Karnataka High Court
Muni Reddy vs Chinnamma on 21 October, 2011
Author: Huluvadi G.Ramesh
Bench: Huluvadi G.Ramesh
Fa IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated this t the. 24" day of October, 2011 . | Betote | THE HON'BLE MR JUSTICE HULUVAD! 6 c Sec oS x "Regular First Appeal 1047 / 2009 alw Cross Objection 26 f 2009" "Bebween: . 7 in RFA 1047/2009 i. Muni Reddy. 66.918 S/o late Kuri ¥ cnkatappa anes Sesh 90 ---- S/o Moni Re eddy Boab! 300 Babu @ Ain} Sumar, 22 8 yrs, . S/o: Mani i Ready. ars ee "All: are r/a ManeeKolaiy Village rr snk. oo Marathall, Vast sur Hobli a . _ Appellants en a "By SiB N Anantha} Narayana, Adv: Jo PO ange oo a8 oe aoe oe cee Sint c 'hinnammna, TS yes. Die Venkaiappa © Kus V Bia Govindapura Village le gehahalli Hobli, Hoskote 7 Bangalore Rural District eens ee are Sait Narayanamma since : dead iby LRs ere ae AS : SHV Venkotaswamy Ready. 6. yrs. B D oat "Smt Anastya é R/a Devarachikkanahalli Village Begur Hobli. Bangalore South Taluk Smt Varalakshmi, 43 yrs D/o Venkataswamy Reddy Ré/a # 13, Govindasherts vpalya Electronic Citv Post Hosur Main Road, Bangalore Smt Shashikala, 40 yrs D/o Venkataswamy Reddy W/o Rama Murthy, R/a # ASO Mahadevapura, Mahadev apura Pr ost. Bangalore 48 : Smit Uma, 38 yrs, S/ © Ver. kataswamy' Rec dy Ww 10 Ramesh, B/a # HOt p Nagar ge Phase, Koth muy, Pg Post m . Bangalore ve. : SriL oke sh, 35 vrs Sie Veakataswamy Reddy Réa Devarachikkanahal IEG ne 280. Begur Hobli Bangalore South Taluk Smt Meenarshamma,6& yrs Wo late Kisshina Reddy "Ammayya, 36 yrs Dio Tate Krishna Reddy & S are t/a Gandhinagar Road -. Munnekolalu. Bangalore A/a Doddatha Smt-Nagamma, 69 yrs Dio late Venkaiappa @ Kurive nkatappa gall Village Jadigenahaili Post. Hoskote Tatuk Bangalore Rural District ee SOR Se ON (By Sti C Shankar Reddy, Adv. for RI-2 & | LRs of RICA-E); Smt Jayashree, Adv. for RS; Sr KN Krishnarao, Adv. for R6; R2, 3.4 sd/-) Smt Shahira Banu, 35 yrs Wo Mr S Abdul Rahim Rfo #42, 9" B Main, JB Nagar Post Bangalore 75 ln Cross Objection 26/2009 7 ~ Chinnamma 7S yrs _ D/o Venkatappa @ Kuri Venkatappe _ a Ria Govindapura. Village : Jadigenahalli Hobli, Hosakate Tait ak ' Bangalore Rural District 'Smit Narayananisha. 62 "yis. a -- Dio Venkatappa @ Kuri V 'etkatappa : - Ria Devarac chikkanaha Wh. Begur Hobli, Bangalore South Taluk (By Sri S Cheniiaray Reddy, Adv : am 7 i Saad Respondents. Cross Obiectors ae Maat Post Vata Hobli_ i a -- © Bangalore < 37. ; Cs fix. 5 Smt Anasuya @ Ammiya, 46 yrs Dio late Krishna Reddy 4-5 are t/a Gandhinagar Road Munnekolalu, Bangalore 37 6 Smt Nagamma, 35 yrs D/o late V enkatap pa @ Kuri Venkatappa R/a Doddathaggah, Jadigenahalli Posdt Hosakote Taluk, Bangalore District '- 7 Smt Shahira Banu, 35 yes WioS Abdul Rahim ; oes. R/a #42, 9" B Main, }B Nagar Post: Bangalore 75 ee Responde nis The Appeal is filed: uh nder £ 96 oF the Code of Civil Procedure praying tO set aside - ilies "judgment ard. decree dated 31.8.2009 in OS SSS3/1991 by the XX Addi Cin Civil & Sessions Judge, Bangalore. Cross Ovi ection 1s fi led. tinder oO 41, R 22, CPC to set aside the hindings recorded 'by the KX "Ad di. City Civil & Sessions Judge. Bangalore in OS $353/199}-0n 31.8.2009 in so far as item | of the plaint schedule is concerned, . Tae Appeal & Cross Objection having been reserved for Orders on 23" September: 2011 the Court delivered the following: JUDGMENT
Delendanis 1 to 3 have come up in this appeal challenging the ~ "judgment and decree passed by the XX Addl. City C ivil Judge, Bangalore mm OS SSS3/199) on 318.2008.
* Cross Objection is filed by the plaintiffs secking to set aside the finding of the trial court on Item | of the plaint schedule in-the judg and decree dated 31.85.2009 in OS 3553/1997. sl oho oytil "card I" appellant is the father and 2° and 3° Originally suit was fded by Venkatappa and Muniyamima, parents of the 1 defendant seeking for partitix 0 of the suit Se hs ule € properties clarming yard . . . Soa ee pid io. ; : 48 2/3" share contending that the remaining ue sy ' nelongs-t6 the 1" appellant. There are nine items of "prope ties. item 1 is «thi lGllse property and items 2~ 9% are agricaltti ral: ls nds. "Durie g. the pendency of ine suit, plaintiffs st gave up their claimorn suit itenis S and &. It is stated, | Venkatappa and.his sori / # defendant V Muni Reddy are members of joint family. The eldest' son VY Krishna Reddy had filed a suit in OS . 626/1965 agains: this plaintiff Venkatappa and 1" defendant Muni Reddy claiming 1/3" shave! in the joint family properties. Since several properties: were also included in the suit which were not joint family ~ piepertics. suit was contested by Venkatappa. He had filed written < Starement along with the 1" defendant Muni Reddy contending that SY, 'No.43/] and 43/0 of Musnekolain Vill age which were one of fhe items ~. Of the earlier suit, had been sold by the plainiill Venkatappa Cather) a"
\e Tere, appellants are his sons.
plant E B :
Z a 6 himself for family necessities. The house property situate at grama tana bearing Khata No.97 is the absolute property of the 1" ¢ defendant luni Reddy. However, the suit OS 626/1965 filed by Krishna Reddy. eldei - brother of the 1° defendant came to be compromised, itis staied, Os 6260/1965 brought a division in the jot, family propertics and elder son Krishna Reddy got separated from the joint family. Venkatappa and 1"
detendant Muni Reddy are hoiding thei ir shay as tenants | in common in items 2.3.6 and 7 only, as per the stand | of lie : détendant The 1° plainuff died leaving beliind awa, sons and shies daughters, According to plainuilts (4) & (b, page rie: ulturei tands are owned by joint family situate at Munne kolalu Vill Villave et Vartur Hob in Sy.No.43/1, 43/2 measuring 4 acres; Sy.No,| LALA measuring ITs da ntas: Sy¥.NO.58 measuring 0.34 guntas:
SYNGE] measuring 4° euntas and Sv.No.92Z/i and i3 measuring 1.36 acres and 0.20 euntas and lands situate in Tubarahalli in Sy.No.5/2 oy 2 m sasrit 1g 1.04. acres.arid wet land in Sy.No.227/2 measuring 12 guntas of Amanikere, Bellandur. It is averred in the piaint that, plaintiffs were aged + _ a wg : | ° ;
and | defendant was managing the affairs of the joint family including its income and some of the suit schedule lands were acquired in the name of che 1" defendant out of the joint family imcome. There is also a flour mill installed out of the joint family funds. It is stated, the attitude of the | defendant and his wife became hostile towards the plaimtiffs and. the plaintiffs were even asked to prepare their food separately-in. ihe 'sa:
house. There were frequent quarrels and bickering in the family. even . when they sought for paltry amount to give small gifts to their daughters on festival occasions. It is further. stated. the DP -defendant got ~ Rs.1.75,000/- on account of sale of casurina plantation stancing in the jomt family lands in Sy.No.43/l-anc 43/2.-.Out.of the said amount, plaintiffs sought the 1" defendant.to part with sorne amount to give gifts to sion of Gouri festival which the 1" defendant their daughters on the ocva Mt refused. According to the plaintifs,.the 1° i detendant even stated that of n there will be no partition ll the. death of the 1" plaintiff. Thus. plaintiffs state that they are entitled for 2/3 Share in the suit schedule properties and also jn the ameunt of Rs.1,75,000/- received towards the sale proceeds OF casurina plantation.
Defendants 1-3 filed written statement stating that the suit is filed "ev pleving fraud on the plaintiffs. Plaintiffs are residing with the 1° defendant and by misrepresenting and even without explaining for what = che Suit is io be filed by the plaintiffs, without disclosing the contents of * 4 : . -- eke Sesctevindesees 2 vatyy tame i file fos Oy FEM Bele ondaoeengers Tye 2 . the plamt, the daughters Le. plaintiffs Ifa) & (b) his sisters keeping the Bu i eo a...
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Yled the suit. It is specifically contended that > Fol fil ai % e oa ii Ae Bre perties. OH i plaintiffs in dark, have plaintiffs are not entitled for 2/3" share in ibe suit schedu t the plainults and defendants are m cordial terms The properties 7 which do not belong to the joint family and rather fornis the "exclusive " defendant were also. incluc ided bv playing fraud The © property of the | ly belongs to 1" defendant and is not joint famils house property exclusively property. Htern 4 property had heen sold by ihe. a "plaintiff some twenty 1 by him, i:ater, the 1° defendant years back for discharging loans. 1 incurred oul of his earned fun: as. pi i _ hased NS assuch, this property doe not belong to the Joint family. 1 is stated, item 5 is given to the 1"
defendant' s 7 ley brat el v Krichita Reddy in the suit OS 6276/1965 wh i ene Joes Hot belong to the jomt Tamily, ttems 4 ended in compromise vehased by the 1* defendant from his own earnings & 9 property was pub ' the ynd 1S pot joint farpily property and he further denied that some of t ym the funds of the joint properties were purchased by the 1° defendant f family proper ty.
. Phe 1° defendant also denied that the joint family properties were the name of the 1" defendant and that there was a flour mill e 'gurchased in nbehall ofthe jot family. bis contended that th "hy the deceased. . The allegation that plaintiffs has left behind a registered Wi ir dat ed 20.35.1992 on the basis of which they became the owner of the sure schedule properties is not cerrect. It is stated, the deceased plaintiff 9 . ney . «tpg . oo re yd suit [led by the plaintiffs is not maintainable. The 2"° pla ntl iF has no right to seek for partition of the joint family during the life ime af the mB plamtil The suit was got filed by the plaintiffs by missephesentiation al . the instance of the daughters of the plaintifis. It is also stated, the joint family had incurred debts which had ic be cleared of by ie pais. The {" defendant sold the casurina p slantation and out of the | income from the same, the loans have been cleared. 'There is 0 amount available with the 1° defendant belonging to the joint ! fa ily a i@: siated, there is na cause OF action and p 'lainsft sft ¢ at AO point _ tite were desirous of filing a suit for partition. Parties, the wt fen 'Mateo filed. it is stated. the | plamult died on eee er bebina iwo sons and three daughters. V Krishna Redds yok der proihes of the i" defendant got separated in the year 1965.) The legal representatives who have come on record on behalf umima is-also a necessary party and legal representative of well had cancelled the registered Will date 3.19902 by executing ae another registered Will on 4.7.1904. The 1° plaintiff himself hac is bequeathed all his properties in favour of delendants 2 and 3 and 'hereby, . ze ops gi . - : es cancelled the carlier Will. The 1" plaintiff's daughters who Be fecome OL record have no right, tide or interest over the suit properties andthe suit 1 bad for non-jomder of necessary party. [tis defendants | 2 and 3 who are entitled (0 possess and enjoy ail the properties helongin 1 fey and 1° defendant is appointed as a ouardiadn of the Minors. To controvert the additional siatemeat, phaintif 7 aj) who came on record stated that the Will dated 29.3 . 1992 lias "not been cancelled. The Will dated 4.7. soa a wot ip. dodanie and the Will dated 20.3.1992 Was EXCEL uted when 'the plainutt Ww as L ale and | health. [tis stated, plaintilT had no intention to pes ihe will 'dated 4.7.1994 and 1" plaintiff was iliterate and aged about | 98 years when he expired. He was not in a sound atate of mind and was bed ridden.
The 2°° defendant who came om record contested the suit stating . mt Sunt fs nol maintainable cither m law or on facts and no demand was FU ude by the plaintiffs during their life time. Ss cine 1" plaintiff ~ ma ..
The 4° defendant who had separated from the family also hs is come on record and he has stated, he is residing in the samevillege en, enjoying the properties allotted to him in OS 626/1965_ and the. : dece: asetl 7 plaintiffs were residing with the 1" defendant and they were. living happily. The deceased plainulls were hale and healthy and they never"
decided for partition between the 1" defendant anid themseives. The relation between the deceased plaintitts and plants }(a) and (b) was nat good for several years after theic marriage, ., for, sénite reasons, All of a sudden, durmg 1988-89 weit ari int 'ention . knock' of the suit properties, they started negotiating, with be | ain through persons who are inimical rowards | ihe de fen lane. lv. create mis-understanding between the plaints and defe adants and ar that time, complaint was lodged against plaintilts 4 - 'a}.and b3. 'He has also stated, suit schedule item & property does not belong to the plaintiffs and it is stated, he was made a party to the Sait only wit Ae an Jniention fo WArass.
-£" deféndant is another daughter of the plaintiffs and she has Med writin: slatement sta ting that the suit is not maintamable and the plainulls e E& never willing to file the suit and demand fer partition. The relationship of plaindlfs and defendants | was cordial throughout, Lhe ¢ Plaintiffs | (a) and (b) have pressurized her also to join them fo file the suit but, she refused. The deceased plaintiff during his life. time. Pac. disposed of the properties belonging to the joint family to discharge debts:
Soon after that. the 4° defendant got separated from the family ; and the remaining properties are the self acquired properties of the 1" defendan: It is also stated, she got married about 40. yoars back and is residing m Doddathaggall village and often | visited her parents. She has also stated, plaintiffs | €a) and (b) got married st 45. years, back sid are residing in their matrimonial house ss such, there is 'nO cause of action for the suit and accordingly, prayed for dismissal of the suit Phe 6° del endiant wal, npiegded on the ground that she purchased item 9 property during: the é pende sncy of the suit. lt is contended that she is rm phy sical pos:
sion and enjoyment of the property in Hem 9 without any inetforence from anybody inchiding the plaintiffs. Stating that the suit is hopelessly barred by time, sult item 9 is the self acquired property
- oitthe e defetidant and she has purchased it under a registered deed dated 1G.1.1972; she has resisted the suit.
Based on the pleadings, following issues have been raised. Ww eae Bow.
ineg oben.
Cat & 'abot Whether the plainitfs prove that the suit schedule properties, are joint family properties and are lable for partition: Whether 1" defendant proves that item 1. item 4 and item 9 of the suit schedule properties are his self acquired properties: Whether [" defendant proves that item S and 8% are not the joint family properties;
Whether plaind(fs together-are entitled to 2/3 share in the suit schedule properties and 2/3" share in the sale proceeds ol Rs.1.75, 007 as all eo gods, Are the pial intift se sntitl ed for. pactition. and possession of their ae share € AS pre ee for: .
What ouler OF deere Addl, issties: .
ae i Whether plaintiffs Ifa) and I(b) prove that their deceased father "tefta registered will dated 20.3.1992 in favour and they are entitied io the e stale o4 ithe deceased 1* plaintiff; OW hethe: the defendant prove that executed registered will dated 4.71994 in their favour by canceling the earliest will dated "20.3, 992.
¥ oe ee ae Se.
After mauiry, trial court decreed the sunt of the plamntiits declaring that plaintiffs I(a) and (bh) are entitled to partition and separate possession. of their 1/4" share each in the joint family properties in tems. 2.3.4.6,7 and 9. Being aggrieved by the same, defendants | to 3 are in appeal, Heard the counsel representing the parties. it is the argument of the. appellants' 'counsel' that suit is not maimtainable. item lis ive he Hse pr operty and items 2 - 9 are agricultural lands and during penden: y of F the sit plaintiffs have given up items 5 and & from the paint. Daving 1965; there was a partition in the family. In the suit filed by the-elder brother of the 1" defendant against himself and h £ father, 1/3 share was given to him and also in the written statement Aled m the said suit os 6/1965, the original plaintiff - Venkatappa in the presént suit along with the 1" defendant stated Sy.No.43/1 and 43/2 of 'Munnekotaha. vi iage had been sold by Venkatapa for family necessities. oF . "Also a eonteniion was taken the ouse property situate in the village ALs¢ wifention was taken that the house property situate in the vuiag in katha No.97, belongs to the 1" defendant and also in terms of the the plaintiff, 1° sow?
compromise, the suit came to be disposed of betweer fendant and brother ~ Krishna Reddy. As such, the present suit is not ue i Cee eee maintainable and after the partition, they have held the shares as tenarits m common and not as joint tenants only in respect of items 2, 3.6 47, "i iss, also argued that the 1° defendant and plaintiff Venkatapna were cordial and he was looking after them very well, Out of three daughters of Venkatappa, in order to make unlawful gain, one Chinnamma anid Narayanamma have got fled the present St He ~OS 55 ' 55597 /199] and if Was not to the knowledge of the pivintilt 's to the nature of 'the suit Even receiving the notice on the suit fi 'led v WAS a surprise ro she plaintiffs and it is stated, items 4 & ) ats the ai absoi ui propre of the 1" appellant and he purchased items, 1.4. & © out of, his self earnings and obtained a registered dee d on 1Q1:/972. The suit was got filed by the daughters of Venkatappa misee presenting to the.appellants and playing fraud on them. Since there 1s-alrea dy" a p aruition in the family in OS 626/1965 before the L Mutt is Bangi iloie, the present suit is not maintainable and the plainuff is died f during the pendency of the suit leaving behind his legal heirs viz., pwo sons ~and. thre: daughters and the 1° and 2°° respondents in this : anit veal 'vere permitted to prosecute the suit as legal representatives of the secedved plaintiff since both Venkatappa and his wife Muniyamma died | eo) .
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De @ It is also Stated, respondents | and 2 have also based their clatm on the alleged Will dated 20.3.1992 bequeathing the suit sched lute. per oper and also filed additional written statement contending thatthe Wil alleged to have been executed in favour of responde ents | and 2 2 came tobe' cancelled by another registered Will on 47.1994 under which items 2, 3.6 and 7 have been bequeathed in favour-of appellants 2 and, 3, grand children of Venkatappa. the origifial plaintiff». dtems 1, 4 and 9 are the absolute properties of the 1° apnellant. . 4-the: subistituted plainnifs have impleaded the te colle a and § ister oF the | ie defendant as defendants 4 and S. During the. pe . wlency f ot the. matter the 1 appellant sold the property in favour of i the 1 6 | ape his legal necessities as such, op 6" defendant is-also on record, The plamults themselves have given up their claim in respect of items ¢ Sand & According to the learned counsel, "decrdeing i ig V/A" share in favour of plaintiffs | and 2 who' ¢ wine. on record subsequently is Hlegal and erroneous and also the fi ding on the "oofiered 1 Will executed in favour of defendants 2 and 3 by ~ late Veokatappa is perverse and the plaintiffs viz.. two daughters who came-on record on the death of Venkatappa and Munivamme is only to kadek of valuable properties and since already there is a suit filed in the 1968 determining the rien of the co-parceners and, the daugniers i?
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being not co-parceners being born earlier to 1956. they are not entitled for share nor the suit for partition is maintainable as already division las. ra taken place in the family and the original plaintiff and L" defendant. were living as fenants in common and not as jomt tenants. The. suit-is ROL, maintainable as the entire property has been' disposed-Gf.by way of testamentary succession and also by way of sale/transfer by the original plainutl Venkatappa and nothing remains fo turtaer-prosecute the suit on his death, Accordingly, referring to several decisions which | shall refer fo in the course of the order, keamed counsel : rapied that the decree passed by the trial court. is. misconceived. anid that the sult uscl® is not maintainable. It is orgued. ine "finding of the ial court is without taking into consideration the'fact Of earlier partion that has taken place in the clamily and also without considering the capacity of the 1 iffs-as they were born prior to 1956 and when there was a partition earlier, they @annot be treated as co-parceners. The amendment 'is nly prospecuve! in nature and since they are born prior to 1956, ~gulestion of rreating them, by virtue of the amendment, as co-parceners Yi _ would-.not arise and only persons who were there as family members born afier 1956, their status has been enhanced to that of co-parceners by the "amendment as such, those who are born after [956 and those whe had net ae been given co-parcenary right were only given right by virtue: of the amendment and accordingly, learned counsel referred to the-decisiod of. this Court in the case of N V Pushpalatha Vs V Padma & Ors - iLR 2010 KAR 1484 with relerence to S.6(1) and also the amendraent. thereon, and contended, substituted plaintiffs cannot be treated as.ce-parceners to prosecute the matter as 1s held in the said'case. Therefore, he has sought for allowing the appeal and to set aside the judgnient-and decree passed by the trial court, Per contra. counsel representing the respondents vehemently contended that item I property is a-comrmon property of all and it carmot be treated as belonging to 1" defendant only. It is also stated, the finding of the trial court that item | is self acquired property of 1° defendant is erroneous, There "is variance in the pleadings and proof as such, respondenis also filed-cross-objections and contention of the appellants that lem 4 is sell acquired is without any basis. Item 4 is purchascd in the 7] BE "name ef the 1" defendant on behalf of the joint family and also without _ disclosing what is the income available to purchase the property by the defendants and when the amount available after selling the casurina trees a is only Rs.20,000/- aller giving share to the 4° defendant, to maintain the SVS oes family, amount was ulized and it is a iomt family property an d ite ms 4 and 9 cannot be treated as the property of the [1° defendant. and Si purchased on behalf of the joint family. The sale dee a executed in favour of the 1° the original plaintiff very much intended to retain them 'without thete being partition. The property throughott.sood in ihe, name of the 1° plamtil and there is no change of reve nue cats es for more "than 40 ~ 50 years. The original plainulf naving-minindd pood 'yelationship with daughters had execuied ihe Will as he thoughi the daughters were not affluent. Even prior tothe filine of the suit, ihe relationship between the plaintills and 1 defeniont was not core Hal. Complaints were also filed in this regard. The.! " defendant oven refused (0 give a share to his father. T he origin: al pl laintiff had not ith ended fo revoke the Wills at Ex.P24 and 25 and. the alteged Will executed in favour of defendants 2 and 3 is concocted and isnot. pr by red according to law and when the partics were "fi ighting, there: is uo"question ot i" plaintiff Venkatappa going te the Sub- Registra' s office to execute the Will. Rightly. the trial court has dis bet seved the version of the 1" defendant regarding execution of the a subsequent Will and cancellation of the earher Will. The alleged Will We ¢ defendant is only nominal one in respect of the propertiss Jathee. ce ae x ie said to have been executed in favour of defendants 2 and 3 is norduly proved and it is only to knock of the property such Will has been ereated According to the respondents' counsel, they are entitled for halt:
share in all the suit properties including a share ie the sale proceeds af"
casurina trees, ft is out of the sale proceeds of casarina plantation the income has been invested and properties have heen purchased and also the 1 defendant has raised a structure over the poition. of the suit properties and 1" defendant had jo independent 'Source' of income as such, the version of the [* defendant Cannot be believed. Long prior to 1965, all the daughters in the fairy were married as such, there was no legal necessity for the plaintiff Venkatappia fo sell the property in favour of third parties. Ex.D7 was only a formal document to deprive the legitimate share Gf the parties and accordingly, relying on several judgments. weich [shall refer later if need be, counsel has sought for desmmissabof tie appeal.
Inthe light of the arguments advanced, the points thai arise for consideration are:
'eat . ci want oo fea gi fia rd Zan a 3 os gee oa E ne Sf Whether the trial court is justified in holding item | property belongs to | a Gefendant:
yor Whether the trial court is justified in holding that pl laintiffs have: proved that the | 'suit properties | are joint famil ly properties and are avuilable for a . parts Whether the tril court is § justified j in not holding thet items 4 and 9 are IS, | joint fainily properties:
'Whether items Sand & have been rightly deleted from the suit schedule: . Ww Jhether the: trial court is s justified in hi iding that the plains are entitled for ia" share j in the suit t properties iterns 2 3, 5, 85 a Whether elit rom pet :
'whether the: trial cout | is justified ii holding that plaintiff are able to = | . prove 'that the deceas ed father tefi a registered Will in favour of plaintiffs ER) and ¢ b) and they ate: "entisled, io. the estate based on the Will and-
Whether: the 'trial. court is ju ju stified in holding that defendants failed iO . prove | the: Wi a dated 47 1984. by. canceling 'the: earlier Wi iL dated | | tak court calls for inierference ands 3 conferred for the first time on female relative of a co-parcener chiding a daughter prior of the commencement of the Act. Theres ore, while. enacting this substituted provision of S.6 also i banter pe made retrospective in the sense applicable to the d: aughters: born before. the Act eame info force. In the Act before ammendne at the daughter of a CG- parcener was not conferred the status of &.co-parcener. Such @ status is conferred only by the Amendine oT Act 0 "Alter conferring such sialus, right £0 co-parcenary property "4S given from: the date of her birth, Therefore, it should Recess arity fo | oll WwW 'such a st eof oth should be after the Act came into Force ten 11,6: 1956, The re was no intention either under the uni ae nied Ac sor the. Acta after amendment to confer any such right on a daughter of a co-parcener who was born prior to 17.6.1956. T herefore, in is coniext also the opening words of the amending section . assumes importance, The statis of a co-parcener is conferred on a daughter" of aie on and from the commencement of the Amendment Act. 2005, The night to property is conferred from the date of b Therefore, ii necessarily follows the daughter of a co-parcener who "birt is is bor y aitér the Act came into force alone will be entitled to a right in the so-parcenary property and not a daughter who was born prior to i7.6,1956. Further, on the concept of severance of slatus under Hinde aie Se
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Re g [nt od Law and applicability to Hindu Succession (Amendment Act) 2005 it is held, in S.6 the word 'partition' has been defined. It is avery Narrow:
definition of partition. As per the said definition a partition means (1) partition made by execution of a deed of partition duly. registered under, the Registration Act 1908 (2) partition. vffected by @ decreé of the court. Uniess the partition is evidenced by a registered doctiment and has come im(o existence prior to 20" day of December 2004. the daughter who has now been conferred the status of a.co-parcener cannot be denied the right to the co-parcenary property which she has now acquired by birth. It is further held, if a partition is effected. by a decree of the court, thereby ¥ ca meaning a fiaal decrée-nassed bya court has attained finality, then the daughter of a co-parcencr who has.been conferred equal rights in the co- parcenary property under S.6, would not be entitled to a share in the co- parcenary property as.that of the son.
Counsel has-also relied upon another case in D S Lakshmaiah &
- Anr Vs L Baldisubramanyam & Anr - AIR 2003 SC 2800 wherein the us gS Apex Court held thai there is no presumption of a property being joint family property only on account of existence of a jomt hindu family. One * a Seem erben eee te ety Le ine thos wprseeiixy foo om ini Pryeugiine eee cuter ~whoe asserts has to prove ial tne DYODCTIY 1S a PORE Farmuly Oroperiy. Pa 4 ot a eta awe Further it ts held that ne evidence has been led that the said property-was vielding any income or interest sufficient to make acquisition, property. acquired by the co-parcener cannot be presumed to. be soit family property only on the ground that he has not let in evidence to establish his separate income as such, it has no consequence. ~ Mere fact that other members of a family who were allowed to.use the seif acquired property jointly is no ground to hold that the property aequiréd has been blended in the joint family property. The law on the aspect of blending is well settled that the property separator acquired of e member of joint hindu family may be impressed.with the character of joint family property if it is voluntarily saown by the owner inthe common stock with the intention of abandoning his separate 'claim. The mere fact that the other members of the family were allowed to use the property jointly or the income of the separate, property wis utilised to support persons to whom the holder was not bound to support and also on failure to maintain separate accounts, abandonment cannot be inferred.
Inv the decision relied upon by the respondent's counsel in Oe Bhagwant P Sulakhe Vs Digambar Gopal Sulakhe & Ors - AIR 1986 SC
-. 79, itis held that severance of status of joint family has no effect on joint ve"
ee Bee oe
-
family property and joint family property continucs to retain tis joint family character so long as joint family Is in existence.and is hot. partitioned among co-sharers.
In the case of Vinod Kumar Arera Vs Sarjit Kaur ~( 1987 3 SOE 711, it is held parties cannot take a stand ditlerent from: their pleadings. Inthe case of VK Thimmaialr & Ors. Vs Smi VA Parvathi & Ors ~ AIR 2003 KAR 245, 1cis beld that being joint family properties, no ted-to bequeatti.the suit properties under a Will right whatsoever ve without consent of the other co-parceners as such, the Will is not binding. In the case of Cangaiah & Anr Vs Hosalaiah & Anr - 1992 KLJ 147, ie is held that. a specific plea as to source of income for self acquisition is necessary-and burden of proof is on the person who claims ' self acquisitioy| aed prove the manner and source by which he acquired 'such pronerties.
"In the case of Supaiabai Vs Gundappa A Maradi & Ors - [LR 2007 KAR 4790. ccfervrine to S.6 of Hindu Succession Act, 1986, this te 8 oa oe .. .
26 Court has held that the amendment brought into force on 9,9.2065 will have no effect in so far dispossession or alienation including any. partion -, or testamentary dispossession/disposal of the property, which had taken place before 20.12.2004. Further, it is held. that a caughier also gets. share in the co-parcenary property. After the amendment, she gets the share as is allotted to the son by virtue of she becommeg.4 co-parcener. In the case ol » Matlappa- C irimatlappa Bet gi evi & Ors Vs R Yellappagouda Patil & Gi "y AIR I 959 se 906 | iso far as acquisition in the joint family, if is het that in ibe ol new acquisition by the Manager in his own name in ibe ahsence-of-any in independent source of meome, a presumption arises that new aequisitions were for jomt family property. in the cage of Rrema Vs Nanje Gowda & Ors - AIR 2011 SC 2077, eferring 10 S: 6A oF the Hindu Succession Act (Karnataka Amendment) Act, 1990 is held that unmarried daughters can seek equal share in the _ Final decree proceedings in terms of the amendment. In the case of Jndu Bala Base & Ors Vs Mantndra Chasndra Bose . & Anr - (1982) # SCC 20. it is held that the onus is on the propounder to \v remove all doubts to explain the suspicious circumstance to the full satisfaction of the Court to prove due execution of the Will. On.the issue, . there is also a Division Bench decision in the case of Sharanabusappa & Ors Vs Shivakumar & Ors ~ ILR 2007 KAR 5160 wherein it is held. iis the duty of the propounder to discharge and. explain. the. SUSPICIOUS circumstance.
In so far item | property, io-para 12 of the judgment, the trial court has noted that it is @ house. property bearing katha No.97 consisting of built portion and vacant side including a Mlour mill situate at the portion be of the same at Munnekolale villave, Warthur hobli. tl is seen, in OS 626/1965 filed for partilion "by the 4" defendant who is none other than the son of the original olaintifl, there is a reference to this item | and the suit was filed against the original plaintiff and 1" defendant. In the decree copy vreduced af Ex:P48 in the form of a compromise between the parties, if was obsérved that Ex.D60 is the written statement filed m OS
-- 62E/1858, by the original plaintiff and the i" defendant herein. It is . specifically stated that the house property exclusively belongs to 1° defendant which had also been acquired by him and the original plainull admitted it in the joint written statement filed. It is also admitted by the ST original plaintiff, except the 1° defendant no one has got a share inthe same. [is also stated that the suit schedule property is a separate, noperty 7 ie., item | is the separate property of 1° defendant. Having token tote of: this, the trial court has come to the clear conchision Uat item {property - : house property as per the statement of the original plaintilf- itself, belongs to the 1" defendant. Even in the suil filed in OS 626/ 1965 by the 4"
defendant, this was the stand and that also ended in compromise as such, rightly the trial court concluded in. so far as em | thes it belongs to the 1° defendant. As such. the: cou below decreed she suit im respect of property in item | as per the: stend "taken by the original plainaff. However, the substituied plaintiffs viz. the daughters of the original plaintiff who came on record have taken a different stand to put item | also in the ormon héich pot.
' The stand of the defendant is, items 4 and 9 are the self acquired properties: liem 4 is the agricultural properties in Sy.No.43/1 and 43/2. What is heing noticed is, documents are produced by way of registered sale deed By which the original plaintiff had sold the same on 10.8.1965 in favour of Bhaiya Reddy. Totally the property measures about 3 acres. ~. The 1° defendant is shown to have purchased these properties from sons 29 of Bhaiaya Reddy under a registered sale deed on 10.1.972 as per Ex. DS, executed by Sidda Reddy and Gurva Reddy sons of f Bhai vya. Reddy, Another property is also purchased by the |" defendant "in Sy.No. measuring about 20 guntas. [is the stand of the. 1 defendant that the. property was sold by the plainulf in favour oF Bhaiyye "Reddy and subsequently, the 1" defendant had purchased the sate lai the sons of Bhaiyya Reddy out of his own edinings. : The RTC extracts stand in the name of the 1° defendant in respect of item 4. Though this RTC is found in the name of the orig' tplaintift 'however noticing that the purchasers have not got entered. thei names in he revende records, only after filing of the suit in the your 1992, they got their names mutated and stating that the name of the [* ' phaintif? i8 enter ore -d 'as owner and culivator for 1982-83 fo 1991 and only wh 1991 92 be name of Bharyya Reddy came to be mutated and noting, the name of the original plainulf, the trial court has found al ine and 9 properties stand in the name of the original planutt anid exce cept the oral testimony of the 1" defendant, he has not "produced any document/material to show that he was having income to 7 paychase the oreperties and accordingly, holding that the 1" defendant juiled to discharge the burden, held that both are joint family properties. Py tal AEA RES Naat oo The argument of the appellants' counsel is, way back in the year * a f : * on ' ay £ epee oe os ' See ce tees o :
1965 in the suit filed by the 4° defendant against the original plane fyi I" defendant, there was a partition in the jomt family and. there WAS | severance of status of joint family and there is no question ¢ of once again :
treating those properties which are ace juired Subsec quenils yo by the 1° defendant out of his self income. as "joint family. properties and presumption is to the effect that i is 1° defendant. who purchased the property and itis tor the plaintiffs.te disprove thé same. Mere entries in poe sel the revenue records whichestaad in the name oft tiie original plaindfl, the cultivators column. jc not suffictent to hold that it is joint family property.
What is vot in dispute is sroperty in Sy.No.43/1 and 43/2 was sold by. the original pioi ami vay in favour of Bhatyya Reddy and later, this 1° defenc dant pul rehased ihgae properties and in addition, another 20 guntas is : 'alse purchased nt OY, No.1 i3 under Ex.D8. As per the contention of the apt peHante' wi partition has taken place among the family members _darmg 1965 on (he partition suit filed by the 4°" defendant who is the elder vanes of 1" defendant and the joint status had been severed. Also after decree in OS 626/1965, even if the | i and the original plaingiff eae area continued after parting the property in the joint family properties in favour of the 4° defendant, as is rightly contended, the status of the. origi ma olainull and the 1 defendant continued not as font tenants but, as tenants in common. The burden is on the plaintifis to show that there-is no | income available in the property or property available iO oe defi endar tor out of jomt family income those two properties are purchased, Just because the entries continued 1 " "the RTC. 'ih the name of the original piamlitf, if is not a presumption: and the t finding of ihe: 'rial court on the issue with regard to items 4 and dis hot self sured properties and it is joint family properts _ cannot be eee ' pled. - More over, as is explained by the appel Hants in their evidence the | : defendant was conlinumg with the plaintiff as a tena! at mn commis atid riot as joint tenant and is said to be having income:
" ne udgment ¥ Smit Radhamma & Ors Vs N Muddukrishna "@ Ors ~ 2006 GQ): aR Kar. Reporter 367, the Division Bench of this Court "has hei wheir the plaintiff comes out with a specific case of property 7 being sequired & fom the joni family funds. the burden is also on them to estabtish that adequate material was available for acquisition of such "property, Also in the case of D S$ Laxmaiah & Anr Vs L eee Balasubramanya & Anr ~ AIR 2003 SC 3800, the Apex Court in this context, clearly held that the property acquired by the appellant cannot be .
presumed to be joint family property merely on the fact that appellant nas:
not let in evidence to establish that he has sufficient-Income to purchase | g the property. It is held therein that U the other members of the joint -- family were allowed to use the self acquired sroperty, 1 Gees mot form a \ PPPOperty si presumption that property belongs to the joint. family or blended to the jomt fanmuly.
Though it is argue a by rhe. respondents? counsel that the property in items 4 & 9 are purchased by the. - 'fondant out of the jomt family income. once there is severance of-joint status way back in the year 1965- 69 and also when the original plaintiff had sold the property ~ lem 4 m . favour" if 'Bhaivya ya, Re ddy and thereafter, the 1° defendant had purchased the pinpety out af his earnings, the status of the original plaintiff and 1° defendant-if continued, would be treated as common tenants and not as joint tenants. W hat is not in dispute is, the original plainuiff had sold item 4 property in favour of one Bhaiyya Reddy as is evident from the registered sale deeds and thereafter, this 1° defendant has purchased the said properties. In addition to that. item 9 is also purchased from the AES SS Se 'ad 'att children of Bhaiyya Reddy subsequently after several years... "The statement made by the 1° defendant that he, out of his e arning 3. had: gor.
# the property cannot be discarded easily and also the burde a cami no be:
thrown on bim fo prove his source of income. _ According, (0, she oe defendant, he also established a flour mill_and was getting income. What is explarmed by him is, there was a casuritia planation Faised out ol the ncome of which, the debts incurred by. the | joint fan had | 'been cleared of. It is also specifically stated th: at he inad. ad. AO Ot her income of the joint family. if is also stated, "dhe su sunt (itself wis filed b by the plaintiffs at the instance of these paints 1a) and ' b) who have come on record on the death of the original plaintiffs anid also, the origimal plaintiffs were not aware of the filing of the suit/ Fven the stand of the 4° defendant and one another sisier of the 'present plaintiffs [(a) and (b) is that the original 'plainti : 'never intended to file the suit. What is also being explained by the appellants'. eounset is, the 1° defendant being more affectionate tow ards his parents, was looking after them in their old age and they never ncaa! a file the suit nor the suit was filed by them and it is plaintif's ia) a ind | who got filed the suit. It is also stated, there is a subsequent istered Will executed in favour of defendants 2 and 3 by the original plaintiff and that is the last Will and the carher Will whic had been GS SSRIS USSR ECS SSG LS executed in favour of plaintiffs (a) and ¢b) automatically stood cag icelled and that the registered Will executed by the original plainiiffs.en 4 has been duly proved by the 1° defendant by examining attesting:
ne witnesses as per S.63 of the Hindu Succession Act. OX. DS is the Will, executed during July 1904 by the origins olaintits The case of the | e defendant is, his parents had cancelled the' earlier Will executed in favour of plaintiffs l(a} and (b). The 1" devendant ' ES denies he being present at the ime of execution of the WH ¢ lated 4. i. 1994 What is being noticed is, DW 5 - Hallappa is the person who speaks about he execution of the Will dated 4.7.1994 and. thet he hes drafted it at the instance of the original plaintiit V enicatappa it favour OF. bis grancsons cancelling the earlier Wil dated 20.3.1992.. He has deposeéto ihe effect, he asked V enkatappa 1 narrate ve caution us per the instructions, he has drafted the Ww il and after Ve aka Mappa was convinced, the Scribe has signed on the draft "Thereafter, Ve enkkitap pa went to the Sub-Registrar's office. "So far as items 4 and 9 are concerned, it is the specific case of the Idefendant that he purchased the property subsequently from the sons of Bhalyya Reddy wher the original plainulf himself had sold the same to ithe purchase made by the 1° defendant from the sons ALT 998 | a ca CT L a =) tet of Bhaiyya Reddy is subsequent to the partition among the jomttamily members in the year 1965-66. Further, the property wes. Venkatappa for legal necessities and to discharge the loan, Although fois: iF in me - 7 contended that marriage of all the sons / daughters had takén place and no | loan was incurred so as to discharge the saline," the Pack 1s plainuft Venkatappa himself had executed the sate Gee dl 7 favour r of Bharyya Reddy as such, there is a presuunption brat property= item 4 was sold for legal necessities, Item 9 -- land to the exient of 20 guintas is purchased by the 1° defendant out af pis eacnings, as comendet by him. This goes to show there was no. joint 2 Family status at the ielevant point of time when these two properties i.e items "4 ; and: 9 were purchased by the 1* defendant and fia material has heen placed to show that the 1" defendant made use oF the joule family funds. As held by the Apex court im .. the fact that appellant has not led evidence to Laksimaial's establisli his separate. iicome to purchase the properties af Hems 4 and $ is 'simconseduentat * Though up to 1991 the entries in the RTC were made in ihe namie ¢ of Venkatappa the original plaintiff, mere entries in the RTC does "not Carry presumptive value to conclude that it is joint family property or the property belongs to Venkatappa. In my opinion, the trial AL . of pest thide ce ae be ey evipee ee BE peed creruetecree " court on this aspect as misiead itself and arrived al a perverse conclusion. rer reer rr As such the finding of the trial court on the issue that items 4 and Y. are joint family properties does not hoid good. Sle properties as such, there need not be any discussion'on thevissue and:it 1s also not the case of plaintiffs [(a) and (b).secking for partition of these two properties.
In respect of the lad in Sy.NoAH/L and Aye ie.. item 4, the trial court in para 23 ofits judgment has observed that the construction made by the 1° defendant over this land is during the pendency of the suit and the construction made is without per hission of the court and has opined that he cannot claim equity 'on the improvements made as it debars the 1" defondant from clainiing the benelit. Since it is held above that there was severance of jOintfaruly status way back in the year 1965-66 and also it is held that the BY defendant has purchased the property ~ item 4 out of his 'self-edrnings independently and it does not form part of the joint family . property, the observation of the trial court on this issue is of no consequence and accordingiy, iis set aside. SERS SC STEN ENirae aS Haut a Oe ee Further. the finding of the tal court in para 24 of its judgement iS, the 1° defendant failed to prove that items 4 and 9 are sel e . "acquired . properties also has to be reversed since the irial court proceeded' on the premise that the jomt family status conunued even 'adler 1965 and. tt has aico failed to take note of the stand of the i defendan that he has acquired these properties out of his earrings. Wronegly the burden is thrown on the 1" defendant regardivg se vf acquisition, it is also pertine env ti Fray note that the 1965: Gf: partition by way of a compromise between Venkaappa Sa his sons vir. Krishna Reddy / 4° defendant aid the i defen fant P Muni Reddy severed the joint family status though the. revenue records stood in the name of the original Since there is a decree obtained by the parties plaintiff? Vensatappa.
pefore the Civil Court, may be it is a compromise decree, since there was sevetance of joiat family status, what remained is, the original plainait and the 1" deferlant were living together in common. So far as Fa . properti es are 'concerned, the 1" defendant also has got separated for all on tof ~ os 2 epg » os ast x ae 4 nnctical purposes and the original plainndf and the | defendant lived £ together as tenanis in common and not as joint tenants. As such, when the
-item 4 had been sold by Venkatappa to same third serty and m pr i 2 property oa SSSI SRG ss S s have been attested by the mother of the parties (plaintilfs anc 1 Pa defendant) according to which, they claim 1/3° share in the. nrepertcs.. The trial court proceeded to form an opinion that suit properties a ¢ joint family property and that 2" plaintiff ~ mao the parties had rasta when she executed the Will on 20.3 A992 ¢ | hiring the | life be time of plaintiff Venkatappa and has rightly disgaided 'ihe. saiie Stating that plaintiffs }(a) & (>) have not, aequired aity, interest inthe property mentioned at Ex.P24 at the relevant, p sinit of of lin e, the a plaintiff is said to have executed a Will in savour oF spe plaintiffs lta) & 0b). Another Will at Fx, P25 dated 20.3.1992 is said to be a registered Will, alleged to | have be rene EXEC! uted by "original plaintiff Venkatappa wherein, he has bequea hed items-1 te 2 tfavour of plaintiffs (a) and (b>). The < rear ft . = sty Moa 7 = wm EET Lege es F "a evidence of DW 1 Le. 1' defendant's affidavit has been filed and in that His. Ste ate " that the. plaintiff had not bequeathed his share in the suit Hes to-plaintiffs l{ay & (b). Of course, looking into the demeanotof the Witness and also the pleadings were not in conformity with the contents of Ex.P24 and P25 and as to who has drafted the Will the evidence of the witnesses 15 "eh as tO the veracity of the attesting witness Venkataswamy Reddy who sposed in respect of the two Wills, looking also inte the veracity oF cross examination, noting the ee OS ORS z Re 49 admission that they never visited the house of Venkalappa at any @me en eg and also he does not remember at what time the Will was e: executed! and. also that he does not remember who has identified Venkatappa.and his: oe wife in the Sub-Registrar's office, oping that as perthe rience ae the | attesting witnesses both the beneficiaries VIZ. ple ny fs 1G ay and ib) were present at the Sub-Registrar's office and noting that. the = ig an illiterate person, the trial court. his formed 'an opinion that there is a suspicion and plainfilfs have not, chosen to explain away the suspicious circumstance in regaril tothe execution of the W ib 'at Ex.P25 alleged to have been executed: by. Venkatippa: | Further, noting that the testator had excluded one pore di ehter Nagata in the Will while bequeathing the property in favour of other two daughters, the trial court has observed there is no/réason why Nagamma had not been mentioned m ihe Will. Thus, the tifa court 'bas rightly opined that plaintifl 1(a) and (b) failed to prove 'the: cl ie exeeution of the WH at Ex.P24 & P25, OF course except in respect of item 1. tn the cross objection filed, the plaintitts |(a) and €b) have not challenged this fmding recorded by the trlal Court. What remains is, the finding of the trial court on the issue of execution of the Will im of the 1° defendant and BOE AEE E O LG aU CASE ECU Scere ee os 4h whether it has been proved or not has to be looked mnie. As regar ds. the £ Will dated 4.7.1994 executed by the deceased Venkatappa i favours ot. defendants 2 and 3, it is the contention of the plainulls I(a).and G) that the earlier Will had been suppressed. It is the contention, of the: defendants that by canceling the -earlice "Wil dated. 203 1992, subsequently the last Will is executed in favour of defendants 2 2 and 3 In the rejoinder Mied by the defendants i 1s stated, Venkatappa was hale and health w 'he o ietie executed 'the w it during 1994 by canceling the earlier Will sxecited in evo of plaintiffs f(a) and (>) and one Halappa ada drafted the Will has been examined as DW 5 and the attesting witnesses ~ pw 6 8 Vadivel and DW 7 ~G T Nagesh had also been EXal ained.
Se far AS 'proof af Will said to have been executed by the original plaintiff! < Venkatappa in favour of defendants 2 and 3 is concerned, in
- pala 49 f the judgment, if is n oted by the trial court, the attesting witness OW 6 was examined. As per the evidence of DW 6, he accompanied Venkutappa on 4.7.1994 to the Taluka Office along with G V Thippanna
- ay HE £ 1d Abbaiah Reedy and as per the instructions of Venkatappa, advocate SER TERR EA ee Ss x Halappa dratted the Will and he has attested on the registered Will dated 47.1994 of the testator and that Abbaiah Reddy has also .attestea the .
same. On the ground that Venkatappa is aged around 98 years and the Will was drafted on one day and executed on, the next Saye the el cone has found if to be a suspicious ane. However, in the ct ross: -oxaminat Hon, DW 6 has stated that three persons have signed as 'aestiiy'withess. The very reasoning of the trial court. Is it is not or specifically stated by DW 6 that Venkatappa has put up his L T™ and exer cute od the Will in his presence and also opined that fe has 'also "hot deposed in the presence of Venkatappa he attestin gw vitness:have put their signature on the Will. As such, it has dome io be: conclusio on th nat the evidence of attesting witness of DW 6 is not helpful, Might be'the testator has to execute the signature of attesting witmess. [i is the specific or LYM or the. Will i (he presc inesses heave attested the Will in the teat po.
stand of DW 6 that, attesting wi presence of the exeeutint. However, lightly the evidence of DW 6 has OG 7 Dw 64. > affidavit evidence is, Venkatappa was telling that he wanted to 4 ca die Will executed on 20.3.1992 and to make a fresh Will and he ed DW 3 to accompany him to micet his advocate and to the concerned Sub-Re itis alsa specifically stated that on 4.7.1994, he en discarded by the trial court. What is being noted m the evidence of Re accompanied the late Venkatappa along with G V Thippanna and late G Abbaiah Reddy. One U Halappa, advocate drafted the Will-as per the. instructions given by Venkatappa. On 4.7.1994, once again he- accompanied late Venkatappa to the Sub-Revistrar's office and the, Will | dated 4.7.1994 was registered and he has stated that he has signed the Wil dated 4.7.1994 as an altestor and in his pre eSenes, . Abt baiah Reddy has also attested the Will and that they are: relatives ct Venkatappa. am is also specifically stated that G V Thippanna has iWentified the LIM. of Venktappa on the regis teréd Will, It is stated, hé has s identified the LTM of late Venkalappa and, be car identify the TM of Venkatappa on the registered wil and alse. as of G V Thippanna and Abbaiah Reddy. The atiestation of Pthe: thn Imo impression is said to be in the presence of this testator 7 The Will is also drafted at the instance of Fa Venkalappa and this witness was very much present at the time of drafting the Willen the instructions of Venkatappa the testator. » the cross-examimation, this DW 6 has specifically stated that 7 Ex.D2 is tie Will and Ex.D3 (b) is his signature. [ft is stated, Abbaiaha Reddy also signed the Will along with him and he has identified the thumb impression of Venkatappa marked as Ex D4 (cj. Apart trom that, ibe ef Rare cece ene It is pertinent to note. the trial court failed to take note of the fact the very properties which were bequeathed by the testator-cannot treated as that of joint family properties as already there was a partition in- the joint family way back in the year 1965 in the suit filed by the 4° defendant. More over, land in Sy.No.43/) and 43/2 Le., item 4 of the sur schedule were sold after the partition in He year 1965. by Venkatappa in favour of one Bhaiyya Reddy identifying the property. as belonging to him and the I defendant never disputed nor contended ihed they were joint or identified as propertics available to the plamtff Venkatappa. Just because the three daughters were.not given any right or share in the Will, does not necessarily mean i> hold that the Will has been executed in suspicious circumstance, There was a partition suit in the year 1965 fled by the" defendant.against the original plaintiff and the 1° defendant. The suit has bben-decreéd by the court either as per the understanding by a way of comproniise or otherwise. The joint family staius has been no _ : : = : at ~ 4 oe 7 ee pepe . =f * } _ severed and continuation of the original plainulf with the 1° defendant 4 thereafter is as tenants in common as contended by defendants | to 3 and i even the trial court has opined that the WHI dated 20.3.1992 has not been proved by plaintiffs Ia) and (h) and has come into existence uncer he.
\ as &.
"E ~ original plainuff Venkatappa had not purchased any property in the ~ 4 ot name of 1° of Rs.1.75,000/- was realized from the sale of casurina trees out of which ° the properties were purchased is concerned, accordin ng to ihe | defendant, | there was a compromise decree in OS 020118 703 on Soil. 19466 iS and 'in tem 5 which was allotted to Krishna Reddy / 4° de "fe cridant, | here werd standing casurina trees which were cut aad sold by the father of the parties ie.. Venkatappa and an amount of Rs.4:500/- was realized out of which Rs.1.500/- was given to Krishua Reddy and repertiab to Court. According 'ds the amount of Rs.1,75,000/- claimed by the to the 1° defendant, as rece respondents herein. just opr ior we the Sling of the suit, out of the sale proceeds of casurina trees ; itera 4 RS. 1,75,000/ ~ was realized not earlier io the purchase of the peope erty but only during 1991 prior to the filing of ithe suits As such, the said amount has not been utilized for purchasing the property 10 contend that it was purchased out of the joint family nucleus. In chat view of the matter, the ial court ought to have visualised that the _burden is on the plaintilfs and they failed to discharge the same. Under an erroneous impression, the trial court opined that the amount of Rs, 1 75 O00/- was realized even earlier to L969 as such, the finding of the lefendant. Further, the stand of the plaintiffs that-an amount ~ NN er Bo Ge Sy. No.43/1 & 43/2, that it is not owned by joint family or by the ° defendant but this property was sold by original plainull Menkatapnpa io one Bhaiyya Reddy in 1967 and thereafter, 1" defendant has purchased it same from the children of Bhatyya Reddy in 1972 Out of 'his sell carmings. fis also the case of the appelianis, that an arnount of € ReJ 5 000/-- was utilised for erecting structure on suit rem ve rope and there was a piece of land granted to the 1° defendant an ar not apart of the joint family property. Even in respeci.of tiem 1, ori sina plainstt Venkatappa niniself ste the 1° defendant and it is had accepted that itera P-cxclusive also the eviderice of DW:4. ~~ Nagar ritiay sister of the 1" defendant and also D4 ~ Kiishna Reday, There'is cogent evidence that item 1 is also the exclusive property of the i° defendant. DW 4 Nagamma, being the relatives 'of beth plaitiffand defendanis has supported the case of defendants b-to A on other aspects.
So far as' Finding « of the trial court as to granting share in the above ~ 'eindumstances has been argued by the appellants' counse! that there was an earlier partion in the year 1965 and a decree obluined by the court. AS per 8.6 of the amended act of Hindu Succession Act. plaintilis J|{a) and (bj) are not entfied for any share much less @ right to seek for BERS PSE eer eee (he partition, In this regard. counsel has relied upon NV ¥ Pushpalatha' x case cited above wherein the Division Bench of this Court has hela, By peeps:
Hindu Succession Act, 1956 was enacted, Legislature had no intention of - Po conferring rights which are conferred for tae first ime ; on. a female relative of a co-parcener including a daughter prior fo the ¢ colaméticersen of the Act by the amendment. As such, while enacting the substituted provision of S.6, it cannot be made Yetrespee Ve to, show that it cannot be made applicable to daughters born hetiore the Act. came into force. |f 48 even clarified that bet ore 8 the, amend: ment of tie Act a daughter of a co- parcener was not confevied 'with. the stalus of a co-parcener and such sfamts was conferred By the Amendment Act only in 2005. After onferring sach status, right 40 cd:parcenary property is given from the date of f her} oirti, il 's clarified, rerefore it should necessarily follow such date oF bith 'Should be after ihe Act came into force on 17.6.1956. Therelare,. there. Was ae intention cither ander the un-amended Act or the Ae? after amendment to confer any such right on a i daughter of a co- pace snes who was born prior to 17.6.1956 and the right to property is i a conferred from the date of birth. Further, it is held that il necessarily it slows that a daughter of a co-parcener who is born alter the Act came ie La Bi LSS ke Les os Obder to prove Ex.D3--- Wu) and taking an excey "has not been daly executed though thas been vividly explained. A: mito force alone would be entitled to a right in the co-parcenary property and not a daughter who was born prior to 17.6, 1956. The ratio isid down by the Division Beach makes it clear that.even though plaintiffs 1(a) and ¢b) have come-on record as legal vepresental ves of original plaintiff. what is not in dispute-is, these piainuffs were born prior to 17.6.1956. Further, even 'with respeci.to, the properties, how it was acquired and disposed of has been explained by the 1" defendant and the trial court has held thst that che Will dated 20:3:1992 has come into existence in mysterious.circurstance. having not earmarked a share for one of the daughter. -- armma/ 6" defendant and also for some other eh reasons. The stand of the 1" defendant that plaintiffs l(a) and (6) got filed the suit andithe original plaintiff had no intention to file the suit. The Will bans at Ex.D3. executed in favour of defendants 2 and 3 by the original plaintiff i fection and having stayed together. Just because there is might ve Gut of at " no indication to show that property was nof carmarked lor the daughters _of plamaif Venkatappa, i need not be a suspicious circumstance. The . iylalcourt further fatled to appreciate tie evidence af DW 6 as a whore in z 1, opined that the Will A be TREES OO rere the finding of the trial court that the execution of Will in faveur. of defendants 2 and 3 is net proved has to be reversed and, accordingly iis"
reversed.
At the outset, in the suit for partition filed in the year 1965 '5. there was a decree in 1969 and the status of je int family was severe! amongs! the joint family members viz., father \ ewan me his "sons: At that relevant point of time, plaintiffs ia) a and 1b) ¢ cannot "be treated as co- parceners nor they were born after 1956 when, he Act came imto force Further, if any property, was sokdatter partition and when Venkatappa Was living with the] [* defendant. it shows-ihe affection and concern of Venkatappa towards the 1° defendant and his children. Once a division has taken place in the family by @ court decree or registered partition, necessarily there is.severance-of joint family status and if the 1° defendant cont! nus d with! he oF igitte ainilf Venkatappa to live together, thal does "opot necéssarily meatvihat j oint family status had been continued but, their & 2 cont ation "as urgued by the appellants, is only as tenants in common and noisis joint tenants.
As explained above, the properties mentioned in schedule items 5 ik he 4° defendant in the partition and that was given up te LA Ete) decreeing the share in favour of plaintiffs |(a) and (b) is set aside anv] also the order passed against defendants 1 to 3 and the observation mac -- therein is set aside. Appeal is allowed. Cross-appeal/ohiection filed by ~ respondents is dismissed. Parties ta bear their own costs. Sd/-
UDGE i.
fae é alte Ss