IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS ThE 17 TH DAY OF OCTOBER 2011 PRESENT: THE HON’BLE MRS.JUSTICE MANJULA CHELLUR AND THE HON’BLE MR.JUSTICE V. SURI APPA RAO R.F.A. No. 2516/2006 BETWEEN: Sri. Chandrakant Sb Annappa Devan, Aged 57 years, 0cc: Masonry & Agriculture, H. No.741/6A/2D, Vidya Nagar, Angol, Belgaum — 590 003. ... APPELlANT [By Sri. V.R. Datar, Adv.) AND: 01. Sri. Arjun Sb Annappa Devan, Since deceased by his LRs. 1(a) Smt. Sulochana W/o Late At-jun Devan, Aged about 60 years, 0cc: Household work. /5 4 1(b) Aparna D/o Late Arjun Devan, Aged about 20 years, 0cc: Nil. 1(c) Sarika D/o Late Arjun Devan, Aged about 22 years, 0cc: Nil. 1(d) Santa D/o Late Arjun Devan, Aged about 24 years, 0cc: Nil. 1(e) Mahesh Sf0 Late Arjun Devan, Aged about 28 years, 0cc: Nil. 1(1) Archana W/o Ajit Rama Lingekar, D/o Anjun Devan, 0cc: Nil. All are residing at H.No.329/B, Laxmi Gaul, Angol, Belgaum District. 1(g) Smt. Ashwini W/o Praveen Chougale, Aged about 32 years, Dharmavera Sambaji Chuk, House No.529, Raghunathpet, Angol, Taluk and Dist. Belgaum. 02. Sri. Vasant Sb Annappa Devan, Aged about 49 years, e / I 3 6 0cc: Agriculture, H. No.231, Laxmi Galli, Angol, Belgaum-590 003. 03. Sri. Anant Sb Annappa Devan, Aged about 46 years, 0cc: Agriculture, H.No.328, Laxmi Galli, Angol, Belgaum-590 003. 04. Smt. Smitha W/o Suresh Bokade, Aged 41 years, 0cc: Household work, Near DAK Bunglow, Ramlingkhind, Shahapur, Belgaum-590 003. ... RESPONDENTS [By Sri. D. Ravi Kumar Gokakar, Adv. For RiCa) to R1(g) and R-2, Sri. R.M. Kulkarni and Hemalekha K.S., Advs. For -3, Sri. Vishwanath Poojary. K. Adv. For R-4) This Regular First Appeal is filed under Section 96 of Code of Civil Procedure, praying to set aside the Judgment and Decree dated 31.08.2006 passed in 0.5. No.238/1996 on the file of PrI. Civil Judge (Sr.Dvn.), Belgaum and the said suit be decreed as prayed for and this appeal be allowed with costs throughout. This appeal coming on for hearing this day, MANJULA CHELLUR J., delivered the following: /1 4 .3 JUDGMENT The present first appeal is filed by the appellant herein challenging the judgment and decree in O.S. No.238/1996 where the suit came to be decreed only in respect of one land in R.S. No.402 item No.12 of ‘A’ schedule to the extent of 2 acres out of 9 acres 30 guntas and dismissal of the claim in respect of all other items. 2. In brief the facts that led to the filing of the present appeal are as under: The appellant who was the plaintiff before the trial Court has sought for partition and separate possession of 6 / 25 th share of him in the suit schedule properties described at ‘A’, ‘B’ and ‘C’. According to him all the properties are ancestral properties which came to the share of his father Annappa in a partition between Annappa and his two brothers — Kedari and Yellappa. The properties allotted to Annappa, Yellappa and Kedari were accordingly mutated as 1’ 5 4 certified by the Tahsildar of Belgaum. It is not in dispute that late Annappa died on 23.05.1991 leaving behind four sons including the plaintiff and one daughter. According to the appellant before the trial Court all the children of late Annappa succeeded to the suit schedule ‘A’, ‘B’ and ‘C’ properties. But however, in order to avoid the plaintiff getting a proper share in the property defendant Nos. 1 to 3 according to the appellant colluded with their late father Annappa and got will executed on 01.09.1988 which came to be registered on 06.07.1992 i.e. Ex.P2 and subsequently, another will executed on 26.07.1989 which came to be registered on the same day. According to him, none of these wills were acted upon and subsequent to 26.07.1989 a registered sale deed came to be executed by late Annappa in favour of defendant Nos.1 and 2 in respect of house property bearing No.329/B at Lakshmi Galli, Angol, Belgaum and again another unregistered partition deed came ‘5 6 into existence on 21 09.1990 in respect of all the suit ‘chedule properties According to the plaintiff, none of the documents are valid and binding on the family members a’ all the properties are ancestral properties belongina to the members of the joint family By virtue of an amendment to Section 6 of the Hindu Succession Act all the children of deceased Annappa arc equally entitled for all the properties. According to the appellant/plaintiff only with the sole intention of excluding him and preventing him from getting his awfu tare n the suit schedule properties the above ad Jocurient ant into ex stence He urthe F e a c at ron Od T eatr F dd C 3 it f .3 C 7 a. deceased Annappa are having respective family and are living separately in their respective homes. He also pleaded that in the year 1989 he was compelled to file OS. No.1728/1989 for permanent injunction and the defendant Nos. 1 to 3 obstructed and objected him from cultivating the joint family properties. Thereafter, the said suit came to be dismissed for default. However, O.S. No.35/1990 was filed for partition and separate possession, which came to be withdrawn on 08.07.1993 at the instance of the defendant. Again, he was compelled to file 0.S. No.591/1992 before the 2 nd Additional Munsiff, Belgaum for injunction in which though the Court was pleased to make absolute order, the same came to be vacated before the First Appellate Court. Aggrieved by the same CR.P. No. 3546/1993 was filed before the High Court of Karnataka which came to be dismissed on 29.03.1996 observing that the plaintiff/appellant could file a suit for partition and ,5i separate possession in respect of joint family property and therefore, in the. light of the observations of the High Court he filed the prese.nt suit. 3. Defendant Nos,1 and 2 did not file written statement though they appeare.d through their Counsel. Defendant No,4 — sister of the appellant was placed exparte. De.fe.ndant No,3 the contesting respondent filed objection statement denying all the averments, allegations and the claim made in the plaint as false, frivolous and vexatious. According to the respondent/defendant No,3 the description of the properties was not properly done in the schedule. But however, he admits the genealogy and interse relation between the parties. According to him other legal representatives of late Kedari Laxrnan Devan their granc father are not made parties to the proceedings. Therefore, the suit is bad for non joinder of ne..cessary parties and de.serves to be dismissed. 9 4. 4. The 3 rd defendant took a specific contention denying the alleged partition between his father and his two brothers in the year 1959. He also denies the claim of the plaintiff that subsequent to the death of their father all the brothers succeeded to the suit schedule properties by way of succession. According to him, the appellant/plaintiff having taken the benefit under the Will dated 26.07. 1989 has completely concealed the said fact in the earlier suit. Therefore, he has not come to Court with clean hands. The 3’’ defendant categorically denies the first Will dated 01.09.1988 and according to him only the Will dated 26.07. 1989 came to be executed by his father and he also admits the sale deed in favour of the l and 2 defendants. The 3 defendant has not expressed any opinion so far as the sale deed dated 20.12.1989 in favour of defendant Nos.1 and 2 in respect of residential property. But, however he says the declaration holding that the sale deed as null and void / 10 A cannot be granted for non-payment of necessary Court fee or cancellation of the sale deed. According to the respondent No.3, plaintiff is not in possession of any of the suit schedule properties except the property which was given to him under the Will dated 26.07. 1989. In short contending that all the family members acted upon the wish and testament of late Annappa as per the Will dated 26.07.1989 and when they are in possession of respective properties as indicated in the above said will, the suit of the plaintiff for partition and separate possession is not maintainable and deserves to be dismissed. According to him, the Doctrine of Estoppel comes into play. 5. On the basis of the above pleadings, the following issues were raised 1. Whether plaintiff proves that properties described in Annexure ‘A’ under schedule ‘A ‘B’ and ‘C’ devolved upon plaintiff and defendants by way of succession and the properties are the ancestral ones? p 2. Whether plaintiff proves that he has 67/25w share in the suit properties ? If so, in which properties ? 3. Whether plaintiff is entitled to the relief of declaration that the Will dated 1.9.1988, another Will dated 26.7.1989, the sale deed dated 2O121989 and a partition deed dated 27U9199O executed by his father late Annappa Laxman Devan are illegal, null and void? 4. Whether plaintiff has paid proper court fee on the. relicPs claimed in the suit? 5. Whether defendants prove that suit is hit by principles of resjudicata and doctrine of estoppel? 6. Whether there is no cause of action for this 7. Whether suit is liable to be dismissed with compensatory cost? 8. Whether laintiff Is ntitled for partition and separate possession of his 6/25 In the c’q” properties ? 9. What order? AddL Issue Noi: I. Whether the ckisendants nrc,ve that there is a partition by metes and bounds of the c,if schedule b of the 12 6. We have heard the learned Counsel representing both the parties. We have gone through the different exhibits relied uDon by the parties and we have also gone through the judgment of the trial Court, In the present case there is reference to 4 documents which are referred to in the pleadings of both the parties. So far as the first document Ex,P2 a Will dated 1,9J988 and a second Will dated 2671989 marked as ExP3, one has to see whether testator had right to execute the Will in respect of the suit schedule properties disclosing the intention of the testator. 7. In order to establish that the Will has the true intention and desire of the testator, one has to look to tIie contents and legality of the Will and also the right of the testator to execute such Will in the light of tine contentions raised by the parties that all the schedule properties were the ancestral properties of late Annappa. Though. in these two Wills there is a reference to the nature of acquisition of the suit 13 •1. schedule properties as self-acquired properties, during the course of evidence and the pleadings there is categorical statement by the plaintiff that all the schedule properties are ancestral properties and the evidence brought on record by the parties, both oral and documentary, would indicate that all the schedule properties are the ancestral properties of late Annappa. As a matter of fact, there is a reference to the nature of the acquisition of these properties by late Annappa. Late Annappa while entering into division of properties with his two brothers Kedari and Yellappa acquired the suit schedule properties as his share of property. This is not challenged by the respondents-defendants. 8. Exhibit.P.1 refers to a date 18.1.1959 Indicating that in terms of oral arrangement between the family members, a Varadi was submitted to the revenue authorities indicating division of family properties between late Annappa and his two brothers. It is also 4 /, 14 not in dispute that subsequent to 18.1.1959 the mutation entries came to be entered in the name of three brothers as against the properties indicated at Ex.P. 1 in respect of their respective shares. Though there is a claim in the two Wills Ex.P.2 and P.3 that late Annappa acquired these two properties by himself, except the statement in the so-called two Wills no other document is placed on record to substantiate the said contention and also to controvert the contents of Ex.P.1 and the evidence in respect of the document at Ex.P.1. Unless the respondents- defendants were capable of explaining how late Annappa acquired these properties, the genuineness of Ex.P. 1 cannot be suspected or doubted. Even otherwise, change of mutation entries and late Annappa continuing to be shown as not only the owner but the cultivator of these lands right from 1959 till he was alive is not in dispute. In the absence of any material other than the Ex.P.1, the contents of /5 15 E-x.P.l and Ex.P. 3 alone cannot be taken as an indication of these properties being treated as self- acquired properties of late Annappa when no material is forthcoming. Even in the evidence of respondents they were not able to establish how late Annappa acquired these properties by his earnings or otherwise and how they could be treated as his self acquired properties Therefore one has to conclude that the properties held by late Annappa were the properties he acquired through family arrangement between himself and his two brothers 9. Then coming to the execution of the two Wills - tx a Ex3, et t ec.. hec.t testa.or A 1appr. vho bias the kartha of he ta iily as On fle dare of executior, of these two V.lls had ar’j C) Ut t c C ) I j cemili pr’ 4 r.cr.t o’ Wl! ‘s well ‘etHni x’ n n P n pe - ng’ fl ‘0 Fc ‘. I Ij b%t ci,t. N 16 ) Apparently, the two Wills have come into existence after coming into force of Hindu Succession Act of 1956 and SectIon 30 of the Act governs the field. Section 30 clearly indicates that so far as the Will is concerned, the testator is not entitled to execute a Will in respect of coparcenery property except his share in the coparcenery property. Prior to Hindu Succession Act, 1956, a Hindu coparcener did not even have a right either to execute a Will or gift coparcenery properties. With the coming into force of Hindu Succession Act, 1956, the embargo was only with regard to the Will wherein a coparcener was entitled to bequeath his share of property and not the share of other coparceners. This is re-affirmed in the division bench judgment of this Court reported in the case of Smt Radhamma & Ors. vs. H.N. Muddukrishna & Ors, 2006(1) AIR KAR R 367. 10. As already stated above, in the absence of any material describing the properties in question as self- ‘5 17 acquired properties of late Annappa, one has to say late Annappa had no right to execute a WiW in respect of the joint family properties except the share belonging to him in the coparcenery properties Apparently there is no reference to his share in all the schedule proDerties. The entire properties were bequeathed in favour of different persons, i e they refer to division of properties among his four sons According to the defendants, this could be treated as a family arrangement as indicated in the case of MN. Aryamurth and another Vs M..L Subbaraya Setty (dead) by his ega representatives and others, reported in 1971 STPL (LE) SC AIR 1972 SC 1279=(1972) 4 SCC 11 R 5 S 358 y ‘K not be treated as a family arrangement in view of one of the sons not being a party to the Will though all other sons of late Lachiah Setty were witnesses to the Will executed by late Lachiah Setty In that view of the matter, their Lordships said that the Will dated 1.1 1930 cannot be treated as a family arrangement between the parties though the Will could have been in the normal circumstances treated as a family arrangement. However, with the introduction of Hindu Succession Act, 1956, such disposition of property is not available to the kartha of the joint family by virtue of embargo under ection 30 cf Hindu Succession Act. 13 Now he o aintiff can also gitatc that atlea the cflarp of iae Aniappa ‘n aN the tpr ,hedu’e ic i e I 11 ur ..,erv’n... “shos: ‘in.nes referrc I t” ‘n hp-’ nr1 dii’ tp e’ n r F •ld e V is gn t ‘. I d jrne. , h 19 I, which Will is the last Will & Testament of the deceased Annappa. According to the documents, though the first Will is dated 1.9.1988, it came to be registered on 6.7.1992. Defendants place reliance on Ex.P3 Will dated 26.7.1989 to consider the same as family arrangement and according to them, It is to be considered so as the parties have acted upon the intention of the testator indicated in the second Will under Ex.P.3. If the intention of the testator was to be honored by acting upon the contents of the Will dated 26.7.1989 - Ex.P.3, in order to consider this as the sacred direction given by the testator to his children, the defendants must be able to explain why the testator having executed the Will dated 26.7.1989 thought of registering the earlier Will dated 1.9.1988 subsequently on 6.7.1992. Therefore, one can say that the Will dated 26.7.1989 was never intended upon by the testator to be the last Will & Testament Indicating that his children should abide by the same -5 20 as a sacred direction given by him. If this Ex.P.3 dated 26.7.1989 has to be considered as acted upon, then the defendants have to explain why a sale deed came to be executed subsequent to 26.7.1989 in respect of the house property bearing No.329/B situated at Lakshmi Gaul, Angol, Beigaum, in favour of defendants 1 and 2 on 20.12.1989. If the direction In Ex.P.3 was binding on the sons of late Annappa, then why again another unregistered partition deed came into existence on 27.9.1990 during the lifetime of Annappa in respect of the suit schedule properties. Therefore, the question of acting upon the Will dated 26.7.1989 as a family arrangement will have to be considered in the light of the above circumstances. 12. As already stated above, late Annappa had an embargo to execute Will in respect of ancestral properties described in the A, B and C Schedule properties. Thus, Ex.P.3 cannot be treated as last Will & Testament of the testator in view of his act of ‘5 21 subsequently registering the earlier Will dated 1.9. 1988 on 6 7.1992 and executing sale deed in respect or one of the properties in December 1989, and again entering into a partition deed between the children of Annappa during the life time of Annappa. When all these subsequent documents came into existence one has to see whether the parties had any intention to act upon the document under Ex.P.3 which is not a valid document in the eye of law. Assuming for a moment that this Ex p 3 could be treated as a family arrangement, none of the sons were parties to thc document as witnesses to the C (CUT. or of ht. Wii & Te’.tar ient by lab.. A nappa Thererore. the oniy way they could have, placed on .c ar “ st e ie t r di ti j a r pat’c r ered o tu)Or thi o’ urT01t I’ K) ti ‘C rid vj n tic € d ‘ ou’ise’ or tit rc-Sp)’;der’r r,tprj-j.j that The I anq .y f r I’ C ‘fl terms of the Will dated 26.1.1989 and the parties have acted upon by submitting a Varadi to the revenue authorities concerned, no such Varadi is forthcoming. In all probability, based upon the Will itself the mutation entries must have come into exictence. Even otherwise, it is not uncommon in a joint family the properties standing in the name of family members and each coparcener representing the interest of the other coparcener. Mere entnes in the mutation records and the revenue records later on, would not confer or infer any such family arrangement even if we presume that Ex.P 3 could be treated as a partitior docjmcnt. One has to see whetner tnerc wa equal p rt’t n a ‘ong the opa cer rs. 14 Ti’e VIai! Lv.? 1ated 26.7.1989 Cbi r.either be isr i’ il U r t F eto r f.’miiy Irrangeenen: fg.r tnt v, 0 nc mentioned ibove 1 i ‘ .3 ‘e. r •r h an g ft •, W? r:• : .,t . j’•l i. r 1$ • I” ‘r a’. I 23 b .1 defence of the defendants, in the light of our observation that there was no equal partition of the properties as contended by the plaintiff at any point of time, we are of the opinion that the learned trial Judge was erroneous in holding that Ex.P.3 dated 26.7.1989 is a family arrangement totally ignoring Section 30 of the Hindu Succession Act of 1956. 15. Admittedly, the properties were dealt by late Annappa as if the properties were his self-acquired properties and he kept on changing his mind from time to time by executing two Wills, i.e. registered sale deed in respect of one of the properties and lastly un-registered partition deed during his lifetime. The division of properties held as per Will dated 26.7.1989 seems to be not on equity basis as some of the sons got more share in the properties than the others. Now, in view of the amendment to Section 6 of the Hindu Succession Act, when the brothers enter into a partition the right of the sister has to be considered. /5 24 I With the amendment to Section 6 of the Hindu Succession Act even the daughter of Annappa gets a share in the property as a co-parcener equal to that of her brothers in the normal course after amendment. But by virtue of amendment if succession has already taken place, she would be entitled to her share in the share of her father along with her brothers. This is the law laid down in the case of G. Sekar Vs. Geetha and Others, reported in (2009)6 S.C.C. 99. 16. In that view of the matter, one has to presume a notional partition as on the date of death of late Annappa. If that is so, Annappa along with his four sons take one share each in the entire properties. Now the share of late Annappa has to be equally divided among his four sons and the daughter. By virtue of this, each son would be entitled to 6125 th share in all the properties and daughter is entitled for 1125 th share in all the properties. Who gets which property would be based on valuation of the ) 25 ) properties which has to be worked out in the final decree proceedings. If the parties have made any improvements on any of the properties they are at liberty to seek for allotment of such property to their share and the Court dealing with the final decree proceedings can consider such relief in accordance with the procedure based on equities. 17. Accordingly, the judgment and decree in O.S.238/1996 dated 31.8.2006 passed by the Principal Civil Judge (Sr.Dn.) Belgaum, is set aside decreeing the suit of the plaintiff as sought for, declaring that the plaintiff Is entitled for 6125 th share in the entire suit schedule properties. At the time of final decree proceedings, enquiry should be made into mesne profits. 5 / a a •0 .1 0 - V •1% a, — 3 p C, I-’ S 0 M 0• a) 0 ‘4 m M z. -I 0 S I-a -I 0 0 0)0• z 0) ‘a0 (0 5 (pp we