1id«ant to claim share in the suit schedule properties. Thfiough Anasuyarrima said to be the person in Custody of {rm 3 -35- alleged Will from 3.1 '1.lE§56 till the (late of 15? (1efe:1(.la.r.1t' attaining majo.rit;y, (let'er1(1a.:'1i.s have not cliosen to examine:
her as witness to support: the theory of said Will. .. clefeiiciants 1(3) and llb} has set up a theory . was exec1.1t.e<.i by G()Vi[l(ilE1ppa in l'av_(_>u.r.__()f 1flHdi-%fe1f1dant"zmcl the same was in the custody '»_of '2wiasi1ly:iH_ii1J,al; :"Saié.,i_' Anasuyamma who was alive 'as*o;1 tlieudalge of .fe.Cor(ling of , L evidence is not stimmorietl to __eht:e1*--.Vtl1e lwitifiess box and support the case of deferidailt '1(a,§_ _
25. Coming to thisevitleneezofl to 4, witnesses and scribe \'7\VJA'i:'.{i{§~]'1"vCvl:~E§El1'ly"€fiSfI1OS£3S that they are set up for the sake'Qf"giv1':1g«t;afe<le11.g;evto the false (.l()(.'.uII1(Z'[1t which is created £1f1(lu.'C(§VI1C;{):Ct('?(."i- (.lefer1dants 1(a) and 1(b). The ~,...,gyi£i€§1ce'i=oi"l*DW.3 lelleafly discloses that he was not a Very eafgfiegfitl }'.}ovix1(lappa. He was not in touch with (}0x(ihclavp_1)a:--__o:r1 day to day basis and was not aware of *..,(}0vin('lap:.pa's business transaction and also the family inattiers, He is not a person who has any acquaairitance to " Govinclappa and hé-id r'1<:ve:.' visitecl {.}0\rin(l:.1ppa's house at
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any time earlier to tlic (lay of alleged execution of will, He says that on the date of execution of allege.(l Will i'1eT'.s'taye(i for the whole night and next day morning in (}oVi;ic§la-p;pa's house and waited for the Will to he prepared. it is prepared he attested the same as allW"it_r1eSS; .lrite_res'tingly at the time of preparing the Will he'.wct_1l(i the house, he will go out to att'e..h'(l,l1is work; back' and affix his sigI1ature.as witri'ess'.* VF-,i;n1ilarly"D'JV.4 is also not a close associate of lcicctcrasefi ;Go_Vin(la;°)pa. His evidence also does not .:§1',lp.1)or1;._l the "eas4e"'~of.._1~"=*- 'czilefendant. Though both DWS. who W_it1'1'es:s_esV_?;o the alleged Will state that s:ig:ieti.:v\ki»Til_l in: the presence of Govindappa they unot have witnessed the other witnesses signing' ii'-1 their presence and so far as Ariv:3.sL13?'aInIIia sigriiiiglit, ii: is stated that she was inside the 1*1o_Lisel,"-heiv"sigr;.attire was obtained by Goviridappa in the house aIid'l3._tl'ie same was not executed in their presence. The evfi(i:er1ce clearly discloses that there is no truth in the evidence of [)Ws.2 to 4 so far as their evidence in respect of lj§£x.D9, the Will saicl to have '::)eer1 executed by Goviridappa.
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Tlierefore, the court beiow has e0:nr1'1it:te(i an error in believing the same and a(:cepting that said Will was exeeiited by Govinclappa during his lifetime.
26. Admittediy, Govindappa and 1_:'>3"""ciefethfiaifit _ constituted _joint family. They had eqi1al_.:;E--1af:e, ih.:a«]1 the». it properties of joint family. 'I'1'1_e suit A fr) 8, 11 and 12 admittedly they are tprcipetfties.
by Govindappa during his lifetiirie; So far. 'tjitheg items of properties are CO1'1(3f?I'I'it(*;:):('1"*,w.'_j1'1 theV'absen:eeQf to show that deferldants 1, 1(a) {b} any independent business arAi(iVt.is.o§u*'Ce 1}f.>1'flC()['}T1€T of their own. the contention that suit,' sehed1i1(;..:itef1:.¢_ to 10 are the independexit properties d:eI'ei1':iar'itsh'1$, 1(a) and 1. {b} cannot be accepted. are the properties which are acquired from out of the jttiitit e. -~,_£.'l"E"i'...-(216118, i.e, the income derived from the bu,siness.iv'h.iC'k1 was commenced by Govindappa from out of the fu.r;d's that was given to him by his father, Chowdappa ,3 1,irV1t("1'e.r the release <10:-cf dated 5.5.1930. aju-E;
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27. 'l1hE?I'(I.'f()i'(.', in the suit", s(:i1(=:('i.z.zlc properties both GoVin(1a.ppa and I5' (lofcr1(lz;1r1i': had 50% shzire. in tile share which was zivailabie to (}ovin('la.ppa, on his (loath which forms his estate, his c.hil(.lren i.c., plaintiffs i ,:;'o-_ 3, defendants 1 and 2 llzxve 1/5"' share in the suit 3 item Nos. .1 to 12. So far as suit B and C SCh€(lillf3:::
are conwrriezci, there being no acce;itsl:)l'e' eyidenceyltega1*(~lwing'. zwailability of the said p.r()perti(:s .'§i:1_d7sir1(:c the »{)iaii--i"'ff,s"*. have failed to establish that tl1cé~v.s.éi§.(l properftizzs for partition. they are no.t.eI1titl.e(i' any sharessin any of the said properties. so" iteiii to 12 are (:onceI'r:i_e(l, t_l*iey'._..a_1jeV3Vthe.joint fainily properties. It has also come in tlie"eVi(lt:n(.e' vth'a1;__'i3esi(ieS the regular income from petrol. binikltlie i;L1ses"'i'.11éit were run by Is; defendant! from "'vt'hc7"power.looms business, he was also getting rental income .i_'ro;r_1"°scli*;rdi.ile itern Nos.i "l and 12 which are in ii3si3.g'élor<3.."i'ByV: ui,ilsin._£>; the Sdlllf.' .1." ciefenciant has ',constru(v:tAc-:11 complex on suit. schedule item No.1 i.e., Raju.
"«.(:o:11f.)'lsx a.n(.l income (1erive(l from that is also utilised by him i purchase of the oiilier properties. 'l"heref0re, all the W; "E properties are joint family properties of Govindappa's joint family consisting of himself anti his son, is'? defendant. In effect out of joint family properties ie, item N0s.1 t§)7t1'2.of suit A schedule 5/1.0"' share is available to the K..(3.Govinclappa and 35'» defendant has 5/ After" b the death of Govinclappa, from out his estate, plaintiffs i to 3 and defendants liai/e 1/ 10"' share each.
28. Accordingly, Qua defendant have 1/ I01?' shai'e+each item Nos.i to 12 and 15%: defentila_rit«_ out of 10 share in suit sehedule'itei'n_Nos_.Al-Ito V_1'£2._:'.si:iee 1~'-"I defendant is also dead the sa:neL is a»'ailaiale estate to which his legal heirs . V. "'iA.e.,V'ciefene:i.ai1ts 1 1(1)) are entitled to receive the same V "V29'.»_A';"iceorciingiy, in the iight of the aforesaid finding ariived at oii'j_poi:1ts framed for consideration in this appeal, lathe jacigiigent and decree passed by the court below in V' 'f'<1)S'lNo,83/92 dated 3i.?',ji998 is set aside. Suit of the levy?
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plz-u'n€:if'fs is cleczreecf ])€}l"l'ié:llly l1()]ding that plairltiffs l. to 3 :;z.nd 2W3 (ie.fer1(laI1€': have 1/ EU"? share in suit. A s(:l1(ed1.1le item Nos.1 to 12 and l=*- (.§9f€?I'1(ifiI11. represented by his_.._l._c:ga] representatives i.e., (le'fe1'1dz.1nts Na] and Nb) have 6 shares in the aforesaicl properties. So far suit Bjuaficl * schedtlle are co1:1cer1f1ed, plairltiffs l123_,v{3. f_;f1ile(l_* the same as joint family properties. 7:.'i'l1;é'rofor€i;._ r1o"oft1.é:=¢ passed in respect of the said. p;*o1;--r:rtic:s§ Accordingly, the appeal fiAl,f;?dVV:}A-3"3z' {"113 plalfitiffs allowed in part with costs.
lllll 3115.93 EM 51*'