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Ravikirthi Shetty and ors. Vs. Jagathpala Shetty (Deceased) by L.Rs - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtKarnataka High Court
Decided On
Case NumberRegular First Appeal No. 387 of 1994
Judge
Reported inAIR2005Kant194; 2005(2)KarLJ32
ActsHindu Succession Act, 1956 - Sections 6 and 8; Mithakshara Law; Evidence Act, 1872 - Sections 91
AppellantRavikirthi Shetty and ors.
RespondentJagathpala Shetty (Deceased) by L.Rs
Appellant AdvocateB.M. Krishna Bhat, Adv.
Respondent AdvocateM. Vishwajith Rai, Adv. for Respondents-1(a) to 1(c)
DispositionAppeal dismissed
Excerpt:
- karnataka land reforms act, 1961.[k.a. no. 10/1962]. section 21 (1) & form 7a: [anand byrareddy, j] right of a beneficiary under a will claim for occupancy rights by virtue of the bequest under the will grant of occupancy rights challenge to finding of the tribunal that petitioner was not a full brother of the deceased tenant transfer of agricultural land with occupancy rights in favour of heirs - held, the object of section 21 being to confine the rights of tenancy only to stranger is barred. finding of the tribunal was upheld. - 19. the court below, on consideration of the oral and documentary evidence adduced, has recorded the finding that the defendant 1 failed to prove the due execution of the registered will set up by him. 1: 12. with regard to the contention urged by the.....b.s. patil, j.1. in the suit for partition brought by jagathpala shetty (plaintiff) against his brother ravikirthi shetty (defendant 1) and his two sisters vijayamma and nagarathnamma (defendants 2 and 3 respectively), the court below by the judgment and decree dated 22-10-1993 decreed the suit. being aggrieved by the said judgment and decree, defendants 1 to 3 have preferred this regular first appeal.2. for the sake of convenience, the parties will be referred to by their ranks obtained in the court below. few facts, which are essential for the purpose of disposal of this appeal may be set out as under:3. the plaintiff-jagathpala shetty and defendant 1-ravikirthi shetty are the sons of late raju shetty. defendants 2 and 3 are the daughters of late raju shetty. the relationship between.....
Judgment:

B.S. Patil, J.

1. In the suit for partition brought by Jagathpala Shetty (plaintiff) against his brother Ravikirthi Shetty (defendant 1) and his two sisters Vijayamma and Nagarathnamma (defendants 2 and 3 respectively), the Court below by the judgment and decree dated 22-10-1993 decreed the suit. Being aggrieved by the said judgment and decree, defendants 1 to 3 have preferred this regular first appeal.

2. For the sake of convenience, the parties will be referred to by their ranks obtained in the Court below. Few facts, which are essential for the purpose of disposal of this appeal may be set out as under:

3. The plaintiff-Jagathpala Shetty and defendant 1-Ravikirthi Shetty are the sons of late Raju Shetty. Defendants 2 and 3 are the daughters of late Raju Shetty. The relationship between the parties is not disputed. The case of the plaintiff being that B Schedule properties to the memorandum of plaint were acquired by the late father of the plaintiff and the defendants under a registered partition deed of the year 1927 and that upon the death of Raju Shetty who died inter-State on 15-2-1980 leaving behind the plaintiff and the defendants as the sole surviving heirs, himself and the defendants succeeded to the estate of the deceased. The plaintiff has further contended that defendant 1 who was his elder brother and was an influential man both in the family and in the locality managed to bring about a document purporting to be a bequest by his father of the property in favour of plaintiff and defendant 1 with certain obligations fastened on the 1st defendant to pay the annuities to the daughters-defendants 2 and 3. The plaintiff contends that a lion's share is taken over by the defendant 1 under the Will, which consists of very valuable properties including garden lands, whereas barren and worthless lands were purported to be bequeathed in favour of the plaintiff. The plaintiff has alleged that the Will was brought about without the knowledge of anybody and the same was not genuine. It is the case of the plaintiff that his father Raju Shetty was seriously ill and was admitted to the Hospital and he was later operated upon and the alleged Will was not executed by him while he was in a sound disposing state of mind and health. Contending that after the death of Raju Shetty - the father, the plaintiff continued to be in joint and constructive possession of properties although defendant 1, behind his back got his name entered in the revenue records pursuant to the Will executed, the plaintiff has brought the suit seeking his share in the joint family property alleging that the defendant 1 was not allowing the plaintiff to share the income derived from the lands in question. The plaintiff has also sought for mesne profits, past and future.

4. Defendant 1 has filed his written statement, which is adopted by the other two defendants also. He has contended that all the properties referred to in plaint B schedule were not acquired in the partition deed of the year 1927. That R.S. No. 163/1 which is mentioned as second item in the B Schedule to the plaint was not covered under the said partition deed. That the partition deed dated 5-2-1927 referred to the properties of the mother of late Raju Shetty and that although R.S. No. 32/3 was one of the joint family properties it was not mentioned in the partition. He has further contended that Items1 and 3 of plaint B Schedule namely R.S. Nos. 75/1 A, 2C,1B2 and R.S. No. 6/1A were the lands obtained by defendant 1 on assignment by the Government and late Raju Shetty had no rights in it. The defendant further contended that his father had rights over the plots in Sy. No. 163/1 of Savanoor Village and R.S. Nos. 75/1A, 2C, 1B1 of Punchappady Village. According to him they were assigned in favour of his father. As regards Sy. No. 7/3A referred to at Item 1 of B Schedule, the defendant claimed that this land was his father's absolute property, as occupancy rights were granted in his favour by the Land Tribunal.

5. The defendant, meeting the assertions made by the plaintiff in the plaint has denied the allegations and assertions with regard to the bequest made by his father. The defendant has claimed that he was helping his father in the management of the affairs of the family. He has contended that his father executed his last. Will on 12-2-1968 when he was in a sound disposing State of mind and health. It is his case that in the presence of his friend one Sri P. Anantharaja Shetty who was serving as Sub-Registrar, Harihar at that time and in the presence of the testators, the Will was validly executed. The defendant further contends that his father Raju Shetty had only Gastric complaint, for which he was operated upon by Dr. P.N. Ariga and that after the surgery his father recovered and started managing his affairs. It is his further case that it was after consulting the Doctor concerned that he executed the Will before he was subjected to surgery. After the death of the father, the defendant 1 claims that on the basis of the Will he moved for change of mutation in his name and secured the same. It is his further case that the plaintiff was not heard for about seven years after he left the job at Kudremuk and in fact the plaintiff was aware of the execution of the Will which was binding on him. He also contended that he performed the marriage of defendant 3-Nagarathnamma on 12-5-1982 after the death of his father and that, the plaintiff was not in joint and constructive possession of the suit schedule properties.

6. On the basis of the rival contentions of the parties the Court below raised as many as eight issues. The issues framed by the Court below pertain to the valuation and payment of proper Court fee; the jointness of the properties; the entitlement of the plaintiff for share in plaint B schedule properties; the nature of the properties comprised in R.S. Nos. 75/1A, 2C, 1B2 and R.S. No. 6/1A as to whether they were self-acquired properties of the defendant. The important issue, however, is Issue 5 pertaining to the proof of the valid execution of the registered Will dated 12-2-1968 by Raju Shetty. An issue pertaining to the mesne profits was also framed. The plaintiff examined himself as P.W. 1 and produced and marked as many as 30 documents. Whereas defendant 1 examined himself as D.W. 1 and produced and marked Exs. D. 1 to D. 19. The Court below, on consideration of the oral and documentary evidence adduced, has recorded the finding that the defendant 1 failed to prove the due execution of the registered Will set up by him. The Court below has also recorded a finding that the properties claimed by the defendant as self-acquired properties which were allegedly granted in his favour by the Government were not his exclusive and self-acquired properties. As regards the issue pertaining to the entitlement of the plaintiff for mesne profits and the extent of the income of the suit schedule properties, the Court below has left open the matter to be ascertained and agitated at the time of drawing up of the final decree proceedings. Thus, the Court below has proceeded to decree the suit holding that the plaintiff and defendant 1 were each entitled to 5/12th share in the properties acquired by late Raju Shetty under the partition deed Ex. P. 1 and that defendants 2 and 3, the daughters were entitled to 1/12th share in those properties. However, in respect of the remaining items of the properties which were held to be the self-acquired properties of late Raju Shetty, the plaintiff and the defendants were together held entitled to 1/4th share. Although the plaintiff had claimed only 1/4th share, upon calculation of the shares, the Court below came to the conclusion that the plaintiff was in fact entitled to 5/12th share which is more than what was claimed. It is because of this the Court below directed the plaintiff to pay the deficit Court fee on the difference of the share allotted and to file a fresh valuation slip. The appellants are aggrieved by this judgment and decree and the allocation of shares made by the Court below.

7. We have heard Sri B.M. Krishna Bhat, learned Counsel appearing for the appellant and Sri Rai, the learned Counsel appearing for the respondents.

8. It is principally contended before us by Sri Bhat that while the plaintiff himself claimed 1/4th share in the suit schedule properties, the Court below proceeded to grant 5/12th share instead of 1/4th share which was erroneous. He further contended that as regards Items 1, 3 and 20 were concerned though they were not included in the partition of the year 1927 (Ex. P. 1), they were included in the suit and the suit is decreed with regard to the same. He has further very strenuously contended that Gunavathi Hengasu was the absolute owner of the properties which were the subject-matter of the partition as per the registered partition deed dated 5-2-1927 and that although Ex. D. 1 is styled as a partition deed it is in the nature of an assignment or a settlement by Gunavathi in favour of her sons and the grandsons. He therefore contends that the property held by Raju Shetty as per the document Ex. P.1 was not ancestral property but it is his absolute property. It is his further contention that the parties who belong to Jain community in South Canara were not governed by Mithakshara Law and therefore the provisions of Section 6 of the Hindu Succession Act, 1956 was not applicable to them. According to him, they were governed by the School of Aliya Santana Law and the division of the shares is therefore, to be made in accordance with the provisions applicable to Aliya Santana Family. In which event, the counsel contends that the shares to be worked out could only be 1/4th each to all the four members of the family. He also further contends that even if Mithakshara Law is made applicable since the properties in the hands of the Raju Shetty were his absolute property and some of them were also his self-acquired properties, all the four family members were entitled to share equally as per the provisions contained under Section 8 of the Hindu Succession Act and therefore the shares computed and allotted by the Court below was erroneous.

9. The Counsel for the appellant has also contended that Items 1 and 3 of the B Schedule properties were Darkas lands granted exclusively in favour of defendant 1 and therefore they were the absolute properties of defendant 1. Mr. Bhat has further contended that the Court below has misdirected itself in holding that the registered Will executed by late Raju Shetty was not genuine one or that its due execution was not proved. He contends, in this regard that all the attesting witnesses having passed away and the Will having been executed as back as in the year 1968 whereafter, the testator lived until the year 1980, there was absolutely no scope for holding that the Will was a created and got up document or that the execution was shrouded with suspicion.

10. The Counsel for the respondent has strongly supported the findings arrived at by the Court below. Justifying the conclusion arrived at by the Court below, the learned Counsel appearing for the respondents, has placed reliance on the decision of the Apex Court in the case of Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, : [1981]129ITR440(SC) , wherein the application of Section 6 of the Hindu Succession Act and notional partition to be effected has been dealt with. Drawing support from the aforementioned rulings, the learned Counsel contended that the allotment of shares made by effecting to notional partition is in accordance with law and there is no error whatsoever in the approach adopted by the Court below.

11. Having regard to the respective contentions of the parties and in the wake of the findings recorded by the Court below, the points that arise for our consideration are as follows:

(i) Whether the appellant has established that the parties were governed by Aliya Santana Law and the Court below erred in applying the provisions of Sections 6 and 8 of the Hindu Succession Act?

(ii) Whether the Will set up by the defendant 1 is validly executed and hence the findings of the Court below in this regard were perverse and opposed to the evidence on record?

(iii) Whether the findings arrived at by the Court below, holding that the properties assigned by the Government in favour of defendant 1 for cashew cultivation were the joint family properties and not the absolute or self-acquired properties of defendant 1 were perverse?

(iv) Whether the extent of share allotted by the Court below is erroneous in law and on the facts?

Point No. 1:

12. With regard to the contention urged by the learned Counsel for the appellant stating that the parties are not governed by the Mithakshara Law and that Aliya Santana Law applies to them, a careful perusal of the pleadings clearly show that none of the parties have ever laid any foundation for this contention either in their pleadings or in the evidence. The defendant has not stated in the written statement, taking up any such plea that the family was governed by Aliya Santana Law.

13. In the wake of the contention urged by the appellant with regard to the application of Aliya Santana Law and attacking the findings recorded by the Court below on that ground, we examined the matter in detail to find out, having regard to the pleadings and evidence adduced by the parties, as to whether there was any foundation for attacking the judgment of the Court below on this ground. We heard Sri Rai, learned Counsel for the respondents also on this point. Upon perusal of the entire pleadings, particularly the averments and assertions made by the defendant 1 in his written statement, we find that there is absolutely no stand taken by the defendants to contend that they were not governed by Mithakshara Law and that they were governed by the Aliya Santana Law. It is also not contended by the parties that it was a matriarchal family to which Aliya Santana Law applies and the provisions of Section 6 or for that matter Section 8 of the Hindu Succession Act were inapplicable. On the contrary, a perusal of the evidence of P.W. 1 in the very first paragraph discloses that they were all governed by Mithakshara Law. This assertion made by the plaintiff has remained unchallenged in the cross-examination. Though the appellant has taken several grounds in the grounds of appeal before this Court contending that the parties were governed by Aliya Santana Law, in the absence of any pleading to that effect and in the absence of any challenge in the cross-examination of P.W. 1 who has categorically stated that the parties were Hindus and were governed by Mithakshara Law, it is not open for this Court, at this stage, to allow the appellant to lay a different foundation for his case and to request this Court to examine the entitlement of the parties on that premises. The appellant cannot be permitted to have a recourse to such a process as otherwise it will lead to permitting the party to set up a totally different and new stand and defence after having failed to establish his defence as pleaded before the Court below. Yet another strong circumstance, which compels us to disallow the appellant from contending that Aliya Santana applies to the family is that the main document on which reliance is placed by the defendant namely the registered partition deed of the year 1927 does not show that the properties belonged to and were owned absolutely by Gunavathi Hengasu and that she has assigned them or settled them in favour of her heirs including the plaintiff and the defendants herein. A perusal of this document shows that the properties are partitioned as per their entitlements meaning thereby that Raju Shetty, secured his share in the properties as per the partition deed of the year 1927. If that be so, there is no question of the said properties becoming absolute properties in the hands of Raju Shetty. There is also no question of interpreting this document, as one of settlement and not that of a partition as desired and contended by Sri Bhat. When the document, in unambiguous and unmistakable terms declares that it is a deed of partition and the parties have secured their share as per their entitlement and as consented to by them, it cannot be held that this document is not a deed of partition and the same has to be interpreted in any other manner. The provisions of Section 91 of the Indian Evidence Act, 1872, do not permit such an interpretation of the terms of the document when there is no ambiguity whatsoever in the terms of the said document. Thus, having carefully examined this aspect of the matter, keeping in mind the pleadings and the evidence before us and the findings recorded by the Court below, it is impermissible for the appellant to contend at this stage that the parties are not governed by Mithakshara Law and that they are governed by Aliya Santana Law.

14. Mr. Bhat has contended that in a coparcenary, a common male ancestor from whom the descendant sons and grandsons trace their existence is necessary and that there is no averment whatsoever in this regard in the plaint. It is his contention that in the wake of the pleadings of the plaintiff, there is no question of applying the principle of joint family or coparcenary to the facts of the case and allotment of share cannot be made applying the principles of coparcenary and the coparceners property.

15. Elaborating his contention Mr. Bhat has further contended that the concept of joint Hindu family consists of all persons who are lineal descendants from a common ancestor and includes their wives and unmarried daughters. It is his contention that a Hindu coparcenary which is a much narrower body than the joint family includes only those persons who acquire by birth an interest in the joint or coparcenary property. They are the sons, grandsons and great grandsons of the holder of the joint property that is to say that the three generations next to holder in unbroken male decent. He urged by referring to paragraphs 212, 213 and 214 of the Hindu Law Chapter XII pertaining to coparceners and coparcenary properties written by Mulla that the conception of a joint Hindu family constituting a coparcenary is that of a common male ancestor which has lineal descendants in the male line within four degrees counting from and inclusive of such ancestor and that no coparcenary can commence without a common male ancestor. His contention is that a coparcenary is purely a creature of law and it cannot be created by act of parties. There is absolutely no dispute regarding the proposition that Mr. Bhat seeks to canvass. But what is to be examined is whether in the facts and circumstances of the case can it be said that there was no coparcenary in existence and that the parties were not governed by Mithakshara Hindu Law. The contention now sought to be advanced is without any pleading. Mr. Bhat has also relied upon several decisions relating to the Aliya Santana family and the nature of interest and succession thereto. The decision of the Division Bench of this Court in Channamma Hengsu and Ors. v. Ragava Bontra and Ors., 1973(2) Mys. I,J. 371, is cited to contend that in case where the parties are governed by Aliya Santana Law the family property becomes the subject of ownership of the family and there arises a case of co-ownership and the provisions of Section 6 are inapplicable. Mr. Bhat has further relied on the judgment of the Apex Court in the case of Commissioner of Wealth Tax, Kanpur v. Chander Sen, : [1986]161ITR370(SC) , particularly drawing our attention to the observations made in paragraph 20, Stating that when son inherits the property in the situation contemplated by Section 8, he does so as an individual and not as a Kharta of his own family. This decision of the Apex Court has no application to the facts of the present case because the question here is not with regard to the succession under Section 8 of the Hindu Succession Act. It is not the case of the defendant in his written statement that under the provisions of Section 8 of the Hindu Succession Act, his father has got right over the properties as absolute owner. On the contrary, as per the partition deed, the parties have secured their rightful share in the partition effected in the year 1927 as per their per-existing rights. This document which is the important material on which both the parties have relied, negatives the assertions of Mr. Bhat that the properties that have come to the share of late Raju Shetty in the partition were his absolute property in which the plaintiffs and defendants had equal share. Mr. Bhat has further relied on the decision in the case of Sundara Adapa and Ors. v. Girija and Ors., AIR 1962 Mys. 72, wherein the Full Bench of the High Court of Mysore has held at paragraph 10 while referring to the effect of Section 6 and Section 30(1) of the Hindu Succession Act that both the Sections together confer on a coparcener in a Mithakshara family or his heirs, as the case may be the two-fold rights namely the coparcener's undivided interest as quantified under Section 6 goes by inter-State succession to his heir and the same interest can be disposed of by the. coparceners by means of testamentary disposition, under Section 30(1). There is absolutely no dispute with regard to these propositions. However, in the facts and circumstances of the case and in the wake of the findings recorded with regard to the Will holding that the execution of the Will has not been proved, this question pales into insignificance and therefore the ratio of the aforementioned case will not have any application to the facts of the present case and the controversies sought to be resolved. Mr. Bhat has further relied on the judgment in the case of Sundari and Ors. v. Laxmi and Ors., : [1980]1SCR404 . In the said decision, the parties were governed by Aliya Santana Law prevalent in the district of South Canara and in the facts and circumstances of the given case, the Apex Court has been pleased to hold that after coming into force of the Hindu Succession Act, an undivided interest of an Aliya Santana Hindu would devolve as provided for under Section 7(2). While in the case of separate property it would devolve on his heirs as provided for under Section 17 of the Act and the Aliya Santana Law would not be applicable. In view of our finding to the effect that the parties are not governed by Aliya Santana Law, the decision cited by Mr. Bhat has no application to the facts of the case.

16. Mr. Bhat has further relied upon another decision in the case of M.K. Balakrishna Menon v. The Assistant Controller of Estate Duty-cum-Income-tax Officer, Emakulam, : [1972]83ITR162(SC) , wherein the Apex Court had dealt with the question pertaining to the legal fiction under Section 7(3) of the Hindu Succession Act and its effect. The said decision has no application to the facts of the case and the controversy that is to be resolved in this case. Mr. Bhat has further relied upon a decision of the Apex Court in the case of Basant Singh v. Janki Singh and Ors., : [1967]1SCR1 , wherein, dealing with the effects of the provisions contained under Sections 21, 17 and 18 of the Indian Evidence Act and the admission by party in the plaint signed and verified by him, the Apex Court has ruled that such admissions may be used as evidence against him in other suit. But such admissions cannot however be regarded as conclusive and the party can show it as not true. In the instant case, there is no admission by the plaintiff stating that the parties were governed by Aliya Santana Law. On the other hand, it is his case, as can be seen from the pleadings and the evidence that the parties were governed by the Mithakshara Law. This portion of the version of the plaintiff in his Chief Examination has not been challenged in the cross-examination as we have already adverted to. Therefore, there is no question of applying this ruling to non-suit the plaintiff or to hold that the parties in the instant case are governed by Aliya Santana Law and not by Mithakshara Law.

Point No. 2:

17. As regards the valid execution of Will, the pleadings of the parties, the evidence led in by both the parties and the documents placed before the Court disclose that the Will dated 12-2-1968 was a registered Will. As per the said Will bulk of the properties including garden lands are bequeathed in favour of defendant 1, whereas lands less fertile have been bequeathed in favour of the plaintiff. The plaintiff has attacked the Will and has contended that it was not a genuine one and was obtained and got created by the influential 1st defendant who was a powerful person. It is well-established that the burden is on the profounder of the Will to prove its valid execution. The plaintiff has not examined any other witness excepting himself. It is his stand that, as unfortunately the scribe, the attesting witnesses and the identifying witnesses have all died, no other independent evidence could be adduced by him. Admittedly, the Will was executed in the house of Nemi Raja Shetty at Mangalore and at that time the family members of Nemi Raja Shetty were present. It is also an admitted fact that late Raju Shetty executed the Will before he was admitted to the Hospital and only after he consulted the Doctor Sri Ariga, he executed the Will. The circumstances of the case as pleaded by the defendant himself would disclose that as late Raju Shetty was not keeping well and had to undergo surgery, he had consulted Dr. Ariga in this regard, who had advised him to get admitted and to undergo the surgery. After this advice of the Doctor, Raju Shetty decided to execute the Will. Neither Dr. Ariga is examined nor the sons of Nemi Raja Shetty are examined. Admittedly, these persons were available and their evidence could have been secured. In the absence of attesting witnesses, scribe and the identifying witnesses, the least that the profounder of the Will was required to do was to examine other persons who were either present at the time when the Will was executed or who could speak to the intention of the testator and to the circumstances lending credence or credibility to the assertion of the defendant that the testator had an intention to make a bequest of the nature attributed to him. In the instant case, even the signature of the testator is not proved. The defendant 1 did not even care to request the Court below to send the undisputed signature or proved signature of the testator for comparison with the signature on the Will which was challenged. Although, some documents pertaining to handing over of charge and of acquisition of certain properties pertaining to a trust were produced by the defendant claiming that it contained signature of testator Raju Shetty, no steps were taken by the defendant 1 to prove those signatures as one which belonged to Raju Shetty. One of the documents, among them showed that it was Nabhi Raja Shetty who took charge as a trustee of the Basti. The said Nabhi Raja was alive and he could have been examined to speak to that fact and to testify about the factum of the signature and to identify the signature of late Raju Shetty. The self-serving testimony of defendant 1-D.W. 1 stating that signature found in the Will belonged to his father and that he had accompanied his father at that time being an interested version uncorroborated by any independent evidence cannot be given any weight.

18. Further, the version of D.W.1-the beneficiary under the Will stating that when he along with his father reached Nabhi Raja's house, he was told by his father that he should go back to the village as his two sisters were alone there and come back to Mangalore on the next day and therefore he went to the village came back on the next day, by which time, the Will was already executed and all of them were waiting for him to arrive so that he could be taken to Sub-Registrar's office for registering the Will, as otherwise, without his signature in the Sub-Registrar's office for the purpose of collecting original document, the document would not have been given to him, does not inspire any confidence. On the other hand, it smacks of artificiality and concoction for the purpose of making it appear that he did not take active role or participation in the execution of the Will. In fact, the defendant on his own showing, has taken part in the execution of the Will by his father. The Court below has rightly disbelieved the version of D.W. 1 that he was not present when the Will was executed, but was present only when it was registered. The Court below has held that in view of the stand taken by the defendant pertaining to the execution of the Will, the alleged absence of the plaintiff from the village, the admission of defendant 1 that he did not disclose the factum of execution of the Will to the plaintiff though he was available; his further admission that though the plaintiff was missing for sometime he did not think it fit to inform either his father or his sisters about the said fact nor did he make any attempt to find or trace him and further having regard to the conduct of the defendant in getting his name entered in the revenue record behind the back of the plaintiff showing him as missing even with regard to those properties which allegedly fell to the share of the plaintiff under the alleged Will, the version put forward by defendant 1 was unacceptable and unbelievable having regard to the facts of the case and the one put forward by the plaintiff was probable and acceptable. Upon consideration of the entire materials and upon reappreciation of the evidence on record, both oral and documentary, in the light of the findings recorded by the Court below, we are of the considered view that the findings recorded by the Court below are neither perverse nor illegal or erroneous. Therefore, they do not call for interference insofar as the plea set up regarding the execution of the Will is concerned. Hence, we answer Point No. 2 holding that the genuineness of the Will and its valid execution is not proved.

Point No. 3:

19. Coming to the question regarding the alleged self-acquisition of properties comprised in R.S. Nos. 75/1A, 2C, 1B2 and 6/1A as claimed by defendant 1, the contention taken in paragraph 4of the written statement is that they were the lands obtained by him on assignment from the Government and therefore late Raju Shetty had no right over the same and consequently, the plaintiff was not entitled for any share in those properties. The evidence of D.W. 1 insofar as these two items of properties, which are mentioned as suit Items 7 and 22 are concerned is that they are not part of the document Ex.P. 1 namely the1927 partition deed under which the father of the plaintiff and defendants was allotted share. It is his case that these two items of properties were acquired by him under the assignment by the Government for the purpose of raising cashew trees and Ex. D. 2 is produced by him in this regard. The saguvali chit Ex. D. 2 produced by the defendant which is in the nature of the certificate of grant is in the name of defendant 1 and it shows that the purpose of grant is for cashew cultivation. The grant itself is made in the year 1976. Though D.W. 1 asserts in his evidence that he owns some paddy field in his own name and he had independent income out of which he could acquire and improve the lands which were assigned to him by the Government, this version is not supported by any other oral or documentary evidence. At one stage, he contends that he purchased some lands from one Nemi Raja Shetty and sold the same after 5 or 6 years for valuable consideration. He does not produce any details of the said transaction. To evidence that he owned paddy fields before the grant was made in the year 1976 and that he had some income from out of the same, no material is placed. His assertion and plea in this regard taken up at para 4 of the written statement has remained a mere plea without any evidence or proof. The Court below has examined the issue relating to the alleged self-acquisition of these two lands by defendant 1 in paragraph 14 of the judgment and has assigned cogent and acceptable reasons disbelieving his version holding that though the grant made was for cashew cultivation, the assignment did cost heavy amount in 1976 and planting of cashew plants, as common knowledge could show required substantial expenditure. Therefore, in the absence of any proof that the said amount for paying the charges of the grant/assignment and for improvement were spent out of self earnings from defendant 1, the only inescapable conclusion would be that the same was done by utilising the income from the lands owned by the family. As such the Court below has rightly proceeded to hold that the lands assigned formed part of the joint family acquisitions and not the self-acquired property of defendant 1. We are in full agreement with the reasons assigned by the Court below in this connection and therefore we answer Point No. 2 accordingly.

20. As regards the properties in respect of which occupancy rights are granted in favour of Raju Shetty, the Court below has held that they are the self-acquired properties of Raju Shetty. This part of the judgment is not challenged nor is it a subject-matter of any debate or dispute, therefore, we hold that the other issues decided by the Court below pertaining to the nature of the properties do not require any consideration in this appeal.

Point No. 4:

21. The question that requires to be now answered is as to what is the extent of share to which each of the parties are entitled. As already dealt with by us, the provisions of Section 6 of the Hindu Succession Act are applicable to this case. Sri Raju Shetty having died in the year 1980 leaving behind two sons and two daughters, to work out the shares, we have to resort to notional partition which the Court below has done and accordingly, the Court below has held that each of the sons were entitled in the notional partition along with the deceased father Raju Shetty for 1/3rd share in respect of the properties which were allotted to the share of Raju Shetty as per the partition deed Ex. D. 1 and the remaining properties being the self-acquired properties of late Raju Shetty the plaintiff and the defendants were entitled to share equally.

22. The Court below decreed the suit of the plaintiff holding that he is entitled to 5/12th share in the properties acquired by late Raju Shetty tinder partition deed Ex. D. 1. All the remaining items of the properties are held to be the self-acquired properties of late Raju Shetty wherein the plaintiff and the defendants are held entitled to 1/4th share each. One more aspect, which is required to be mentioned at this stage is that at the time of argument, Mr. Bhat contended that one of the daughter's namely Nagarathnamma who is arrayed as defendant 2 has remained unmarried and as per the provisions of the Karnataka Amendment inserting Section 6 to the Hindu Succession Act, she has to be considered as a coparcener entitled for equal share in the notional partition from out of the properties that fell to the share of late Raju Shetty in the partition of the year.1927. This Court adjourned the matter to facilitate the appellant to adduce material with regard to the said aspect of the matter as the pleadings already on record did not throw any light directly on the said aspect. The learned Counsel for the appellant also submitted that as the Amendment came into force after the proceedings were terminated in the Trial Court there was no occasion to produce evidence on this aspect. There can be no dispute regarding the position of law that after the insertion of Section 6 in the Hindu Succession Act by the Karnataka (Amendment) Act No. 23 of 1994, an unmarried daughter will get the status of a coparcener entitling her for equal rights with the son. However, no material was produced in this regard. We cannot, at this stage, in the absence of relevant material consider this contention of the appellant and allot a distinct share to defendant 2. We cannot proceed on that premises, in the absence of any admitted and undisputed material in this regard. However, we consider it just and appropriate to reserve liberty to the appellant to produce such evidence as is permissible in law, at the time of final decree proceedings to show that defendant 2 was unmarried as on the date the amendment to the Hindu Succession Act came into force and that she was therefore entitled to claim a distinct and separate share as a coparcener in the family. If that is established, it shall be open to the Executing Court to recalculate the share and make necessary adjustments in the allotment of shares to the respective parties. For the foregoing reasons, we hold that there is absolutely no substance in this appeal and the same deserved to the dismissed. Hence, the following:

ORDER

The appeal is dismissed, subject to the observations made and the liberty reserved to the appellants-defendants as stated above.

Parties to bear respective costs.


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