IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 1st DAY OF DECEMBER 2010 BEFORE THE HON’BLE MR.JUSTICE A.S.PACHHAPURE REGULAR FIRST APPEAL NO.178/200i (PAR) BETWEEN: 1. Gajanan, 5/ Laxminarayan Bhat Aged about 44 years, 0cc: Agriculture R/at Gadigeholay, in Agasal Grama Sirsi Taluk, Uttara Kannada Dist. 2. Nagapati, S/o. Laxrninarayan Bhat Aged about 38 years, 0cc: Agriculture R/at Gadigeholay, in Agasal Grama Sirsi Taluk, Uttara Kannada Dist. APPELLANTS (By Sri. S. S. Bawakhan, Adv.) AND: 1. Dattatray, S/o. Subray Hegde Aged 59 years, 0cc: Service Amod Housing Co-operative Society Ashraya Colony Road Burivilli, West Bombay 2. Arundati kom Vishweshwar Hegde Age: 49 years, 0cc: Household R/o. Devikeri Road, Sirsi 3. Vishwanath, S/o. Vishweshwar Hegde Age: 49 years, 0cc: Contractor R/o. Devikeri Road, Sirsi 4. Ramanath, Sb. Vishweshwar Hegde Age: 45 years, 0cc: Agriculture R/o. Balegadde, village Balegadde Taluk: Sirsi 5. Ranganath, Sb. Vishweshwar Hegde Age: 40 years, Chief Accountant Kavasmanica Chemical Private Ltd., 72-B, Khoja Building-3, Bombay 6. Anusaya kom Vishweshwar Hegde Age: 67 years, Household R/o. Danandi, Shivalli Since deceased by LRs 6a. Subray Vishweshwar Hegde Age: 55 years, 0cc: Agriculture 6b. Dattatraya Vishweshwar Hegde Age: 52 years, 0cc: Agriculture 6c. Vinayak Vishweshwar Hegde Age: 39 years, 0cc: Agriculture a to c are residents of Danandi, P0: Boppanalli (Isloor) 6d. Ramachandra Vishweshwar Hegde Age: 39 years, 0cc: Agriculture R/o. Unchalli, Banawasi Road Tq: Sirsi, Dist. U.K. 3 6e. Radha W/o. Manjunath Bhat Age: 58 years, 0cc: Household R/o. Almane,P0: Kangod Tq. Sirsi, Dist. U.K. 6f. Leelavati W/o. Venkatesubba Hegde Age: 50 years, 0cc: Household R/o. Ainkai, P0: Kyadagi Tq: Siddapur, Dist. U.K. 7. Vishalaxi kom Mahadeve Hegde Age: 63 years, 0cc: Household R/o. Harehulekal village of Kashishinamane 8. Radha kom Krishna Hegde Age: 60 years, 0cc: Household R/o. Soraba Taluka, Harish Village, Harishe. Since deceased rep. by LRs. 8a. Chidambar Krishna Hegde Age: 46 years, 0cc: Agriculture 8b. Baichandra Krishna Hegde Age: 35 years, 0cc: Agriculture a & b are residents of Harishi Tal: Sorab, Dist. Shimoga 8c. Chandrakala W/o. Bhaskar Hegde Age: 48 years, 0cc: Household R/o. Shigehalli, P.O. Panchalinga Tq. Sirsi, Dist. U.K. 4 8d. Jayalasmi W/o. Ganapathi Hegde Age: 44 years, 0cc: Household R/o. Kanchikai, P0: Kodsar Tq. Siddapur, Dist. U.K. 8e. Veena W/o. Suresh Shastri Age: 42 years, 0cc: Household R/o. l3anavasi, Tq: Sirsi, Dist. U.K. 9. Mahadevi kom Prafuichandra Hegde Age: 53 years, 0cc: Household R/o. Chouki math 10. Umesh, SI Laxminarayan Bhat Age: 37 years, R/o. Agasal gram Gadigehole 11. Laxminarayan S/o. Subba Bhat Age: Major, 0cc: Agriculture R/o. Gadigehole, Taluk: Sirsi 12. Sharada kom Seetaram Hegde Age: Major, R/o. Vinayaka colony Sirsi. 13. Ratna kom Subray Hegde, Joshi Age: Major, R/o. Yelugar Taluk: Siddapur. RESPONDENTS (By Sri. Hegde Neeralagi, Adv. for C/Ri Sri. V. G. Bhat, Adv. for R4 Sri. Ravi G. Sabhahit, Adv. for R5 R2, R3, R9, R12 & Ri3 — Notice D/w R6(a) to R6(f), R8(a) to R8(e), R9, RiO and Ri 1 - served> THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DT.16.11.2000 PASSED IN O.S.NO.94/97 BY THE CIVIL JUDGE, SR.DN. SIRSI, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: JUDGMENT The appellants have filed this appeal challenging the judgment and decree of the Court below dismissing the suit for partition and separate possession of the suit properties. 2. The facts relevant for the purpose of this appeal are as under: I will refer to the parties as per their rank before the trail Court for the purpose of convenience. The appellants are the plaintiffs and the respondents herein are the defendants. The propositus of the family was one Narayan Hegde, who had five sons, 1. 6 Parameshwara, 2. Subbaraya, 3. Ganapathi, 4. Krishna and 5. Seetharam. There was a registered partition amongst the brothers of the propositus on 14.03.1959. The parties to this suit are the legal representatives of Subbaraya, the 2nd son of Narayan Hegde and the said Subbaraya died on 05.11.1969 leaving behind three sons, 1. Vishweshwara, 2. Dattatreya (defendant No.1) and 3. Ganapathi (died on 16.06.1972) and five daughters i.e., 1. Ansuya (defendant No.6), 2. Vishalakshmi (Defendant No.7), 3. Kamala (died on 10.08.93), 4. Ratna (defendant No.13) and 5. Mahadevi (defendant No.9). Vishweshwara, the eldest son of Subbaraya died in the year 1994 leaving behind his second wife Arundati (defendant No.2), three sons i.e., 1. Vishwanath (defendant No.3), 2. Ramanath (defendant No.4), 3. Ranganath (defendant No.5) and two daughters, 1. Sharada (defendant No.12) and Ratna (defendant No.13). Amongst the daughters of Subbaraya, Kamala, the mother of plaintiffs died on 10.08.1993 leaving behind her husband Lakshmi Narayan who is 7 defendant No.11 and three Sons i.e., plaintiffs No.1 and 2 and defendant No.10. This relationship between the parties is not in dispute. The plaintiffs claim that the suit properties enumerated in schedule-A para 1 are the agricultural lands and schedule-B are the house properties and the movables have been referred to in schedule-C(ka). The plaintiffs who are the grandsons of Subbaraya Hegde through his daughter Kamala have claimed that the suit properties are either ancestral properties and joint family properties acquired from the income of the ancestral properties and also tenanted lands, the occupancy rights of which were granted in the name of the 1 St defendant and that their mother had a share in these properties and on her death it devolves upon them. It is relevant to mention here that Subbaraya had his wife Nagaveni, who also died in the year 1973. 8 3. These being the facts relating to the properties and relationship of the parties, the plaintiffs came to know that the defendants who are the sons, daughters and grand children are manipulating and creating false documents showing the division of property and gifting the properties etc., apprehended that the act of the defendants was to defeat the share of the plaintiffs. It is under these circumstances, that the plaintiffs requested the defendants to effect the division in the joint family properties and to grant their share in accordance with law by demarcating the boundaries of their shares. 4. The defendants No.1, 2, 4, 5 and 9 have filed the written statement and amongst them, defendant No.9 has supported the claim of the plaintiffs, whereas the other defendants have denied the averments made in the plaint. It is the contention of the defendants No.1, 2, 4 and 5 that after the partition amongst the brothers of Subbaraya in the year 1959, Subbaraya, the grand father of the plaintiffs 9 and father of the 1St defendant said to have effected the division in the suit properties granting the share to his sons. His third son Ganapati died on 16.06.1972 and it is thereafter that his share in the property was gifted to his mother Nagaveni, wife of Subbaraya under a registered gift deed. It is also the contention of the said defendants that Subbaraya before his death executed a Will and it was registered by bequeathing all his interest in the properties in favour of his sons i.e., 1. Vishveshwara, 2. Dattatreya (defendant No.1) and Ganapathi (who died on 16.06.1972). Furthermore, it is the contention of the defendants that the mutation entries were effected in the records of rights in pursuance of the Will executed by Subbaraya, in pursuance of the gift by Nagaveni and also on the basis of partition between the father and the sons. They claimed that when Subbaraya bequeathed his interest in the suit properties, his daughter Kamala or any other daughters are not entitled to any share as his interest in the suit properties was bequeathed to the sons under the I 10 registered Will. Furthermore, it is their contention that Nagaveni, to whom the property of the deceased Ganapathi was given, had gifted the said properties to the sons of Vishweshwara and in the circumstances as Nagaveni did not leave any other interest of her in the suit properties, the question of claiming the share by the plaintiffs does not arise. Furthermore, it is also claimed by the 1st defendant that there are subsequent acquisitions of the lands and they are not the joint family properties and even the lands which were tenanted and occupancy rights were granted exclusively belong to him and that the plaintiffs have no share in the said properties as well. So far as movables properties are concerned, they have denied their existence. On these grounds, they have sought for dismissal of the suit. 5. On the basis of these pleadings, the trial Court had framed the following issues. 11 Whether the plaintiffs prove that the suit properties are joint family properties and they were in the joint possession of the same with defendants? Whether 1st defendant proves that there was a partition on 20.02.1959 between the sons of Narayan Hegde? iii. Whether the Jst defendant proves that there was again partition took place in the branch of Subray Hegde on 14.3.1959 and the shares were enjoyed the properties separately? iv. Whether the 1st defendant proves that Subray Hegde had executed registered will on 27.3.1968 bequeathing all his properties in favour of his sons? v. Whether the 1st defendant proves that the sons of Subray Hegde again after his death got the properties of Subray Hegde partitioned amongst them on 13.05.1970? vi. Whether the 1st defendant proves that Smt. Nagaveni W/o. late Subray Hegde had gifted her entire properties under a registered Gift 12 deed dated 5.7.1972 in favour of 1st defendant? vii. Whether the defendant No.1 proves that the area measuring 0.6.0, 0.20.0, 1.9.0, 1.36.0, 1.9.0, 0.12.10, 0.13.3 in Sl.Nos.1, 2, 3, 6, 7, 8 and 9 of ‘A’ schedule properties respectively and some portion of house described in ‘B’ schedule have come to share under the documents referred to in his W.S.? viii. Whether the 1st defendant proves that the suit Sl.Nos.2, 3 & 6 and A schedule properties are his self acquired properties? ix. Whether the defendant No.4 proves that the 1st defendant and 3rd defendant got the properties of deceased Ganapathi partitioned on 31.1.1973? x. Whether the defendant No.4 proves that there was partition between Vishweshwara the first son of Subray hegde and children defendants No.3 to 5 got their properties partition by registered partition dated 4.8.1974? xi. Whether defendant No.4 proves that the III defendant had taken his share of properties I, 1.) from him and defendant No.5 under registered partition deed dated 19.12.1977? xii. Whether the defendant No.4 proves that himself and 5th defendant got the properties partitioned by a registered partition deed dated 16.6.1992? xiii. Whether the suit of plaintiffs is maintainable without the relief of cancellation of registered deeds referred to in the W. S.? xiv. Whether the suit is bad for non-joinder of necessary parties? xv. Whether the 4th defendant proves that the suit ofplaintiffs is barred by time? xvi. Whether the 4th respondent/defendant proves that the suit of plaintiff not maintainable without including certain properties sold after the alleged partition? xvii. Whether the plaintiffs are entitled to partition of their share in the properties? If so, what is the share in the plaintiffs? xviii. Whether the plaintiffs are entitled to mesne profits? 14 xix. Whether the plaintffs are entitled to decree prayed for? xx. What decree or order? 6. It is thereafter that the plaintiff No.1 was examined as PW1. Later a witness was examined as PW2 and in their evidence the documents at Ex.P1 to P39 have been marked. The defendant No.1 was examined as DW1, the defendant No.4 was examined as DW5 and other witnesses as DWs 2 to 4. In their evidence the documents at Ex.D1 to D52 have been marked. 7. The trial Court after hearing the counsel for the parties and on appreciation of the material on record held that Subbaraya had bequeathed his interest in the suit properties and after the death of Ganapati, his share was gifted by his mother Nagaveni by way of registered gift deed and further there was a partition amongst his sons and in the circumstances as per the existing law, neither Subbaraya nor his wife Nagaveni have left any interest in 15 the suit properties and therefore, it came to the conclusion that the plaintiffs are not entitled to any share. Thereby it dismissed the suit of the plaintiffs and aggrieved by the judgment and decree, the present appeal has been filed. 8. I have heard the learned Counsel for the appellant and also the respondents. 9. The points that arise for my consideration are: i. Whether it is proved that there was a partition between the brothers of the Subbaraya, the sons of the propositus Narayana Hegde in the year 1959? ii. Whether the father of the 1st defendant Subbaraya executed a Will Ex.D1 5 bequeathing his interest in the family properties in favour of three sons? iii. Whether the partition amongst the three sons of Subbaraya immediately after the death of Ganapathi is nominal and was only for the purpose of avoiding taxes and it has not been acted upon by the parties? 16 iv, Whether it is proved that Nagaveni, wife of Subbaraya gifted her interest in the property under a registered gift deed in favour of defendants No.3 to 5? v. Whether the plaintiffs are entitled to any share in the suit properties? vi. Whether the appellants have made out any grounds to call for interference in the judgment and decree of the Court below? 10. It is the contention of the learned Counsel for the appellants that the defendants have not proved the Will, the gift deed said to have been executed by Nagaveni, wife of Subbaraya, the partition amongst the sons of Subbaraya, and the subsequent acquisitions as their self acquisitions. It is his contention that these documents were created and mutation entries were effected in the records of revenue authorities with an intention to defeat the claim of the plaintiffs and that there were no bonafides on the part of the defendants in doing such acts. So also it 17 is his contention that when the Will, the gift deed and the partition are unbelievable and are false and fictitious documents, they cannot be relied upon and in the circumstances, the plaintiffs are entitled to the share which would devolve on their mother Kamala, the daughter of Subbaraya. Therefore, it is his submission that the trial Court committed an error and illegality in accepting the Will at Ex.D15, the partition deed at Ex.D3 and the gift deed as per Ex.D2. Hence he submits that the appellants have good grounds to succeed in these appeals and prayed for decree of partition by setting aside the dismissal of the suit. 11. Per contra, the learned Counsel for the respondents submits that the Will executed by Subbaraya, the father of the 1st defendant is legal and valid and the gift deed has been proved satisfactorily and the partition effected by the parties is bonafide and further that there was a partition amongst the sons of Subbaraya before the 18 trial Court and in the circumstances, he submits that the trial court was justified in dismissing the suit. The learned counsel would further submit that the appellants have not made out any grounds to call for interference in the judgment and decree of the Court below and thereby they sought for dismissal of the appeal. 12. I have meticulously scrutinized the evidence, the important and relevant documents. Though the contention was raised that there was no partition in the year 1959, the defendants have produced the original partition deed amongst the brothers of Subbaraya and the question of partition amongst them has not been disputed before this Court. The important aspects in controversy are with regard to the execution of Will, the gift deed executed by Nagaveni in favour of her grand sons and the partition amongst the sons of the Subbaraya. The learned Counsel for the appellants would contend that the Will has not been proved satisfactorily and that there are suspicious 19 circumstances in the execution of the Will and that it is a false and fictitious document. So far as the proof of Will is concerned, the defendant No.1, who was examined as DW1 has stated about the execution of the Will by his father and furthermore, they have also examined DW3, an attesting witness to the said Will. 13. Now, perusal of the evidence of DW3 reveals that in the year 1968, Subbaraya had executed the Will bequeathing the properties in favour of his three sons and that the Will was written in the office of Narayan Bhat and that he was all along intimating him that as he is not well, it is necessary to execute the Will at an earliest. So on the date of the execution of the Will, DW3 and PW2 were called by Subbaraya Hegde at the time of execution of the document and DW3 states that as per the instructions of Subbaraya, the Will was written and at that time himself and PW2 were present. He also states that instructions for writing the 20 Will were given by Subbaraya and after the preparation of the Will, it was read over to the witnesses and also the Executor of the Will and thereafter Subbaraya signed the same and that to prove the contents of the Will, it is necessary for defendants at least to examine one attesting witness and accordingly, DW3 has been examined, who speaks about the execution of the Will and the proof of its contents. The other attesting witness has been examined by the plaintiffs as PW2, he admits the signature at Ex.D15(c), on the Will executed by Subbaraya and that this signature was made by him about 30-40 years back. The signature of Subbaraya is at Ex.D15(a), whereas the attesting witnesses had put their signatures at Exs.D15(b) and (c). 14. Now perusal of the cross-examination of PW2 who is the 2nd attesting witness to the Will, it reveals that DW3, the attesting witness examined by defendants is a reputed person in the village and that he is frank and fair 21 and in his opinion DW3 is a good person who could be trusted. He cannot remember the other persons who signed the Will at the time when he put the signature to Ex.D15. He admits that as he is a businessman, unless he reads the documents, he will not put the signature and if he repossess full confidence, he may sign even without looking into the contents. He also admits that he has signed Ex.D15 after confirming that the contents are true. He also states that in case if the document were fraudulent, he would not have put the signature. Though he states that the signature was taken in his shop, taking into consideration the cross-examination it appears that this witness has been won over by the plaintiffs. A perusal of his cross-examination reveals the material to corroborate the version of the defendants with regard to the execution of the Will Ex.D15. 15. The counsel for the respondents has placed reliance on the decision of the Apex Court reported in AIR 22 2002 SC 317 (S. Sundaresa Pai and others vs. Mrs.Sumangala T. Pai and another). The Apex Court taking into consideration the circumstances therein held that ‘the uneven distribution of assets amongst children, by itself cannot be taken as a circumstance causing suspicion surrounding the execution of the Will”. The Will in the said case was executed without giving any property to the widow daughter and it was held that it is not unnatural. So far as the due execution is concerned, the defendants have examined DW3 who has spoken about the execution of the Will and also attestation and so also PW2 has corroborated the version about the execution and subsequently the said Will came to be registered by Subbaraya in the office of the Sub-Registrar. The Will was executed on 27.03.1968 and it was registered on 24.04.1968 i.e., after about 27 days of the execution of the Will and in pursuance of this Will, mutation entry was effected in the records of the family members. When a Will is registered, it gives further strength to the due execution 23 and it is relevant to note that Subbaraya, after the execution of the Will died on 05.11.1969 i.e., after about 1½ years of the execution and registration of the Will. 16. From these facts and circumstances, it could be inferred that Subbaraya was in a sound disposing state of mind, he had the capacity to execute the Will and this fact has been spoken to by DW3 and PW2 (to some extent) and therefore, I do not find that there is any such material in the cross-examination of DW1 and DW3 and the evidence of PW2 to disbelieve the execution of the Will by Subbaraya. 17. It is no doubt true that Subbaraya did not make any provision for the daughters and therefore it is contended that it is a suspicion circumstance as the natural daughters of Subbaraya were not given any share in the properties or there was no provision made for them. It is relevant to note that the daughters were entitled to the share for the first time after the commencement of Hindu 24 Succession Act 1956. During those days the society was not in favour of giving share to the daughters as the marriage expenses were looked after by the parents and so also some dowry was being given in token of their share in the family properties. This mental set up of the persons continued for a long time and it is only in the recent days that the daughters are approaching the Court seeking share in the properties of their parents. So the mere fact that Subbaraya did not make any provision for the daughters, in my opinion is not a suspicious circumstance at all. It is not that Subbarayahas given some properties to other daughters except the mother of the plaintiffs. He has not given any share to any of the daughters and therefore it strengthens the version of the defendants with regard to due execution and proof of the contents of the Will. 18. Furthermore, after the death of Subbaraya, a report was submitted to the revenue authorities to effect 25 the entry of the names of the beneficiaries in the records of the family properties. The defendants have produced Ex.D38, the certified extract of the mutation entry No.571 and it reveals that after the report, the notices were issued to the interested persons, no objections were received and in the circumstances it is on 03.04. 1971 that the entry has been certified. So on the basis of this entry, it could be said that the Will which was executed by Subbaraya was acted upon and the parties approached the revenue authorities to effect the mutation entry and in the circumstances I do not find any doubt with regard to its due execution and proof of the Will. 19. When once the Will is proved, it is necessary to note that a daughter is not entitled to any interest in the coparcenary property on the demise of her father. As could be seen from the provisions of Section 6 of the Hindu Succession Act, 1956 before its amendment, it reads as: “6. Devolution of interest in coparcenary property - When a male Hindu dies after the 26 commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:” The provisions of Section 8 apply to intestate succession. But as there was a Will, the coparcenary property would devolve by testamentary succession. Therefore, the plaintiffs cannot seek any share of their mother as that interest has been bequeathed by Subbaraya in favour of