Manjula Chellur, J.
1. Heard the learned Counsels on either side.
2. The appellants in R.F.A. No. 347 of 1998 are none other than the plaintiffs and the appellants in R.F.A. No. 922 of 2001 are the defendants before the Trial Court in O.S. No. 9 of 1976. The plaintiffs sought for 1/10th share in all properties described in the schedule to the plaint as 'A' to 'H'. The learned Trial Judge, decreed the suit declaring that second plaintiff is entitled for l/10th share in the plaint 'A' to 'E' schedule property and she is entitled for partition and separate possession of that share in the said property. So far as property 'H schedule is concerned it was declared as the exclusive property of Smt. K.C. Saroja. 'F' and 'G' schedule properties are concerned, the Trial Judge held them also against the plaintiffs.
3. The brief facts that led to the filing of the suit by the plaintiffs are is under:
Plaintiff 1-Smt. Hanumakka is the second wife of late Patel Hanume Gowda and second plaintiff is the daughter of late Patel Hanume Gowda. First defendant Mr. Narasimhaiah and defendants 2 and 3, Smt. Muddamma and Lakshmamma are the daughters of late Hanume Gowda though his first wife. Smt. K.C. Saroja is the wife of Muddukrishna S/o. Mr. Narasimhaiah. Defendant 5(c) is the wife of Narasimhaiah and other defendants 5(a), 5(b) and 5(g) are the children of late Narasimhaiah.
4. It is the case of the plaintiffs that late Mr. Patel Hanume Gowda was owning several moveable and immovable properties which are none other than joint family properties, morefully described in the schedule. As on the date of his death i.e., 6-2-1965 he left behind 2 plaintiffs and 3 defendants as his legal representatives. Except first defendant Mr. Narasimhaiah, Patel Hanume Gowda did not have other male issues. He had two daughters through his first wife and one daughter through the second wife. The second wife and her daughter are the plaintiffs. After the death of Mr. Patel Hanume Gowda, the first defendant Narasimhaiah became the Kartha of the joint family.
5. The first plaintiff all along was living with her husband and after his demise she was residing with first defendant the only male member of the family. Her stepson sent her away from his house during her old age. Therefore, she was forced to live with her daughter who is the second plaintiff. They demanded their legitimate share in the joint family properties, but the 1st defendant did not effect any partition. On the other hand, when late Patel Hanume Gowda was unconscious suffering from disability on account of paralysis, by playing fraud and undue influence on him got a Will dated 16-6-1962 executed favouring Mr. Narasimhaiah and his son. In the year May 1962 when he was supervising the work of a tank at Srinivasapura he sustained paralytic stroke. He was brought home with the help of Kadirappa one of his servants. Dr. Narasimha Murthy from Doddaballapur attended on him. Mr. Patel Hanume Gowda was unable to move out of his bed till his last breath on 6-2-1965. In that situation the first defendant's son who had dominant control over deceased Patel Hanume Gowda secured the said Will detrimental to the interest of the plaintiffs.
6. The income from the joint family properties was made use by the son of the family and started 'Parijatha' a business in film production and distribution for the benefit of 4th defendant. The plaintiffs have a share in the said property as well. The first plaintiff died on 7-7-1978 and entire obsequies and last rights was done by second plaintiff, as the first defendant refused to do any of the ceremonies. Item 8 of the property described as 'H' schedule was purchased in the name of wife of Muddukrishna out of the joint family funds. Therefore, plaintiffs have a ''hare in the said properties also. With these averments, they have sought for partition and separate possession of the properties, to render accounts, to pay funeral expenses of Rs. 2,326.35 and to declare the Will dated 16-6-1962 and codicil dated 18-7-1962 as null and void.
7. The first defendant filed the written statement denying the case of the plaintiffs about the joint family properties though relationship between the parties is admitted. According to him, he was never the kartha of the joint family after the death of his father. At no point of time, he ill-treated the first plaintiff. At the instance of ill-motivated persons, who are inimically disposed of towards the first defendant, the plaintiffs have filed this suit though they are well-aware of the fact that late Patel Hanumegowda bequeathed the entire property in favour of the first defendant tinder a registered Will dated 16-6-1962. The contention of the plaintiffs that late Patel Hanumegowda was not in a disposition state of mind at the time of the Will is also incorrect. The firm M/s. Parijatha is the exclusive business of the persons running it and none of the funds are derived from the income of joint family properties as alleged. The suit is bad for misjoinder of cause of action and parties.
8. He filed additional written statement contending items 1 to 3 in 'A' Schedule, 1 and 2 in the 'B' Schedule, 1 and 2 in the 'C' Schedule and 1 to 5 in 'D' Schedule are not at all the joint family properties. The fiat car was also acquired out of the exclusive funds of defendant 4(a) and the car stands in the name of fourth defendant. Item No. 'H' of plaint schedule is the exclusive property of the wife and it has nothing to do with the joint family. Irrelevant and unconnected properties are included only with a view to harass the defendants.
9. The defendants 2, 3, 4 and 4(a) by separate written statement denies the existence of joint family and the joint family properties. According to them the Will dated 16-6-1962 is an outcome of free volition of late Patel Hanumegowda. On 12-3-1959 the defendant 4(a), first defendant, one Jayasimha and Maruthi got divided the moveable properties during the lifetime of Hanumegowda under a registered deed. The 'B' Schedule property has come to the share of defendant 4(a) in the said partition. The plaintiffs are not at all entitled for any of the properties.
10. The 5th defendant filed a separate statement who is the purchaser of the portion of 'E' Schedule property. According to him, he purchased southern portion of plaint 'E' Schedule property in new No. 138/153 (Katha No. 746) situate at first ward, Gandhinagar, I Block, Doddaballapur from defendants 1, 4(a), (b) and (c) under a registered sale deed dated 21-5-1980. The vendors were also parties to the said suit. If plaintiffs have equal share in the said property, the 5th defendant is ready to pay Rs. 24,000/- towards the approximate value of plaintiffs share. He further admits that said property is a joint family property.
11. On the basis of the above pleadings, issues were framed on several dates as mentioned below:
Issues framed on 9-3-1977:
1. Whether the plaintiff proves that the suit properties are joint family properties?
2. Whether the 4th defendant firm was established with the aid of joint family funds and whether its assets constitute joint family properties?
Whether the 4th defendant firm was established by the separate funds of defendants 4(a) to 4(g)?
3. Whether Patel Hanumegowda has duly executed the Will dated 16-6-1962 when he was in a sound disposing state of mind?
Whether the said Will has been secured by 1st defendant by exercising undue influence at a time when Hanumegowda was laid up and when he was not in his senses?
4. Whether the suit is barred by limitation?
5. Whether the suit as brought is not maintainable?
6. Whether plaintiffs are entitled to any share? If so, to what share and in which items?
.7. What order?
Issues framed on 13-11-1989:
1. Whether the plaintiff prove that the suit properties are joint family properties and are in joint possession and enjoyment of the same as contended?
2. Whether the defendants proves that the Will executed by Patel Hanumegowda dated 16-6-1962 is proper, genuine and is binding on the plaintiff?
3. Whether the defendant prove that the suit of the plaintiff is barred by limitation?
4. Whether the defendants prove that the suit is bad for non-joinder of necessary parties?
5. Whether the defendants prove that the suit is not maintainable, as contended?
6. Whether the plaintiff proves the cause of action for the suit?
7. Whether the plaintiff are entitled for the relief sought for?
8. What order or decree?
Additional issues framed on 23-7-1990:
1. Whether the plaintiff prove that the Will dated 18-7-1962 is a got up and fabricated document and is not binding on the plain tiff as contended?
2. Whether the defendant prove that the execution of the Will dated 18-7-1962 by Patel Hanumegowda as contended?
Additional issues framed on 3-2-1995 in furtherance of amendment carried as per LA. No. 69:
1. Whether the plaintiff proves that Schedule 'H' properties of plaint was purchased by defendant Muddukrishna in the name of his wife Saroja out of income of joint family properties?
Additional issues framed on 1-1-1997 in furtherance of Additional written statement of defendant 2(e), dated 29-5-1996:
1 Whether defendant 2(e) proves that plea made in para 13(b) of plaint is hit by provisions of Benami Transactions (Prohibition) Act, 1988?
2. Whether defendant 2(e) proves that provisions of Section 14 of Hindu Succession Act is a bar to maintain plea against Schedule 'H' of plaint?
12. R.F.A. No. 347 of 1998 is filed by the plaintiffs questioning the judgment and decree of the Trial Court in holding 'H' Schedule property as the self-acquired property of Smt. K.C. Saroja, W/o Sri Muddukrishna. In this appeal, the quantum of share of the second plaintiff as one-tenth is also questioned. In the said judgment, so far as 'F' Schedule property is concerned, the learned Judge held that under Ex. D. 1 dated 12-3-1959, the said property was already given to first defendant and the sons of first defendant. Coming to 'G' schedule property, it was held that there was no evidence on behalf of the plaintiffs to show that firm M/s. Parijatha was established with the aid and assistance of the joint family funds or the nucleus. On the other hand, it was held Mr. Muddukrishna, D.W. 1 acquired these properties with the assistance of the income from powerlooms which were established with the help of one Sri K.C.N. Gowda. These findings are all questioned in the above appeal.
13. The Appeal No. 922 of 2001 is filed by the defendants questioning the judgment and decree in allotting 1/10th share in plaint schedules 'A' to 'E'. According to the defendants, the Trial Court went wrong in holding that the coparcener cannot bequeath his undivided share in the coparcenary property under a Will. It is further argued by the defendants Counsel that the plaintiffs utterly failed to establish that the Will came into existence by playing fraud, coercion and undue influence on late Patel Hanumegowda. It was also argued before the Court that even the pleadings in this regard were not in accordance with the procedure. Therefore, the plaintiffs should not be allowed to raise such plea at this stage.
14. The two appeals arise out of the same judgment and decree. The points that arise for our consideration are as under:
(1) Whether the plaint schedule properties 'A' to 'E' are joint family properties of family of late Patel Hanume Gowda?
(2) Whether 'F', 'G' and 'H' schedule properties were acquired by investing funds from the joint family property or not?
(3) Whether the Will propounded by the defendants has come into existence under the circumstances pleaded by the plaintiffs to brand the said Will as not valid;
(4) And finally, even if the Will is held as executed by late Patel Hanume Gowda, whether he could have bequeathed his undivided share in the coparcenary property under the alleged Will Ex. D. 2 dated 16-6-1962?
15. On behalf of the plaintiffs, plaintiffs 1 and 2 are examined as P.Ws. 1 and 5 respectively. The other witnesses are P.Ws. 2, 3, 4 and 6. P.W. 1 is the second wife of late Patel Hanume Gowda. Of course, she was married to him after the death of the first wife. P.W. 5 is the daughter of P.W. 1. P.W. 2-Shankarappa is their relative. P.W. 3 is one of the servants who was working for late Patel Hanumegowda for quite a long time. P.W. 4-Kenchaiah is an acquaintance of the family. P.W, 6 one Mr. Venkatanarasimhaiah, son-in-law of P.W. 1 was examined to speak about the family of late Patel Hanume Gowda and also the properties owned by him. P.W. 2 mainly speaks about the Will Ex. P. 1 executed by Smt. Hanumakka-plaintiff 1 in favour of children of her daughter, the second plaintiff. P.Ws. 3 and 4 are examined to speak mainly about the paralytic stroke suffered by late Patel Hanume Gowda and the suspicious circumstances surrounding the Will which is marked as Ex. D. 2. Of course P.Ws. 1 and 5 have orally stated all the properties mentioned in the plaint schedule are the joint family properties. It is also their case that some of the properties are in the name of other members of the family and they are only name lenders but the benefit from the said properties is meant for the members of the joint family. On behalf of the defendant/appellants, the main witness is D.W. 1, Sri Muddukrishna. D.W. 2 is one Sri Narayana who is examined mainly to speak about the execution of Will Ex. D. 2 by late Patel Hanume Gowda. D.W. 3 is one Mr. Ganesh Rao Kotkar. He was examined mainly to show the assessments of Mr. Muddukrishna and the details pertaining to Parijatha Movies, house property at High Grounds, in the name of Smt. Saroja, wife of Sri Muddukrishna. In this regard, the learned Counsels have relied upon the following citations mentioned below.-
16. The learned Counsel for the defendants before the Trial Court Sri H.R. Ananthakrishna Murthy relies on the following decisions:
.1. Smt. Surasaibalinl Debi v Phanindra Mohan Majumdar : 1SCR861 ;
2. Jaydayal Poddar (deceased) through L.Rs and Anr. v. Mst. Bibi Hazra and Ors. : 2SCR90 ;
3. Andalarnmal v Rajeswari Vedachalam (deceased) by L.R. and Ors : AIR1985Mad321
4. Section 281-A of the Income-tax Act, 1961.
17. The gist of the above citations is whenever a question of benami transaction is raised, the Court has to normally see defence of pari delicto, but for some cases it may not apply. It has to be established that benami transaction was motivated by design to achieve unlawful purpose like to circumvent or defeat the provisions of Income-tax Act etc. If the plaintiffs ask the assistance of the Court to effectuate an unlawful transaction, the Court would refuse to assist such party. In order to know whether particular sale is a benami or not, is largely one of fact and for determination of this question, no absolute formula or acid tests, uniformally applicable in all situation, can be laid down, yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by the following circumstances:
(1) The source from which the purchase money came;
(2) The nature and possession of the property after purchase;
(3) Motive, if any, for giving the transaction is a benami colour,
(4) The position of the parties and the relationship, if any, between the claimant and the alleged benamidar;
(5) The custody of the title deeds after the sale; and
(6) The conduct of the parties' concerned dealing with the property after the sale.
18. The above indicia are not exhaustive and the efficacy varies according to the facts of each case. It is well-settled that the burden is on the person who sets the case of benami. If benamidar and the real owner were to be related as husband and wife or concubine or paramour, the payment of consideration by the husband or paramour, as the case may be would not be decisive factor, it is most likely that the paramour or the husband intend to benefit the wife or concubine. As per Section 281-A(1) and (3) of the Income-tax Act, 1961, which reads as under:
281-A. Effect of failure to furnish information in respect of properties held benami.---(1) No suit to enforce any right in respect of any property held benami whether against the person in whose name the property is held or against any other person, shall be instituted in any Court by or on behalf of a person (hereafter in this section referred to as the 'claimant') claiming to be the real owner of such property unless.-
(a) the income, if any, from such property has been disclosed in any return of income furnished by the claimant under this Act; or
(b) such property has been disclosed in any return of net wealth furnished by the claimant under the Wealth Tax Act, 1957 (27 of 1957); or
(c) notice in the prescribed form and containing the prescribed particulars in respect of the property has been given by the claimant to the Income-tax Officer.
(3) This section shall not apply to any suit of a value not exceeding two thousand rupees which is tried by.--
(b) a Court invested with jurisdiction of a Court of Small Causes, by or under any enactment for the time being in force, in the exercise of such jurisdiction.
19. As against this the learned Counsel for the appellant Sri G.L. Vishwanath, relies on the following decisions:
Bibi Siddique Fatima v. Saiyed Mohammad Mahmood Hasan. : 3SCR886 ;
In this case, the S.C. while referring to earlier decision of Jaydayat Poddar's case said all the aspects of benami law including the question of burden of proof cannot justifiably be applied fully to a particular case. In the said case the Muthawalli by transgressing the limits of his power and showing undue favour to one of beneficiaries in disregard to a large number of beneficiaries could not be and should not be permitted to gain advantage by purchasing the property with the amount belonging to wakfs. When once there is evidence, from which source the money came for the purchase of the property, a presumption would arise that it was a benami transaction irrespective of the fact in whose name the property was acquired. Ultimately one has to see whether the sale standing in the name of one person is in reality for the benefit of the other.
20. The learned Counsel for the plaintiffs relies on:
1. Appalaswami v. Suryanarayanamurti. and Ors.AIR 1947 PC 189;
2, Baikuntha Nath Pararnanik (dead) by his L.Rs and heirs v. Sashi Bhusan Pararnanik (dead) by his L.Rs and Ors. : AIR1972SC2531 .
The gist of the above cases is to the effect that in a case where property is held by any members of family burden of proof as regards jointness or self-acquisition upon the person who asserts that it is a joint family property. Proof of the existence of a joint family does not lead to the presumption that the property held by members of the family is in joint. In a case where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question might have been acquired, the burden shifts to party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of joint family property. In the absence of fraud or other improper conduct the only account the kartha of a joint family is liable for is as to the existing state of the property divisible, but this does not mean that the parties were bound to accept the statement of kartha as to what the property consisted of and an enquiry should be directed by the Court in a manner usually adopted to discover what in fact the property consisted of at the date of the partition in what manner this principle can be applied depends upon facts and circumstances of each case.
21. The learned Counsel for the defendants/appellants relies on the following decisions:
1. Srinivas Krishnamo Kango v. Narayan Devji Kango and Ors. : 1SCR1 ;
2. K. V. Narayanaswami Iyer v. K.V. Ramakrishna Iyer and Ors. : 7SCR490 ;
3. A. Raghavamma and Anr. v. A. Chenchamma and Anr. : 2SCR933 ; and
4. Unreported decision in Civil Appeal No. 817 of 2002 (SC).
The gist of the above decisions is to the effect that whenever the question of proof of a particular property or joint family property or self-acquisition, definitely there is no presumption that property held by any member of the family just because there is existence of joint family, the burden rest upon any one asserting that a particular item is of joint nature to establish the said fact.
The party who asserts self-acquisition has to establish the same once there is evidence that the family did possess some joint family property which did derive some nucleus. Even in a case of partition of joint family property the burden is on the person who sets up partition. The general principle is that a Hindu family presumed to be a joint unless the contrary is proved, but where it is admitted that one of coparcener is divided from the other members of the joint family and had a share in the joint property partitioned off for him, there is no presumption that the rest of the coparcener continued to be joint.
A member of the joint family can bring about his separation in status by definite and unequivocal declaration of his intention to separate himself from family and enjoy his share in severity.
Where a joint family possessed nucleus sufficient to make in the acquisition then a presumption arises that acquisition standing in the name of persons who were in the management of the family properties are family acquisition properties. So far as immoveable property is concerned in case if it stands in the name of individual member there would be presumption that the same belongs to joint family provided it is proved that the joint family has sufficient nucleus at the time of its acquisition, but no such presumption can be applied to business concerns.
22. According to Sri Muddukrishna, late Patel Hanumegowda owned some of the items of plaint schedules 'A to D'. According to him, about 41 acres of land alone belongs to his grandfather apart from one big house and one small house at Marlenahally and Doddaballapur. But however, he says he was not able to give the details of the Survey Numbers and the extent. In other words, according to him, some of the properties described in 'A to D' schedule belongs to his grandfather. So far as agricultural lands, there was no partition in the family of late Hanumegowda, according to this gentleman, who is none other than the grandson of late Patel Hanume Gowda. He father says during the lifetime of his grandfather, they were all living jointly except one Jayasimha and after the death of their grandfather, they started living separately. The joint family lands were looked after by his father after the death of his grandfather.
23. The plaintiffs have produced several documents pertaining to the landed properties of the family. They are index of land records and also R.E. extracts, Exs. P. 6 to P. 14 pertain to 'A' schedule property that is landed property situate at Marlenahalli. As per these records, all the lands stood in the name of late Patel Hanume Gowda. So far as 'B' Schedule property is concerned, the revenue records are at Exs. P. 15, P. 16 and P. 17. As per these documents, these lands are shown as ancestral property of late Patel Hanume Gowda. The lands are situate at Hanabe Village. Documents at Exs. P. 18 to P. 22 pertain to 'C' schedule property situate at Srinivasapura and all these lands stand in the name of late Patel Hanume Gowda. According to the plaintiffs, late Patel Hanume Gowda was an agriculturist but was also looking after some contract work. This is also spoken to by Sri Muddukrishna, who is examined as D.W. 1. However, he says only when his grandfather was very young, he did contract work and later he did not do such contract work. From the perusal of these documents, it is very clear that some of the lands described at plaint schedules 'A to C', are the ancestral properties of late Patel Hanume Gowda and some of them were acquired by him. However, except oral statement of plaintiffs and the witnesses that late Patel Hanume Gowda was doing contract work as well, no other documents in support of the said contention are before the Court. The avocation of deceased Patel Hanume Gowda being an agriculturist is not at all disputed by either of the parties. When the evidence on record discloses that he had only some ancestral properties, then, one has to presume that the self-acquired landed properties must have been from the income of ancestral properties alone.
24. The documents at Exs. P. 23 to P. 26 pertains to properties of Hanume Gowda, described at 'D' and 'E' Schedules. These are houses, sites and factory building in kaneshmari numbers situate at Marlenahalli and also Doddaballapur. 'D' Schedule pertains to kaneshmari numbers of Marlenahalli and 'E' Schedule pertains to door numbers of Doddaballapur. It is not in serious dispute that these properties were also acquired by late Patel Hanume Gowda with his avocation as an agriculturist. It is out of the income from agricultural lands. Therefore, said properties also are rightly held as properties of joint family acquired from joint family funds.
25. Then coming to 'F' Schedule property, these are the moveable properties i.e., 9 powerlooms, sugarcane crusher, electric; pumpset, cart with tyre wheels, cattle etc. According to the plaintiffs, this is also joint family property acquired during the lifetime of Patel Hanume Gowda. None of the witnesses for the plaintiffs were able to say when exactly these properties was acquired by Patel Hanume Gowda. Even the existence of said properties as on the date of death of Patel Hanume Gowda is not established. On the other hand, it is pleaded on behalf of the defendants that all the moveable properties of the joint family were partitioned as long back as 1959 under registered partition deed Ex. D. 1 dated 12-3-1959. It is the case of the plaintiffs that there is no reference about this in the earlier written statement filed by any of the defendants till Mr. Muddukrishna came into picture in 1989 by filing a written statement disclosing this fact. The fact remains Ex. D. 1 is a registered partition deed executed in the year 1959. According to the plaintiffs also, during this period, there was no illness of any sort so far as Patel Hanume Gowda is concerned. This document discloses moveable properties of Patel Hanume Gowda were partitioned between him, his son Narasimhaiah and grandsons-defendants 4(a) to 4(c). This document was signed by Patel Hanume Gowda at defendants 1(a) to 1(d). It is relevant to mention here that one Mr. Venkatanarasimhaiah-P.W. 6 who is none other than the husband of deceased Nagamma, second plaintiff in this case, came into picture only after the death of Smt. Nagamma as Power of Attorney Holder of children of Smt. Nagamma and himself. P.W. 5 Nagamma, second plaintiff does not speak about this document as such. On the other hand, during the cross-examination, she specifically says in 1959 her father was having good health and the signature shown at Ex. D. 1 on first two sheets belonged to her father and other two signatures do not belong to her father. The tenor of her evidence would only go to show that inadvertently without knowing the contents of Ex. D. 1, she admitted the signature of her father on this document and by the time the third and fourth sheet of this document were shown to her to recognise or identify the signature, she went back on her previous statement. She was specifically asked by the Court without reading the document, to identify the signature of the father and she identifies the same on the last page of the document where the endorsement of the Sub-Registrar was found. This would only go to show though she was aware of the document of 1959 dividing the moveable properties of the joint family, she was not ready to accept the same before the Court. Merely because this document was not mentioned at the earliest point of time, it need not give room for suspicion for the simple reason that the document was executed and registered in the year 1959 when Patel Hanume Gowda was in good health. The plaintiffs go to the extent of saying she does not know her father executing the registered document in 1959 itself disposing of powerlooms in favour of his grandchildren. She further says because this Will came into existence without her knowledge, she is of the opinion that it was as a result of fraud and undue influence over her father. This statement would only indicate that for the sake of denial, the plaintiffs are coming out with the plea of fraud and undue influence played on Patel Hanume Gowda. Under these circumstances, it has to be held that plaint 'F' Schedule properties are not available for partition as already they were the subject-matter of partition deed dated 12-3-1959 under Ex.'D. 1.
26. Then coming to 'G' Schedule properties, it pertains to a partnership firm called M/s. Parijatha at Gandhinagar. It pertains to film distribution business etc. According to the plaintiffs, this was also funded out of joint family funds. A paper cutting at Ex, P. 4 was produced to show that he was the producer of one of the films. According to the plaintiffs, he was not able to establish how Mr. Muddukrishna got the money. As per the evidence of Mr. Muddukrishna. D.W. 1, it is disclosed from 1954 onwards, he was into the business of powerlooms at Doddaballapur. As a matter of fact, he was an income-tax assessee right from 1957 onwards as per Exs. D. 7 to D. 14. In the year 1957-58 itself, he was owning eight powerlooms. His brother-in-law Sri K.C.N. Gowda assisted him in establishing the powerlooms and further under Ex. D. 1, his grandfather had given him certain powerlooms. P.W. 6-Venkatanarasimhaiah also speaks about this fact, who is none other than the husband of Nagamma.
27. As already stated above, when the plaintiffs come out with a specific case of properties being acquired from joint family funds, the burden is on them to establish the said fact. From the records of the lower Court, it is noticed most of the lands owned by the joint family had water source only from the rains. How much income they were earning from the said lands per annum is not disclosed. They had to further establish, after meeting the expenses of the family, they were left with some money of the joint family for acquiring the said properties. Until such evidence is brought on record, it cannot be said that all the properties mentioned in the plaint were the joint family properties. Further, the defendants have established Mr. Muddukrishna had a wealthy brother-in-law by name K.C.N. Gowda, who had powerlooms at Doddaballapur, Bangalore City, he owned one acre of landed property at Race Course Road, Bangalore apart from a big bungalow by the side of Race Course, Bangalore. He was also having a saree emporium called K.C.N. Saree Emporium. As his sister Saroja was given in marriage to Mr. Muddukrishna, it is neither strange nor peculiar to extend help to brother-in-law in Indian families. Therefore, the Trial Court was right in holding that 'G' Schedule property was not acquired from the funds of joint family.
28. Then coming to 'H' Schedule property, it is a house property acquired in the name of wife of Sri Muddukrishna, Smt. Saroja. She is none other than the sister of Sri K.C.N. Gowda, who was referred to as a great help financially to the family of Sri Muddukrishna. According to the plaintiffs, in the absence of any documents like accounts regarding the loom business of Smt. Saroja, if no assessment returns for the year 1972-73 (year of purchase of property at Ex. P. 28) are produced, the property has to be held as the property acquired from the funds of joint family property. This property was purchased in two portions, one under Ex, P. 28 and another under Ex. P. 30. One sale deed is dated 14-6-1972 and another sale deed dated 25-8-1978. According to 1st plaintiff, after the death of her husband, Mr. Narasimhaiah was managing the properties. At no point of time it is said Mr. Muddukrishna was managing the properties of the family. According to the plaintiffs, as per the evidence of P.W. 6, Smt. Saroja did not have either income or money for purchasing the 'H' Schedule property. He categorically says the money to purchase the property was given by Mr. Muddukrishna by utilising the income of the joint family. When Mr. Narasimhaiah admittedly was managing the properties, question of Mr. Muddukrishna, utilising the funds of joint family would not arise. Therefore, the statement of plaintiffs that Muddukrishna paid the consideration amount out of joint family funds is without any basis. According to the averments in the plaint and the evidence, it was the ancestral property. In the course of cross-examination, she says she does not remember why the property of Smt. Saroja is included in the plaint schedule. None of the plaintiffs witnesses speak about any regular income from the lands. On the other hand one of the witnesses P.W. 4-Kenchaiah submits he was cultivating the land on 'wara' basis. Therefore, we do not get any details about the actual income from the agricultural lands. P.W. 5 says apart from agricultural operations, her father was doing contract work, money lending business and film business. The film business was not even commenced during the lifetime of Patel Hanume Gowda because the documents reveal this firm 'Parijatha' was registered in the year 1969 and Patel Hanume Gowda died much before that i.e., in the year 1965. Therefore, the evidence of Smt. Nagamma that her father was doing film business would only go to show that she was not at all aware what exactly her father was doing or she is uttering a false statement before the Court. P.W. 6 is the only person who actually spoke about the details of the properties of the family. He was not aware personally anything about the document, i.e., the sale deed. According to him, he was not present when Mr. Muddukrishna paid amount to his wife to purchase this property. In the absence of him knowing any details of purchase of this property when P.Ws. 1 and 5 were not able to establish the joint family funds being diverted by Sri Narasimhaiah to purchase the property in the name of his daughter-in-law Saroja, the entire contention of the plaintiffs that 'H' Schedule property was purchased out of the joint family funds of the family falls to ground. On the other hand, there is ample evidence to show Muddukrishna was an income-tax assessee from 1957 onwards and he owned several looms from 1955 onwards. Some looms were also in the name of his wife Saroja. Brother of Saroja was extending financial assistance to Smt. Saroja. There are documents to show she is paying the taxes and katha stands in her name. Exs. D. 44 and D. 45, D. 48 to D. 50 and D. 53 pertains to tax payment. Exs. D. 22 to D. 44 and D. 56 establish she had independent income and she was an assessee, right from 1955, Exs. D. 26 is the return of wealth tax of Smt. Saroja. Sri Narasimahaiah died in the year 1978 and these properties were purchased before his death in the name of Saroja.
29. With this nature of evidence, we have to see whether the burden of proof was shifted from plaintiffs to defendants to establish that the property was purchased out of their personal income. As a matter of fact, the initial burden is on the plaintiffs to establish that adequate nucleus was available for acquisition of such property. This again depends on the nature and the extent of the nucleus. When the details regarding the availability of joint family funds and the nucleus are absent, question of shifting the burden to the defendants does not arise. However, the defendants were able to establish that the property was purchased out of the income of her husband and other personal property of Smt. Saroja.
30. In the present case, the property does not stand in the name of the male member of the joint family. It stands in the name of a female member. There is no presumption that it belongs to joint family when it stands in the name of female member. Therefore, the material placed before the Court would only establish that 'H' Schedule property is not-purchased out of joint family funds.
31. Then coming to the execution of the Will, Ex. D. 2 and its validity by late Patel Hanume Gowda before his death i.e., 16-6-1962, according to plaintiffs, it has come into existence by playing fraud and undue influence. In the plaint, though such averment is said, no such evidence came to be spoken to by any of the witnesses i.e., P.Ws. 1 to 6. The only ground for challenging the said Will is the illness of late Patel Hanume Gowda due to paralytic stroke. A party who pleads fraud, undue influence and coercion must also say how said undue influence etc. is played. According to P.W. 5, as the very Will came into existence without her knowledge, she pleaded that the document is an outcome of fraud and undue influence over her father. Again she says, she knows about one Will being executed by her father which was registered on 16-6-1962. According to her, the second Will which is at Ex. D. 3, dated 18-7-1962 (Codicil) is an unregistered document and she does not admit the same as the Will of late Patel Hanume Gowda. But she admits Ex. D. 2 as the Will of her father. This admission cannot be brushed aside lightly. When the execution of the said Will at Ex. D. 2 is admitted, the plea of fraud, undue influence and coercion would disappear. Even her husband P.W. 6 admits that Patel Hanume Gowda had executed Ex. D. 2, the Will dated 16-6-1962.
32. To consider suspicious grounds under which said Will came into existence, the plaintiffs plea exclusion of them from the said Will. This would definitely obstruct the normal flow of succession to the property. That itself cannot be a suspicious circumstance. According to them, Mr. Hanume Gowda was suffering from paralytic stroke, therefore, he was unable to think and act as a normal prudent person. In other words, he was mentally and physically not in a fit condition at that time. In this connection, the following citations were referred to by the Counsels for the parties.
33. The learned Counsel for the defendant/appellant contends that the very pleadings of the plaintiff are bald with regard to the allegation of so-called suspicious circumstances under which the disputed Will Ex. D. 2 came into existence. He relies upon the following two decisions:
(1) Bishundeo Narain and Anr. v. Seogeni Rai and Ors. : 2SCR548 ;
(2) K.S. Marlyappa and Ors. v. K.T. Siddalinga Setty and Ors. : ILR1989KAR425 (DB)
The gist of the above cases are, though pleas of undue influence and coercion may overlap in part in some cases they are separable categories in law and must be separately pleaded. In cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice, however strong the language in which they are couched and the same applies to undue influence and coercion. Particulars are necessary in pleading to enable the opposite party to meet the case. Bald and general allegations cannot lead to an issue, not being a plea of fraud or collusion. Material particulars such as when, how, who, in what manner and for what purpose, fraud practiced and who colluded with whom, in what manner, with what object, must be averred.
34. The learned Counsel for the plaintiff/appellant relies on H. Venkatachala Iyengar v. B. N. Thimmajamma and Ors. : AIR1959SC443
If a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of a Will propounded, such pleas may have to be prayed by the Caveators; but even without such pleas, circumstances may raise a doubt as to whether the testator was acting on his own free Will in executing the Will and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubt in the matter.
35. The learned Counsel for the plaintiff/appellants contends that in view of the paralysis attack suffered by late Patel Hanume Gowda, the Will has come into existence under suspicious circumstances, therefore it is not out of volition and at the option of the testator, He relies upon the Webster's dictionary to explain what exactly the word 'paralysis' means:
36. According to the Webster's dictionary meaning, nervous affection marked, by impairment or loss of motor sensory function of nerves/state of utter powerlessness (loose, disable). He relies upon the following citations in support of his contentions:
(1) Sushil Kumar Bannerjee v. Apsari Debi and Ors. 1915 Ind.Cas. 276;
(2) Sadachi Ammnal v. Rajathi Ammal and Ors. : AIR1940Mad315 ;
(3) Sayyaparaju Surayya v. Koduri Kondamma : AIR1950Mad239 ;
(4) Rani Purnima Debi and Anr. v. Kumar Khagendra Narayan Deb and Anr. : 3SCR195 ;
(5) Ramchandra Rambux v. Champabai and Ors. : 6SCR814 ;
(6) Gorantla Thataidh v. Thotakura Venkata Subbaiah and Ors. : 3SCR473 ;
(7) Smt. Chinnamma and Ors. v. Devanga Sangha and Ors. AIR 1973 Mys. 338 (DB);
(8) Baliram Atmaram Kelapure v. Smt. Indirabai and Ors. : AIR1996SC2024 ; and
(9) C. Chenga Reddy and Ors. v. State of Andhra Pradesh : 1996CriLJ3461 .
The gist of the above cases is to the effect that mere ability to sign one's name does not necessarily imply the possession of the full mental powers requisite for a valid disposition of a property. Nor is it sufficient to show that the testator was conscious when he executed the instalment. It is the duty of the propounder of a Will to show that the testator had testamentary capacity, i.e., capacity to comprehend the nature and the effect of his act; to discharge the burden of proof, it must be shown that he was able to dispose of his property with understanding and reasoning, that he was able to realise his position, to appreciate his property and to form a judgment with respect to the parties whom he decided to benefit. A Court will not reject a Will merely because its terms appear extraordinary, against clear evidence of due execution by a competent testator. But where the terms are unusual and the evidence of testamentary capacity is doubtful, the vigilance of the Court will be roused before pronouncing for the Will. The Court is required to be satisfied beyond all reasonable doubt that the testator was fully cognizant of its contents and in a condition to exercise and did exercise thought, judgment and reflection respecting the act he was doing.
Though the importance of the registration of a Will during the lifetime of a testator cannot be underestimated, still, in assessing the significance of that fact, there is a well-marked distinction between cases in which subsequent dispute relate to the fact of execution and cases in which question relates to the testamentary capacity of the executant.
Significance of registration and effect of Sub-Registrar's evidence must be appraised with due regard to mental and physical condition of the testator at the time of execution. Mere fact that testator could say that it was his Will and could answer simple question is not enough to show that he had sound disposing state of mind. Therefore, it cannot be said that registration endorsements completely prove that the document was read over to the executant and understood by him.
37. Section 35(1)(a) and (b) of the Registration Act, 1908 refers to the admission required by the section which is an admission of the execution of the document. It is not enough for the person, who is ostensible executant, to admit his signature on a paper on which, it may be, the document is ultimately engrossed. The identity of the papers on which the signature occurs is not sufficient. If a man says that he signed a blank paper on the representation that it was required for presenting a petition, or if a man signs completed document on the representation that his signature or thumb impression requires an attesting witness, that admission of the signature or thumb impression in those circumstances, cannot be construed to be an admission of the execution of the document. Far from its being an admission, it is clear and unambiguous denial of the execution of the document. He must admit in order to attract the provisions of Section 35(1), that he signed the document. The admission of execution must amount to an admission that a person admitting entered into an obligation under the instrument; in other words, that he had executed the document, signed it as a sale deed, mortgage deed or a lease deed as the case may be. It is not unknown that registration may take place without the executant really knowing what he has registered. Mere fact of registration of Will does not dispel all suspicion that may attach to execution and attestation of a Will. If the evidence to registration shows that it was done in a perfunctory manner that the officer did not read over that he was admitting the executing of the Will or did not satisfy himself in some way or the other, the mere fact of registration of the document would not be enough. In all cases where the Will is prepared under circumstances which arouse the suspicion of the Court, that it does not express the mind of the testator, or it was prepared under highly suspicious circumstances, it was for the propounder of the Will to remove the suspicion. Regularity of registration proceedings does not raise a presumption that Registrar must have read it out to the executant.
38. Whenever the validity of the Will is raised, Will being propounded to alter the normal rule of succession, the burden lies upon the person putting up the Will to establish the truth and its validity. If the propounder has taken a prominent part in the execution of the Will which confers substantial benefit to him, that itself is generally treated as a suspicious circumstance attending the execution of the Will. What are suspicious circumstances must be judged in the facts and circumstances of each particular case.
39. An effort to do justice between the parties is a compulsion of judicial conscience. Court should strive to evolve an appropriate remedy, in the facts and circumstance of a given case, so as to further the cause of justice, within the available range, forging new tools for said the purpose, if necessary, to chisel hard edges of law.
40. Following citations are relied upon by the learned Counsel for defendants/appellants:
(1) S.A. Quddus v. S. Veerappa and Ors. : AIR1994Kant20 ;
(2) Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by L.Rs and Ors. : AIR1995SC1684 ;
(3) Ku. Chandan and Ors. v. Longa Bai and Anr. : AIR1998MP1 ;
(4) Madhab Bohora (dead) by L.Rs and Ors. v. Braja Kishore Nanda and Ors. : AIR2003Ori107 ; and
(5) Ramabai Padmakar Patil (dead) by L.Rs and Ors. v. Rukminibai Vishnu Vekhande and Ors. : AIR2003SC3109
The gist of the above cases is to the effect that in a case where testator was found living with his daughter and son-in-law and the testator taking assistance of his son-in-law while executing Will like presence of son-in-law at the time of execution, by itself does not suffice to invalidate the Will. Therefore, if active part is played by a close relation of the executor, it will not per se raise any suspicion but in a case where the circumstances on record point out voluntary character of the document and especially if it is registered Will, Sub-Registrar certifies that Will had been read over to the executor who, on doing so, admitted contents and in such event, even if some suspicion arises, it loses significance.
In a case where the executant is a literate person and was able to sign, puts thumb impression on Will, no endorsement of registrar that he was not in a position to sign and in the absence of convincing evidence, except statement of highly interested person that executant had tremor in his hand, it would constitute important circumstance against the execution of Will by person who puts thumb impression. In a case where the scribe of the Will turned hostile inasmuch as from the very beginning of the proceedings, he avoided to attend the Court and he could be brought before the Court only by arrest and in case if he admits that he was the scribe of the Will and also to have attested the thumb impression of the executant, his evidence is acceptable for holding that the Will was scribed by him and duly attested in accordance with requirements of law. If only one of the attesting witness is examined and no infirmity found in his testimony, non-examination of the person who had typed the Will or the Advocate who was present at the time of preparation or registration of the Will, cannot be a ground to discard the Will.
41. The plaintiffs also rely on the evidence of P.W. 2 one Mallikarjuna, native of Mareenahally. Unfortunately, this gentlemen says he was not personally aware of incapacity of Mr. Patel Hanume Gowda due to paralytic stroke but people were talking about his physical and mental incapacity. He says he was not personally aware of his paralytic stroke and some doctor from Doddaballapur used to treat him. He was not even aware when exactly he fell ill and he never visited him during said illness. According to the plaintiffs, he was bedridden and was unable to talk. For about three years, he was in said condition. However, in the cross-examination, she says her husband was able to talk till his death and she does not know anything about the execution of the Will. P.W. 3 was also examined in this regard. This witness says one Dr. Narasimha Murthy was treating Mr. Patel Hanume Gowda for three years before his death. P.W. 4, one of the farmers from the village who was cultivating the lands of the family says after paralytic stroke, Patel Hanume Gowda was not able to walk, talk or raise his hand or write anything. Unfortunately, in the cross-examination he says, he was not aware of nature of illness of Patel Hanume Gowda. He says with stammering Patel Hanume Gowda was able to talk. He also speaks about the treatment under Dr. Narasimha Murthy. Dr. Narasimhamurthy was alive as on the date of evidence of these witnesses. He was still practicing at Doddaballapur. This paralytic stroke suffered by Patel Hanume Gowda is totally denied by the defendants. The best evidence would have been by the Doctor who treated Patel Hanume Gowda. Why he was not examined is known to plaintiffs alone. If only said Doctor was examined in the absence of some prescription or otherwise given by the said Doctor, one could have placed some reliance on the oral evidence of said Doctor. It is also strange circumstance why Patel Hanume Gowda was not admitted to any major hospital at Bangalore for the said treatment if he was paralysed totally as spoken to by the plaintiffs. A person of great respect in the village owning several properties, financially sound and especially when they lived so close by to a city like Bangalore, it is rather surprising to know why he was never brought to Bangalore for being treated at a hospital with better facilities. He was not even admitted to Doddaballapur Hospital. He was treated at home by Dr. Narasimhamurthy, according to the plaintiffs. In the absence of said doctor being examined, it would rather be a difficult task for the Court to accept paralytic stroke and consequential incapacity of Patel Hanume Gowda. As a matter of fact, the cross-examination of P.Ws. 1 and 5 would indicate that Patel Hanume Gowda was able to talk even during the alleged illness.
42. With this evidence on record on behalf of the plaintiffs, if we look at the evidence let in by the defendants, we have the evidence of Mr. Muddukrishna and also one Mr. Narayan, D.W. 2, an attestor to the said Will at Ex. D. 2. The evidence of Mr. Narayan discloses that one Rasheed Khan was the scribe of the Will and another attestor was one Nanjundaiah. His evidence further discloses Mr. Patel Hanume Gowda after reading the contents of the Will, put his signature to the said Will. Thereafter, the attestors attested the said document in the presence of each other. Even according to the plaintiffs, said Will is executed by late Patel Hanume Gowda. But according to them, he was suffering from paralytic stroke, therefore, he could not have executed said Will out of his free will and volition. Unless and until his mental incapacity is established, one cannot come to conclusion that he could be subjected to undue influence and fraud. Even otherwise, the plaintiffs have raised general allegations of fraud and undue influence which cannot be considered. On the other hand, when the plaintiffs fail to establish the very illness of the deceased Hanume Gowda, it would be difficult to accept the case of the plaintiffs that Hanume Gowda was not in a position to think and act with clear sense and disposition state of mind at the relevant point of time i.e., at the time of Ex. D. 2. The evidence by way of cross-examination, let in by the plaintiffs would suggest that late Hanume Gowda was sitting in the car as he was not in a position to walk upto the Sub-Registrar's Office and Patel Hanume Gowda signed the Will in the car itself. This would only indicate that plaintiffs do accept that said Will is executed by Patel Hanume Gowda near the Sub-Registrar Office while sitting in the car. It is not the case of the plaintiffs that D.W. 2 is inimically disposed of towards plaintiffs. With this kind of evidence on record, it would only go to show that out of free will and volition, Mr. Hanume Gowda when he was in clear disposition state of mind, executed said Will at Ex. D. 2 dated 16-2-1962. The defendants have established the due execution of the Will as required under Section 68 of the Indian Evidence Act, 1872.
43. The main question that has to be now considered is whether Patel Hanume Gowda was entitled to bequeath his undivided share or interest in the coparcenary property. As already stated above, the learned Trial Judge by placing reliance on Raghavamrna's case, held the coparcener was disabled from bequeathing his undivided share in the coparcenary property. Therefore, plaintiffs were entitled to a share in the 'A' to E' Schedule properties of the plaint.
44. The Court is relying on the following decisions:
(1) Rudrawwa v. Balawwa and Anr. 1967(1) Mys. L.J.71 (DB);
(2) Virabhadra Irappa Hubballi and Anr. v. Irabayawwa 1969(2) Mys. L.J. 105;
(3) Madras State Bhoodan Yagna Board, Madurai v. Subramania Athithan and Ors. : AIR1973Mad277 ;
(4) Prabhqvathi Devi and Ors. v. Smt. Kamala Devi and Ors. (1986) 2 All. L.J. 1146;
(5) Krishna Murai Mangal v. Prakash Narain and Ors. AIR 2003 NOC 37; and
(6) Senthilkumar and Anr. v. Dhandapani and Ors. : AIR2004Mad403 .
45. The law relating to the capacity or the right of a Hindu to execute a Will his share of property in the coparcenary property has seen a sea change subsequent to coming into force of Hindu Succession Act of 1956. Section 4(1)(a) and (b) of the Act is of relevance, which reads as under:
4. (1) Save as otherwise expressly provided in this Act.--
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act.
46. By reading Section 4(1)(a) and (b), it is very clear if there is any express provision in the codified law, it is the duty of the Court to look into the said provision. In other words, it alone shall govern the rights of the parties though there is radical alteration or modification from the previous law. If no provision is made in the 'Act', the old law shall be applicable. Therefore, one has to necessarily look into whether any provision in the Act, either specifically or by necessary implication empowers or enables a Hindu to Will away his share in the coparcenary property.
47. After coming into effect of Hindu Succession Act of 1956, it is the duty of the Court to see the circumstances and the law prevailing on the date of the death of the testator in order to put a seal of validity and genuineness to the disputed Will. Section 30 of the Hindu Succession Act, 1956 reads as under:
Section 30. Testamentary succession.-Any Hindu may dispose of by Will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925) or any other law for the time being in force and applicable to Hindus.
Explanation.--The interest of a male Hindu in Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavani shall, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this Sub-sections.
48. By reading the above section, it is dear one has to see the law prevailing on the date of death of the testator. Apparently, the date of execution of the alleged Will and also the death of the testator are subsequent to the coming into force of the new Act. Even if the disputed Will was executed by the testator being a member of undivided Hindu joint family prior to coming into force of the Act, ultimately, the date of death of testator or demise of the testator, is the relevant date for consideration. Prior to coming into force of the Hindu Succession Act, no coparcener could dispose of whole or any portion of his undivided coparcenary interest by Will. Now, by virtue of Section 30 of the Act, read with Explanation, a coparcener derives a right to dispose of his undivided share in Mitakshara joint family property by 'Will' or any testamentary disposition, i.e., by virtue of law. Again, the Court has to see whether a coparcener was divided from the joint family prior to the execution of the Will and other circumstances. In other words, the facts and circumstances of each case would also have bearing on this aspect.
49. Prior to Hindu Succession Act coming into force, a coparcener was not entitled to either gift or Will his interest in the coparcenary property. That ban or embargo is removed so far as Will is concerned. His disability to gift away his undivided interest in the coparcenary property continues to remain the same even after the codification of Hindu Law, Only a small portion of the joint family property can be gifted off by manager of the family for 'pios purpose'.
50. Section 30 makes it clear that a Hindu testator may dispose of any property which is capable of being disposed of by him by Will or other testamentary disposition in accordance with Indian Succession Act of 1925. The Explanation again clarifies that it is only in respect of interest of a male Hindu in Mitakshara joint family property. The disability prevailed till coming into force of Section 30 of the Act is removed so far as Will is concerned.
51. Having regard to the fact that one of the cardinal principles of construction of Will is to the extent that it is legally possible, effect should be given to every disposition contained in the Will unless the law prevents effect being given to it, the Trial Court ought to have taken note of the date of execution of Will and the date of demise of testator and the effect of Section 30 of the Hindu Succession Act of 1956 with regard to the facts and circumstances of the case. By placing reliance on a judgment in A. Raghavamma's case, where the Will was dated back to 1945, before coming into force of Hindu Succession Act, ignoring the codified law, in particular, effect of Section 30 of the Act, pertaining to Hindu Male in respect of his share in Mitakshara joint family property, the learned Trial Judge proceeded to hold that though the execution of the Will was proved and established, it could not be put into effect because no coparcener could Will away his ' undivided share in the coparcenary property, seems to be a wrong conclusion which is against the provision of law.
52. In the present case, the date of Will being 16-2-1962 and the death of the testator being 6-2-1965, under Hindu Succession Act, late Hanume Gowda was entitled to execute a Will bequeathing his undivided share in the coparcenary property. Though the Trial Court has rightly come to conclusion that Will at Ex. D. 2 dated 16-6-1962 was duly executed by late Patel Hanume Gowda, was wrong in invalidating the said Will.
53. Regarding Ex. D. 3 - Codicil of late Patel Hanume Gowda, this is an unregistered document. As a matter of fact, there is no pleading regarding this document. However, the details are spoken to by Mr. Muddukrishna. The scribe of this document is none other than Mr. Narasimhaiah, the beneficiary under Ex. D. 2 i.e., the only son of late Patel Hanume Gowda. Unfortunately, Mr. Muddukrishna did not speak anything about this document. This document is not established in accordance with the Indian Evidence Act by the defendants. The Trial Court was right in rejecting the said document at Ex. D. 3.
54. So far as other issues regarding limitation, maintainability of the suit, cause of action etc., are concerned, both the parties did not challenge the opinion of the Trial Court. Therefore, they are not taken up for discussion and opinion.
55. Accordingly, in view of the above discussion and reasoning, we are of the opinion R.F.A. No. 347 of 1998 deserves to be dismissed and R.F.A. No. 922 of 2001 is allowed. In other words, the plaintiffs and the present appellants in R.F.A. No. 347 of 1998 are not entitled for any partition and separate possession of any of the plaint schedule properties. The suit in O.S. No. 9 of 1976 stands dismissed. Under the circumstances, parties are directed to bear their own costs.