Karnataka High Court
Padmanabha Shenoy vs Dr Premachandra Shenoy on 21 December, 2010
Bench: V.G.Sabhahit, S.N.Satyanarayana
- 1 -
IN 'm1«: HI(}I~I C()'UR'I' or" KARNATAKA AT i3A§\I(}AL()RE
I')A'1'I';I_)'.1'HiSTIIE Elm' if)!\Y ()1? DECEMBER 2010
PRl"*3SI*3N'i'
'['E-IF, nON'I3LI'«: MRJUSTICE v.G. SARI--IA}-u*j1'f' Q :' ffj .. /'
AND «V
THE H()N'BLE M_R..;UsT1CE N.
REGULAR FIRST AI>PEA1.,Nt§;'782:/'19'9§§' A _ _
C /w REGULAR FJRSTAPPEAI, NO.78§gL1;9»99 '
RFA NO 782 OF 1999
BE} WEEN
1.
s/o LA'I'£.3_I:iR1SHNA'~S1-'-[_ENOY}
AGE:49'YRS'7I:;. . ._
R/0 PI}(}T. N«Gl..5c;, _ -
FLAT N0. 10;;' 2.11 1?L?(..).(_)"F'. '
KA1\§J13E;_R'A_(:Q;OPEMTIVE HOUSING SOCIETY
BHANIDUP EAST " .
_ -BOMBAY: 400 0778. APPELLANT
" _ (B3; v.c.'G_.G0RA' "1 " A "" ' 'SWAMY, ADV]
* i>'RI?:MA(:1RLAN:)12A S}-{ECN()Y
53-V/(3 LATE KRISIRINA SHENOY
AGE:47 YRS
V " "MANJU NAT:---1A (:1,I1NI<':
K()N()I»--IADY
MANGALORE ~575 008,
Ww
fa)
U1
.
j-4.} RAMESH SEIIIENUY S/O LATE KRIS}--{NA SIIENOY A(}[+3:4() YRS R/O KODANGO H()US}?) E-3.0 . KU LASHEKIL'-XR MANGAL()RE--575 005.
VIJAYA SHENOY -
s/0 LATE KRIS}--{NA Sf---IENOY?» AGE:38 YRS R/O KODANGO H()[JSE2; _ P.0.KtJLAsm«:K1TIAR MANGAL()R::«>~575 005 SHAMBHAVI SHI~§iNQY _ _ _ wmow OF LATIE K-R1SH'NAi-,S.HEN'Q'Y' _ Ac.E:73YRs - V 1 R/O KODANGO HC)'U'SFfL KULASHEIEHAR 1 . 'V MANGALOREV 7575 «<)05_. _.-- 7- .
YASHODAA' B11I1+;A(;«.._' ' ' W/0 BT;B\ALAI=;_R1s11NA RAG A'GE:--5;3 YI'{:-sf"-., ' ' ' R/0 K()DAN(3QVH"().U'SF3"
P.() KU1AsH§:m~1AR _ N£AN(}A1.QE21i1s-- 575 (305.
" _ <3. '°(;fJ1.M31 SEEFI'-iIXRAM_A. 1-'>RAB_HU WI 0 sE%',.TIJmaAMA PRAEBHIJ V T_ "'AQ41a;:50 R/O /\.L«~25, K.R.E.C) * QUARTTSRS, P.().SRINIVASANAGAR SURATHKIXL, MA1\:GAL<)R_I«: TALUK GOPALAKRISI-«INA PAT11, ' W/() GOPALAKRISHNA PATIL "AS13224-4 YRS, R/O I-->Air1L ST()RES SARALEBETTU SI'HVAI'ADY, MANIPAL 576 1 I9 U DU Pl TALUK, I').K
3. MALATIEI (3. I>ImI-IIIII W/O GOPAL PRAi3I_i[J. A(_;I'«::42 YRS, R/O 'I*RIv1'«:I\2I C().()I". I---IQUSING SO(3£E'1'Y N().'18. GANGA IU-\JAJf PA'I"I-I RAMVAGAL, ;DOMB[VlLI EAST BOMBAY 421 201 9" VEENA SURESH PRABI--.1 U W/() SURESH PRAB}-{U AGE:38 YRS _ R/O GOWALANI NIVAS' _ . -
I CROSS, TIIYAPANAI»IALI;<I_2ITI-I BLOCK» JAYANAGAR ' E3ANGALORE+56G"'(){1 I E0. REKHASRAO ._ W"/O SADASI11VAAPv\A():'IV ' A(}.E:35YRS I R/O N011 I.I;1;"7,9,.VBA1'.AI NIWIS' II MAIN, €_:~IIvIjI-3vL§_IRA,_;--I,?VI+:*rV_ _ ' ' £14ANGAL€j'RI_1::f3:'§3 _ ' I «V II. PI IsHI'>A D /0"'K_RISHNIA S-.H'EI'3I.*E)Y I, _;'R/0 K()I)'AN(;o HOUSE " A . MAINCNILQREW575 005. .. RESPONI')EN'iS IB3%_Sir:"fiI3...I,.A§:wI:IARY'A, ADV FOR R1) '1'=1 {1S*'RI«'A I«.*II.I<:I;> U/S. 96 R/W. ()RDER XLI R 1 OF cpc A(;;AINsT 'I'HE JUI)(}MEN'I' ANI) I)EC'REi€ :71". 8.7.99 t"ASSI£I§ IN ().S..N(). 200/.<a<3 BY 'I'I~IE PRL. CIVIL J'[§D{}}.'<3, _§3R_.I5}N. AND CJM, MAN('3AL(.)RI'<3, I).K. 1>AI-ITLY IDECREEING THEA sun' FOR I>ARTI'I'()N, Si€I'AREA'1'E POSSESSION AND % __Iv1I«:sNIa PR(.)FI'1'S. K/--
\/\/Er RFA NO 784 OF 1999 IEEETVVEIEN I. PREM CHANDRA SHI%IN()Y S/O.I..A'I'E KRISHNA SHENOY AGED ABOUT 47 YEARS MANJUNATE--I CLINIC, KONCHAI)Y MANGALORE W575 008. «_ .7.._. A£>:51i;:,.i'_ANT [By sn : B.L. ACE-IARYA, ADV) AND V 4'
1. PADMANABHA SH--ENOY,~"' S/O mm KIQISPIN;A"aSE*Ii$NOY' "
ADULT, RESIDING A'1f'FI.'.A'I?'»1§Io.5€» -- FLAT N010, IIIRD_E'LO()R,_ u -
KANJEERA Co~«op£«:RAUV_E'HQIJsII~J(3~ SOCIETE'; "
EAST__M1'E\/_IBAI'§-- 4'G(;._Q"7»8. ' H,AM};<:SH1Ls1--;1EN(;y --
S /0 . LATE' £:£Us'I~IN'A. 51- 1 ENOY ADUII1'. R*:::31Dfj1NG'1gyE~&o1)ANGI«: HOUSE P0s*'F:1<:U:,:s£'ii13r<;A1~1_ "
!\) V. , 3. C 'K/IJAy;A.. SH 1§1\z0"y' "
S/O..I.A'l'-E KRISHNA SHENOY ~ _ " R./AT K()D.AN(}E HOUSES ._ PO'sf1=:..E§1:.:;sraEKAR, 'MANG;AVLOREw5 ' V 4. SHAMBAW SHENOY wizmw OF KRISHNA SI--IENOY " _ V "AI)1II.'1', R/AT K()DAN{_}E<3 I~I()USE, " KU'LASI':!EK}*-{AR, MANCEALORE 575 005 "W:
YASIEIODA E3 RAD W/O SR1 B I::3A.LA'K1-{IS}-{NA RAO AI)UL'l.", RESIDING AT K()I.)ANGE HOUSE KU'I_.SI--IEKARA, MANGALORE 575 005 GULABI sE1'«:'mARAMA PRABI-TU W/O SEETHARAMA 1>RA131~1U. ADULT, R/AT A125, K.R.E.C.STAI~'F V' = ' POST SRINIVASANAGARA, SLImymKA«I, -1' _MANGALORE TALUK. ' .
LAXMI G0I>ALAKR1_sHNA1>.ATI1, V W/O GOPALAKRISHNA P;a..r:*1~L, ADU1..T R/OF PATIL STORES, SARALAB.fj3Ti.U;' ' SHIVAPADY, MANLPAL 5?'6" 1.119, UDUPITALUK. ' T MALA'1'HIG,PRABI}U' ._ "
w/0 SHR1 Gui)!->A1,;.' 1>RA1'~3%.1+1LI;'«AI)'LIL"1: ' R/AT TRIVENE ' C01. 01? H'OUSIN"G"S()CII§IY, N(). 18,4'GANGA'. I21»;-.jA;I"I-PA'fIi;--«'RAMVAGAL DOMB1VE.LL_I MUMBA: V4 2 if -53:01, 7' h VEENA ::IJf{£._SH pR}L_.z3I--{I} W/0 sURI+;sH'--PRAB'HU, ADULT, ,, .j R/AT G0'VA_LANI ;~JI\/As, I CROSS
- "1*L:yApANA1--1ALL1; 4TH I BLOCK, JAYANAGAR, "'13Az3{(;ALQR.E 560 041 ' R9331?--1}: RAO wxo SADASITIIVA mo, ADULT, R/Q1: NO. .1. 10/79, BALAI NIVAS, 11 MAIN, n 'T " ~..CI--iAMARAJPE'I', .. 'I%3AN(}AL()R.E 560 O .18 -5- :1. 91.131--11>/x EN NAIK 1:)/0 IATE KRISHNA SI;1E.NOY' ABULT, R/AT KODANGPZ 1«1c)Usi:«:
POS'i':KULSI*lEKAR/\, MANGALORE 575 005 .. RESPQF€DEN'~I'S (By Sri 2 C.(}.C:OPALASVVAM'Y, ADV FOR R1] T1-{IS RFA FILEI.) IS U"/S. 9e:13,..()»F CF'_C "A(§A1.1§ST'* Tj{'1~'~EE " '' JUDGMENT AND 1)E(:REE m".8.j'z.99"ms-$125) - .Qv,VS;I\j0';« 200/96 BY THE PRL. CIVIL .J1JII)GE§"E~:12.D;N;'*_z&2JDfEJEi1; BANGALORE, DEC1'aE1a1NG,_THE\sU1T TPART-L? PARTITION, SEPARATE 'E()E5Ess'1-0151 . _ ANI'; ' ~M}:*3SNE" V PROFITS.
THESE I~1z£\'ri1\i(3i.. BEEN AND RESERVED FOR JUDG"ME1'-J'1'~,_ _'Ii£4i':1S SATYANARAYANA J., DELIVERED THE FOLLOWIN_G:f ' E <Ii;Q§Mi:NT V iifherse "filed by 1st d€f€fl{1.':H1t and plaintiff E; 0s_N'a_.£2<§<;»;}"s;.s3'(3. 'If'he said suit. was fiied. by p1aj1_§iii'I'fEADr.1Prém;iEhari=:1.ra Shenoy for the relief of partition by_»n;€:téS¢ L!I'i(§.. bounds, for separate possession of plaintiffs share azi€'i.VvVf<)ri'Vv'tEie relief of mesne profits and consequential ber1s:fit.,.__~";i'i*-IE" Asaid suit came to be allowed partially by :"'jAAz.1gign1.ev:;t": aucl clecree-2 dated 8.? .1 995'). The plaintifl' being ' -..22£"ggriéve(1 by rejecztioii Oi' portion of his prayer has come up in _,v_£.':3[)§)(,'23.i agziirast the same in RFA.N0.784/1.999. The 1st %.,<§_':'z,*'% -7- (leferidarlt, in the saiti suit being ag§grieve(1 by the partial tlecree gratiteci in {'av0u..r of plaintiff has ehalleiiged the same in RFA.No.782/ I999. I"30th appeais are taken i41;_3i.t_t)get.1%1er for consideration since they arise out of troiriirionjtitigrtierit;___ .
2. The parties to both appeais being (t(.V)'f_i1"I"i~3.V(.)I'1~,;A_Tft'.)'a"1?t)iC1_ confusion in their ide1'1tifieatioi1 with ,refe;er1(_:e'it0._eaeh_ef appeal they are referred to by t.i1eir.. r(';«.{iI)ectixkeiA original suit for the sake of tt()11i'»reiiien(:e.
3. Brief facts lc:ai:i:i'rig t0_«th1'sAap.pea;Lare as iiritier:
{ta} :V€<it:feIgi'(v£'%'1r11..s -'1 to 3 are sons of Krishna shenoy} git}; defei1tiarit'i1is widow and defendants 5 to 11 are his dai'ighters. contention of plaintiff is that ;)1ai.ri'ti£f;.tle1endarits""i to 3 aiong with their father Krishna Sh:_c5VI'i0f:5:/V"'..'V'(T('iVfiS%fit1lt€(i _]'0int .Hir1du. famiiy governed by Mitakshai'a':.V_iaw of I_nh.e1fitar1ce and Succession. Krishna Sheneyi kartha of his joint family acquired suit B and C sttheziule properties uritier registereti sale deed dated V'1;2.7. 1.964 vide d()eurne.ni. N0.tO55/ £964 registered in his aw;
name. Thereafter in the year .1971 there was partial partition in the family wherein each of the sons, nameiy, plaintiff, defendants 1 to 3 were given few items'~.o'f~._j'o.int family properties to their share. The said partially was reduced into writing as fanailyymigararl'tlatoti "
and confirmed in judgment and ciegccree 'slated' E382 passed in OS.No.522/1982*' on the-,_ Munsiff of Mangalore.
{b} Since said partition v.p1ai_'_tition the family continued to joint. resfigtot of other properties mentioned to the piaint. Subsequently, he came to knoxy"i.hat"'hi'swfather entered into partition on
28.'35.1_V984,flwhere1n he gate an extent of 25 cents of land to each' of-r,hisy.daugh't'ers, defendants 5 to E1. According to 1'ilai1;tiii2 rats 5 to 1} have no right in the joint family profierties;-ssilnthey were married prior to Hindu Succession (Karns.tai:xa Amendment Act) coming into force. Therefore, f.;he'"'said docunient is invaiiri and inoperative as partition. Egny disposition made therein is only gift. Since the 'Ni properties (lezilt under the said cioeiiment ciat.e<'i 28.i_§.'lS384 (ire joint. f:Eii"ri.i]y pI'O1)(']'U('.'.S, his fE1.l'.hCI' Kartha 0f'_joir1t. féililily 11:11.1 no riglit; to ggive away the satiric. '_l'1:'1(2rcé'i'oif'e, the same is required to be ig.i.1()I'(?C1. V p -- , _ . (C) it is his case that his father' tlieil ir1t,est:;2.t2_ on or about 19.2.1989. Aceor(1iI,1g tovhifn, suitf sehe(1'uler.
properties are joint family fifiipeifties an.r_1 suit C schedule properties are his f21U'lv('.:'I"S_ iritiiviftiixgil pf'roflper't.iesfas'Vf1)er decree dated 5.8.1982 in <)s.No.5.22/-:2982.__._ iltfAis,fz1l_s() his case that his father had.~1/ 3"}?-11 sitizire stiit 1:32 scliedule properties at the time of _liis'.tle;ith. Vsanie shouid devolve equally upon plaintiff anti ptlefentl-:i11t:s"aiiitier the provisions of Sections 8 to 10 ()f..HlI1(1ii ysfucseessioné:/Xct. He is also entitled to 1/ 12"' share if'i'ASl')1i,.t C schedule properties. Since plaintiff does not iiesire_fIio,C'oi'rt.ifii1(: with defenclants he sought for severance to by fiiing the aforesaitl suit. He also claim that he e1i1_.tiI.led to fE1tl..iI'E,' profits in suit B aml C selieciule p1fop_erties from the (.12.it:e ofsuit ixiil date of his share. zfbms « ..I{)..
4. To the said suit 4111 defendant, mother of plaintiff, (lefer1d.ar1ts l to 3 and 5 to II filed cletailetl _written stateriient, whereiri she denied each and every ave~.'1'n'i'eIi'l:.V of plairit except the relationship between defendants and acquisition of suit _sehe_dule' ;V)'ro'pefrties h-gjr V' husband, Krishna Shenoy under itegisiteredlii 12.7.1964. According to Sheinoy?.:.d--:.;ring lifetime had sold about: 60 _ lafl(l' by him under two different saA1r.§..V:i;l(-:A(:;AtVls?; the 1965 and 1966. Subsequently ir1__197}. differences arose between th_ei_: of }:£enee with the wishers of the family said (ii-fference£s"viiere__settleri~reeiilung in effecting partition and recording the same 7111 family karar arrangement dated 1.9"L"?'1."l*'.I"l1e sarrie" in full and firial settlement of the e_la_.irn Varzrl ~ riv.a.l_j..elairr1s of all the family members. Wherein ib:,_1_r sovris'"of':Krishr1a Shenoy were allotted with separate shares, Aiirishna Slienoy was also allotted with one share. The"j.rer1'iaining properties were allotted. to tlaughters and lcirishna Shenoy. Aeeorcling to her, plaintiff is a party to said "\,€_,~*§
-1.}-
family karar arlci has a('tc.rc;')t.e('I. the same \vi.th()t.:t clemul'. O11 2-xilotrrlerlt of sepa.I.'at(' sE'Iarc-.>s to ])1a.iI1t,ii'f, ("left-2r1(1aI1t.s _.._l to 3 and their father zmd deferlcizmts 5 to 8, piaintiii7._ amt defendants 1 to 3 came to be separateci i"1'0_t1';--. thé"farni§y.,' ~ there was division in status and Jpr<)perti_ss'VbyfmétesAeuadtiV' bounds.
(a) In the said t1iViS.iOIt:tiI{'g,:. tfiiezlts was aiiotted to plaintiff i.(~',.V, in Sy.No.25'7/2 and 7 cents in aiiotteri 43 cents in aiiotted 43 cents in atlotted 43 cents in 'bf 25 cents was aiiotteci to late Krishna 'in.v"Sy.§'Ns:;258/4. In addition to that, he was it alsoiigfifen "11nc1iviciéd'"figE1t. with daughters in the rémaining t"i:1_d_§:r the said family karar", it was agrceci that E'(;':I§'l.VE'1il'1ivI1g):'fi'i1)Zk)€'fI'Tii(i'S shalt be hc>Idj0i11tly by Krishna Shenoy and his A'? (izuightrrrs, zmxnely, tic-fericiants 5 to .1 it' According to defendant, ineluciing pIair1t.iff all her sons got separate '«/gag -12- share, which was aeeepiecl by each of them and recorded in the said family karar.
(b) It is further statecl by her that in _ there was misu.n(.le.rstan<iir1g in eonneetiori.wiih"~tlie,:ri«ght_to use common path reserved 1}inder_ jthe_ .'farnily"-.il<arar.
'Therefore, Krishna Shenoy plaintiff " , and 3 as plaintiffs 2 and 3 for 'declaration and injunction against: 'p.1_ain_t'iff .defen(lan"i herein as defendants I and 2 in the suit was filed in the Court of ;II"A_dditio_I1z1l ?3iri1.ii1si'ff--,:_"'Mangalore, D.K., which Carnegie uper _*judgment and decree dated 5.8.1982: 'in tiiefsaidbst_.aif;"1:he family karar dated 10.8.1971 was ilplield title" eo'eii'i§: The plaintiff beirxg a party to the V' saidastiiii fuilyfaware of the judgment and decree passed _ tl1ei'ein"'«and"toheiysaine has become final, wherein the right of way reservéeii under the said family karar was also confirmed. Therefore, the same is binding on plaintiff and " otieiegr parties.
-13..
[(1) it is also I"l(:'I' Case that Krishiia Shozloy wh.ilc he was alive in sound ami (iisposizig state 01' mind iiaci exc(_:u_t(>d 21 Will datc.d 7.6. 1982, b€;'(1li(32:1U'1iI'1g 25 cents of land e:Iidf.'t{:ti* _in his favour i.m(iei- family karar in favour of 5.11} (1€f1vV_t?'.'T:'l"(i-'rll.f.i'f'-,, * namely Yashoda B.B.Ra0, which is...register.é"tlV' 'a~.<3{ .r_1'<')cu:rfrV1er1_Vt'«V' No.33/1982-83. Subsc-Iquently, 'K;~:s1_1u.;§; Si1e'x~1§y daughters enterecl into pa.r'i_*i'tipri ("l'e._e('1 V(1ai§:'d28.§§..1 which is registered as (i()(:1irI.1'v:4(:-ifVt'1-*,,:_N9.1,Si"£3f:8i%--8{if; wherein each of his daugf1i,e19si--,.._z}iah.:ii>ly% : .!(:l'(3'f_(V'{Ii'(:1':1{}t.s 5 to 11 were alloited with 25 cents... land was allotted to A%>;ii%i"p23izi'titi0r1 is valid and a.11()tI'l";£(%l!t',V ()."f to 1 1 is justified, as said pr0per'iies__ wei(~i in favour of Krishna Shenoy and,hi.s dau§;h_iers vunfi-er Tfamily Kara in the year 1971. aIi(_?g£i1'.i.Qi'.1 of d.aughi.ers having 110 right in suit ' I3";:;r1(i»C"s(:'}i'1ed:".;1e pr0pei't:ies and shares given to daughters atI1()=1iI}tS 33- gift were ail denied false-.. It was also (:o.n.ie.r1(i€:';(il that right. of (lz;u1g11t.(=.rs in the present case springs (3u'é---._.(&)f féirnily ka1'ar of 1.971, which is €l1'}'iV(:'(i at in full and E4".-*/'k'v% -14- final settlenient of clisputes of family members and which is also confirmed in (_)S.iNo.522/ 1982. It is also the ease of 4th clefeiiclant. that subseq1,1ei11.}y there were proceedings initiated by Urban Land Ceiling Authority, wl1('reir1 the p21I'ti_4r:>sV_lto_fs.11it had representeti and shown to said authorit;i_Wthe.l_' V'fa2I'11~3'.§)5' . karar.
(e) It is also her case thatv~p'l'ai-n.tiffaoeepted share given to him u1'1(iE'I' fa1nj1y"i«kai=iar;'l isfesitopgzed_l:'iro'rn_ contending to the contra. ti'ie_'brotiiersfViiieliiding'VV plaintiff had consented for allottingvsharta to tl'1e.Ada1ighters at the tizne o_flA'eln_t.e_ri.i31.g i.rjite.'__1'a:.nily karar. Tire contention of piaintifflregardingfianlily' (fated 10.8. 1971 being partial partition infrfzespeaclt of few items of joint family properties we1*e{'de"n.ie'd., Denialmof rights to defendants 5 to 11 and under partition dated 28.3.1984 and the (:ontentionl"$tliat Krishna Shenoy died intestate was also denie('i,V it was speeifiea,l1y pleaded that after the partition in there no llintlu Ur1divid('d joim: family status, f$:.fi.SI'lI'12;l Shenoy was not tile Kartha and plaintiff and
- '15 ..
(.1efen(.iz1.r'1.ts i to 3 were not the. rueiriibers ()f_j0i:1t. family. On the z1t'01'esa,i(:i grotmds she sought for rejection of the plaiut.
5. Ifiased on the aforesaid pleadings initially on 17.8.1998 the court below proeeetled to fralne the, iSSIl€S.' ijwhether the plaintiff provesthzlt, tite took place between himself, tieie;r1(lztnt'ii.Ny0:illtol and their father late KfE'ShI1a. Shefioy ineV.ti*ie.. 3 19'? 1 confirmed by the d'eefee it OS.N0.522 / 1982 Jen theV..filevvQi' ll Adcleitieofinal Munsiff of Mangaltiféa _is'«__a p_a1tia.l further proves that the I)ziititiot1 deed' e_>{eet1'tJc:(1 by his father dated V.23.8.'ij9s'4 V1.21.'-fairotiifs of defenclant No.5 to 11 is ricit hVi.x1di1'i§;"' C1.'_1_._t'he plaintiff'? plaintiff further proves that after the tltjealtli of Krishna Shenoy his 1/ 5th interest infltlig-:'";B schedule properties devolved upon the filgtintiff and cleie11(.1ant.s equally'? -15-
4)Whether the (iefe1e1(.1z1r1ts prove that the partition took place d11riie1g_; 1237.1 is 21 final partition as such the plaintiff has no right seek partition once agaiii?
5)Whether the (.1efe1'1(.izmts further pro_\(e»t'i:ai.' late Krishna Shenoy hacl eygeeizteci all 7.6.1982 w.}:1ere 1.1nder tile:25j_"i:~evnt§._Of allotted in his favour urlder the fafnily iwas bequeathed in favour o£§?'asi1c)da"
5th defendant'? . l A' I
6)"/hether the (iei'en(i::11it:s':frjirt;h.et'fp{oV_:e that the s1.1bseq1ie::1Vt 11_)d§tii,i£5:1~'} :1§e{i--.,__(-iatm' 28.3.1984 l':e:t«-'.irgé1*i_Iat'e;.Krt's.t111_a S"11e:1.ey and (Iefendants 5 to 1' .1-- ievvaligl'?aS<vt.:3't)ii1_taine(l in para No.9 of the W1'i tten sta,tei'1'i'er1t's'._¢_ 3 " 2 . -- .7)Whether't.lIe clefeficiarits further prove that late Krishria has executed a last Will on bequeathed the properties held by wife -- !She.mbaVi, the 4th cilefendarlt V a1j(1.(i:.(3f(éI1(lz1I1{.S 1 to 3'? "8)_Wi1e1:her the 1')iaii1t,1*fi' proves that stitl the it plaint I3 and C sehetluit-2 properties are the joint.
A' family propert'.ieS oi'pEz;1.i.r:t.ifi' and tiefendants'? -17- Qjwhether the plaintiff c-.'.n.titIe(i for [)aI'tiT;i()I1 ar1(l___ separate possessiorx'? if so, what. is £119 qt12u1tuxr'n_ of share'?
1())What order'? or decree'?
'I'hereafi,er on 3.1.3. "1999 the f"011()wif1g »2'1',(1"d.vit'i0r:ai-.i.ss-L.g@.$"\i{erE:* framed.
ljwhether the tleflarxciaifit, pr--Q_\Vr(-}'s father Krishna Shcnoy .(Exetf't;1te(l 1a"stvx.2s/i.1.1'anc1 bequeathed Sy.N(},3'5'~'2'._IHi§aSiI{i}3,§"Obf56 Cents in extent of B scherdglé 1'1V:iS..\f:':lVOI,II' and ass"'s!.1{$I'1. hé':::;j.s;. tin; '-exciiisixrszowrzer for the said
2)Wh..(jtherV}1.&\ fi11"'t1'.1_"<:r proves that the plaintiff is " "est()[)psti.,fr6r1'1 going back from the above said sAE3;.:_'l'}j4€*+rxsai'*gc-rr the znatter wer1.t into trial. In the trail, .t7izs '1«)la.E1~'«1.{ivf£_éicamirxed hirnself as, PW.1. In Support of his case h(é}_l1as })l'O(1l1C('.(l in all 1.8 (i0(:u..m.er1ts and got them fnsrlgeci. as EXs.Pii to P18. On behalf of (lefhmlants 6th =__/\ .a '\.I >3 -13- (lefentlzirit, namely (flulabi Seetlriaramaprabhu was exarriiried as DW. lo and in support. of their case they pI'(}(11£('.f3(lw§fl,§.ill.v 6 (lo(:ur:1ents and got tliem r.r1a.rke('l as l+3xs.i) '1 to I36. Cf." .l l"
7. On appreciation of tile ::'pleadlin_gls._, or-ak.oo.___AaIa;t.l documentary evidence 21vaiiabie_or1 recorri ti1,ve'"o<3v2.irt bolow_* proceeded to answer issue between plaintiff and clefenclaritshi. Slienoy in the year 1971 lf)€iI1g,'(3OI1fiI'vI'I.l.F?.(.£'iii passed in os.No.5212:fiaeaix;Elle_;1itn¥fna'ti~{;e;--mend issue regarding binding of 2€l.3.l984 executed by Krishrlial defe1'1(:lar1ts 5 to 11 in affirInatnre." claim of plaintiff for 1 /5th share in B s'cm§d:;1§a properties was partly held in affirtnative. . - -é£tI'i---issue which wasufrarned against. defendants wherein they Werel ¥Vi[)or'i to prove that the partition took place in the yearld 197}."ilé;. 'final is held in negative. 5th issue regarding exeeutiori of Will dated 7.6.1982 by Krishna Shenoy in resp'c:;t(':t. of 25 cents alloiiecl to his share in favour of 5th dfiefezlolant was held in afi*irma.tive. 63th issue regarding xx-J';
-19..
vaiidity of parti't:io.n deed dat:ed 28.3.1984 between Krishna Shenoy and clefenciarits S to 11 heid in the negative. 7th issue regarding exr::cut,ion of Will dated 18.4.1984 by Krishna Shenoy in favour of defendants 1 to 3 held in the affirirnative. 8th issue regarding plaintiffs joint possession o:i"'sufit.__E"5 C schedule properties was held partly in $3.4, as additional issue No.1 w11erein1;l)ur_der; was 'castspvonlfirci defendant regarding Krish11a.Sher1oyAhequeathising E36 in Sy.]\Eo.36n2 in B schedule propert:ies".ir1"*h.is favour was held in affirmative. ."rviciiui)"':iai' ~-i.ssVu"e._No.2 was held in negative. Consequently 10 the suit of plaintiff The plaintiff being aggrieved by the said lj«-.idgrrie1itj~Vandlkieeree so far as it pertains to rejecting ».prayer'._see5kir1g share in suit C Schedule Iiroperties was. filed RFA.No.'784/1999. The 1.st '- (iefer1(iEaT1'3t. being aggrieved by ti'1e_juc1gmen.t and. decree so far pi./r.i.2'--" share to piaintiff in suit B schedule propertiesxéhallcangecl the same in RFA.No.782/ 1999.
-9.0-
8. The groumls urg.r,e(.i by the 1st (ieferida1'1t in I-{I?~'A.Ne.'?"82/ 1999 are ti-12.11:. the 'inciing on issue Nos. 1 , 4, 6 and 8 are not based on proper appreciation of fa::ts.._:1nci material on record. 'Elie same is contrary tothe ~ (.)S.N0. 522/ 1982, which (:0nfir1ned_ fanci upheiiei .\iali(li.ty or "
family karar of 1971. The finding in re§a:7d'ii.ig family arrangement being upi'1lei:1_V is bimling ()1i_ail.: theparties--. V * including plaintiff. The wife til-'1(vl -.V(_iaught.--ers of Krishna Shenoy being not t,0'._th«::¢i saiVr_.i'V.siiit, the said decree does not have uI_1iversal..applitxzttioifidgés not alter the rights of un(l.eif" th'e"i"amily arrangement. The fiinding 1982 could not be pressed into servicetq a.ffeCt».VtI1e"rigi:1ts*6l' the parties under the family arrangement. ._Tne7'sa1'°d suit being instituted and concluded V' i&E1"v;;€Sf),é1.1'3 8 (iziys""witl10i.1.t notifying the 1st defendant in 1:133 outcome of the same is not binding on the a[i;._i_>ell:1:1t/Qilfstfldeferltlaiit. The "family arrangement. of 197'} was e'0nI1plet'.e and total. Those of the properties which were zriotlggiveri to the share of plaintiff and other ciefentiarits were a1l0t.te(i to Krishna Shenoy ant} his daughters who had. joint iflfiw E
- 21 -
rights of possession and enjoymeni.. Clause 4 of the memorandum of partitiozi dz:1,ted 10.8.1971 termed as__fa.mily karar discloses that ali the pro1.)ert.ies of the joint 'f?lI'E].:i13-?_'Ii-E_1(1 been partitionetl ie:-wing riothing for alieged joint "of ~ i'Lzt.ure partition. _
9. The conduct of the"-~.o[)arties es1)eeia}Ily*..._I§risi1r1a--.V' Shenoy made it clear that fa:/11113?' -arrangement wasficomplete and total and had beer1._é{et.ed u;pori:{'Is"pursuanee of such arrangement, a _iWi1I was-.e'xeei;ate(oi "I:S3r Kiiisfihna Shenoy on 7.6.1982 bega§_ea;1~ii§1gV;;;1 €i_t.e.n1 §s£.p'1?5'perty which had faliera to his1.s11areiAi'1fif_the :"i'"'g1'IIi_i§§f""£§ii'I'21Ii§§€Il'1€[1t, the partitioii effected on 28.E3A;'J.§)8éI5 is 'jlroperty jointly held by Krishna Shenoy and"det'e;1(.iar1ts to 11 as joint owners pursuant to fz'1iniiy iktariéir, there£'ift.er in respect of his share executed a Wfili 984. The partition between Krishna Shenoy €{ii.(_T¥'V'(1€{v"l3'.T'1'(i'¢E*j..i1KV:tS 5 to It is binding on plaintiff aiso. The allegation regarding Krishna She:/my dying intestate or that p1_21.iifi«i'.iff having I /5'" Sh£li'('. in suit {-3 sehetiule properties is v§rit;ho:.1t substar'iee. The fi;21'11.ily arrar1gez.:1'1ent being complete 4 ,...N_}"_ -22- and total arid the pariiiflioii effeetecl in 1984 being division joint owners of the properties, the properties which fellio the share of Krislina Shenoy therein was his personal .«p"ro{2--ei'ties which he could dispose of without reference Such disposition under the Will ..a(lrnitt§;-filth'to:'.';vhéiv€:"'Aheenu executed by him is binding on plair:;tiff." 'l'he '(leVoi'u:tiori?1.iof Krishna Shenoy's pro[)erties'was by te'stainei1'far3i 'S«!l.QCf§SSiOI1. V L' and the suit filed by him e_;if1ri()t--.t_»be f)1'oceedel3:l without seeking relief of sett.irig._ the; dated 28.3.1984, without challenging the..s.r.a:ji¢1ity5--.o13,w'i1'i cléitetill 18.4. 1984. a_JlO. in RFA.No.784/1999 which was filedowby the denial of share in suit C schedule propeertiies is on the following grounds. The court V' below ha.vii1g corneultodthe conclusion that piaintiff is entitled ltio. of suit I3 schedule properties erred in negatingliis. 'eiaim in respect of C schedule properties. The finciirig of the court below that plaintiff having not chosen to questiori the Will, it is not open t.o him to eliallerige the same at this stage is illegal, as in the court below on issue No.5 ./Viv:
E ..23..
the burden was on the (lefendants to prove that Krishna Sherioy had e;xeeuted a Will on '?'.6. 1982 and the Cl€f€I"1'('i8.I'ltS were required to prove the ggeiiiiiriericéss of the saici'<Rl\>'ii"'--in aceorclaiiee with law. Si.r.1(:e they failed to prove"i;iieAs'aii1e ~ leading evidence through attestors_tti.e"court:"below dugiix to have rejecteci their claim base('l or; tire'iWil1}»The'firidi:a,g"*to the contrary, is illegal and (;*_op«:J_Vse(l to settled_ 1i.ri;.:eipl.es of law. That the party who pro(l1,1lees-vliaxre to prove clue execution, attest:a:t.i.e'r; A genuineness. Merely because plaintiff»r1it'1 j:r.io't--.Vl_t'iie same is not a ground to accordance with law.
1 1..=Ti'he c0t:rt"?oel0w----laaving regard to the averments in 0874522/#15382 oral evidence ought to have come to the 'ACQIl'€tll1§i:Of!.'th.at suit B schedule properties were ancestral pm'_pert-E.es._ofiirislina Sherioy. The finding is contrary and illegal, share gI'E:lI'l't,€C] by court below to an extent of Al ,1 121-" xiii suit. B se1ie(1.i1ie ;.>ro;.><_:rty is lesser than what he is '--.leni:i.f:rle(l t.o and the (:<>r1eli..isi()11 of the (:oui1: below that vv, 3
-24..
Krishna Shenoy had only 1./12"" share in B schedule properties and not 1/5th share, is incorrect. The finding that defendants I to 11 are also entitled to equal sharein B schedule properties is illegal. The court below has_Wfaile.d"'to appreciate that Krishna Shenoy did. not have absoleiiteiilllriightl ' in the properties bequeathed 1mder.Wii.|_ it it court below having held that Will :'t.1at'.e_d .6:
proved, plaintiff is entitled 'to_v"'1./12"i"~share l'{j"'vs.ehe(iule'w.l' properties also. The court b¢l.Qlil\'r~,hé5c$v erred in holding defendants 5 to 11 arelnot. ,eia.titledshare in the suit schedule properties. Vapppreeliation of oral and doeumentaify'lvlevidenceris-_v also not proper. There is no applicationof pri.;ieilp'Ees"'iaw to the facts on hand. _ £2. lfi.,th'eSe 'vappea'is, this Court on appreciation of the urgedir1'vthe«'appeals and the finding of the court V blelow "W}g7%i"l1':l""~l'jCéi'€I'e}'lC€ to issue Nos.1 to 10 and additional eeee moi gee 2 framed therein hold that the following points arise for consideration in these appeals:
W"?
-25-
1) Whether 2.110 I'i.1.'1di:1g given by the €'.()1.1I"t below regarclirig partition midcz-21" family karar dated._ l(').8..1.9'?l is Iyartial pzufiiiiiori, is just E3.v{xld__"!fl.
proper?
2) Whether the findirig of_mtV.ib1e ooe'jm;--
holding pamuon clatetl 28.3,19s%lT'a,s"«in:&a1i§1;'.:sV_p""'__l] just and proper'?
3) Whether the 'fin(lirig«l.:of the' regarding beqiiesf; inagie "'E£rishna'vvSh.en()y under Will "'*ir;.a:fa\(our of 5"' defendant and favour of his w1'fe_ ..ang._1 's.o:1s, are _}fali(l"aijidubinding?
*4) xzsrirlariie-.s«.;l%;mr¢:aiig._of 1/12111 share to plaintiff in'B sQli1e'r:1.iilo.jp:'op{;i'E:i-as, is just. and proper? * 'E1 Wl1uetl'1Aef'i*ejéCting the prayer of plaintiff for shareppin s1iit"'C"sc}1e(ii1Ie properties, is just and V' " pro~;)e:j'?'* ._ ' }3.A.'J_?¥._eaT3'€i thc-2 (.'.0E.lI'1SC1 for appellants and respondents in both"*t,h(3; appeals, peifuseci the §_;;'o1.in(1s of appeals, Fimling of below in _;'1,1(1gxI1{>r:.i. passed in ()S.2()O/1996 and the "ora1'an(i ciocumcntary evi('l(:z'1<:e therein. On reappreoiation of .,\w -25- the saI1'1e this Court E1i'lSW(:'.1" point .Nos..l., 2 and 4 in the negative and point Nos.3 and 5 in the E1ffiI'I{1€-1t.i\f_'{;'.~~,f(";If' 7:._he following reasons:
14. The relationship 1)(3tW._v{3t?1'},"t'a1;h(a«*,zlsfifid defendants is not in disp1.1t,e.' -._f1'he f'a.e1'." that"siiit.__sc}1edt:1e_ properties were acquired under registered sale deed not dispute. It is further not in clisptitg-::"thatdavs 1971 plaintiff, defendants '1 formed members of joint that in the year 1971 due partition was effected in the v'i'2;-inilyi which was reduced into writing as ti§'z1ra'r 10.8.1971. This is the doeunient _ unéér '}?\"Ihi(§'i'1't1"I(? of the parties wiil have to be decided as,itrhas_h(:o1ne':,inl.o place at an undisputed point of time the progierties of the joint famiiy was divided.
..1'ui'*3«,_ The division in the joint family in the year 1971. is r1ot;'«..in dispute. It is 3.330 not in dispute that in the said 5' F
-27..
paititioh plaintii."f is awarded 45 Cents of land which is B selieclule in the family l<a,rar,"ist. (l€f('.Il(l'c'irli. was allotted 43 cents, which is A S(_'.l'IE.?(1l.l1G', the 2nd de.i'er1da.r1t, wasv_all_o':ted 43 eeots, which C schedule. the 13rd cleife;ri(il«afjt__:'xirgsx allotted 43 cents, which is I") schedule father Krishna Shenoy was allotted 25 cegzitsgwhiielh is 'ref: s'el1etitJ$lTe.i' Now coming to the family .l:e11ffa:'_'cIatefi 1.91721. oars 5*it r is stated that other than A t:0 E"s..el1e(iuleV'prof)ei*ties: all other immovable properties .f)e.§o11g:§l't()"' s1s_t._'oiT. the gviartives in the family karar [Krishna Shehoy who are at No.6 to 12 in iarhilykarzirl ltisflalso made clear in the said far1_1ilyTls:ararV£",l1atvKrishr1a Shenoy and his daughters who a.re"at"6 'are-..__j'oih"t. in possession and enjoy the samein eq1i.al._rightZ's. ll"-'1't1le: said family karat' and the recitals
- rriade' tl*l"'t?,E'E3Vi"I1', is noun' dispute. s.l6._A".i7Itier;efore, as on 10.8.1971 there is division in the j€')il1tf'f21I{1.ily':._Of£ Krishna Shenoy and joint family properties were (livi;_r_.i.ed by motes and bo1.m('1s. The eor1t:er1ts of said family karat' clearly discloses that the same is full and final 34/)",-fig"?
-23- partition between all the members of the family. Since the remaining properties of the joint family other than schedule A to E stated therein are allotted to the share Of"'Kfi§s}il1a Shenoy and his (l2,1ugl1t,ei*s, they eontiiiue to be in ;)os':}{e'ssit5n_' . thereof as joint. owners and not as 7iiQiI1f. li1I?i'1ily"r3ri'erIil3ers. '/_It"VV is to be seen that this is the (1o'c;u1'r_ie;1t', w,h_ieh"' is" lE3x.l:Z*.:1; which decides the right and s4t,at.iis of the parties; Tl_V1eref'cn'ie,_' 1 as on 10.8.1971 there is totial".,se\.ruera.neei_of joint family between plaintiff and Cl€:_fe*:i(lz§§_;1ts.v the contention of plaintiff that partiti.o1j'_ '--I,.1r1t1€i'_ f'a.n1ilyiVV~-ltarar is partial partition is "
i'_l'he eoliterition efplairitiif is mainly based on Certain averments "made {..3b__."5f32/"1982, which was filed by Krishna Sl1ei'ioy' ll years. after the parrtitiosi of joint family properties "taking The pl-aint in 08.522/I982 relied tipolnei and made much about t.he pleadings stated tthefein Vxviiiijiiaver to be looked into in the light of the family kararflrilaiietl 10.8.1971 and not the other way, ie., the family cannot be lookecl into in the light of the plaint a§.vermer1t's in ()S.522/1982. First of all the eireurnstarice _ 2.9- 1in(;ler which the said suit <',z:ui:1(.=. to l)('_' filed will have to be looked irlto. The said suit was filed by Krishna Shei'ioy__along with (lefendzmts 2 €2,i'1(l 3 in this proceedings against'pi'aiil'1tiff and 1st deferidant in this Iircicreeciings. The _c,-:rc1iiris'ta.i1ee' . under which the said suit came to beililecl is' t;h"ere' was an attempt. on the part of piaintiff clefeiitlaiit' lhertéivrgl t.o encroach into the place*t"eserveci'~._fo1' Vroaldll }wh,ieh_e§was.Vli meant for common use of other i'>IlIGII1bu(»)I'S ofthe family as per famiiy karat'. A reziti~i.;ig; of pifa'iI1lta averments in its entirety does not give... 11:3'-V. iti(iir:ationV"'=t112it there is an admission ri'iaitlell3:ySheno3fi:h'at"the partition dated 10.8.1972 _
17. 'i;iie._:e11tire f'eaEli1'1g of the plaint clearly indicates the ]i1aintift'l""éii'id 1st clefendarit herein from the Bfifgivflfllilig'af€~,_tfQ1,1bl€ mon.gers not only to defendants but to the otlicjririenibers of the family. It also seen that it is at their '1ivnsta:'1(:e partition has taken place, When once pVartitioi'1 has taken place in the year 1971, there appears to no rriiitiiality between them right from 1971 to 1982 g/U/Au-'E
- 39 _ the date when suit in ()S.522/ E982 was filed by their father and brothers against t.heir1 for deckaration that partition dated 10.8.1971 is valid and birldirig. In the said suit, nowhere it is me1:1t.ioned that suit B and C schedule properties are to be treated as joint family prope_rfties--«' ,l_1e_l:d y Krishria Shenoy. it is also not in atliriissioifiii 'tl7:1'e._said plaint that joint family does exist izljetweeri plaintiff and defendants 1 to.*3.,_ The'refL:re, refeteiicde to l.'I'i'3."_> portion of pleading in paragraph _2 the remaining agricultural properties!"werej:f(le_ei€1e_(l_'ito. be kept as joint family properties of the __if:t1eai1 that joint l-Hr1(lui_U11(.iiyi(1é:d_ family of . Krishnei Shenoy and his four sons exist. 'Ii'1js"pleading"will-.t_ha'fe to be read and understood in the light of 'E3 of family karar dated 10.8.19? 1. The-.t:efofre, faiiiilyv as meant and stated by Krishna tlie>._s§;:id plaint refers to himself and his daughters to the said property is allotted. The plaintiff (.:anr1ot make much out of it and can elaim the same as joint V' ' -- .'7a_mi'ly property.
'L/=.,"v'§= -31-
18. The coricept of partial partit.ion is alien to Hindu Law. When once there is severance of status between the parties by way ()f'pa1't.iti()11 by rnetes and boun(.1.s, :'it.h--as taken place in this case on 10.8.l£I)'71., it is_."n()t_fo*peI-i plaintiff or "Est defendant. in the 1)rest:rit sui_'£'."t.oV' suit B sclieelule property is joint :fa1ni'ly..*ipropert.y' have a share in the said property_, The v.«:onteI1'tio1é§ o.f_p1:1.i11tii'f--_l' that as on the date of filing o_fTt;l1:is--..s1iit..i'11.l_l996v}tl1e joint family of Krishna Slienogfantl P§jin'tft1_hL?A.nttiyided. joint family of Krishna Shermy exist;~-betvyeenp VVhir'nseV1:i"~.a;'id his four sons cannot be aeé§ept&;eicl,. Iiliéss co_;.51t;c2r1tio1i'that the partition dated 10.8.1971 r1lriti'er _far1ii13r'vl'<ai_'_z.1r is partial partition also canriot be accepteti. court below on this aspect is without EEAI1(1V"j.ilS{ifi()ati()l"i. Probably the court beloiv Zrriust haVe..__earried away by a reading of a stray .' seritenee.ofévzplairit in OS522/1.982 without giving credence H to' .t£1eVV'(ioet_irne,nt. under which severance between Krishna Sl---£.ei1oy.lr:is sons has taken place way back on .E..0.8.:i $371.1. 'l'here.t'ore, this Court answer the 1*" point" for 2 ., '(torssi('1ei'at:ion in tile 11c-rg:--itive. '«<.,"'§,x;
f
-32..
'19. Now coming to félmi point for consicleration, when once it is held that. the pz1.rtii:ioIi which has taken p1;'£er§ on 10.8.1971 is total partition by metes and bou11_d.s_'4":iVet{§a'ee'iw.x the parties and in terms of clause 5 of than schedule A to E to said fa111i1y'1{éi.rar. aiipother"prop'e-fiiens; of joint family are stated to be of Shenoy and his daughters, riariridejiypdefendants this 11 proceedings. In the light-iof such eLVp_'i'eoi4_g1 in "f'E1i}'1J',}_\JI~'3k3I'3.I' the father of plaintiff narneiigf arid defendants 5 to 11 are entitled to tjiiemszirne divided amongst themselves:'=pa:'tition of the said properties. Therefore: the between them on 28.3.1984 under_ a registered'. partitioii deed is just and proper. The " '~ eliiottped of defendants 5 to 1 I in the ratio of 25 een,ts of-l;u'i('£~--.ir1 the said partition is just and proper and be inva1i(1.. 'Fherei"()re, the finding of the cotirt t)e1o*x_7+Lij'..oAn this aspect is required to be set aside in this z~1ppezii..__'3 'ITl:1erei'ore, this Court answer the 2"'? point for " (;onsiderati.o_n in the negative.
20. Now eoniirig to the SW1 point for c:()r1si(le1fai.ior1 regarding execution of the Will, admittedly an _eXt*e1*1;:; cents of land was allotted to the share of VVSii:ei1oy'liat ' schedule E in the family karar (late(.l:_:Ali(J}8';.l has bequeathed in favour of his_ list l(ia1'ighter.1.51;h :defer9}g(iant"" *' under a registered Will (iated in his pleadings has not cllaliei'1geti Vi:h"(;'.:' Wherevas in his exa1nination~ir1~chief dai;etl_ li8§§)1biET~9ii3'l1as stated as under:
" 'fati"ler had executed Zallflfilli ll3'fia;>lVV.:'1982u_"VihVflfavour of my elder é;istei9 c'Iefe'fif(lzif1tvlVio__.V5* in respect of 25 cents of land out of. property B schedule ~pifopei'E3J., amt} l7 have not questioned the said aaaaa ' 'i'l1e.Vsa_i(i~eex{ilt}e11c:e of piaint,iff in his exami:1ation--in--chief 'clearly i.ai€"osVa\ivay his right to challenge the same. So far as the"'2ii(§'."Wi1vi"iS coilcernecl, it is a registerecl Will. plaintiff it tiioughlll he was aware of the same has not challengeci the except: making a referericze that exeeutiori of said Will is E ifzjum
- 34 -
not within his kn0w'ieclge. 2.1.n(1 his father has no right to execute the Will. The said eonteiition is taken by him in the light of the fact that he was contending that suit schechile properties are the properties of .~_4}:C)iIl_tA °fziirniiy: * (:(:ansist:ii'ig of himself, his hirotliers (lef7e.n(1a.r1_'tis":iV' 3 .?a;:i4ti.Vhi-s father Krishna Sheney. "l"here'f0re, "his1e()iiVtenti()'1is_is théithis father had no right to e.xec:1t§e__t.i*:.e said-Will and ..sax<i1e is 2 L' not binding on him.
21. In View of '.tF:3§a#:. has given a finding to the effieet. tliziig family between Krishna to an end on ex(?cL1tidnV_ the contention of I)1aiIItif'f"ff1f1t si:'.w.i_l.'V property being joint family pr(>pert.y is iiegateti. When once it is negated then it is not opei' fcér him to chwsiilevngge the right of his father to execute the it is not his contention that the Will is not exee1ited.hy_.his father or that the ex.eeution of the same is unde.f_s('ispici01is cireiimstariee or that the same is not the W_i1ui""A_0f his father. The ehallerige to the Wili is on the basis ' thait his faither has no right to execute the Will. In the light -35- of the ii1'1d.i.1.1g given by this (fiourt on issue Nos.1 and 2 the COI'1t(',l'll.l()I1 of plEl]'l'1'[i.ff that suit B and C schedule properties are joint family properties being negated and his claim to the same is put. to rest. Theri his contention that his fatl'ief»ehas no right to execute the Will does not have 'i'he1-efore, the Will exec:utec.1 by his father valid and the validity of the sarnehlcarirliot the -iqueVstioi'ie'd iii?
this suit. If plaintiff had CEOI1V1L€Er1Cli:?d..l.li$,1t the "has into CXiSl,CI.'lCC under sus1)i(:ioii'sVE:ir(:1.1.II1star1ee.or tlie Will is not executed by his father orttitl iaila e'o.1_1cocted"arid created document, then probahlyl' l:ile~~E'\2i.;'ioii__1y:(i"'--hays had right to conterid tha"t'l5f_-tltief3.sar.tie~« ifequired to be proved and establisliecll' by'ttie~lprof)o:iintl(ar of the Will. Here what is being ..challehgeci~l)y hiih: in the suit and as well as in the W - 2ip"p--e.a1:,.i'g, the riglitflotl his father to execute the Will, which is 1'§iit,li.e)~h'ye. flE1(1i.I}§__.§ given by this court on point Nos.1 ampl l"'l'lieref()1"£:, this Court answer 3?" point for eonsicler}:ti<)r1 in the affirmative and hold that the Finding of "ii "c:_ou11, below that the Will dated 7.6.1982 and 18.4.1984 it t --. t:h(:s----rieg§atiVe,.
-36- <*,xeCl,1t.e(l by K;:.'isl*1nz;1 Sllenoy is valid and bintiing on all the parties.
light of the fact that oral partition which is'7«':r__e(ivii'eeV(i writing as famiiy kart-11' on .10.8.;i'9"7I"is' as'-finvai. partition between the rnernbers oigf-Ii*;_1cit1 [J.i'1r_.1ivitied --,{.J'oint._ Family of Krishna Shenoy of he."w_as that' in the said partition suit B V.sei1e(i.11'1'e»_propertvies-Ware being allotted to the share of 4' 'i{:i's_?'i:3;;f=_§'i'1e}ioy,a:;d his daughters, defendants 5 ' .11 iflw pro'eeedi.n'gs'V the question of granting 1 tAI'2*%§ s1*i3a,prt:--.'i'r1~«.'Vthe saici properties or any other share Ijiaintiff '"(:lefen(1a,i1t does not anse for eor1si«:ieratio'n..., 'I"'ne'rel"ore.,f tfrle aforesaid point is answered in " 23. Fizlally coming to 5"! point for ().O1'1Si(i€l'&tl'OIl, in the light oi", the finding given above when partition dated 2 1();8.,.1 is eonsicierecl as final partition among the Aixnenibers of the joint famiiy of Krishna Shenoy in the iight of
22. Now coining to 4*" point for consiclerationuinathe %:i.
.37.
family karar and u.:'1der clause 5 of family karar the suit B and C schedule properties falling to the share of Krishna Shenoy and his daughters they had right to partition on 28.3.1984 and a1l()t.ting schedule--p.r0j)le§~f.i'esltd ~ the share of Krishna Sheney which the is ent.it1"ecl'_'t..0ll'beq1,iestll"
the same under the Will. 'l'l'1er.ef0r_fe...~ln0'=.shai'e 'clja-.1 "tie- awarded to plaintiff in the sa~it1'p'ropertj.es. Hence; 'title C,'0urt--_' answer the aforesaid point ll"f.r)lr ,c0nSicler_ati0n} in the affirmative.
24. In effect this _(..'.0.t1_r--t. while up all the five points for c0;fisiC§i-sratigjn is hr the 'qsinion that plaintiff in C)S.2037:D/19S')'6'l~h.£1$V no man.n_e1'_0f right, title or interest in suit B and §>,c3t1§:d:.:1§9' on the date of filing of suit for the rezietjri_:tI1atfHii'i(ilil.Uricliviclecl Joint family of Krishna A.dissnl\fetlla1'acl separated as on 10.8.1971 when effected and all the properties of the said joint family wa.'3"l{litri(lc>c1 by met:-:5 and bounds under the said fan1ily~ Igarar, which is at Ex.Di. Therefore, in the light of the afere«sai(i finding of this. Court, the appeal filed by 1st cleferitilarit. in RFA.782/ "5999 is allowed. the judgn'1ent and U./\»'§_
3.
- 38- ('1e(':rc:c passed g1'211'1t.ir1;_>; 1/12"? sharcr to ple1int1'.ff in B
9.-che(.iuEe propertios in (_}S..N(>.2()O/1996 is set aside ancl the suit is ciiS11'11'ssed. C()11s(:q11cn'i.iy, the appeai flied in RFA.N0.784/ £999 is (iis.r1.1isse(1 without a11; I:"0rc.1Tt:§r'L :is; to costs.
Sa/:
3uD@E kmj§UDG§