Indian Kanoon - Search engine for Indian Law

"(12) However now in appeal - RFA No. 686/2002, application is filed for production of additional documents including the registered Will stated to have been executed by Kempamma on

22.5.1958. It cannot be disputed that Kempamma can dispose of her property by a testamentary document as she was declared to be the absolute owner of suit schedule item No. 1 and 2.

However mere production of certified copy or the original of the Will stated to have been executed by Kempamma by itself, is not sufficient to prove that defendant No. 1 to 6 succeeded under the Will. It requires to be proved in accordance with law. At the same time, the said document cannot be ignored only on the ground that the same is produced at a later stage as it would affect the rights of the parties.

When the suit is for partition and separate possession in respect of the properties of Kempamma, Kempamma's last desire is also required to be considered. If she has disposed of her property by a testamentary document and testamentary document is proved it will change the line of Succession."

22. It is also observed in para No. 13 of the judgment of Hon'ble High Court of Karnataka in RFA No. 686/2002 c/w 810/2002 in para No. 13 concluding para the Hon'ble High Court of Karnataka held that ;

27. The learned counsel for the legal representatives of defendant No. 1 in his written arguments submitted that the Hon'ble High Court of Karnataka in the judgment in RFA No. 686/2002 and RFA No. 810/2002 in its judgment dated 24.1.2013 has concluded that Kempamma became the exclusive owner of schedule item No. 1 and 2 of the plaint schedule properties and in the absence of any testamentary document late Narayanaswamy and Sampanna will succeed to her estate and each will get half share. In his written arguments it is also submitted that on remand, Will dated 22.5.1958 (earlier dated 25.5.1958) has been produced and marked in the evidence. The will itself is more than 61 years old hence under section 90 of the Indian Evidence Act there is a presumption about the genuineness of the Will. It is further argued that Kempamma died leaving behind the Will in respect of item No. 2 of the suit schedule property in favour of Narayanaswamy. Thus Narayanaswamappa had become the absolute owner and in possession of item No. 2 schedule property by virtue of Will.

34. In this suit both the plaintiff as well as defendants have produced the certified copy of judgment in O.S.No.422/1964 which was marked at Ex.P4 / Ex.D3. On perusal of the certified copy of judgment in O.S.No. 422/1964, i.e., Ex.P4 - Ex.D3 it would go to show that the suit in respect of house property bearing municipal No. 65 and 67 situated at Sanjeevappa street, Avenue road, Bangalore city was dismissed. In the present suit the suit schedule item No. 1 is the house bearing No. 15 situated at Sanjeevappa lane and suit schedule No. 2 is the property bearing No. 20 situated at Sanjeevappa lane. Both plaintiffs and defendants have not produced any documents to show which property was re-numbered as which house No. In the absence of any such document produced on both the sides as admitted by both the sides the suit item No. 1 was the subject matter of earlier suit in O.S.No. 422/1964. Since there is no document to show that item No. 2 of the present suit was also covered under O.S.No.422/1964 it has to be held that the suit schedule item No. 2 was not the subject matter of the earlier suit in O.S.No.422/1964. The plaintiff has filed this suit for the relief of partition and separate possession on the ground that after the death of Kempamma the plaintiff Chikkanna being the grand son of Kempamma who represents the branch of Kempamma's son Sampanna are entitled for share in the suit schedule properties. It is the contention of the plaintiff is that after the death of Kempamma the plaintiff and defendant No. 7 and 8 together got half share in the suit schedule property. According to the plaintiff the cause of action arose to file this suit after the death of Kempamma, when the plaintiff demanded his half share in the joint family property along with defendant No. 7 and 8 by issuing demanding partition. In this suit the plaintiffs have produced the document Ex.P6 copy of legal notice dated 28.1.1981 issued by the plaintiff Chikkanna and defendant Susheelamma. The defendant No. 1 to 6 and the legal heirs of the defendants admitted that the suit schedule property belongs to Kempamma. In the absence of any testamentary document after the death of Kempamma her sons and grand children succeed to her estate. No doubt in the earlier suit in O.S.No.422/1964 the claim of the plaintiff Chikkanna in respect of item municipal No. 65 and 66 was rejected on the ground that house belongs to Smt.Kempamma. Merely because the plaintiff has not included the suit item No. 2 in O.S.No.422/1964 that cannot be debar the plaintiff to include that property in the present suit after the death of Kempamma. It is pertinent to note that the suit schedule item No. 1 is also belongs to Kempamma. The judgment and decree passed by this court in so far as the suit schedule item No. 1 is concerned is confirmed by the Hon'ble High Court of Karnataka in RFA No. 686/2002 c/w RFA No. 810/2002. The suit schedule item No. 2 is also belongs to Kempamma. The non-inclusion of suit schedule item No. 2 of the present suit in earlier suit in O.S.No.422/1964 makes no difference because the earlier suit in O.S.No.422/1964 the claim of the plaintiff in respect of item No. 1 was rejected on the ground that that property belongs to Kempamma. Admittedly the suit schedule item No. 2 is also belongs to Kempamma. Under such circumstances merely because the suit schedule item No. 2 was not included in O.S.No.422/1964 it does not debar the plaintiff to include in this suit. Order 2 Rule 2 has no bar to plaintiff to claim partition in suit schedule item No. 2, as he is claiming the partition in the suit schedule item No. 2 after the death of Kempamma. Hence I answer issue No.3 in the Affirmative and issue No. 5 in the Negative.