Bangalore District Court
G.Rajendra vs Smt.G.Nalini on 26 August, 2020
1
OS.No.5607/2003
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE,
AT BENGALURU CITY [CCH.NO.10]
Dated this the 26th day of August 2020
PRESENT
Sri.SADANANDA NAGAPPA NAIK, B.A.L., LL.B.
XVIII Addl.City Civil Judge.
O.S.No.5607/2003
Plaintiff: 1. G.Rajendra
S/o Late Dr.N.Gopala Rao,
Aged about 45 years,
R/at No.59, South End Road,
Basavanagudi, Bangalore 04.
And presently R/at No.1805,
Country Drive, No.303,
Grayslake, Illinois,
USA. 60030.
2. G.Sridhar,
S/o Late Dr.N.Gopala Rao,
Aged about 51 years,
R/at No.59, South End Road,
Basavanagudi, Bangalore 04.
[By Sri.G.R.Anantharam, Advocate]
/VS/
Defendants: 1.Smt.G.Nalini,
W/o Late Venkatapathy,
Aged about 67 years,
R/at No.1756, 31st Cross,
2
OS.No.5607/2003
12th Main, Banashankari II stage,
Bangalore - 70.
2. Smt.G.Vasundhara Devi,
W/o L.G.Vasantha Rao,
Since dead by Lrs.
2(a) L.G.Vasantha Rao,
S/o Late L.R.Gundappa,
(Since Dead by his Lrs.D2(b)
Smt.Deepa Rakesh,
w/o Rakesh,
Aged about 38 years,
Foster daughter of
Late Smt.G.Vasundhara Devi &
L.G.Vasantha Rao,
R/at No.2732,12th main,
E Block, 2nd stage,
Rajajinagar, Bangalore 10.
2(b)Smt.Deepa Rakesh,
W/o Rakesh,
Aged about 38 years,
Foster daughter of
Late Smt.G.Vasundhara Devi &
L.G.Vasantha Rao,
R/at No.2732,12th main,
E Block, 2nd stage,
Rajajinagar, Bangalore 10.
3. Smt.G.Sasikala,
W/o T.R.R.Rao,
Aged about 63 years,
R/at No.101, 4th Cross,
Byrasandra, Jayanagar 1st Block(E)
Bangalore - 11.
3
OS.No.5607/2003
4.Smt.G.Kripalini,
W/o late Narasimha Murthy,
Aged about 57 years,
R/at No.29, 16th Cross,
33rd main, 6th Phase,
J.P.Nagar, Bangalore78.
5.Smt. G.Vijaya.
W/o Chandrashekar,
Aged about 55 years,
R/at No.522, 1st Floor,
41st Cross, Jayanagar 8th Block,
Bangalore - 11.
6. G.Srikanta Murthy,
S/o late Dr.N.Gopal Rao,
Aged about 53 years,
R/at No.202, Chitramala Apartments,
4th Cross, 1st Block East,
Jayanagar, Bangalore - 11.
7. G.Chandrashekar,
S/o Late Dr.N.Gopal Rao,
Aged about 49 years,
R/at No.203/B, 15th Cross,
6th Main, BTM 2nd stage,
Bangalore - 44.
8. G.Ravindra,
S/o Dr.N.Gopal Rao,
Aged about 44 years,
R/at No.3955, Lake Ridge LN,
San Jose, CA 95148, USA.
9. G.Indira Priyadarshini,
W/o Hanumanth Nadiger,
Aged about 47 years,
4
OS.No.5607/2003
R/at No.439, 10th Main, Block 4,
Basaveswaranagar 3rd Stage,
Bangalore - 79.
1 to 9 are children of late
Dr.N.Gopala Rao.
10. Smt.Aruna,
W/o Sathyanarayan,
Major,
No.59/2, South End Road,
Basavanagudi, Bangalore 04.
[Sri.P.C.J., Adv., for D1,3 & 5,
Sri.MRM., Adv.,for D2(b)& D4.
Sri.B.S.Gurudath, Adv., for D6,
Sri.JSKM ., Adv., for D7, Sri. R.S.,
Adv., for D8, Sri.MNP., Adv., for D9,
Sri. KLP., Adv., for D10.]
Date of institution of 05.08.2003
suit
Nature of the suit Partition & permanent injunction
(Suit on pronote, suit
for declaration and
possession suit for
injunction, etc.
Date of the 31.07.2009
commencement of
recording of the
evidence.
Date on which the 26.08.2020
Judgment was
pronounced.
Year/s Month/s day/s
Total duration: 17 00 21
5
OS.No.5607/2003
(SADANANDA NAGAPPA NAIK)
XVIII Addl.City Civil Judge, Bangalore.
JUDGMENT
The suit of the plaintiffs is for the relief of partition of the suit schedule property, directing the defendants to put the plaintiff No.2 in separate possession by division by metes and bounds of his 1/11th share and put the 1 st plaintiff in separate possession of his 1/11th + 3/11th share that the defendants 1 to 3 have relinquished in his favour and To restrain the defendants, their agents, servants, or any persons claiming through or under them from forcibly dispossessing the plaintiffs from the suit schedule property, to restrain the alienation of plaintiffs share in the property and to restrain induction of 3rd parties in the suit schedule property by way of permanent injunction,
2. Shorn of unnecessary details, the material facts leading to plaintiffs case as contended in the plaint are as follows:
It is the contention of the plaintiffs that Dr.N.Gopala Rao was the father of both plaintiffs and defendants 1 to 9, out of his selfearnings purchased the schedule property bearing site 6 OS.No.5607/2003 No.4, No.4/13, 5/59 and 59 situated at 7 th Block Basavanagudi in public auction held by Bangalore Municipality on 18.7.1932 and paid full consideration. Thereafter, he has constructed the main house and two small houses of tile roofing at the northern end of said property and was living during his life time exercising all rights of ownership and katha of the said property stood in his name. Thereafter, the portions of the properties were sold to several persons under several sale deeds. One of the properties which were sold to Sri.L.G.Vasantharao was rebought by 1 st plaintiff. The remaining property is the suit schedule property is under dispute in the present suit.
It is further contended by the plaintiffs that Dr.N.Gopala Rao died testamentary death on 15.7.1985 bequeathing the suit schedule property to his wife Smt.B.Anandamma @ B.Ananda Bai as per Will dtd.20.5.1981. Thereafter, Smt.B.Anandamma died testamentary death on 30.3.2001, bequeathing the suit schedule property in favour of all the children as per Will dtd.29.3.1999. However, additional 4% of the sale proceeds was conferred on 1 st plaintiff since he had extended financial and other assistance to his mother during his life time. As the defendants have refused for the partition of property as the wish of their mother, the present suit is filed. During the pendency of the suit, defendant No. 1 to 3 executed a relinquishment deed releasing the property in favour of 7 OS.No.5607/2003 Plaintiff no.1. Hence, 4/11th share in favour of plaintiff No.1 and 1/11th of the share in favour of plaintiff No.2 was claimed.
3. Defendant No.1 to 10 appeared through their counsel. During the pendency of the suit, defendant No.2, 2(a) dead and their legal heir defendant No.2(b) was brought on record. The defendants No.1 to 5, defendant No.6, 7, 9 & 2(b) have filed their written statements.
4. In the written statement defendant Nos.1 to 5, 8 & 9, they have admitted the plaint averments and submitted that they have no objection whatsoever to decree the suit in terms of the prayer sought by apportioning the proceeds of the suit schedule property in the proportion of 1:11, who are the children of late B.Anandamma @ Ananda Bai.
5. Defendant No.6 filed his written statement and admitted the relationship but denied execution of two Wills dtd.20.5.1981 and 29.3.1999. He has also contended that when the property was purchased in auction in 1932 Dr.N.Gopala Rao (father of plaintiffs and defendant No.1 to 9) was a student and the grandfather was still alive and he was managing the property. His grandfather Sri Nanjappa bought the property in the name of his son Dr. N Gopal Rao. Hence, it is the joint family property and sought for 12/66 th share in 8 OS.No.5607/2003 favour of plaintiff No.1, 2, defendant No.6, 7 & 8 and 1/66th share in favour of defendants 1 to 5 and 9.
6. In the additional written statement defendant no.6 had contended that late Gopal Rao had no right to sell the south eastern portion as he was only kartha of the Hindu Undivided family. The sale made by L.G.Vasantha Rao, the 2 nd son in law of N.Gopala Rao had later sold to the 1 st plaintiff on 4.7.2003 and the said sale is not binding on the defendant No.6 as he also got share in the said property. The plaintiffs have no right to purchase the said property as the said property is also joint family property. On the above grounds prayed to reject the plaint. In the amended written statement defendant No.6 contended that during the pendency of the suit, defendants 1 to 3 have executed release deed and contended that they have no right or title to release their alleged share in favour of 1st plaintiff as the same is void u/s.52 of Transfer of Property Act. The first plaintiff have no right to sought for alter his share. Hence, 1 st plaintiff is not entitled for 4/11th share in the suit schedule properties. The plaintiffs and defendants 1 to 3 have colluded each other to deprive his rights have filed this suit. Hence, prayed to reject the claim of the plaintiffs and declare that each of the plaintiffs and defendants 6 to 8 are entitled equal share of 12/66 and defendant no.1 to 5 and 9 being daughters of Dr.N.Gopal Rao 9 OS.No.5607/2003 are entitled to the 1/66th share in the suit schedule properties.
7. Defendant No.7 had filed the written statement along with application to condone the delay. The said application was dismissed and the same has been upheld by the Hon'ble High Court of Karnataka in WP No.20559/2010 As such, question of considering the written statement averments of the defendant No.7 does not arise.
8. The defendant No.9 in her written statement admitted the plaint averments and denied the 1 st plaintiff extended financial help to the mother and she bequeathed 4% additional income accrued on the sale of the suit schedule property. It is further contended that she is entitled for 1/11th share in the suit schedule property. Plaintiff no.2 is residing in the suit schedule property since October 2002. She denied that the plaintiffs approached her seeking for partition of the suit schedule property. She denied that she is making attempts to induct 3rd parties in to the suit schedule property. On the above grounds prays for dismissal of the suit. It is further prayed if the suit be decreed, she may also be allotted her 1/11th share in the suit schedule property and put her in possession and enjoyment and she will pay the court fee for her share.
10OS.No.5607/2003
9. Defendant No.2(b) in her written statement admitted the plaint averments and contended that she is the fostered daughter of L.G.Vasantha Rao and G.Vasundhara Devi., during the life time of her deceased mother, she had executed the relinquish deed in favour of 1 st plaintiff on 21.7.2011 releasing her 1/11th undivided share for which she is also a witness to the registered document. Hence, prays to decree the suit as prayed.
10. On the basis of the above pleadings the predecessor in office has framed the following issues :
1. Whether plaintiffs prove that their father N.Gopalarao had purchased the suit schedule property out of his self earnings?
2. Whether plaintiffs prove the alleged will dtd.30.3.2001 of Smt.B.Anandamma @ Ananda Bai?
Reframed issue No.2: dated.29.7.2020
2. Whether plaintiffs prove the alleged will dtd.29.3.1999 of Smt.B.Anandamma @ Ananda Bai?
3. Whether plaintiffs are entitle for share in the suit schedule property? If so what is the quantum of their share?
4. Whether defendant No.6 proves that the suit schedule property was acquired by B.Nanjappa 11 OS.No.5607/2003 in the name of N.Gopalarao?
5. Whether plaintiffs prove their exclusive possession over the suit schedule property as on the date of suit?
6. What order or decree the parties are entitled to?
Addl. Issues:
1. Whether the plaintiff proves that the defendants 1 to 3 have executed the release deeds in his favour during the year 2011 as such he is entitled to 4/11th share in the suit schedule properties?
2. Whether the 6th defendant proves that he is entitled to 12/66th share in the suit schedule properties?
3. Whether the 6th defendant proves that the release deed executed by the defendants 1 to 3 in the year 2011, during the pendency of the suit is not valid document and is void and Sec.52 of T.P.Act attracts?
Addl.Issue No.4 framed on : 29.7.2020
4. Whether plaintiffs prove the alleged will dtd.20.5.1981 executed by Dr.N.Gopala Rao infavour their mother Smt.B.Anandamma @ Ananda Bai?12
OS.No.5607/2003
11. Plaintiffs got examined 2nd plaintiff as PW1 and one witness as PW2, got marked the documents at Ex.P1 to P76 and closed their side. The Defendant No.6 & 5 are examined as DW1 & DW2, and got marked document at Ex.D1 to D6 and closed their side.
12. I have gone through the records meticulously and have given my careful consideration to the contentions of Shri. G.R.Anantharam Learned Counsel for the plaintiffs and Shri.B.S.Gurudath Learned Counsel for the defendant No.6 and the counsels for Defendant Nos.1, 3 & 5.
13. My findings on the above issues are as under:
Issue No.1 : In the affirmative
Issue No.2 : Does not arise for consideration
Issue No.3 : In the affirmative as answered
Issue No.4 : In the negative
Issue No.5 : In the negative
Addl.Issue No.1: In the affirmative
Addl.Issue No.2: In the negative
Addl.Issue No.3: In the negative, as answered
Addl.Issue No.4: In the negative
Issue No.6 : As per final order,
For the following:
REASONS
14. Issue Nos.1 & 4: These issues are interlinked and hence discussed together.
Before adverting to the other factual aspects of this case, 13 OS.No.5607/2003 let me analyze few aspects with regard to Partition and inheritance among Hindus. On the division of property, Yagnavalkya Smrithi states as follows:
As per the above Sanskrit text, in Mitakshara Law, property is divided into two classes such as Apratibandh Daya (unobstructed heritage) and Sapratibandh Daya (obstructed heritage). The property in which the son, grandson and great grandson had a birthright was called unobstructed heritage, which means that without any obstruction the male issue had a right by birth. This was also called the doctrine of son's right by birth in joint family property where each son on his birth acquired an equal interest with his father in the joint family property. In the case of unobstructed heritage, as soon as the birth occurs, a person becomes the coparcener of the property by inheritance. The same has been reiterated in Art.216 of Mulla on Hindu Law 23rd edition.
On the other hand, the property in which, the right accrued not by birth but on the death of the last owner without leaving male issue was called obstructed heritage. In a obstructed heritage when a person having a son inherits the property from his brother, till death of his father, no right will 14 OS.No.5607/2003 get accrued to the son and such right will be just a chance of an heir apparent/ spessuccessionis. The unobstructed heritage devolved by the rule of survivorship, the obstructed heritage by succession. However, after coming into force of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), as on 9.9.2005 the law recognise the inheritance only by way of succession and not by survivorship.
Art.212 of Uncodified Hindu Law classifies the property as joint family which is synonymous with coparcenery property and separate property which includes selfacquired property. Joint family property is again has been divided as two types. Ancestral property (Art.221 to 223) and separate property of coparceners thrown into the common coparcenary stock.
It is also settled principle of law that there can be a joint family without a property. However, to constitute a coparcenary, there must be a property. There is also a presumption as to joint family that the Joint Family is joint in food, worship and estate, unless there is proof to the contrary. However, there is no presumption as to joint family property. The burden lies upon the person who asserts that a particular property is joint family or selfacquired property.
Section 4(1) (a) Hindu Succession act has saved the uncodified Hindu Law to the extent it is not inconsistent with 15 OS.No.5607/2003 the Hindu Succession Act 1956.
Prior to Hindu Succession Act 1956, women had no right in coparcenary Property. Sec.6 of the Act, conferred a share to daughter a in Coparcenary property by way of notional partition at the time of partition only. Notional partition was never meant to be an actual partition. Its an idea taken from the Estate Duty Act, 1953 only to determine the share of the deceased coparcener. It is to be employed only to carve out a share from the deceased coparcener which will be notionally allotted to the ClassI heirs.
Hindu Succession act also provides two separate schemes of succession for a male under Section 8 and female intestate under section 15 and also prescribe separate rules of devolution of property in case of a childless married woman depending upon the source of acquisition of the property. Though the concept of WILL was unknown to Hindus, the Hindu Succession Act has enabled a coparcener to make a Will of his undivided share in a Mitakshara coparcenary property. Section 14 of Act makes any property possessed by a Hindu female into her absolute property, to be held and enjoyed by her in the same way in which her male counterpart could.
16OS.No.5607/2003 Prior to passing of the Landmark decision in Vineeta Sharma v. Rakesh Sharma dated 11.8.2020 reported in 2020 SCC OnLine SC 641, the courts in India, relied on the dictum of Hon'ble Supreme Court in Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343 and Mangammal v. T.B. Raju, (2018) 15 SCC 662 to conclude that a daughter has the right in the coparcenary property if the father and daughter were alive as on 9.9.2005. However, after the decision in Vineeth Sharma case(Supra), Para 129 of the case made it clear that the provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
As the proving of Will is concerned, in order to prove a Will, a propounder has to examine atleast one of the attesting witness as required u/s.68 of Indian Evidence Act. If no attesting witness is found, it can be proved by other evidence that the attestation of one attesting witness at least is in his handwriting and that the signature of the person executing the document is in the handwriting of that person as provided u/s.69 of the Indian Evidence Act.
With respect to transfer of an immovable property during 17 OS.No.5607/2003 the pendency of suit is concerned, the same is subject to outcome of the case to make it either void or valid to the particular extent.
15. Keeping these principles in mind, let me analyze, whether the plaintiffs are able to establish before the court that they are entitled for partition of the suit schedule property 1/11th share each as prayed for or otherwise.
16. In this case, there is no dispute with regard to relationship between the parties and the death of Dr.N.Gopala Rao and Smt. B. Anandamma. The lis brought before court lies in a narrow compass. It is the contention of the Plaintiffs that Suit schedule property is the Self Acquired property of their father and Defendant No.1 to 9 ie., Dr.N.Gopala Rao and sought for 1/11th share. The same is also supported by defendant No.1 to 5 & 9. But the Defendant No.6 who is the lonely contestant in the case states that it is the Joint family property. It is the contention of the defendant No.6 that Plaintiff No.1 & 2, and Defendant No.6, 7 and 8 are entitled for 12/66th each being a male coparcener and rest of defendant No. 1 to 5 and 9 are entitled for 1/66th share being a daughters / female members of the joint family. As a settled principle of law, no particular number of witnesses shall in any case be required for the proof of any fact. Similarly, no 18 OS.No.5607/2003 particular number documents are required to prove any fact. It is the quality and not the quantity of evidence that has to be looked into for proof of any fact. In the present case, even if single document of the defendant No.6 is more probable than voluminous records of plaintiffs, then the court is bound to uphold the contention of defendant No.6.
17. The plaintiffs in their pleading have contended that Dr.N.Gopala Rao has purchased the property in the year 1932 in an auction. Thereafter, he has constructed the main house and two small houses of tile roofing at the northern end of said property and was living during his life time exercising all rights of ownership and Katha of the said property stood in his name. Thereafter, the portions of the properties were sold to several persons under several sale deeds. One of the properties which were sold to Sri.L.G.Vasantharao was rebought by 1st plaintiff. The remaining property is under dispute in the present suit. It is further contended by the plaintiffs that Dr.N.Gopal Rao died testamentary death on 15.7.1985 bequeathing the suit schedule property to his wife Smt.B.Anandamma @ B.Ananda Bai as per Will dtd.20.5.1981. Thereafter, Smt.B.Anandamma died testamentary death on 30.3.2001, bequeathing the suit schedule property in favour of all the children as per Will dtd.29.3.1999. However, as 1st plaintiff extended financial 19 OS.No.5607/2003 help to the mother and she bequeathed 4% additional income accrued on the sale of the suit schedule property the sale proceeds was conferred on 1st plaintiff. Since the wish of the mother was not materialized and others have refused for the partition, the present suit is filed. During the pendency of the suit, defendant No. 1 to 3 executed a relinquishment deed releasing the property in favour of Plaintiff No.1. Hence, prayed for 4/11th share in favour of plaintiff No. 1 and each 1/11th of the share in favour of plaintiff No.2, and Defendant No.4 to 9.
18. The counsel for the plaintiffs in his argument has contended that the admission is the best evidence u/s.58 of Indian Evidence Act. Except defendant No.6, all the defendants have admitted in their written statement that the property is the selfacquired property and therefore, entitled for 1/11th share. It is also argued that DW1 (Defendant No.6) in his evidence has stated that the father of Dr.N.Gopala Rao was a Government Teacher and he was unable to maintain the family. It was argued that when he was unable to maintain the family itself, it is impossible for him to purchase the property. Therefore, the defendants are unable to prove that the property is joint family property and source of income for purchase of property.
20OS.No.5607/2003
19. On the defense taken by defendant No.6 that Dr.N.Gopala Rao and his father Nanjappa together mortgaged the property and obtained the loan, therefore the suit schedule property is a joint family property, the counsel for the plaintiffs has also contended that the father of Dr.N.Gopala Rao was only coborrower in the mortgage deed dtd. 16.6.1945. It does not ipso facto makes property as the joint family property. The plaintiffs have also relied on registered sale deeds ie., Ex.P35 dtd.1.11.1972, and Ex.P36 dated 24.7.1982 to contend that in the said sale deeds, it has been mentioned that as a owner of the property, Dr.N.Gopala Rao has sold the property. However, there is no mention of Dr.N.Gopala Rao as the coowner of the property or there are any other coowners. It was argued that when the property is sold by Dr. N.Gopala Rao, it will also bind all the legal heirs. The plaintiff has also contended that on 1.11.1972, Dr.N.Gopala Rao executed a sale deed in favour of L.G.Vasantharao and the katha has been got changed in his name. The same has not been challenged by anyone including Defendant No.6. It was also contended that defendant No.6 is signatory to Ex.P34 which is a deed of mortgage with endorsement of reconveyance. In the said document, it is mentioned that Dr.N.Gopala Rao is mortgaging the property purchased by him and the same is in his name and in his possession. Even DW1 (Defendant No.6) has also admitted 21 OS.No.5607/2003 his signature the signature on Ex. P34. Ex.P34 is a Mortgage Deed. It is a 35 years old document and the same has not been challenged till date. Hence, defendant No.6 is estopped from contending that he is not a signatory to Mortgage Deed - Ex P 34. It was also contended that in Ex.P72, Mortgage deed dtd.27.4.1981 executed by N Gopal Rao in favour of G.V. Shyamala, it has been mentioned in the document that the suit schedule property is the selfacquired property of Dr.N.Gopala Rao. The plaintiffs have got redeemed the mortgage as per Ex.P.74 dated 6.3.1986. The 1st defendant in his cross examination has admitted that he has not paid any amount to redeem the mortgage. Therefore, he cannot set up a plea that it is a joint family property. The defendant No.6 is also a witness to Ex P.34 a registered document which is a Deed of mortgage with endorsement of reconveyance. There is a presumption under Hindu Law for the joint family and not for the acquisition. The defendant No.6 has already admitted the nature of the property in a registered document. He has not challenged the same till today. Therefore, he is estopped from contending that it is a joint family property in view of Sec.115 of Indian Evidence Act. It was also contended by the counsel for the plaintiffs that after the demise of Dr.N.Gopala Rao, as per the wish of the Dr.N.Gopala Rao, he has made a will bequeathing his property to his wife Anandamma. Thereafter, when the Katha had got to be changed in the name 22 OS.No.5607/2003 of his wife and notary affidavit was required for change of katha, all the plaintiffs and defendant No.1 to 9 have affixed their signature to the affidavit stating that the suit schedule property is a selfacquired property of their father and they have no objection to change the Katha in the name of their mother. In the course of arguments, the learned counsel Sri.G.R.Anantharam have copiously read from the pleadings and the evidence on record and prayed to answer Issue No.1 in the affirmative.
The following case law has been cited by the Ld. Counsel for plaintiffs in support of his submissions:
In Danamma @ Suman Surpur V/s Amar reported in AIR 2018 SC 721 "24. Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth.
The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons 23 OS.No.5607/2003 and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from subs (1)(a) and
(b)."
In Mahboob Sahab vs Syed Ismail & Ors reported in AIR 1995 SC 1205 (Para 7), Para 7.Her 1/3rd undivided share was not subject matter of OS No. 3/1/1951. The Additional Civil Judge, therefore, was right in his findings that the gifts have not been proved. They were not complete. Admittedly, the father continued to be in possession and enjoyment of the lands as owner as evidenced by the revenue records until it was mutated in the name of the appellants to the extent of 16 acres purchased by him as per the aforesaid sale deeds Ex. D1 and Ex.D3. Ibrahim has attested Ex.D 1 when his father conveyed the lands as an owner. Though the sale was against his interest, he had not objected to the sale. He, thereby, is estopped by conduct and record to assail Ex.D1 sale or to claim any interest in the lands.
20. Percontra, the learned counsel for the defendant No.6 Sri.B.S.Gurudath has argued that the issue to be 24 OS.No.5607/2003 decided before the court is whether the suit schedule property is the selfacquired property as contended by the plaintiffs or the ancestral property as contended by Defendant No.6. It is also argued that in the present case, the defendant No.7 was placed exparte. He filed a writ petition before the Hon'ble High Court for permitting him to file written statement to contest the case and the same was rejected. However, the written statement which was filed by him remained in the record. The defendant No.7 has taken the same contention as of defendant No.6. Further contended that it is also admitted that Dr.N.Gopal Rao was a medical student in 1932 and he was aged around 18 years. The plaintiffs have not produced any document to show that Dr.N.Gopal Rao had an. income at the time of purchasing the property in the year 1932. There is also no pleading as to source of income In the unamended first plaint of the plaintiffs, the plaintiffs have prayed for 1/11th share. There was no prayer based on the Will in the first prayer. The 2nd prayer is with regard to coownership. However, there is no permanent injunction that was sought. The 3rd prayer was with respect of alienation. The defendant No.1 to 5 in their written statement have stated that they have no objection to decree the suit for 1/11th share. These averments in the written statements are vague. There is also no information on 1st plaintiff. The defendant No.9 made allegations on plaintiff No.1 & 2. It is defendant No.6 & 7 who 25 OS.No.5607/2003 entered the witness box and led evidence. Defendant No.8 was coordinating with other defendants and plaintiffs in the case through an email as he was in U.S. Defendant No.6 is the lone contestant in the suit. To show that the Suit schedule property is the Joint family property, at the time of evidence, the defendant No.6 had produced a xerox copy of the receipt showing father of Dr. N Gopal Rao i.e. Nanjappa for having paid the mortgage loan amount on the property on behalf of Dr.N.Gopal Rao. Though the plaintiffs had the original document, they have deliberately not produced the same. Defendant No.6 in his written statement had specifically contended that the suit schedule property is the joint family property. Thereafter, there was also a mortgage on the property. Dr. N.Gopala Rao and his father together had mortgaged the property for a sum of Rs.2,000/. It was further argued that during the pendency of the suit, defendant No.1 to 3 have executed a release deed in favour of plaintiff No.1. The same are hit by Sec.52 of the Transfer of Property Act and the same is void and not binding on this defendant. PW1 in his evidence has produced 76 documents. Most of them are tax paid receipts and other documents related to katha. As a settled principle of law, these are not title documents. During the cross examination of PW1, PW1 has taken a different contention which are not in the pleading. The PW1 has misled this court by nonproduction of several receipts. PW1 in his 26 OS.No.5607/2003 evidence has stated that his father was a teacher and drawing meager salary. The katha of the property was changed on 3.2.1969 ie., after lapse of 37 years of purchase of the property. PW1 has contended that Dr.N.Gopal Rao has purchased the property by earning income through Harikatha. It was argued that it is impossible for anyone to purchase property by doing Harikatha. Defendant No.6 also sent a notice to the plaintiffs seeking partition. However, reply notice sent by them was not marked as defendant No.1 to 5 were sailing with plaintiff No.1 & 2. Plaintiff No.1 being in United States, had never come to India to depose before court. The matter was also referred to mediation for settlement, plaintiffs did not agree with terms of the defendant no.6 and the same was futile. Thereafter, Defendant no.1 to 3 have colluded with the plaintiffs and have executed release deed on 21.7.2011 ie., after lapse of 8 years from filing the suit. In this case, defendant No.6 only has cross examined PW1 and other witnesses of the plaintiffs. Remaining defendants have colluded with the plaintiffs. During the Cross examination of PW1, a xerox copy was confronted to him and the same was denied. However, in the plaint, plaintiffs have contended that particular document has been lost. The plaintiffs have also suppressed the mortgage deed of the year 1945 in their pleadings. Plaintiffs have produced all other mortgage deeds except the mortgage deed of the year 1945. It was also argued 27 OS.No.5607/2003 that the court has to take into consideration of the conduct of the plaintiffs on suppressing material information. Plaintiffs in their plaint have contended that defendant No.6 is claiming a lion share in the property. Their allegations are false. Defendant No.6 is lawfully claiming his 1/6th share. Whatever the share defendant No.6 would get, plaintiffs and other defendants would also get 1/6th share each. Hence, the same cannot be termed as lion share. At the time of registration of relinquishment deed, the plaintiffs have also produced a sketch with respect to the property which has been relinquished. It was argued that how they can execute Relinquishment deed when the matter is still pending before the court and FDP is not drawn. It was argued that as a co owner of the property, even a defendant No.6 has right over every inch of the property. The counsel for defendant No.6 has also wondered how plaintiffs and defendant No.1 to 3 can prepare a sketch with specified part of the property is relinquished when the suit is still pending and final decree is not yet drawn.
21. It is also contended by the learned counsel for the defendant No.6 that ie., xerox copy of bill or receipt of other taxes issued by Municipality, Bangalore dtd.5.9.1932 vide receipt No.1165 which is a public document has been denied by the plaintiff in his cross examination. However, in his chief 28 OS.No.5607/2003 examination he states that the said document has been misplaced. In the said document, the father of N.Gopala Rao has paid a sum of Rs.348/ in respect of site No.4 in 7 th Block, Basavanagudi, Bangalore on behalf of his son. Defendant no.6 was unable to mark it as it was objected and it was a xerox document. Therefore, it is argued that the property purchased by father of Dr.N.Gopala Rao in the name of his son Dr.N.Gopala Rao for the benefit of entire family. It is further argued that in the Mortgage Deed dtd.16.6.1945 as per Ex.D2 the same has been executed by Dr.N.Gopala Rao and his father B.Nanjappa in favour of Chickpet Housing Credit Co operative Society. If at all the suit schedule property was a self acquired property, there was no necessity for the father of Dr.N.Gopala Rao to execute the mortgage deed jointly in respect of the suit schedule property. It is further argued that the plaintiffs in their plaint and PW1 in his cross examination has admitted that the portion of the schedule property was sold to Narasimaiah under registered sale deed dtd.22.7.1945. In the said sale deed which is produced at Ex.D3, it has been mentioned as "our property". But PW1 being an educated person states in his cross examination that he do not know about the above said sale deed. It was the contention of the defendant No.6 that the sale deeds dtd.1.11.1972 & 24.7.1982 are the nominal sale deeds. However, PW1 has purposefully denied the same in his cross examination. Defendant No.6 29 OS.No.5607/2003 also had sent a notice to Plaintiffs in July 2003. Soon after the said notice, some of the properties which were earlier part of the suit schedule property has been purchased by the 1 st plaintiff in order to deprive the right of defendant No.6. Though the plaintiffs have replied to the notice, PW1 has stated that he do not know the date of reply notice. PW1 in his cross examination has denied the suggestion that after filing the present suit, he started to reside in the suit schedule property. To the contention of the plaintiffs that Defendant no.6 has signed Ex.P34 mortgage deed dtd.9.11.1978 as a witness in which it is mentioned that the property belonging to Dr. N Gopal Rao, it was also contended that the 6 th defendant has signed the document only as a witness and he was student at that point of time, defendant no.6 was not aware of the contents of the said document. The counsel has also placed a reliance on Sec.31 of Indian Evidence Act to contend that admissions are not a conclusive proof. It was argued that as Dr.N.Gopala Rao was a kartha of the family, 6 th defendant has signed the above said mortgage deed. It is only at later point of time defendant No.6 came to know that it is a joint family property. It was also argued that though the plaintiffs have relied on Ex.P34, there is no pleading by the plaintiffs.
22. It was further argued that the defendant No.6 was 30 OS.No.5607/2003 around 24 years old, and he was also working as a bank employee in 1983. Therefore, the Defendant no.6 could not challenge the mortgage and sale deeds in time. There was also no katha in respect of suit schedule property till 1970. Katha is not a title document. It is also argued that defendant No.5 and PW1 colluded together and the evidence of defendant No.5 and PW1 are one and the same and to fill up the lacuna in the evidence of PW1, defendant No.5 has been examined. Even in the vakalath filed before Hon'ble High Court in WP.No. 20559/2010, the defendant No.5 & PW1 were represented by one and the same counsel. It was also argued that Ex.P76 is a notarised affidavit dtd.29.1.1988 which has been produced before the Corporation and the same has been again notarized on 15.02.2005. When the same has already been notarised and submitted before the authorities, question of again notarising the said document does not arise. The plaintiffs have not produced the original notarised affidavit before this court. As per the Notaries Act, a notary cannot notarise the document without an original document. The law do not permit the notary to attest the document which has been already attested. The said document has been wrongly marked by this court. Hence, no reliance can be placed on the said document. If at all there was such a document, plaintiffs could have issued a summons through this court to the corporation to produce the document.
31OS.No.5607/2003
23. It is further argued by the counsel for the defendant No.6 that in most of the documents executed by N.Gopala Rao, which are relied by the plaintiffs, it has been mentioned that the "property stands in his name" and there is no statement as to the effect that "the property belongs to him". It is also contended that N.Gopala Rao was only a kartha of the property. It is also argued that it is a settled principle of law as enunciated by Hon'ble Supreme Court that every alienation need not be challenged by the coparcener. It is already stated in Ex.D2 & D3 executed by Dr.N.Gopala Rao that the property belongs to both Dr. N Gopal Rao and his father Nanjappa. It is contended that the plaintiffs pleading and evidence are contrary to each other. Plaintiff No.1 except signing the plaint has not come before court and led evidence. Defendants 1 to 5 did not come before court and led evidence. As the suit schedule properties are the joint family properties the daughters are entitled for only share through notional partition and the male children are entitled for 1/6th of the share. Defendant No.3 had also filed an application dtd.27.11.2008 Under Order 12 Rule 6 for equal partition, later they have executed a release deed without any consideration. These are suspicious and not a genuine transaction. The learned counsel for defendant No.6 has also relied on the decision reported in AIR 1985 KAR 143Ganapati 32 OS.No.5607/2003 Santaram Bhosale & another Vs. Ramachandra Subbarao Kulkarni & others and 2016 SCC OnLine 36 - Prakash & others Vs. Phulavathi and others. In headnote B of the decision reported in AIR 1985 KAR 143 it is observed that HUF - suit for partition by coparcener challenging sale by guardian - prayer for setting aside of sale - not necessary . (HUF suit for partition - prayer in plaint). Also in Para 19: It is now well settled that in a suit for partition by Hindu coparcener it is not necessary for him to eek the setting aside of the sale. It is sufficient if he asks for his share in the joint family properties and he be put in possession. On these grounds, defendant No.6 prays to grant 1/6th share as contended in the written statement.
24. The counsel for the defendant No.1, 3 & 5, argued that suit schedule property was purchased by Dr.N.Gopala Rao in a public auction in the year 1932 by paying Rs.345/ as per Ex.P1. Till 1969, katha was not changed and the tax was paid in the name of Dr.N.Gopala Rao vide Ex.P4 to P34. He was 21 years old at the time of purchase of the property. He was also doing part time job. At the time of public auction, name of the father of Dr.N.Gopala Rao has not found place in any of the document. Dr.N.Gopala Rao retired in the year 1969 and thereafter, Katha was made in his name. Defendant No.6 also signed as a witness to the mortgage loan. These 33 OS.No.5607/2003 documents are not questioned by the defendant No.6. When the Will was made by Dr.N.Gopala Rao on 20.5.1981. Defendant No.6 has not challenged the same. Even when Smt.Anandamma @ Ananda Bai has made a Will on 29.3.1999, defendant No.6 has not questioned the same. It is true that as per the Will executed by Smt.Ananda Bai 4% of extra share has been given to plaintiff No.1 as he has cleared the loan on the property. Defendants 1 to 3 have executed the release deed in favour of plaintiff No.1 as they are aged and unable to prosecute the case. In 1971 defendant No.6 was employed in SBI, he had stayed away from the suit schedule property. He has never helped his parents. Even in the joint affidavit filed before BBMP, defendant No.6 has admitted that the suit schedule property is the selfacquired property of Dr.N.Gopala Rao by affixing his signature. DW2 in her cross examination also consented for 1/11th share and she has also admitted that the xerox document Ex.P76 which is a notarised copy of affidavit. There is also no bar to confront the xerox copy of the document under any law. At the time of change of katha, defendant No.6 has not raised any objection. He has also contended that there is no collusion between defendant No.1, 3 & 5 and the plaintiffs. It is true that some of the defendants filed vakalath along with plaintiffs in a Writ Petition No.20559 /2010 (GMCPC) before Hon'ble High Court, as they are the family members and it does not mean that 34 OS.No.5607/2003 they have colluded together. Defendant No.6 in his evidence has admitted that father of Dr.N.Gopala Rao has expired in the year 1966 and he has stated that father of N.Gopala Rao was facing financial difficulty. When he was facing financial difficulty, it is not possible for him to extend financial support to purchase the property. There are also no documents to show that the suit schedule property is the joint family property. Hence, prayed to decree the suit as per the claim of the plaintiffs.
25. It is specifically contended by the plaintiffs in their pleading that Dr. N Gopal Rao purchased the property by participating in an Auction sale. To prove this contention, the same has been reiterated in the evidence of PW1 by relying on Ex P1 which is the Notice issued to father of PW1 Dr. N Gopal Rao by City Municipal Office, Bangalore dated 1.9.1932. The same is extracted as follows:
City Municipal Office, Bangalore, 1st September 1932.
NOTICE
Mr. N.Gopala Rao, son of Mr.Nanjappa
residing in No.57, East Anjaneya Temple Road, Basavanagudi is informed that the sale of site No.4 in 35 OS.No.5607/2003 VII Block, Basavanagudi Extension auctioned on 18th July 1932 is confirmed by Municipal council and he is requested to remit Rs.348120 being the balance within one week from this date, otherwise, the site will be resold at his Risk.
Sd/ For Municipal Commissioner
26. It is pertinent to note that the Defendant no.6 has not disputed Ex P1. But it is his contention that the Defendant's grandfather had purchased the property in the name of his father Dr. N Gopal Rao. If at all the contention of the Defendant no.6 was true, the notice would have been directly addressed to Nanjappa stating purchase of property in his son's name is confirmed and he is requested to remit balance amount. The contents in the Ex P 1 make it evident that the Property was purchased by Dr. N Gopal Rao at auction sale. Admittedly, this transaction dates back to 1932 and the Plaintiffs and Defendants were not born at the time of such transaction and the court cannot expect any evidence from the plaintiffs to show source of income for purchase of the property. Even the defendant no.6 is also not able to show that grandfather Nanjappa had any income during 1932. As per the evidence of the defendant no.6, he has admitted his cross examination that Nanjappa was a retired government teacher and it was difficult to run the family. There is also no 36 OS.No.5607/2003 evidence on record to show that the family had other properties at that point of time and from the income of such property or sale of such property or from income of grandfather Nanjappa, suit schedule property was purchased.
27. On perusal of Ex.P4 to 30, it shows that these are the tax paid receipts and taxes are paid in respect of the suit schedule property. Ex.P4 to 25 documents shows that Dr.N.Gopala Rao has paid the taxes. Though the tax receipts or khata cannot be termed as title documents, these documents supports the case of the plaintiffs that suit schedule property a selfacquired property.
28. On perusal of Ex.P31, it shows that it is a Letter addressed to PW1's father Dr. N Gopala Rao by Chickpet House Building Coop. Society dated 17.3.1955 which states that they are in receipt of Dr. N Goapal Rao's letter dated 18.2.1955 for discharge of the Mortgage Loan and they are also in receipt of sum of Rs.821.8 towards the discharge of the mortgage debt due by Dr. N Gopala Rao and the title deeds are sent back to Dr. N Gopal Roa as the due has been cleared. The contents of the documents also make it evident that Dr. N Gopal Roa had mortgaged the property and he has discharged the debt. The same would further strengthen the case of the plaintiffs that it was a selfacquired property of Dr. N Gopal 37 OS.No.5607/2003 Rao.
29. On perusal of Ex.P32, it is a Form No.1 dated 7.10.1976 submitted by the owner of the Urban Land to Assistant Commissioner of Urban under Sec.7 of the Karnataka Urban Land Tax Act 1976 with respect to market value of the property having market value of Rs.40, 000/ refers to the address of owner of Urban Land as "N Gopala Rao, No.59, South End road, Basavanagudi Bangalore".
Even the notice of Enquiry decision No. 712/48/7374 City Survey under Mysore Land Revenue Act 1964 issued by enquiry officer to N Gopala Rao, dtd.10.7.1973 states that in accordance with a Notice duly issued and served an enquiry was held by him and the order has been passed confirming N Gopala Rao's claim to a plot and the boundaries laid down in the map is open to inspection.
30. On perusal of Ex.P33, it shows that it is a Special notice issued by Corporation of the City of Bangalore Revenue Department under Rule 7, Schedule III, Sec.146 of the City of Bangalore Municipal Corporation Act 1949 on the enhanced assessment of for the year 196263 calling for objection if any. It is addressed to Sri. N Gopal Rao and it also shows the owners or occupier name as Sri. N Gopal Rao.
38OS.No.5607/2003
31. On perusal of Ex.P34, it shows that it is a Deed of mortgage with endorsement of reconveyance dated 09.11.1978, which reveals that Dr. N Gopal Rao is mortgaging the property which was purchased by him in the auction and the same has been confirmed in his name vide endorsement dated 1.9.1932 and the municipal commissioner has made a Khata in his name. Further at page no.5 of the document, it is mentioned that the schedule property is the selfacquired property of him. The relevant portion of the document is extracted as follows: "ಷಷಡಡಡಲಲ ಸಸತತತ ನನನ ಸಸಯಯರರತ ಸಸತಯತಗರತವದರರದ ನನನ ವನನ ಮತಯಡರಗಡ ಯಯವ ವಧವಯದ ಹಕತಕ ಬಯಧಡತಷಗಳತ ಇರತವದಲಲ"
32. The counsel for the Plaintiffs has also relied in Ex.P35 to 37 which are certified copies of sale deeds to contend that the suit schedule property is the selfacquired property.
33. On perusal of Ex.P35, it shows that it is a registered sale deed dated 1.11.1972 vide document Register No.3557/197273 in book no.1 volume no.539 from pages 9 to
11. It reveals that it is executed by N.Gopal Rao in favour of L G Vasanth Rao. It states that the property was earlier a composite property, which was purchased by Gopal Rao in an auction sale and he is in his possession of the same. The relevant portion is extracted hereunder:39
OS.No.5607/2003 "ಆದಯಗ ತಯರರಖತ 18.7.1932 ರಲಡಲ ಬಷರಗಳಡರತ ಸಟ ಮತನನಪಯಲಟಯವರತ ನಡಷಸದ ಬಹರರಗ ಹರಯರನಲಲ ಹರದಷ ಬಸವನಗತಡ ಬಡಯವಣಷಯ 7 ನಷರ ಬಯಲಕನಲಲ 4 ನಷರ ನರಬರಯಗದತದ ಖಯಲ ಸಷಸಟನತನ ನಯನತ ಖಷಸರತ ಸವಯಲತದಯರರಯಗ ಪಡಷದತ ಅದಕಷಕ ಮತನಸಪಯಲಟಗಷ ಕಷಡಡಬಷರಕಯದ ಪಪರಯ ಹಣ ಪಯವತ ಮಯಡ ಡಟಷಡರ 4 ನರಬರತ ಸಷಸಟನತನ ನನನ ಸಯಸಧರನ ಹಷಡರದದಷನತ."
34. On perusal of Ex.P36, certified copy of the registered sale deed dated 24.7.1982 vide Document no.1338/198283 Book No.1, volume no.1273 pages 217 to 219, it reveals that the same executed by Dr.N Gopal Rao in favour of Sri. L.G. Vasantha Rao. It also states that the vendor is the absolute owner in need of money for his domestic necessity for marriage of the last daughter is selling the portion of the property.
35. On perusal of Ex.P37, it shows that it is certified copy of the sale deed dated 04.07.2003, it states that on 4.7.2003, L.G. Vasantha Rao has sold the property in favour of Sri. Rajendra. At page No. 2 of the document, it states that N Gopal Rao earlier had sold eastern portion of the said composite property measuring 20 feet X 80 feet to one Smt.Rukmiamma vide Registered sale deed dated 22.07.1945 At page 3 of the said document, it is states that on 1.11.1972 N Gopal Roa had sold the southern portion of property in 40 OS.No.5607/2003 favour of L.G. Vasantha Rao vide document no.3557 of 1972 73 in Book No. I, volume no.939 at pages 9 to 11 in the office of Sub Registrar, Basavanagudi. And another portion of property 32.23 Square meters (29 ft X 12 feet) owned and possessed by him was sold for the performance of marriage of his last daughter.
36. On perusal of Ex.P72, it shows that it is a certified copy of Mortgage deed dtd.27.4.1981 executed by N.Gopala Rao in favour of G.V. Shyamala states that it is a self acquired property and the same has been purchased by N.Gopala Rao in an auction. The relevant portion of the document is extracted as follows: "ನನನ ಸಸಯಯರರತವಯದ .....ಛಡಸಷವಯಲಲ ನಲಲ ಬಡಲ ಮಯಡ ನನನ ಹಷಸರಗಷ ನರತತ".
37. On perusal of Ex.P73, it shows that it is a Certified copy of Mortgage deed dtd.27.4.1981 executed by N Gopal Rao in favour of Smt. Susheelamma states that the property is the selfacquired property of N Gopala Rao and it was purchase by him in the auction sale.The relevant portion of the document is extracted as follows: "ನನನ ಸಸಯಯರರತವಯದ .....ಛಡಸಷವಯಲಲ ನಲಲ ಬಡಲ ಮಯಡ ನನನ ಹಷಸರಗಷ ನರತತ"
38. On perusal of Ex.P74, it shows that it is a certified copy of Mortgage Redemption Deed dtd.6.3.1986 executed by 41 OS.No.5607/2003 Smt. G.V.Shyamala in favour of Smt. B Ananda bai alias B Anandamma stating she has received Mortgage consideration amount and Smt.B.Ananda Bai has redeemed the mortgage deed dated 30.4.1981 and the mortgagee do not have any claim over the property.
39. On perusal of Ex.P75, it shows that it is a certified copy of Mortgage Redemption Deed dtd 6.3.1986 executed by Smt. Susheelamma in favour of Smt. B Ananda Bai alias B Anandamma stating that she has received mortgage consideration amount sum of Rs.15,000 which shows that Smt.B.Ananda Bai has redeemed the mortgage dated 30.4.1981 and the mortgagee do not have any claim over the property.
On meticulous perusal of Ex.P1, P4 to 37, 72 to 75, these documents makes it evident that the suit schedule property is the Self acquired property of Dr. N Gopala Rao. The above said aspects are also corroborated in the cross examination of defendant No.6/ DW1.
40. As the plaintiffs have proved that the suit schedule property is a selfacquired property by production of aforesaid documents, now the onus has shifted to Defendant No.6 who is the lone contestant in the suit to prove that the Suit 42 OS.No.5607/2003 Schedule property is the Joint family property. In order to prove his contention, defendant no.6 has relied on Ex.D1 Telephone Bill of 2nd plaintiff, Ex.D2 Certified copy of mortgage deed dtd.16.6.1945, Ex.D3 Certified copy of sale deed dtd.22.7.1945, Ex.D4 Bank Pass book, Ex.D5 Treasury office Superannuation Allowance and Pension papers of N.Gopalarao. Ex.D6 Certified copy of Vakalath of respondent 2 to 5 & 7 in WP. No.20559/2010 to contend that the suit schedule properties are the Joint family property for Dr. N Gopala Rao.
41. On perusal of Ex.D2, a Certified copy of mortgage deed dtd.16.6.1945, it states that N Gopal Rao aged 31 years and B Nanjappa aged 70 years at present employed as Assistant Surgeon and retired school master as mortgagors executed a mortgage deed in favour of Bangalore City Chickpet House Building Cooperative Society and they are mortgaging the property for Rs.2000/. On careful perusal the same, there is nothing in record to show that suit schedule property was purchased in the name of N Gopala Rao for the joint family.
42. On careful perusal of Ex.D3 certified copy of sale deed dtd.22.7.1945, it states that the property that is in the possession and enjoyment of Retired school master Nanjappa 43 OS.No.5607/2003 and his son N Gopal Rao. The counsel for the Defendant No.6 heavily relied upon contents of this document to contend that it is in possession and enjoyment of Nanjappa and Gopal Rao. Hence, it is the Joint family property. However, on further reading of the above said document, it states that N Gopal Rao has purchased the property in auction sale for sum of Rs.465. It is also mentioned in the document that the said property having been possessed and enjoyed by both N Gopal Rao and Nanjappa and they have obtained sum of Rs.2000 after mortgaging the above said property with Chickpet Housing cooperative society.
It is contended by the Defendant no.6 that the PW1 in his cross examination has stated that "I have not produced any documents to show that my father was earning in the year 1932. It is true that my father was aged 19 years in the year 1932. In the year 1932 my father was a student". Therefore, it is contended by Defendant no.6 that Dr. N Gopal Rao had no income to purchase the property when he was a student and it is the grandfather Nanjappa who had purchased the suit schedule property in the name of his son Dr. N Gopal Rao.
43. The defendant No.6 denied his signature on Ex P
76. There is also a force in the argument of learned counsel for Defendant No.6 that Ex.P76 a Notarised copy of the Affidavit is not admissible in evidence. On careful perusal of 44 OS.No.5607/2003 the affidavit it states that Plaintiffs and defendant no. 1 to 9 have sated in the affidavit that Suit schedule property is the selfacquired property of the Dr. N Gopar Rao and they have no objection to transfer the Khata in the name of their mother Smt. B Anandamma. The same has been sworn before one G.R. Shivakumar, Notary on 29.1.1988. On careful perusal of the same, it shows that the document is a Xerox copy of the Notarised Affidavit. The same has been again attested as true copy on 15.2.2005. Therefore, this court is not taking into consideration of Ex P 76 in deciding the present case.
44. The counsel for Plaintiffs has also relied on admissions of Defendant no.6/DW1 to contend that the suit schedule property is the selfacquired property of Dr.N Gopal Rao. Defendant no.6/DW1 in his cross examination has stated that "it is true that my grandfather has no sufficient earnings and was not in possession of Rs.348.12 Annas as mentioned in Ex.P1." DW1 has further volunteered that he had borrowed the said amount and he has produced Ex.D2 to show that his father had borrowed the said amount in 1932. However on perusal of Ex.D2, the same is dtd.16.6.1945. Therefore, the contention of defendant No.6/DW1 that his grandfather had borrowed money and paid the consideration amount at the time of auction do not hold water. Moreover DW1 in his cross examination has stated that he has not paid 45 OS.No.5607/2003 any amount towards the redemption of mortgage made in favour of Smt.Shyamala. Further in his evidence he has stated that he has not challenged the sale deeds executed by his father in respect of southern front portion of suit schedule property in favour of L.G.Vasantha Rao. He has also further admitted that front portion of the schedule property has been sold to L.G.Vasantha Rao on 1.11.1972 as per Ex.P35. He has also further admitted that Ex.P34 which is a deed of mortgage dtd.9.11.1978 executed by Dr.N.Gopala Rao in favour of Parvathamma in respect of portion of the suit schedule property. He has admitted that the said document bears his signature as an attesting witness. Moreover, for the question put to DW1 that "Since you knew that it is the self acquired property, you did not challenge the sale deed or mortgage deed executed by your father what do you say? DW1 has answered that he do not have any locus standi to do so." He has also further stated that he do not have any documents to show that the katha was made in the name of his grandfather Nanjappa.
45. In the above circumstances, whether the plaintiffs have established that the suit schedule property is the self acquired property or the defendant No.6 has established that the suit schedule property is a joint family property, we may refer to the relevant provision of law and the case law on the 46 OS.No.5607/2003 subject. The relevant provisions and case laws are extracted hereunder for ready reference.
In Mulla, Hindu Law, 23rd Edn. Art.220 - Incidents of separate or self acquired property at page 326 Incidents of separate or selfacquired property A Hindu, even if he be joint may possess separate property. Such property belongs exclusively to him. No other member of coparcenery, not even his male issue, acquires any interest in it by birth. He may sell it or he may make a gift of it or bequeath it by Will to any person he likes. It is not liable for partition, on his death intestate, it passes by successors to his heirs and not by survivorship to coparceners.
In Mulla, Hindu Law, 23rd Edn. Article 231 Presumption as to coparcenary and selfacquired property, pp. 346 and
353. To render the property joint, the plaintiff must prove that family was possessed of some property, with the income of which the property could have been acquired or from which the presumption could be drawn that all the property possessed by the family is joint family property or that it was purchased with joint family funds, such as proceeds of sale of ancestral property or by joint labour.
47OS.No.5607/2003 In Mulla, Hindu Law, 23rd Edn. Article 231 Presumption as to coparcenary and selfacquired property , pp. 349.
It is thus an established concept that mere existence of a joint family cannot raise presumption that such family owns property jointly. A person asserting the existence of joint family property has to prove nucleus with such property could be acquired. It is only then such property could be presumed to be joint.
In Srinivas Krishna Rao Kango v. Narayan Devji Kango case reported in AIR 1954 SC 379 it is held that:
Proof of the existence of joint family does not lead to the presumption that the property held by any member of the family is joint. The initial burden rests upon the one who asserts any item of property as joint by establishing the said fact leading satisfactory evidence that at the time, the family possessed some joint property which from its nature and relative values may have formed, the nucleus from which the property in question may have been acquired. Then only the burden shifts to the party asserting self acquisition to establish affirmatively that the property 48 OS.No.5607/2003 was acquired without the aid of the joint family property and from out of his income from independent source.
In Mangal Singh v. Hakesh reported in AIR 1958 All 42.
In that case it was found that both the ancestral property of the family and the selfacquired properties were utilized for acquiring the properties in dispute. It was held that whatever may be the extent of the contribution of the acquiring member himself out of his selfacquired fund, if he takes the aid of any portion of joint or ancestral property in acquiring the property however small that aid may be, the property so acquired assumes the character of joint family property and cannot be claimed by himself as self acquisition. It was observed that the extent of his contribution or that of the family fund is immaterial. If any help is taken from the family property it is enough to make the selfacquired property, the property of the joint family.
In a three bench decision of Hon'ble Supreme Court in the case of Mallappa Girimallappa Betgeri And Others vs. R. Yellappagouda Patil And Others reported in AIR 1959 SC 906 49 OS.No.5607/2003 observed as follows:
18. Before proceeding further it will be appropriate to observe that it is a wellestablished principle of Hindu Law that there is no presumption that if there is a joint Hindu family, it may be presumed to have been possessed with joint family funds or property.
Existence of joint family does not by itself leads to a presumption that the joint family is possessed of joint family property or a particular item of property is the joint family property. It is wellsettled that even a member of the joint family can have his individual, separate property, the burden lies and rests upon the shoulder of the party who asserts that an item or an item of property, moveable or immoveable, is or has been the joint family property, to establish that fact by evidence. But, once it is established that the joint family is possessed of some joint family property which, from its nature and relative value, could have formed the nucleus from which the property in question or property in dispute may have been acquired, then and then only the burden shifts on the party alleging the property in dispute to be self acquired property to establish affirmatively that the property was acquired without the aid of joint family 50 OS.No.5607/2003 property. If the Kartha or the Manager of a Hindu Joint Family acquires any property in his name or there also exists joint family property which could provide the nucleus and it is shown that the Kartha has shown no independent source of income, in those circumstances, no doubt, presumption may be raised of that the property in question to be the joint family property. Reference in this regard may be made to the decision of their Lordships of the Supreme Court in the case of Srinivas Krishna Rao Kango v. Narayan Devji Kango AIR 1954 SC 379 as well as to the decision of the Supreme Court in Mallappa Girimallappa Betgeri v. Ramgonda Yellappagouda Patil AIR 1959 SC 906 and also to the decision of the Supreme Court in Kuppala Obul Reddy v. Bonala Venpata Narayana Reddy AIR 1984 SC 1171. It is also wellsettled that if in a case a party alleges the suit property to be the selfacquisition and proves and shows that the ancestral lands or ancestral properties are intact and the income therefrom may have been used for the maintenance of the members of the family, then the party alleging the property to be self acquired property is taken to have discharged the burden.
51OS.No.5607/2003 In Adiveppa v. Bhimappa reported in (2017) 9 SCC 586, (2017) 4 SCC (Civ) 678 wherein it was held that: (SCC P. 589, para 19)
19. It is a settled principle of Hindu Law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his selfacquired property. (See Mulla, Hindu Law, 22nd Edn. Article 231 Presumption as to coparcenary and selfacquired property, pp. 346 and 347).
Sir Dinshah Mulla in his Treatise on Hindu Law, 12th edition, at page 332, in paragraph 227, has stated the position thus:
Property which was originally the separate or self acquired property of a member of a joint family may become joint family property, if it has been voluntarily 52 OS.No.5607/2003 thrown by him into the common stock with the intention of abandoning all separate claims upon it. A clear intention to waive his separate rights must be established. Separate property thrown into the common stock is subject to all the incidents of joint family property.
In Appalaswami v. Suryanarayanamurti & Ors. Reported in AIR 1947 PC 189, The Privy Council held:
That the Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging selfacquisition to establish affirmatively that the property was acquired without the aid of the joint family property.
In Arshnoor Singh vs. Harpal Kaur (AIR 2019 SC 3098), it 53 OS.No.5607/2003 was held by the Hon'ble Supreme Court that, Under Mitakshara law, whenever a male ancestor inherits any property from any of his paternal ancestors up to three degrees above him, then his male legal heirs up to three degrees below him, would get an equal right as coparceners in that property.
In Maktul v Mst. Manbhari and Others (AIR 1958 SC 918), it was held by the Hon'ble Supreme Court that The only property that can be called ancestral property is property inherited by person from father, grandfather and great grandfather. This implies that only that property which has flown undivided across 4 generations is called ancestral property.
In Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC 567, it was held that After passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956.
54OS.No.5607/2003 This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, 1986 Latest Caselaw 266 SC, (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that After coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property.
In Commisioner of Wealth Tax, Kanpur & Ors. Vs. Chander Sen & Ors. [(1987) 1 SCR 516] where Sabyasachi Mukharji, J observed that Under the Hindu Law, the moment a son is born, he gets a share in father's property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, 55 OS.No.5607/2003 be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him.
In Bhanwar Singh Vs. Puran (2008) 3SCC 87, it was held by Supreme Court that Coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with other in inheritance in the estate of common ancestor.
Coparcenary is a narrower body from than the Joint Hindu Family and before commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used acquire by birth an interest in the coparcenary property. a coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that if enlarges by deaths and diminishes by births in the family. It is not static.
In Uttam vs Subagh Singh, [AIR 2016 SC 1169] has relaid the Law on to the Concept of Ancestral Property.
56OS.No.5607/2003 Apex Court ruled that a conjoint reading of Sections 4, 8 and 19 of the Hindu Succession Act, 1956, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.
In another judgement of Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that After coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property/ joint family property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property.
In D.S.Lakshmaiah and another vs L.Balasubramanyam and another 2003 (10) SCC 310, 2003 AIR (SC) 3800, There is no legal presumption of a property being joint family property only on account of existence of joint 57 OS.No.5607/2003 Hindu Family. The one who asserts that it is a joint family property must prove that there was a nucleus with which the property was acquired. In case there is joint family nucleus, the burden shifts on the one who claims that the property is a self acquired property to prove that it is a selfacquired property of his own.
In the decision of the Apex Court reported in AIR 1968 SC 1276 in the matter of G.Narayana Raju (dead) by his legal representative vs G.Chamaraju and others it is held that, The selfacquired property of a member of the joint family can become coparcenery, if the coparcener voluntarily thrown the property in the joint stock of the joint family property. In this case, there is no such claim nor any joint family or joint family property.
The Apex Court in G. Narayana Raju's case (supra) held thus :
"It is well established that there is no presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the 58 OS.No.5607/2003 business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate."
In Surender Kumar vs Dhani Ram AIR 2016 Delhi 120 Delhi High Court ruled
5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC 567, held that after passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that afte coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral 59 OS.No.5607/2003 property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property.
6. In view of the ratios of the judgments in the cases of Chander Sen (supra) and Yudhishter (supra), in law ancestral property can only become an HUF property if inheritance is before 1956, and such HUF property therefore which came into existence before 1956 continues as such even after 1956. In such a case, since an HUF already existed prior to 1956,thereafter, since the same HUF with its properties continues, the status of joint Hindu family/HUF properties continues, and only in such a case, members of such joint Hindu family are coparceners entitling them to a share in the HUF properties.
7. On the legal position which emerges pre 1956 i.e before passing of the Hindu Succession Act, 1956 and post 1956 i.e after passing of the Hindu Succession Act, 1956, the same has been considered by me 60 OS.No.5607/2003 recently in the judgment in the case of Sunny (Minor) & Anr. vs. Sh. Raj Singh & Ors., CS(OS) No.431/2006 decided on 17.11.2015. In this judgment, I have referred to and relied upon the ratio of the judgment of the Supreme Court in the case of Yudhishter (supra) and have essentially arrived at the following conclusions:
(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successorsininterest is no doubt inheritance of an 'ancestral' property but the inheritance is as a self acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits 'ancestral' property i.e a property belonging to his paternal ancestor.
(ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not 61 OS.No.5607/2003 exist prior to 1956) is if an individual's property is thrown into a common hotchpotch.
Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order VI Rule 4 CPC which provides that all necessary factual details of the cause of action must be clearly stated.
Thus, if an HUF property exists because of its such creation by throwing of selfacquired property by a person in the common hotchpotch, consequently there is entitlement in coparceners etc to a share in such HUF property.
(iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 62 OS.No.5607/2003 1956 from paternal ancestors. Once that status and position continues even after 1956; of the HUF and of its properties existing; a coparcener etc will have a right to seek partition of the properties.
(iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956, then in such a case a coparcener etc of an HUF was entitled to partition of the HUF property.
In State of Maharashtra v. Narayan Rao Sham Rao Deshmukh & Ors., (1985) 2 SCC 321, characteristics of joint family and coparcenary were culled out.
It was also held that interest of a female member of a joint Hindu family getting fixed, on her inheriting interest of a deceased male member of the family. She would not cease to be a member of family unless she chooses to become separate by partition, thus:
"8. A Hindu coparcenary is, however, a narrower body than the joint family. Only males who acquire 63 OS.No.5607/2003 by birth an interest in the joint or coparcenary property can be members of the coparcenary or coparceners. A male member of a joint family and his sons, grandsons and great grandsons constitute a coparcenary, A coparcener acquires right in the coparcenary property by birth but his right can be definitely ascertained only when a partition takes place. When the family is joint, the extent of the share of a coparcener cannot be definitely predicated since it is always capable of fluctuating. It increases by the death of a coparcener and decreases on the birth of a coparcener. A joint family, however, may consist of female members. It may consist of a male member, his wife, his mother and his unmarried daughters. The property of a joint family does not cease to belong to the family merely because there is only a single male member in the family. (See Gowli Buddanna v. CIT, AIR 1966 SC 1523 and Sitabai v. Ram Chandra, (1969) 2 SCC 544). A joint family may consist of a single male member and his wife and daughters. It is not necessary that there should be two male members to constitute a joint family.(See N.V.Narendranath v. C.W.T., (1969) 1 SCC 748) While under the Mitakshara Hindu law there is community of ownership and unity of possession of 64 OS.No.5607/2003 joint family property with all the members of the coparcenary, in a coparcenary governed by the Dayabhaga law, there is no unity of ownership of coparcenary property with the members thereof. Every coparcener takes a defined share in the property and he is the owner of that share. But there is, however, unity of possession. The share does not fluctuate by births and deaths. Thus it is seen that the recognition of the right to a definite share does not militate against the owners of the property being treated as belonging to a family in the Dayabhaga law.
In N.R. Raghavachariar's Hindu Law -- Principles and Precedents, 8th Edn. (1987) at p. 230 under the heading "Rights of Coparceners" it is said thus:
"The following are the rights of a coparcener .--(1) Right by birth, (2) Right of survivorship, (3) Right to partition, (4) Right to joint possession and enjoyment, ( 5) Right to restrain unauthorised acts, (6) Right of alienation, (7) Right to accounts, and (8) Right to make selfacquisition." While dealing with "Right by Birth" learned author says thus:65
OS.No.5607/2003 "Every coparcener gets an interest by birth in the coparcenary property. This right by birth relates back to the date of conception. This, however, must not be held to negative the position that coparcenary property may itself come into existence after the birth of the coparcener concerned." While dealing with right of survivorship, it is said thus:
"The system of a joint family with its incident of succession by survivorship is a peculiarity of the Hindu law. In such a family no member has any definite share and his death or somehow ceasing to be a member of the family causes no change in the joint status of the family. Where a coparcener dies without male issue his interest in the joint family property passes to the other coparceners by survivorship and not by succession to his own heir. Even where a coparcener becomes afflicted with lunacy subsequent to his birth, he does not lose his status as a coparcener which he has acquired by his birth, and although his lunacy may under the Hindu law disqualify him from demanding a share in a partition in his family, yet where all the other coparceners die and he becomes the sole surviving member of the coparcenary, he takes the whole joint family property by survivorship, and becomes a fresh 66 OS.No.5607/2003 stock of descent to the exclusion of the daughter of the last predeceased coparcener, a case of leprosy of the last surviving coparcener. The beneficial interest of each coparcener is liable to fluctuation, increasing by the death of another coparcener and decreasing by the birth of a new coparcener." Therefore, it is now settled that a member of a coparcenary acquires a right in the property by birth. His share may fluctuate from time to time but his right by way of survivorship in coparcenary property in Mitakshara law is a settled proposition.
In Rohit Chauhan v. Surinder Singh & Ors., (2013) 9 SCC 419, the concept of coparcenary of sharing equally with others and no definite share, was discussed thus: "11. We have bestowed our consideration to the rival submissions and we find substance in the submission of Mr Rao. In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the 67 OS.No.5607/2003 family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener."
In Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe, (1986) 1 SCC 366, a 3 Judge Bench of Apex Court held that Character of a joint family property does not change with the severance in the status of the joint family before an actual partition takes place. It was observed thus:
68OS.No.5607/2003 "14. The character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the cosharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property."
In Bhagwati Prasad Sah & Ors. v. Dulhin Rameshwari Kuer & Anr., AIR 1952 SC 72, it was held that Once a coparcener separates himself from other members of the joint family, there is no presumption that rest of the coparceners continued to be joint, it would be a question of fact in each case. Following discussion was made:
"7. x x x The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but ...... where it is admitted that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is 69 OS.No.5607/2003 no presumption that the rest of the coparceners continued to be joint. There is no presumption on the plaintiff's side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief...." In Ref. Unobstructed and obstructed heritage In the case of RuknUlMulk Syed Abdul Wajid (AIR 1950 Mys 33(FB)) (supra) What fell for consideration for the Full Bench of this Court was whether the business carried on by a member of a Joint Hindu Family was begun or carried on with the assistance of the joint family property is a question of fact upon which burden of proof lies upon the plaintiff who claims a share in the business. The burden of proving that the business was separate at its inception cannot be cast upon the defendant who asserts it. The Full 70 OS.No.5607/2003 Bench further held that the mere fact that a member of a joint family meets the expenses of the family and employs his brothers in his business and pays them for their services or pays some money to each of the brothers out of generosity or kindness cannot show that the property acquired by him was not his self acquired property or what was paid by him to his brothers should be regarded as their joint family property.
The Supreme Court in the case of C.N. Arunachal Mudaliar v. C.A. Muruganath Mudaliar 1953 AIR 495 held that The father is not only competent to sell the self acquired immovable property to a stranger without theconcurrence of his sons but he can make a gift of such property to one of his own sons to the detriment of another and he can make even an unequal distribution amongst his heirs.
In G.B. Mallakarjunaiah v. J.S. Kanniah Setty (AIR 1961 Mys
64) (supra), Addressing the question as to whether the burden of proving selfacquisition of properties by a member of the family would arise, held that it must be shown 71 OS.No.5607/2003 that the family was possessed of such joint family funds or joint family properties which would enable the acquisition of the properties in question.
The Supreme Court in the case of Bhagwan Dayal vs Mst. Reoti Devi (1962 AIR 287) for the proposition that one or more members of the joint family can start a business or acquire a property without the aid of the joint family property, but such business or acquisition would be his or their acquisition and succession to such property would be governed not by the law of joint family but only by the law of inheritance.
In the case of Gopal Purushotham Bichu (ILR 1989 Kant
169) (supra) held that a new business started by the kartha or manager of a joint family is not considered to be the business of a joint family, unless it is started or carried on with the express or implied consent of adult coparceners or it is proved that the joint family funds are utilised for the business to the advantage of the joint family.
In Appalaswamy v. Suryanarayanamurti, ILR (1948) 72 OS.No.5607/2003 Mad 440 : (AIR 1947 PC 189) Sri John Beaumont observed as follows :
'The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging selfacquisition to establish affirmatively that the property was acquired without the aid of the joint family property."
In Muhammed Hussain Khan v. Babu Kishva Nahdan Sahai, AIR 1937 PC 233 (at P. 239), the Privy Council observed:
"The word 'ancestor' in its ordinary meaning includes an ascendant in the maternal as well as the paternal, line; but the 'ancestral' estate, in which, under the Hindu Law, a son acquires jointly with his father an interest by birth, must be confined, as shown by the original text of Mitakshara, to the property descending to the father from his male 73 OS.No.5607/2003 ancestor in the male line. Hence, the estate, which is inherited by father from is maternal grandfather, cannot be held to be ancestral property in which his son has an interest jointly with him".
In T.S.Subbaraju Vs. T.A.Shivarama Setty AIR 2004 KAR 479 it was held that Thus, when properties were proved to be self acquired properties, coupled with the facts that there was no evidence regard to joint family nucleus, such property could be dealt with for disposition in any manner, as they were selfacquired.
In Vineeta Sharma vs Rakesh Sharma on 11 August, 2020
129. Resultantly, we answer the reference as under:
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition 74 OS.No.5607/2003 which had taken place before 20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of ClassI as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the 75 OS.No.5607/2003 Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.
In Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36 a division bench of the SC has held that the rights under the amendment are applicable to living daughters of living coparceners as on 0909 2005 irrespective of when such daughters are born.
In other words, only if the father passed away before the enactment of the amended act the living daughter will have no right over the coparcenary property.
In Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343 ,held that the courts below erred in holding that Daughters were not entitled to share in property, as they were 76 OS.No.5607/2003 born before 1956, the year of enactment of Hindu Succession Act.
Whether by virtue of the 2005 Amendment in the Hindu Succession Act 1956, the daughters will get coparcenary right by birth in the ancestral property as sons even if they were born before the commencement of the 1956 Act.
The Apex Court held that "according to Section 6 of the Act, when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act (which includes a daughter), his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener by survivorship but upon his heirs by intestate succession.
Therefore, the interest of the deceased coparcener would devolve by intestate succession on his heirs, which included his daughters".
It has also held that the said amendment of 2005 confers equal rights to both son and daughter on the coparcenary property. In this case, the father died in 2001 leaving behind two daughters, two sons, and a widow. The father was not alive when the amended 77 OS.No.5607/2003 version of the said Act came into force. The daughters, sons and the widow were given 1/5th share each.
However, in Vineeta Sharma vs Rakesh Sharma (Supra) on 11 August, 2020 The court overruled the views given in contrary in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors and the opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar is partly overruled to the extent it is contrary to this decision.
46. Having examined the various contentions of the Plaintiffs and defendants on the touchstone of the parameters as explicitly laid down by the Supreme Court in several judgments referred to above and on meticulous perusal of the evidence of plaintiffs and defendants, Defendant has failed to rebut the evidence of plaintiffs and also failed to prove that Nanjappa had purchased the property in the name of his son Dr. N Gopal Rao. Most of the documents relied by the plaintiffs makes me to come to irresistible conclusion that the property is standing in the name of the Dr. N Gopal Rao is his self acquired property. Hence, the Argument of the Defendant no.6 that the suit schedule property is the joint family property does not hold water.
78OS.No.5607/2003
47. It is also a settled principle of law that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions evidence act. In the present case, the plaintiffs have produced a reliable, cogent and satisfactory evidence to show that the suit schedule property is the Self acquired property. On perusal of the pleading of each parties, it emerges that as per Ex P1, the property has been purchased in an auction sale. Thereafter, several portions of the properties were transferred to many persons for over half centuries and there were several transactions which clearly appears/transacted in the name of Dr. N Gopal Rao. On the basis of these documents relied by the plaintiffs, it would probabilise the case of the plaintiffs that it is the selfacquired property of the Dr. N Gopala Rao.
48. Though the Defendant no.6 has relied on Ex D 2 and 3 to contend that the Dr. N Gopal Rao and his father had together had mortgaged the property. It is the settled principle 79 OS.No.5607/2003 of law that it is only the person who has got right over the property make transfer. Merely because, Nanjappa's name has been mentioned in the Mortgage Deed, it does not change the nature of the property to Joint Family property in the absence of any registered deed as to change of such property to co ownership status. Even for the sake of discussion if this court comes to the conclusion that the suit property is a joint family property, the plaintiffs and defendant No.1 to 9 are entitled for equal share as per the ratio laid down in Vineeth Sharma case supra.
During the course of the argument by learned counsel for the plaintiff has contended that if this court comes the the conclusion that the suit schedule property is the joint family property, the court can take into consideration of the recent decision in Vineeth Sharma case and decree the suit with 1/11 share. The counsel has also relied on the following decision:
In Lakshminarayan Guin & Ors vs Niranjan Modak reported in AIR 1985 SC 111 Para 9: That a change in the law during the pendency of an appeal has to be taken into account and will govern the rights of the parties was laid down by this Court in Ram Sarup v. Munshi and others etc.(2), which was followed by this Court in Mula and others v. Godhu and others.(3) We may 80 OS.No.5607/2003 point out that in Dayawati and Another v. Inderjit and others(") this Court observed: "If the new law speaks in language, which expressly or by clear intendment, takes in even pending matters, the Court of trial as well as the Court of appeal must have regard to an intention so expressed, and the Court of appeal may give effect to such a law even after the judgment of the Court of first instance. "
Reference may also be made to the decision of this Court in Amarjit Kaur v. Pritam Singh and others where effect was given to a change in the law during the pendency of an appeal, relying on the proposition formulated as long ago as Kristnama Chariar v. G (1) [1964] 6 S.C.R. 876, (2) [1963] 3 S.C.R. 858.(3) [1970] 2 S.C.R. 129. (4) [1966] 3 S.C.R. 275 (5) [1975] I S.C.R. 605. Managammal (1) by Bhashyam Iyengar J., that the hearing of an appeal A was, under the processual law of this country, in the nature of a rehearing of the suit. In Amarjit Kaur (supra) this Court referred also to Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri (2) in which the Federal Court had laid down that once a decree passed by a court had been appealed against 81 OS.No.5607/2003 the matter became sub judice again and thereafter the appellate court acquired seisin of the whole case, except that for certain purposes, for example, execution, the decree was regarded as final and the court below retained jurisdiction.
49. On perusal of the evidence led by both the parties and settled principles of law, and as discussed supra, it emerges that Dr. N Gopal Rao had purchased the property in an auction sale held in 1932 and the status of self acquired property was not changed. Therefore, I am of the opinion that the plaintiffs have proved that the suit schedule property is a selfacquired property. Hence, I hold issue No.1 in the affirmative and issue No.4 in the negative.
50. Issue No.2 & Addl.Issue No.4: It was contended by the plaintiffs in their plaint that after the purchase of the property in the year 1932, father of the plaintiffs and defendant No.1 to 9 has executed a Will dtd. 20.5.1981 in favour of their mother Smt.B.Anandamma. Smt. B.Anandamma died testamentary death bequeathing the property in favour of plaintiffs and defendant No.1 to 9 as per the will dtd. 29.3.1999. It was argued by the learned counsel for the plaintiff that the Will dtd.20.5.1981 executed by N.Gopala Rao in favour of Smt.Anandamma @ Ananda Bai 82 OS.No.5607/2003 and Will dtd.29.3.1999 which are marked as Ex.P2 & 3, they have been duly proved as per the Indian Evidence Act. As there was no attestors found to Ex.P2, the same has been marked as provided u/s. 69 of Indian Evidence Act. As per Sec.69 of the Indian Evidence Act when the attestors are not alive, it can be proved by other methods. Therefore the document was confronted to DW2 Vijaya. DW2 has identified the signature of her father. Hence the requirement of proof of the above said Will is duly complied and the signature has been marked as Ex.P2(a). Even in the written statement filed by the defendants, that they have not pleaded any suspicious circumstances with regard to the execution of the Will. There was also a suggestion made to DW2 and she has admitted the same with regard to the execution of the Will. Even comparing the signature of Dr.N.Gopala Rao in Ex.P34 & Ex.P2 it would show that the signatures are one and the same. The counsel for the plaintiff has also argued that the plaintiffs in their plaint have specifically pleaded about the Will dtd.29.3.1999. The exeuction of the Will has been admitted by all the parties except Defendant No.6. The said will is also duly proved by examining attesting witnesses. To prove the Will, PW2 one Smt.Thara has been duly examined in this case, she has deposed before the court that since she was a neighbor, she was called by Smt.Anandabai for attesting the Will and she has duly attested the said Will. Hence, the execution of the 83 OS.No.5607/2003 Will has been duly proved by the plaintiffs. It was also contended that though the Will was executed on 29.3.1999, it was authenticated before the notary on 31.3.1999. Sec.8 of the Notaries Act provides for authentication. Mere delay in authentication does not invalidate the document. As per Sec.47 of the Registration Act, when the document is subsequently registered, the document will refer to the date of execution only. Similarly in this case the doctrine of relates back is applicable and though the notary has affixed his seal and signature on 31.3.1999, the same can be considered as it is being executed on 29.3.1999. He has further contended that the Notary has examined on commission and he has admitted of having put his seal and signature to the above said document. The learned counsel for the plaintiffs also contended that till today Will has not been challenged. Hence it holds good. The counsel for plaintiffs has also relied on a following decisions In Narinder Singh Rao vs Avm Mahinder Singh Rao & Ors Reported in 2013 (9) SCC 425 Para 10. So far as inheritance of the suit property by the present appellant in pursuance of the Will dated 1st June, 1989 executed by Sumitra Devi is concerned, the finding of the lower appellate court is to the effect that the Will was validly executed by 84 OS.No.5607/2003 Sumitra Devi, which had been attested by two witnesses, one being an advocate and another being a medical practitioner. Though there was an allegation to the effect that Sumitra Devi was not keeping good health at the time when she had executed the aforesaid Will and she was not having sound and disposing mind at the time of execution of the Will, the said submission made before the courts below was not accepted. Upon appreciation of evidence adduced, it was held that the Will was validly executed and Sumitra Devi was competent to execute the Will which had been duly attested by two competent witnesses. In the circumstances, the courts below came to the conclusion that the Will was validly executed. The question with regard to the state of mind of the testatrix and execution of the Will being a question of fact, the High Court rightly accepted the findings arrived at by the lower appellate court. As the said finding has been accepted by the High Court, in our opinion, even this Court would not reappreciate the said fact. In the circumstances, so far as the validity of the Will is concerned, it is treated to have been executed properly. The next question which was to be considered by the High Court was with regard to the 85 OS.No.5607/2003 ownership right of the suit property. The property was in the name of Rao Gajraj Singh and no evidence of whatsoever type was adduced to the effect that the property originally belonged to Sumitra Devi. Looking to the said fact, the findings arrived at by the High Court that the suit property belonged to Rao Gajraj Singh cannot be disturbed. As Rao Gajraj Singh died intestate and was the owner of the property at the time of his death, the suit property should have been inherited by his widow, namely Sumitra Devi and his eight children in equal share, as per the provisions of the Hindu Succession Act, 1956. In that view of the matter, the High Court arrived at the conclusion that the suit property would be inherited by all the 9 heirs i.e. Sumitra Devi and her eight children and therefore, Sumitra Devi had inherited only 1/9th of the right and interest in the suit property whereas 1/9th of the right and interest in the suit property belonged to each child of Rao Gajraj Singh.
Para 16. The submissions made with regard to the mental capacity of Sumitra Devi at the time of execution of the Will cannot also be looked into at 86 OS.No.5607/2003 this stage because the mental capacity of the testator to execute a Will being a question of fact, we would like to accept the findings arrived at by the court below and all allegations with regard to soundness of mind of Sumitra Devi at the time of execution of the Will or allegation with regard to undue influence of the present appellant with whom Sumitra Devi was residing at the time of her death cannot be looked into by this Court as they are the issues pertaining to fact. We, therefore, do not accept the submissions made with regard to validity of the Will executed by Sumitra Devi.
K.M. Varghese And Ors. vs K.M. Oommen And Ors. Reported in AIR 1994 Ker 85
52. In considering the evidence of the attesting witness for the purpose of proving the will, we feel that we have to take into account all the circumstances and we must not be persuaded by the vague statements of the witnesses to hold that the will has not been proved properly. We are of the opinion where the evidence of the attesting witnesses is vague, indefinite, doubtful or even conflicting upon material points, the court is entitled to consider all the circumstances of the case and judge collectively 87 OS.No.5607/2003 therefrom, whether the requirements of the statute have been complied with, it is possible for the court on an examination of the entire circumstances and evidence to come to a conclusion that the re collection of the witnesses is at fault or that their evidence is suspicious or that they are wilfully misleading the court and, therefore, the court is obliged to pronounce in favour of the will, disregarding the testimony of the witnesses.
51. Percontra, the learned counsel for defendant No.6 has argued that since the property is a joint family property, executing Will by N.Gopala Rao and Smt.Ananda Bai does not arise as they have no power to execute the Will. No witnesses and attestors are examined for the proof of the Will. Moreover Ex.P3 which has been relied by the plaintiffs, the said document shows that Ananda Bai signed as B.Anandamma @ B.Ananda Bai. The counsel has also relied on Ex.D5(a) to (c) to contend that she used to signed as Ananda Bai @ B.Anandamma and not as B.Anandamma @ Ananda Bai. The said Will is false and created one. Moreover, there is no prayer for share on the basis of the Will executed by Dr.N.Gopala Rao or Smt.Ananda Bai. PW1 in his evidence has stated that he took care of his mother, but in the cross examination he 88 OS.No.5607/2003 states that he does not know the bank account details. Plaintiffs have also filed a suit against defendant No.6 in OS.NO.1909/2003 for permanent injunction and the same has been dismissed. There is also no evidence to show that the mortgage loan has been discharged by 1 st plaintiff. PW2 has also signed as witness to the release deed, and said document is hit by Sec.52 of Transfer of Property Act. The plaintiffs have also led further examination and got marked mortgage deed dtd.27.4.1981 as per Ex.P72, there is no pleading with respect to the said document and it is an afterthought and same is produced only after cross examination. Will is also forged one. On comparison of Ex.P3 Will and D5 as Ex.D5(a to c) pension papers, it shows that the signatures on these documents are different. In the pleading of the plaintiffs it is not shown that Anandamma used to sign in different styles with two names. It is also contended that the main prayer is not based on the Will. PW2 who being the attesting witness do not know the contents of the document. In her evidence she has stated that on the same day 3 persons have signed the above said Will on 29.3.1999. But the notary in his evidence states that the Will has been notarised on 31.3.1999. Pww2 in her evidence has stated that on the date of execution of the Will on 29.3.1999, even the notary was also present. On the additional issues which were framed by this court with regard to the Will executed by Dr.N.Gopala Rao, 89 OS.No.5607/2003 and the Will executed by Anandamma, it is argued that the defendant No.6 has already denied the same in para 4 & 5 of his written statement. Hence, the counsel for defendant No.6 prayed this court to hold the above issues in the negative.
52. The counsel for the defendant No.1, 3 & 5 in his argument contended that PW2 in her evidence has stated that Smt.Anandabai has executed a Will in her presence. The counsel has also contended that Smt.Anandamma used to sign both as B.Anandamma @ Anandabai and Anandabai @ B.Anandamma. The same was also admitted by DW2 in her cross examination. Hence, prayed to decree the suit.
53. The counsel for the Plaintiffs in his Reply argument has reiterated the contentions taken in the initial argument and copiously read from the provisions of sections 68 and 69 of the Indian Evidence Act, Plaint averment, depositions of Plaintiffs to contend that the Will executed by Dr. N Gopal Rao dated 20.5.1981 and Will executed by Smt.Anandamma dated 29.3.1999 have been sufficiently proved.
54. I have given careful considerations to the arguments canvassed by the counsel for the plaintiffs and defendant No.6. In considering whether the will dated Will dtd.20.5.1981 and 29.3.1999 have been proved in accordance with law, I 90 OS.No.5607/2003 have referred to the relevant provisions of law and the case law on the subject which are extracted hereunder for ready reference.
Sections 2 (h) and 63(c) of the Indian Succession Act, 1925 Section 2 (h) "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
Section 63(c).The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
Section 68 and Section 69 of the Indian Evidence Act, 1872 91 OS.No.5607/2003 "68. Proof of execution of document required by law to be attested. - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
Section 69. Proof where no attesting witness found.
--If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
In Munnalal, minor and others, vs. Kashibai and others, 92 OS.No.5607/2003 AIR (34) 1947 Privy Council 15, " A party setting up a will is required to prove that the testator was of sound disposing mind when he made his will but, in the absence of any evidence as to the state of the testator's mind, proof that he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind, and understood what he was about. This presumption can be justified under the express provisions of Section 90, since a will cannot be said to "duly" executed by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of Section 114, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about."
In H. Venkatachala Iyengar vs. B.N.Thimmajamma and others, AIR 1959 SC 443 A three judge bench of the apex court has provided the following guidelines in the matter of proof of wills :
"18. What is the true legal position in the matter of proof of wills? It is wellknown that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements 93 OS.No.5607/2003 on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the 94 OS.No.5607/2003 three illustrations to this section indicate what is meant by the expression "a person of sound mind "
in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with 95 OS.No.5607/2003 mathematical certainty. The test to be applied would be the usual test of the satisfaction of the, prudent mind in such matters.
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the documentpropounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to 96 OS.No.5607/2003 prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of 97 OS.No.5607/2003 the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required 98 OS.No.5607/2003 to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any 99 OS.No.5607/2003 suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal W N 895: (AIR 1946 PC 156) "where a will is charged with suspicion, the rules enjoin a reasonable skepticism, not an obdurate persistence in disbelief. They do not demand from the judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect."
In Shashikumar Banerjee and others vs. Subodh Kumar Banerjee, AIR 1964 SC 529 While referring to H. Venkatachala Iyengar, supra, a Constitution Bench of the apex court has held thus :
100OS.No.5607/2003 "4. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 (Supp.1) SCR 426: AIR 1959 SC 443 and Rani Purnima Devi v. Khagendra Narayan Dev, 1962(3) SCR 195: 1962 AIR(SC) 567).
The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the 101 OS.No.5607/2003 condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested."
In Madhukar D. Shende vs. Tarabai Aba Shedage, (2002) 2 SCC 85. The apex court has expounded thus as regards the proof of execution and attestation of a will thus :
102OS.No.5607/2003 "8. The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the Jury in R v. Hodge, (1838) 2 Lewis CC 227, may be apposite to some extent: "The mind was apt to take a pleasure in adapting circumstances to one another 103 OS.No.5607/2003 and even in straining them a little, if need be, to force them to form parts of one connected hole; and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete." propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict positive or negative.
9. It is wellsettled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner 104 OS.No.5607/2003 contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of 'not proved' merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance."
In Pentakota Satyanarayana and others vs. Pentakota Seetharatnam and others, (2005)8 SCC 67 The onus to prove and the manner of doing so in the case of a will is explained and the presumption that may drawn on Registration of the document is dealt with as follows :
105OS.No.5607/2003 "22. The above findings, in our opinion, are erroneous. The trial Court also recorded wrongly a finding that the Will was not revocable overlooking the fact that in the very paragraph the testator reserved his right to cancel the Will and execute another Will. In our view, the findings of the High Court and the trial Court are not only contrary to the facts on record but also overlooked the law governing the aspects of proof of Will. Section 68 of the Indian Evidence Act, 1872 deals with proof of execution of document required by law to be attested. This section lays down that if the deed sought to be proved is a document required by law to be attested and if there be an attesting witness alive and subject to process of the Court and capable of giving evidence, he must be called to prove execution.
Execution consists in signing a document written out, read over and understood and to go through the formalities necessary for the validity of legal act. Section 63 of the Indian Succession Act gives meaning of attestation as under: "Section 63:
Execution of unprivileged will. Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged or a mariner at sea, shall execute his will 106 OS.No.5607/2003 according to the following rules: (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." It is clear from the definition that the attesting witness must state that each of the two witnesses has seen the executor sign or affix his mark to the instrument or has seen some other persons sign the instrument in the presence and by the direction of the executant. The witness should further state that each of the attesting witnesses 107 OS.No.5607/2003 signed the instrument in the presence of the executant. These are the ingredients of attestation and they have to be proved by the witnesses. The word 'execution' in Section 68 includes attestation as required by law.
23. A perusal of Ex.B9 (in original) would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement were, in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the subregistrar that the executant has acknowledged before him execution did also amount to attestation. In the original document the executants signature was taken by the subregistrar.
The signature and thumb impression of the identifying witnesses were also taken in the document. After all this, the subregistrar signed the deed. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his Will or not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document 108 OS.No.5607/2003 propounded is proved to be the last Will and the testament of departed testator.
24. In the instant case, the propounders were called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document on his own freewill. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above. It was argued by learned counsel for the respondent that propounders themselves took a prominent part in the execution of the Will which confer on them substantial benefits. In the instant case, the propounders who were required to remove the said suspicion have let in clear and satisfactory evidence. In the instant case, there was unequivocal admission of the Will in the written statement filed by P. Srirammurthy. In his written statement, he has specifically averred that he had executed the Will and also described the appellants as his sons and Alla Kantamma as his wife as the admission was found in the pleadings. The case of the appellants 109 OS.No.5607/2003 cannot be thrown out. As already noticed, the first defendant has specifically pleaded that he had executed a Will in the year 1980 and such admissions cannot be easily brushed aside. However, the testator could not be examined as he was not alive at the time of trial. All the witnesses deposed that they had signed as identifying witnesses and that the testator was in sound disposition of mind. Thus, in our opinion, the appellants have discharged their burden and established that the Will in question was executed by Srirammurthy and Ex.B9 was his last will. It is true that registration of the Will does not dispense with the need of proving, execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. The Registrar has made the following particulars on Ex.B9 which was admitted to registration, namely, the date, hour and place of presentation of document for registration, the signature of the person admitting the execution of the Will and the signature of the identifying witnesses. The document also contains the signatures of the attesting witnesses and the scribe. Such particulars are required to be endorsed by the Registrar along with his signature 110 OS.No.5607/2003 and date of document. A presumption by a reference to Section 114 of the Evidence Act shall arise to the effect that particulars contained in the endorsement of registration were regularly and duly performed and are correctly recorded. In our opinion, the burden of proof to prove the Will has been duly and satisfactorily discharged by the appellants. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. In such circumstances, the onus shift to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same.
In B. Venkatamuni vs. C.J.Ayodhya Ram Singh and others, AIR 2007 SC 311 In reversing a decision of the High Court, in a case where the will was found to be executed in compliance with the statutory requirements, the apex court held that that by itself would not be sufficient to sustain the same, where there were suspicious circumstances. Reference was 111 OS.No.5607/2003 made to Surendra Pal and Others, vs. Dr. (Mrs.)Saraswati Arora and another, (1974)2 SCC 600; H.Venkatachala Iyengar vs. B.N.Thimmajamma and others, (1959) Supp.1 SCR 426; Smt. Guro vs. Atma Singh and others, (1992)2 SCR 30; Daulat Ram and others vs. SOdha and others, (2005)1 SCC 40, Meenakshiammal vs. Chandrasekaran, (2005)1 SCC 280; Pentakota Satyanarayana and others vs. Pentakota Seetharatnam, (2005)8 SCC 67. In particular, the apex court has with reference to the last mentioned case of Pentakota Satyanarayana, has expressed thus :
" 22. The principle was reiterated in Pentakota Satyanarayana and others vs.. Pentakota Seetharatnam and others, (2005)8 SCC 67, wherein it was stated: "In the instant case, the propounders were called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above."112
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23. However, having regard to the fact that the Will was registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not know well the contents of the Will and in sound disposing capacity executed the same.
24. Each case, however, must be determined in the facts situation obtaining therein.
25. The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would subserve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance.
26. The suspicious circumstances pointed out by the learned District Judge and the learned Single Judge of the High Court, were glaring on the face of the records. They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the 113 OS.No.5607/2003 findings of fact arrived at by the said court. It applied a wrong legal test and thus, came to an erroneous decision."
In Gopal Swaroop Vs. Krishna Murari Manal and others, (2010) 14 SCC 266 It is held thus :
"23. As was observed by this Court in H. Venkatachala Iyengar V. B.N.Thimmajamma, (AIR 1959 SC443), in the matter of proof of documents as in the case of the proof of wills, it is idle to expect proof with mathematical certainty. The test to be applied always is the test of satisfaction of a prudent mind in such matters. Applying that test to the case at hand we have no manner of doubt that the will executed by Shri Panna Lal, which is a duly registered document, is not surrounded by any suspicious circumstances of any kind and is proved to have been duly and properly executed."
In M.B.Ramesh (dead) by Lrs. Vs. K.M.Veeraje Urs (dead) by Lrs. And others, (2013)7 SCC 490 The validity of a will was tested in a circumstance where an attesting witness had not specifically stated in his evidence that he had seen the other attesting witness sign the will in the presence of the 114 OS.No.5607/2003 testatrix. However, the apex court held that having regard to the fact that the said attesting witness had mentioned about the presence of the other witness being present when the will was written, has been held by implication and inference as proving the required attestation by the other witness; It is opined thus :
"27. The approach to be adopted in matters concerning wills has been elucidated in a decision on a first appeal by a Division Bench of Bombay High Court in Vishnu Ramkrishna Vs. Nathu Vithal reported in [AIR 1949 Bombay 266]. In that matter, the respondent Nathu was the beneficiary of the will. The appellant filed a suit claiming possession of the property which was bequeathed in favour of Nathu, by the testatrix Gangabai. The suit was defended on the basis of the will, and it came to be dismissed, as the will was held to be duly proved. In appeal it was submitted that the dismissal of the suit was erroneous, because the will was not proved to have been executed in the manner in which it is required to be, under Section 63 of Indian Succession Act. The High Court was of the view that if at all there was any deficiency, it was because of not examining more than one witness, though it was not convinced 115 OS.No.5607/2003 that the testatrix Gangabai had not executed the will. The Court remanded the matter for additional evidence under its powers under Order 41 Rule 27 CPC. The observations of Chagla C.J., sitting in the Division Bench with Gajendragadkar J. (as he then was in Bombay High Court) in paragraph 15 of the judgment are relevant for our purpose: "15...We are dealing with the case of a will and we must approach the problem as a Court of Conscience. It is for us to be satisfied whether the document put forward is the last will and testament of Gangabai. If we find that the wishes of the testatrix are likely to be defeated or thwarted merely by reason of want of some technicality, we as a Court of Conscience would not permit such a thing to happen. We have not heard Mr. Dharap on the other point; but assuming that Gangabai had a sound and disposing mind and that she wanted to dispose of her property as she in fact has done, the mere fact that the propounders of the will were negligent and grossly negligent in not complying with the requirements of S.63 and proving the will as they ought to have should not deter us from calling for the necessary evidence in order to satisfy ourselves whether the will was duly executed or not".
116OS.No.5607/2003
28. As stated by this Court also in R. Venkatachala Iyengar, AIR 1959 SC 443 and Smt. Jaswant Kaur, (1977)1 SCC 369, while arriving at the finding as to whether the will was duly executed, the Court must satisfy its conscience having regard to the totality of circumstances. The Court's role in matters concerning the wills is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator, and whether it is the product of the free and sound disposing mind [as observed by this Court in paragraph 77 of Gurdev Kaur Vs. Kaki reported in 2007(1) SCC 546]. In the present matter, there is no dispute about these factors."
In the case of Meenakshiammal (Dead) through Lrs., and others Vs. Chandrasekaran and another reported in (2005)1 SCC 280 wherein it is held as follows:
B. WillUnregistered Will - Genuineness of - proof of
- suspicious circumstances - Held, onus is on propounder - In absence of suspicious surrounding the execution of will, proof of (a) testamentary capacity, and (b) signature of testator, as required by law, sufficient to discharge the onus In presence of suspicious circumstances, however, onus is on 117 OS.No.5607/2003 propounder to explain said circumstances to satisfaction of court before it accepts will as genuine Facts to be proved by propounder to remove suspicion enumerated - Nature of suspicion necessary - Held suspicion must be such as is inherent in transaction itself and not the doubt.
In the case of J.T.Surappa and another Vs. Sri Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and others reported in ILR 2008 KAR 2115 wherein it is held as follows:
(A) Indian Succession Act, 1925 Sec.2(h) - Will -
Proof of - Legal requirements Duty of the court - five steps to be considered - Held, under the Act, the will tobe valid, should be reduced into writing, signed by the testator and shall be attested by two or more witnesses and at least one attesting witnesses shall be examined. If these legal requirements are not found, in the eye of law there is no Will at all. Therefore, the first step is that if the documents produced before the Court primafacie do not satisfy these legal requirements the court need not make any further enquiry, in so far as its due execution is concerned and can negative a claim based on the said document Further held , the second step is 118 OS.No.5607/2003 that when the legal heirs are disinherited, the court has to scrutinize the evidence with greater decree of care than usual. The 3rd step would be to find out whether the testator was in a sound state of mind at the terms of executing the will - The 4th step would be to find out whether there exists any suspicious circumstances surrounding the execution of the Will The fifth step is to consider whether the will that is executing is in accordance with Sec.63 of the Act r/w Sec.68 of the Evidence Act.
55. The above referred decisions clearly makes out with regard to the legal requirements to be complied for due execution of the Will. Five steps that has to be considered by the court with regard to the proof of the Will is also held in the above decision. So Will to be valid it should be reduced in writing and signed by testator and shall be attested by two or are witnesses and atleast one attesting witness shall be examined. If these legal requirements are not found, in the eye of law there is no Will at all. Court should scrutinize the evidence with greater degree of care than usual with regard to the proof of the Will. Further court should also observe whether the testator was in sound state of mind at the time of executing the Will and whether there exists any suspicious circumstances surrounding the execution of the Will.
119OS.No.5607/2003
56. Keeping in view the above settled principles, if we examine the circumstances of the present case on hand, the plaintiffs in their pleading have averred that their father Dr. N Gopal Roa has executed Will dtd.20.5.1981 bequeathing entire property to his Wife Anandamma, and thereafter, Anandamma has executed the will dated dtd.29.3.1999 bequeathing the property in their children name 1//11 th Share and 4% extra share on sale proceeds to 1st plaintiff. The issue no.4 goes to the root of the execution of the Will by Dr. N Goapal Rao and if decided against the plaintiffs, there would be no need to go into the Additional issue No.2, as this issue would eclipse it, making it nonest.
57. On careful reading of Section 69 of the Evidence Act, in the absence of no attesting witness can found, the profounder of will has to fulfill two requirements i.e.
(i) proof of attestation in the handwriting of one attesting witness; and,
(ii) proof of signatures of the executant being in his handwriting On meticulous perusal of the Section 69 of Indian Evidence Act, (i.e If no such attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person 120 OS.No.5607/2003 executing the document is in the handwriting of that person.) it shows that legislation has employed the word 'And' which has a cumulative sense, requiring fulfillment of all the conditions that it joins together. The same should be understood in a conjunctive sense. If at all, the legislation had used the word 'or' which is disjunctive, fulfillment of one of requirement was sufficient for purpose of proving the will.
58. In the present case, on careful perusal of the Ex.P2 Will made by Dr. N Gopal Rao on 20 5.1981, it states that he is having 5 sons and 6 daughters and he has purchased the property in an auction held in 1932 and he is bequeathing the same to his wife B Anandamma with absolute powers of disposition. The document is attested by one P Srinivasa Rao and Sri. B Ramanatha Shenoy as attesting witnesses with their sign and addresses. It is the contention of the Plaintiffs that the attesting witness are not found and therefore, they have examined DW2 and she has admitted the signature of her father as true and the same is marked as Ex.P2(a) and moreover on comparison of Ex.P2(a) and Ex.P34 it shows that these are the one and same. Therefore, the plaintiffs have discharged the burden of proving the Will dated 20.05.1981.
59. I have considered the evidence of plaintiffs on the aspect of execution of the will dtd.20.5.1981. On perusal of 121 OS.No.5607/2003 the same it can be seen that in the present case, there is no evidence that has come on record to show that attesting witness are not found. The Plaintiffs have not made any attempt to examine the witnesses who are acquainted with the signature of attesting witnesses which is one of the main requirement u/s.69 of Indian Evidence Act. In the absence of proving the ingredients of Will as required under section 68 and sec.69 of the Indian evidence Act, as the burden of proving he will has not be sufficiently discharged by the plaintiffs, the burden is not shifted to defendant no.2 to prove that said will as a created one. It is the settled principle of law that one can dispose of the property to which he has got absolute title over the property. In the present case, as the 1 st will is not proved, the question of Anandamma acquiring title to the property by way of Will dtd.20.5.1981 does not arise for consideration. In view of holding that the Addl. Issue no.4 in the negative, the issue no.2 that whether Smt. B Anandamma executed the Will dtd.29.3.1999 does not arise for consideration. Therefore, I answer the Addl.Issue No.4 in the negative and Issue no.2 as does not arise for consideration.
60. Addl.Issue No.1 & 3: It is contended by the plaintiffs in their plaint that the defendant No.1 to 3 has executed the relinquishment deed in favour of plaintiff No.1 122 OS.No.5607/2003 vide Ex.P51 and Ex.P52. One G.Nalini and G.Rajendra have signed as attesting witness to Ex.P52. They are the children of defendant No.2. Therefore, prayed to declare 3/11 th share in favour of 1st Plaintiff in addition to his 1/11th Share. The counsel for the plaintiffs relied on the following decisions:
In Madhukar Nivrutti Jagtap . vs Pramilabai Chandulal Parandekar dated 13 August, 2019 in CIVIL APPEAL NO. 5382 OF 2007 14.3. The aforesaid observations in no way lead to the proposition that any transaction on being hit by Section 52 ibid., is illegal or void ab initio, as assumed by the High Court. In Sarvinder Singh (supra), as relied upon by the High Court, the subsequent purchasers sought to come on record as defendants and in that context, this Court referred to Section 52 of the T.P. Act and pointed out that alienation in their favour would be hit by the doctrine of lis pendens.
The said decision is not an authority on the point that every alienation during the pendency of the suit is to be declared illegal or void. The effect of doctrine of lis pendens is not to annul all the transfers effected by the parties to a suit but only to render them subservient to the rights of the parties under the decree or order which may be made in that suit. In other words, its effect is only to make the decree passed in the suit binding on the transferee, i.e., the subsequent purchaser. Nevertheless, the transfer remains valid subject, of course, to the result of the suit. In the case of A. Nawab John (supra), this Court has explained the law in this regard, and we may usefully reiterate the same with reference to the 123 OS.No.5607/2003 following: "18. It is settled legal position that the effect of Section 52 is not to render transfers effected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendent lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the court."
14.4. Hence, the effect of Section 52 ibid., for the purpose of the present case would only be that the said sale transactions in favour of the appellants shall have no adverse effect on the rights of the plaintiffs and shall remain subject to the final outcome of the suit in question. However, the High Court, while holding that the said transactions were hit by lis pendens, has proceeded to observe further that the sale deeds so made in favour of the present appellants were illegal. These further observations by the High Court cannot be approved for the reasons foregoing.
High Court not in error in entertaining second appeal Ranganayakamma & Anr vs K.S. Prakash (D) By Lrs. & Ors 2008 (15) SCC 673
24. It may be true that although the properties were described as coparcenary property and both the branches were granted equal share but it must be remembered that the decree was passed on the basis of the settlement arrived at. It was in the nature of a family settlement. Some `give and take' 124 OS.No.5607/2003 was necessary for the purpose of arriving at a settlement. A partition by meets and bounds may not always be possible. A family settlement is entered into for achieving a larger purpose, viz., achieving peace and harmony in the family.
Second para of Para 28.
Mr. Chandrasekhar has drawn our attention to the statements made in the power of attorney to contend that no other or further agreement was entered into and the power of attorney should have been preceded by a regular deed. In our opinion, it was not necessary. Relinquishment may be unilateral. A sister relinquishing her right in favour of the brothers may do so in various ways. Expression to that effect may be made in several ways.
43. A deed of `release' for a consideration is a transaction. When, thus, a release is made for consideration, the particulars of consideration and other particulars which are required to be averred in the deed being essential elements thereof. Relinquishment of a property by a sister in favour of her brother for a consideration or absence of it, stands on a different footing. Section 25 of the Indian Contract Act must be read and construed having regard to the fact situation obtaining in the cases.
48. The deed of partition could have also been entered into by way of family arrangement where no registration was required. Such a course of action had not been taken. The parties knew the nature of the document. Appellants and other sisters being highly educated were supposed to know the contents thereof. Their husbands are welloff in the society. The transaction, therefore, was transparent. Furthermore, the mother was alive. She was also a 125 OS.No.5607/2003 party to the deed of partition. She must have played a pivotal role. She even if suffering from illness might be anxious to see that family properties are settled. Release by an heir other than a coparcenar does not need any consideration. A release is valid even without consideration.
50. The same principle might have been applied in the Indian Contract Act. "Consideration" has been defined in Section 2(d) of the Indian Contract Act, which reads as under:
"(d) When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise;"
51. Consideration even in the Indian context would mean a reasonable equivalent or other valuable benefit passed on by the promiser to the promise or by the transferor to the transferee. Love and affection is also a consideration within the meaning of Sections 122 and 123 of the Transfer of Property Act.
In Manali Singhal & Anr vs Ravi Singhal & Others reported in AIR 1999 Delhi 156
20. Learned counsel for the defendants has then argued that the impugned settlement is without any consideration. Hence the same is hit by Section 25 of the Contract Act. The contention of the learned counsel may be an ingenious one but can be brushed aside without any difficulty. Parties more often than not settle their disputes amongst themselves without the assistance of the court in order to give quietus to their disputes once and for all. The underlying idea while doing so is to bring an 126 OS.No.5607/2003 era of peace and harmony into the family and to put an end to the discord, disharmony, acrimony and bickering. Thus the consideration in such type of settlements is love and affection, peace and harmony and satisfaction to flow therefrom. I am supported in my above view by the observations of the Hon'ble Supreme Court as reported in Ram Charan Das Vs. Girja Nandini Devi and others, ....." Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word 'family' in this context is not to be understood in a narrow sense of being a group of persons, who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. ....The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst the persons bearing relationship with one another. That consideration having passed by each of the disputants, the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter". The same view was again reiterated in Maturi Pullaiah and another Vs. Maturi Narasimham and others .
In Prema vs Nanje Gowda & Ors reported in AIR 2011 SC 2077
11. Similar provisions were inserted in the Act by the legislatures of the States of Andhra Pradesh, Maharashtra and Tamil Nadu. The scope of Section 29A which was inserted in the Act by Andhra Pradesh Act No.13 of 1986 and which is pari materia to Section 6A of the Karnataka Act No.23 of 1994 was considered by the learned Single Judge of 127 OS.No.5607/2003 the Andhra Pradesh High Court in S. Narayana Reddy v. S. Sai Reddy, AIR 1990 Andhra Pradesh
263. The facts of that case were that the preliminary decree passed by the trial Court in a partition suit was confirmed by the High Court with a direction that while passing final decree, the trial Court shall make appropriate provision for maintenance and marriage expenses of defendant Nos.5 to 9 and maintenance of the third defendant shall be borne equally by each of the plaintiff, first defendant and fourth defendant out of the joint family properties. After insertion of Section 29A in the Act by Andhra Pradesh Act No.13 of 1986, the first defendant claimed that defendant Nos.6 to 9 being unmarried daughters are entitled to shares at par with their brothers because the properties had not been divided by then. The trial Court rejected the claim of the first defendant by observing that with the dismissal of the appeal by the High Court, the preliminary decree had become final and the appellant was not entitled to indirectly challenge the same. The learned Single Judge referred to Section 29A, the judgments of Mysore High Court in R. Gurubasaviah Rumale Karibasappa and others AIR 1955 Mysore 6, Parshuram Rajaram Tiwari v. Hirabai Rajaram Tiwari, AIR 1957 Bombay 59 and Jadunath Roy and others v. Parameswar Mullick and others AIR 1940 PC 11 and held that if after passing of preliminary decree in a partition suit but before passing of final decree, there has been enlargement or diminution of the shares of the parties or their rights have been altered by statutory amendment, the Court is duty bound to decide the matter and pass final decree keeping in view the change scenario.
14. We may add that by virtue of the preliminary decree passed by the trial Court, which 128 OS.No.5607/2003 was confirmed by the lower appellate Court and the High Court, the issues decided therein will be deemed to have become final but as the partition suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed. If in the interregnum any party to the partition suit dies, then his/her share is required to be allotted to the surviving parties and this can be done in the final decree proceedings. Likewise, if law governing the parties is amended before conclusion of the final decree proceedings, the party benefited by such amendment can make a request to the Court to take cognizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the Court ceased with the final decree proceedings is not only entitled but is duty bound to take notice of such change and pass appropriate order. In this case, the Act was amended by the State legislature and Sections 6A to 6C were inserted for achieving the goal of equality set out in the Preamble of the Constitution.
61. Per contra, the defendant No.6 contended that the relinquishment deeds executed by defendant No.1 to 3 are hit by Sec.52 of Transfer of Property Act and the defendant no.6 being the co sharer in the property has right over every inch of a property and the relinquishment made defendant no.1 to 3 is void. It was also argued that release deed came to be executed only after failure in the mediation. Initially, when the defendant No.3 had claimed for equal share in the property.
129OS.No.5607/2003 Thereafter, the defendants no.1 to 3 have executed the release deeds without consideration. The same is doubtful. Plaintiffs and defendant No.1 to 3 have colluded each other and created the document to deprive the share of defendant No.6.
62.In the above circumstances, in considering whether the Relinquishment deed dated 21.7.2011 and 06.8.2011 are have been proved in accordance with law, I have referred to the relevant provisions of law and the case law on the subject which are extracted hereunder for ready reference.
Sec.52. Transfer of property pending suit relating thereto.--
During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation.--For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been 130 OS.No.5607/2003 disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.
The doctrine has been derived from a latin maxim "Ut pendent nihil innovetur" which means that during litigation nothing should be changed. The meaning of lis pendens is 'a pending legal action', wherein Lis means the 'suit' and Pendens means 'continuing or pending'. The principle embodying the said doctrine is that the subject matter of a suit should not be transferred to a third party during the pendency of the suit. In case of transfer of such immovable property, the transferee becomes bound by the result of the suit. The doctrine of Lis Pendens essentially aims at (i) avoiding endless litigation, (ii) protecting either party to the litigation against the act of the other, (iii) avoiding abuse of legal process.
The Supreme Court in a three Judge Bench in Dev Raj Dogra and others v. Gyan Chand Jain and others AIR 1981 SC 981 construed the meaning of Section 52 of the Transfer of Property Act and laid down following conditions:
1. A suit or a proceeding in which any right to immovable property is directly and specifically in question must be pending;131
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2. The suit or proceeding should be pending in a Court of competent jurisdiction;
3. The suit or the proceeding should not be a collusive one;
4. Litigation must be one in which right to immovable property is directly and specifically in question;
5. Any transfer of such immovable property or any dealing with such property during the pendency of the suit is prohibited except under the authority of Court, if such transfer or otherwise dealing with the property by any party to the suit or proceeding affects the right of any other party to the suit or proceeding under any order or decree which may be passed in the said suit or proceeding.
In In Hardev Singh v. Gurmail Singh Civil Appeal No. 6222 of 2000, the Supreme Court observed that Section 52 of the Act does not declare a pendente lite transfer by a party to the suit as void or illegal, but only makes the pendente lite purchaser bound by the decision of the pending litigation. Thus, if during the pendency of any suit in a court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such immovable property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit.
In T.G. Ashok Kumar v. Govindammal & Anr. Civil Appeal No. 10325 of 2010, the Supreme Court observed that if the title of the pendente lite transferor is 132 OS.No.5607/2003 upheld in regard to the transferred property, the transferee's title will not be affected. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee's title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is entirely allotted to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property.
In In Jayaram Mudaliar v. Ayyaswami 1972 (2) SCC 200, the Supreme Court held that the purpose of Section 52 of the Act is not to defeat any just and equitable claim, but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward. The Supreme Court went on to further explain the scope of lis pendens as, 'It is evident that the doctrine, as stated in section 52, applies not merely to actual transfers of rights which are subjectmatter of litigation but to other dealings with it by any party to the suit or proceeding, so as to affect the right of any other party thereto. Hence it could be urged that where it is not a party to the litigation but an outside agency such as the tax collecting authorities of the Government, which proceeds against the subjectmatter of litigation, without anything done by a litigating party, the resulting transaction will not be hit by Section 52. Again, where all the parties which could be affected by a pending litigation are themselves parties to a 133 OS.No.5607/2003 transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the Court dealing with the litigation the Court may bind them to their own acts. All these are matters which the Court could have properly considered. The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward.' In Rajender Singh and Ors. v. Santa Singh and Ors. AIR 1973 SC 2537, it was observed by the Supreme Court that The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a Court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject matter of litigation from the ambit of the court's power to decide a pending dispute or frustrate its decree. Alienees acquiring any immovable property during pending litigation, are held to be bound by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property, which are the subject matter of litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated.
In Gouri Dutt Maharaj v. Sheikh Sukur Mohammed and Ors. AIR 1948 PC 147 it was held that broad principle underlying Section 52 of the 134 OS.No.5607/2003 Transfer of Property Act,1882 is to maintain status quo, unaffected by act of any party to the pending litigation.
63. In the presnt case, the plaintiffs in their pleading specifically pleaded that Defendant no 1 to 3 have executed registered relinquishment Deed dated 21.7.2011 and 06.8.2011 which are marked as Ex P51 and Ex P 52.
64. On meticulous perusal of Ex P51 a registered Relinquishment deed dated 21.7.2011 with sketch, it states that Smt. G. Vasundhara Devi, aged about 72 years W/o. Sri. L.G. Vasantha Rao, (Deceased Defendant No.2) has executed the Relinquishment deed relinquishing her undivided share 1/11th share in suit schedule property in favour of Sri. G Rajendra (Plaintiff No.1). The same is registered as Document no.971 201112 of Book No.1 before the sub registrar, Basavanagudi Bangalore. Smt. Deepa Rakesh (Daughter of Smt. Vasundhara Devi) and Sri. L.G. Vasantha Rao Husband of Smt. Vasundhara Devi (Deceased Defendant No.2) and Sri G. Sridhar S/o. Sri N Gopal Rao (Plaintiff no.2). The document is annexed with a sketch of the property.
65. On meticulous perusal of Ex P52, a registered Relinquishment deed dated 06.8.2011 with sketch, it states that Smt. G. Nalinakshi W/o. Venktapathiyappa aged about 135 OS.No.5607/2003 75 years, Smt. G. Sasikala Aged about 70 years w/o. Sri. T.R. Raghunatha Rao have released their each 1/11 th share in the suit schedule property in favor of Sri. Rajendra (Plaintiff No.1) vide Document no.1150 201112 of Book No.1 which is registered before the Sub Registrar, Basavanagudi Bangalore. One Sri. Vinay Rao aged 34 years, Sri. V Srinivas S/o. Smt. G Nalini and Sri G. Sridhar have signed as witnesses to the same. The document is annexed with a sketch.
66. The execution of the above said Release deeds are not in dispute. The defendant no.1, Legal Representatives of Deceased Defendant no.2 and Defendant no. 3 have admitted the execution of relinquishment deed. However, the only question that arises for consideration is whether such release deeds are hit by section 52 to make it completely invalid or void as contended by Defendant no.6. It is settled principle of law that though the provision prohibits transfer of any property during the pendency of litigation. However, if any transfer is made during the pendency of the suit. The same is subject to outcome of the litigation. The contention of the defendant No.6 that initially, the defendant no.3 who had filed an application under O.12 R.6 claiming equal share, after the mediation, defendant no.1 to 3 have executed the relinquishment deed without consideration and the same is doubtful and the Plaintiffs and defendant No.1 to 3 have 136 OS.No.5607/2003 colluded each other and created the document to deprive the share of defendant No.6 cannot be accepted as it does not affect the share of the Defendant no.6.
67. Keeping in view the above settled principles, if this court examine the circumstances of the present case on hand and having answered the Issue no.1 in the affirmative that plaintiffs and defendants no.1 to 9 are having 1/11 th share each in the property, the release deed executed by Defendant no.1 to 3 holds good and valid to the extent of their 1/11 th share each of Defendant no.1 to 3. Therefore, I Answer the Additional issue no.1 in the Affirmative and Additional Issue No.3 negative.
68. Issue No.3: As Plaintiffs have proved that the suit schedule property is the selfacquired property of Dr. N Gopal Rao. Though the Plaintiffs have failed to prove the executions of the wills as required under the law, it does not in any way affect the rights of plaintiffs and defendants except for the claim of 4% additional amounts on the sale proceeds in favour of the Plaintiff No.1.
69. As the Plaintiffs failed to prove the execution of Will by Dr. N Gopal Rao, his wife Smt. Anandamma would not get any right over the property by way of Will executed by Dr. N 137 OS.No.5607/2003 Gopal Rao. A mere change of Khata or having khata in one's name does not confer title on the property. As the will executed by Dr. N Gopal Rao is not proved as required under law and the question of considering the will executed by Smt. Anandamma did not arise for consideration, it has to be held that Dr. N Gopal Rao has died intestate, and the Plaintiffs and Defendants are entitled for equal share in the property as class 1 heir.
70. Therefore, the following provisions of Hindu Succession Act 1956 are applicable on male dying intestate and the same are extracted as follows:
Section 8. General rules of succession in the case of males.--
The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter--
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the 138 OS.No.5607/2003 cognates of the deceased.
Section 9. Order of succession among heirs in the Schedule.--
Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.
THE SCHEDULE [Section 8] HEIRS IN CLASS I AND CLASS II CLASS I Son; daughter; widow; mother; son of a pre deceased son; daughter of a predeceased son; son of a predeceased daughter; daughter of a predeceased daughter; widow of a predeceased son; son of a predeceased son of a predeceased son; daughter of a predeceased son of a pre deceased son; widow of a predeceased son of a predeceased son.
CLASS II I. Father. II. (1) Son's daughter's son, (2) son's daughter's daughter, (3) brother, (4) sister. III. (1) Daughter's son's son, 139 OS.No.5607/2003 (2) daughter's son's daughter, (3) daughter's daughter's son, (4) daughter's daughter's daughter. IV. (1) Brother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter. V. Father's father; father's mother. VI.. Father's widow; brother's widow. VII. Father's brother; father's sister. VIII. Mother's father; mother's mother. IX. Mother's brother; mother's sister. Explanation : In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood Applying the above provisions to the facts and circumstances of the present case, as the Plaintiffs and defendants no.1 to 9 are the children of Dr. N Gopal Rao, they are equally entitled for 1/11th each share in suit schedule property. Plaintiff no.1 is entitled to one such share along with the 3/11th Share that the Defendants no.1 to 3 have relinquished in his favour. The plaintiff no.2, Defendant no.4 to 9 are entitled for each 1/11th share. In the facts and circumstances of the case, I hold the above issue in affirmative as answered.
71. Issue No.5: It has been pleaded by the plaintiffs in their plaint that the 6th defendant in collusion with the 7th and 9th defendant has threatened the 2 nd plaintiff to dispossess him from the suit schedule property. 6 th and 9th defendants 140 OS.No.5607/2003 are trying to induct 3rd parties into portions of the schedule property at their whims and fancies. It is also contended that the 6th defendant came to the schedule property and made a threat to 2nd plaintiff enabling him to demolish and reconstruct a building and therefore sought for restraining the defendants from dispossessing the plaintiffs from suit schedule property by way of permanent injunction and restraining the defendants from alienating the suit schedule property by way of permanent injunction and restrain the defendants from induction 3rd parties into schedule property. It is a settled principle of law that possession by one co sharer is possession by all. A mere occupation of larger portion or even of entire joint property by one coowner does not necessarily amount to ouster. On meticulous perusal of entire records, the plaintiffs and defendants have not led evidence on the possession of the exclusive portion or any interference by others. Hence, the above issue is answered in the negative.
72. Issue No.6: In the result, I pass the following:
ORDER The suit of the plaintiffs is hereby partly decreed.141
OS.No.5607/2003 It is ordered that suit schedule properties shall be divided into 11 equal shares by way of metes and bounds.
The plaintiffs are entitled for partition and separate possession of their share. That the Plaintiff no.1 is entitled to one such share along with the 3/11th Share that the Defendants no.1 to 3 have relinquished in his favour.
The plaintiff no.2, Defendant no.4 to 9 are entitled for 1/11th share each.
In view of the relationship between the parties, they are directed to bear their own costs.
Draw up preliminary decree accordingly for partition.
[Dictated to the Judgment Writer in the open court, computerised, and print out taken by him / her, corrected and then pronounced by me, this day the 26th August 2020.
(SADANANDA NAGAPPA NAIK) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU 142 OS.No.5607/2003 ANNEXURE
1. No.of witnesses examined on behalf of plaintiff/s:
PW1 : G.Sridhar PW2 : Tara Krishnamurthy.
2. No.of documents marked on behalf of plaintiff/s:
Ex.P1 : Notice issued to PW1' father by Municipal Commissioner Ex.P2 & 3 : Two Wills Ex.P4 to 30: Tax paid receipts Ex.P31 : Letter addressed to PW1's father by Chickpet House Building Coop. Society Ex.P32 : Form No.1 Ex.P33 : Special notice issued by Corporation Ex.P34 : Deed of mortgage with endorsement of reconveyance Ex.P35 to 37: CC of sale deeds Ex.P38 to 43: Receipts issued by Vaidhika Dharma Sahitya Sanga Ex.P44 to 49: receipts by Adi Enterprises Ex.P50, 77: Rent receipt books Ex.P51 : Relinquish deed with sketch Ex.P52 : Relinquish deed with sketch Ex.P53 : Death certificate of 2nd defendant Ex.P54 : CC of judgment in HRC.194/2009 Ex.P55 : Saving Bank account pass book of Karnataka Bank Ex.P56 & 57: Telephone bills Ex.P58 : 9 Electricity bills Ex.P59 : 3 Electricity receipts Ex.P60 : Death certificate of B.Anandkumar Ex.P61 : Death certificate of N.Gopala Rao Ex.P62 : Receipt for having paid the donation to mentally retarded orphens Ex.P63 : Encumbrance certificate Ex.P64 &65: Katha certificate and extract Ex.P67 : Copy of legal notice Ex.P68 : Postal receipt 143 OS.No.5607/2003 Ex.P69 : Postal acknowledgment Ex.P70 : 3 electricity bills and receipts Ex.P71 : Four water bills Ex.P72 : CC of mortgage deed dtd.27.4.1981 Ex.P73 : CC of mortgage deed dtd.27.4.1981 Ex.P74 : CC of redemption deed of mortgage dtd.6.3.1986 Ex.P75 : CC of redemption deed of mortgage dtd.6.3.1986 Ex.P76 : Notarised copy of the Affidavit
3. No. of witnesses examined on behalf of defendant/s:
DW1 : G.S.Murthy DW2 : G.Vijaya
4. No. of documents marked on behalf of defendant/s:
Ex.D1 : Telephone Bill of 2nd plaintiff
Ex.D2 : CC of mortgage deed dtd.16.6.1945
Ex.D3 : CC of sale deed dtd.22.7.1945
Ex.D4 : Bank Pass book
Ex.D5 : Treasury office Superannuation Allowance and
Pension papers of N.Gopala Rao.
Ex.D6 : CC of Vakalath of respondent 2 to 5 & 7 in WP.
No.20559/2010
XVIII Addl. City Civil Judge
Bangalore City.
144
OS.No.5607/2003
Judgment pronounced in the open court vide separate judgment. The operative portion of judgment reads thus:
ORDER The suit of the plaintiffs is hereby partly decreed.
It is ordered that suit schedule properties shall be divided into 11 equal shares by way of metes and bounds.
The plaintiffs are entitled for partition and separate possession of their share. That the Plaintiff no.1 is entitled to one such share along with the 3/11th Share that the Defendants no.1 to 3 have relinquished in his favour.
The plaintiff no.2, Defendant no.4 to 9 are entitled for 1/11th share each.
In view of the relationship between the parties, they are directed to bear their own costs.
Draw up preliminary decree accordingly for partition.
XVIII Addl.C.C. & S.J., Bangalore 145 OS.No.5607/2003