Karnataka High Court
Sri Annappa Laxman Kakatkar vs Sri Yuvaraj Laxman Kakatkar on 2 February, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.770 OF 2006 (PAR)
BETWEEN
1. SRI. ANNAPPA LAXMAN KAKATKAR
AGE: MAJOR, OCC: AGRICULTURE,
R/O HINDALGA,
TALUKA AND DIST: BELGAUM
2. SMT. SNEHALATHA @ NARMADA
PANDURANG BHATKANDE
AGE: MAJOR,
OCC: HOUSEHOLD WORK
R/O. C/O. PANDURANG BHATKANDE,
BOMBAY ENGINEERING WORK,
KEERKI, PUNE.
3. SMT. NANDUTAI RAVAJI KHEMANE
AGE: MAJOR, OCC: STUDENT,
R/O. HINDALGA,
TALUK AND DIST: BELGAUM.
4. SRI. GAJANAN ANNAPPA KAKATKAR
AGE: 25 YEARS, OCC: STUDENT,
R/O. HINDALGA,
TALUKA AND BELGAUM.
5. SRI SHARAD ANNAPPA KAKATKAR
AGE: MAJOR, OCC: STUDENT
R/O. HINDALGA,
TALUK AND DIST: BELGAUM.
6. SMT. SHEVANTA
W/O. BHARAMA KANGRALKAR,
2
AGE: 55 YEARS,
OCC: HOUSEHOLD WORK,
R/O. SHIVAJI GALLI,
KANGRALI KHURD,
TQ AND DIST: BELGAUM.
7. SRI. PARASHARAM
S/O. BHARAMA KANGARALKAR,
AGE: 30 YEARS,
OCC: AGRICULTURE,
R/O. SHIVAJI GALLI,
KANGRALI KHURD,
TQ AND DIST: BELGAUM.
8. SRI. KALLAPPA
S/O. BHARAMA KANGRALKAR,
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O. SHIVAJI GALLI, KANGRALI KHURD,
TQ AND DIST: BELGAUM.
9. SRI. PARASHARAM YALLAPPA PATIL,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. SAMBAJI GALLI,
NEAR KALMESHWAR TEMPLE,
KANGRALI KHURD, BELGAUM
10. SRI. GUNDU YALLAPPA PATIL,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. SAMBAJI GALLI,
NEAR KALMESHWAR TEMPLE,
KANGRALI KHURD, BELGAUM
11. SRI. KRISHNA YALLAPPA PATIL,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. SAMBAJI GALLI,
NEAR KALMESHWAR TEMPLE,
KANGRALI KHURD, BELGAUM
12. SRI. BASAVANT NINGAPPA PATIL,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. KANGRALI K.H.,
TALUKA AND DIST: BELGAUM
3
13. SMT. MALLAVVA NAGOJI PATIL,
AGE: MAJOR, OCC: HOUSEWIFE,
R/O. KANGRALI K.H.,
TALUKA AND DIST: BELGAUM
14. SRI. LAXMANA NAGOJI PATIL,
AGE: MAJOR,
OCC: AGRICULTURE,
R/O. KANGRALI K.H.,
TALUKA AND DIST: BELGAUM
15. SRI. KEDARI NAGOJI PATIL,
AGE: MAJOR,
OCC: AGRICULTURE,
R/O. KANGRALI K.H.,
TALUKA AND DIST: BELGAUM
16. KUM. RESHMA NAGOJI PATIL,
AGE: MAJOR,
OCC: AGRICULTURE,
R/O. KANGRALI K.H.,
TALUKA AND DIST: BELGAUM
17. SRI. RAMA JOTIBA PATIL,
AGE: MAJOR,
OCC: AGRICULTURE,
R/O. KANGRALI K.H.,
TALUKA AND DIST: BELGAUM
...APPELLANTS
(BY SRI. G. BALAKRISHNA SHASHTRY, SRI R. M. KULKARNI,
SRI. CHETAN MUNNOLLI AND MISS. SURABHI KULKARNI,
ADVOCATES FOR APPELLANTS 1 TO 4;
SRI. ABHISHEK PATIL, SRI. AKSHAY KATTI AND
SRI. ANAND ASHTEKAR, ADVOCATES FOR APPELLANTS 6 TO 17)
AND
1. SRI. YUVARAJ LAXMAN KAKATKAR
AGE: MAJOR, AGRICULTURE,
R/O: HINDALGA,
TALUKA AND DIST: BELGAUM,
4
2. SMT. UJWALA
W/O UTTAM KAKATKAR
AGE: MAJOR,
OCC: HOUSEHOLD WORK,
R/O HINDALGA,
TALUKA AND DIST: BELGAUM,
3. SRI. UDAY UTTAM KAKATKAR
AGE: MAJOR,
OCC: AGRICULTURE
R/O. HINDALGA,
TALUKA AND DIST: BELGAUM.
4. SRI. UKRANTI UTTAM KAKATKAR
AGE: MAJOR,
OCC: AGRICULTURE,
R/O HINDALGA,
TALUKA AND DIST: BELGAUM,
5. SRI. ULHAS UTTAM KAKATKAR
AGE: MAJOR,
OCC: AGRICULTURE,
R/O HINDALGA,
TALUKA AND DIST:BELGAUM,
6D. SMT. RENUKA
W/O. KALLAYYA SONALKAR,
AGE: 34 YEARS,
OCC: HOUSEHOLD WORK,
R/O. BHRAMHLING GALLI,
BHAHADHARWADI,
TALUKA AND DIST: BELGAUM
6E. SMT. MANGAL
W/O. VIJAY DOLEKAR,
AGE: MAJOR,
OCC: HOUSEHOLD WORK,
R/O. KHADARWADI,
POST: PIRANWADI,
TQ AND DIST: BELGAUM.
7. SMT. SUGANDHA
W/O DHANAPAL KAKATKAR
5
AGE: MAJOR,
OCC: HOUSEHOLD WORK,
R/O. HINDALGA,
TALUKA AND DIST: BELGAUM.
8. SMT. SAVITA DHANAPAL KAKATKAR
AGE: MAJOR,
OCC: HOUSEHOLD WORK,
R/O HINDALGA,
TALUKA AND DIST: BELGAUM.
9. SMT VAISHALI DHANAPAL KAKATKAR
AGE: MAJOR,
OCC: HOUSEHOLD WORK,
R/O HINDALGA,
TALUKA AND DIST: BELGAUM.
10. KIRAN DHANAPAL KAKATKAR
AGE: MAJOR,
OCC: HOUSEHOLD WORK,
R/O: HINDALGA,
TALUKA AND DIST: BELGAUM.
...RESPONDENTS
(BY SRI. VENKATESH M KHARVI, ADV., FOR R1 TO R5
AND R7 TO R10)
THIS RSA IS FILED U/S 100 OF CPC praying to set aside the
JUDGMENT AND DECREE DATED 23.12.2005 IN R.A.NO.23/1999
PASSED BY THE FILE OF THE I-ADDITIONAL DISTRICT JUDGE,
BELGAUM, CONFIRMING THE JUDGMENT AND DECREE DATED
16.12.1998 IN O.S.NO.265/1985 PASSED BY THE THE II-
ADDITIONAL CIVIL JUDGE (SR.DN.) BELGAUM AND THE SAID SUIT
BE DISMISSED AND THIS APPEAL BE ALLOWED WITH COSTS
THROUGHOUT.
THIS RSA COMING ON FOR DICTATING JUDGMENT, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
6
JUDGMENT
This captioned regular second appeal is filed by the
unsuccessful defendants 2, 4 and 5, who are the children
of defendant No.1-Laxman, whereas defendants 15 and
16, are the children of defendant No.2 are are
prosecuting this appeal as legatees based on a Will
executed by defendant No.1-Laxman. The present appeal
is also filed by appellants 6 to 17, who are claiming to be
the purchasers of suit item No.10 to 14 properties. It is
also relevant to note here that pending consideration of
this appeal, appellants 6 to 14 have got themselves
transposed as appellants and are contesting along with
other defendants.
2. The facts leading to the case are as under;
Deceased respondent No.1 i.e. Yuvaraj, the father
of defendants 12 to 14 and the husband of defendant
No.11 namely Dhanapal filed a suit for partition and
separate possession in O.S.No.265/1985. The plaintiffs
specifically contended that suit item No.1 to 5 properties
are the ancestral properties. They further pleaded and
contended that suit item No.6 to 9 properties were
purchased out of joint family funds in the name of
defendant No.2 as he was managing the family affairs.
Plaintiffs further specifically contended that defendant
No.1 has alienated suit item No.10 to 14 properties
without there being any legal necessity and therefore, the
plaintiffs filed the present suit. On receipt of summons,
the present appellants 1 to 5 contested the proceedings
and stoutly denied the entire averments made in the
plaint. Defendants 1 and 2 specifically contended that suit
item No.6 to 9 properties are self-acquired properties of
defendant No.2. It was also specifically contended that
suit item No.10 to 14 are the self-acquired properties of
defendant No.1 and therefore, the defendants contended
that the suit properties are not available for partition.
Pending suit, defendant No.1-Laxman, who is ancestor of
plaintiffs and defendants 1 to 5, died on 17.05.1988.
However, the children of defendant No.2 namely Gajanan
and Sharad who were arrayed as defendants 15 and 16
and the widow of Laxman namely Janabai produced Will
and claimed that Laxman, during his lifetime, bequeathed
his share in respect of suit item No.1 to 5 and also VPC
No.308, which is not the subject matter of the partition
suit. The purchasers, who were arrayed as defendants 6
to 10 also contested the proceedings by filing written
statement. The purchasers i.e. defendants 6 to 10
specifically contended that defendant No.1-Laxman has
sold suit item No.10 to 14 for legal necessity. There was
specific averment made in the written statement that suit
item No.10 to 14 are self-acquired properties of Laxman
and Devappa and therefore, both have sold suit item
No.10 to 14 properties, who had half share and therefore
it was contended that the sale deeds executed by Laxman
and Devappa would not bind the plaintiffs and defendants
1 to 5.
3. The Trial Court based on the rival contentions,
framed following issues:
1. Whether the plaintiffs prove that the suit
properties are the joint family properties?
2. Whether they further prove that they
have got 1/5th share in the suit
properties?
3. Do the plaintiffs prove that they have
signed on the blank stamp paper and
gave it to Jayawant Vaiju Naik as alleged
in para 5 of the plaint?
4. Do the defendants 1 and 2 prove that the
suit para 1A properties, at Sl.Nos.10 to
14, are the self acquired properties of
Devappa Masanu Kakatkar, or defendant
No.1 as alleged in para No.7 of the
written statement of defendant No.1?
5. Do defendants 1 and 2 prove that the suit
R.S.Nos.123/1+2/2, R.S.No.123/1+2/1
and R.S.No.190 and Plot No.103 and
R.S.No.195 of Hindalaga village are the
self acquired properties of the defendant
No.2?
6. Do they further prove that R.S.No.1/1
measuring 1½ guntas and vehicle bearing
No.MYT.2231 are the self acquired
properties of the defendant No.2?
7. Do defendants 1 and 2 prove that the
land R.S.No.206/5 measuring 1 Acre 1
Acre 14 guntas were given to the share of
the defendant No.2?
8. Do the defendants 6 to 10 prove that they
are bonafide purchasers for the value?
9. Is the Court fee paid proper?
10. What decree or order?
Additional issues:
1. Whether the defendants 15 and 16
prove that during the lifetime of
defendant No.1 he executed a registered
Will deed in favour of them, defendant
No.1A and 2, bequeathing the
immovable properties as alleged in para
3 the written statement filed by them?
2. Whether the defendant No.3A to 3D are
entitled for the share, if so, to what
extent?
4. The Trial Court having appreciated the oral
and documentary evidence answered Issue No.1 partly in
affirmative and recorded a finding that only suit item
No.1 to 5 and 10 to 14 are joint family ancestral
properties. Insofar as suit item No.6 to 9 properties are
concerned, the Trial Court recorded a finding that these
are self-acquired properties of defendant No.2 and
therefore, they are not available for partition.
5. While considering the claim of defendants 15,
16 and 1A, the Trial Court answered additional Issue No.1
in the negative and has recorded a finding that the
legatees have failed to remove the suspicious
circumstances and therefore, have failed to prove due
execution of registered Will in their favour and therefore,
the Trial Court has not excluded the share of Laxman
having negatived the Will. The Trial Court has also
negatived the contention of the purchasers and therefore
has come to the conclusion that the sale deed executed
by Laxman in favour of defendants 6 to 8 was not for
legal necessity. However, since there was no contest by
the purchasers, no issue is framed in regard to legal
necessity. On these set of reasons, the Trial Court
proceeded to decree the suit by granting 8/35th share to
the plaintiffs.
6. Feeling aggrieved by the judgment and decree
of the Trial Court, present appellants preferred an appeal
before the First Appellate Court. The First Appellate Court
has concurred with the findings of the Trial Court.
7. Being aggrieved by the concurrent judgments
of the Courts below, the appellants-defendants 1 to 5
who are asserting right on the basis of Will executed by
Laxman and defendants 6 to 17, who are asserting and
claiming right and title over the suit item No.10 to 14
properties are before this Court. This Court on
28.02.2007 was pleased to admit the appeal and
formulated following substantial questions of law:
1. Whether the courts below were justified in
denying a share to the wife of the deceased
first defendant while carving out the share
to which the parties were entitled? -
Negative.
2. Whether the courts below were justified in
holding that Exhibit D1-Will was not proved
in as much as, the said finding ignores the
admissions made by PW2?-Affirmative.
8. Today during the course of argument, this
Court formulated one more substantial question of law
No.3 to be considered by this Court in the case on hand,
which reads as follows:
3. Whether the Courts below were justified in
not declaring the sale deed valid to the
extent of defendant No.1's legitimate share
in the suit schedule properties i.e., suit
Item Nos.10 to 14?-Negative.
9. Learned counsel appearing for the legatees
would vehemently argue and contend before this Court
that the clinching evidence on record would clearly
establish that the legatees i.e., defendants 15 and 16
have succeeded in removing suspicious circumstances by
examining PW2 and there is a due compliance of
requirement of proof of Will. Questioning the reasoning of
the Courts below learned counsel appearing for the
appellants would place reliance on the judgment rendered
by the Apex Court in the case of Ganesan (D) Through
Lrs. Vs. Kalanjiam and others1 and submit to this
Court that the law does not require the presence of
attesting witness when the Will is being prepared.
10. To buttress his argument he would take this
Court to the head note of the said judgment and contend
that if testator has read out the contents of the Will to
the attesting witness and if attesting witness having
understood the contents of document has signed it, that
would meet the statutory requirement as contemplated
under Section 63 of the Indian Evidence Act read with
Section 68 of the Indian succession Act, 1925. On these
set of grounds, he would submit to this Court that the
concurrent finding of the Courts below recorded on
additional Issue No.1 suffers from perversity and
therefore, warrants interference at the hands of this
Court.
AIR 2019 Supreme Court 5682
11. Learned counsel Sri Anand Ashtekar arguing in
the same vein would submit to this Court that both the
Courts erred in holding that suit Item No.10 to 14 are
joint family ancestral properties. He would also submit to
this Court that the clinching evidence on record would
clearly establish that the ancestor of plaintiffs and
defendants 1 to 5 namely Laxman (defendant No.1) has
sold suit schedule properties for legal necessity and it
was for the benefit of the family. Therefore the sale made
by ancestor Laxman in respect of suit Item No.10 to 14
properties would bind the plaintiffs and therefore these
properties would not be available for partition.
12. In the alternate, Sri Anand Ashtekar would
strenuously argue and contend before this Court that if
this Court comes to conclusion that concurrent findings
that suit Item No.10 to 14 are ancestral properties would
not warrant interference at the hands of this Court then
in that event the substantial question of law framed by
this Court has to be answered in the affirmative as the
due execution of sale deeds are not in dispute. Therefore
in absence of evidence indicating that they were self
acquired properties and the sale was for legal necessity,
at-least the Courts below ought to have proceeded to
declare the sale deed valid to the extent of vendor's
share i.e., the share of defendant No.1. On these set of
grounds, the counsel appearing for appellants 6 to 17-
purchasers would submit to this Court that the
substantial question of law framed by this Court needs to
be answered in the negative.
13. Per contra, learned counsel appearing for
respondents-plaintiffs supporting the findings and
conclusions arrived at by the Courts below would submit
to this Court that the substantial question of law
formulated by this Court ought to be answered in the
negative. Taking this Court to the relevant cross-
examination of PW2, he would submit to this Court that
the due execution of Will is not at all established by the
legatees and the evidence of PW2 would negate the
contentions canvassed by the legatees before this Court.
He would submit to this Court that there is concurrent
finding on Will. Both the Courts have held legatees have
failed to prove due execution of Will and have also failed
to remove the suspicious circumstances surrounding the
Will.
14. Heard learned counsel appearing for the
appellants and learned counsel appearing for the
respondents-plaintiffs. Insofar as suit Item No.6 to 9
properties are concerned, both the Courts have held that
the said properties are self acquired properties of
defendant No.2 and the said finding is not at all
challenged by respondents-plaintiffs. Therefore the
subject matter of the present second appeal is only suit
Item No.1 to 5 and 10 to 14 properties. Insofar as suit
Item No.1 to 5 properties are concerned, both the Courts
have concurrently held that the suit schedule properties
are joint family ancestral properties and therefore this
concurrent finding on fact would not warrant any
interference under Section 100 of CPC.
15. The contention of the legatees before this
Court is that they have adduced cogent and clinching
evidence and the due execution is proved. However, both
the Courts below have held that the due execution of Will
is not proved. The legatees have placed reliance on
judgments rendered by the Apex Court in Ganesan case
(supra). However on perusal of the principles laid down
by the Apex Court, this Court is of the view that the said
principles are not at all applicable to the present case on
hand.
16. The relevant cross-examination of DW2 would
clinch the issue insofar as due execution of Will is
concerned. It would be useful for this Court to cull out the
portion of cross-examination of DW2, which reads as
follows:
"The document was written on
31.12.1987. I do not know the day of the
document. I was proceeding from Nehru
Nagar to Shahapur, to attend the building
work, of one Mr.Patil. I was proceeding at
about 11 to 11.30 p.m. I did not see as to
who were sitting in the office of the scribe,
Tarihalkar. Tarihalkar and defendant No.1
called me. I have not seen who else were
present at that time. I did not notice whether
defendant No.2 was present at that time.
When I was called, the entire document was
written. My signature was obtained on the
said document. I did not enquire about the
nature of the document. I did not enquire
about the contents of the same and I have
not read it. I signed the document at about 1
p.m. I do not know as to when deceased
defendant No.1 has signed on the said
document. I did not notice about the
certificate mentioned in the said document by
the Doctor. I did not visit the Sub-Register's
office. After signing the document, I left the
place. I did not enquire whether the document
came to be registered or not."
17. If this part of the evidence of DW2 is taken
into consideration, then principles laid down by the Apex
Court in the judgment cited supra are not at all applicable
to the present case on hand. That was a case where Will
which was already prepared and infact read over to the
attesting witness by the testator and it is after
understanding the contents of Will, attesting witness
signed it. Therefore, it was in this background, the Apex
Court was of the view that there is due compliance of
Section 63 of the Indian Evidence Act coupled with
Section 68 of Indian Succession Act. But in the present
case on hand, the evidence does not indicate that DW2
has signed as an attesting witness. If the culled out
portion of cross-examination is examined, this Court
would find that DW2 is not at all aware as to what are the
contents of the Will vide Ex.D1. He has also stated in
unequivocal terms that he has not enquired about the
nature of the document and he has neither read the
contents nor contents were read over either by testator
or scribe or any other person who were present on that
day. Therefore, the evidence of attesting witness i.e.,
DW.2 does not satisfy the ingredients of Section 63(c) of
the Indian Succession Act, 1925 which mandates that one
of the attesting witness who is examined as to depose
that the testator in his presence instructed and prepared
the Will and after satisfaction and having understood the
contents of the Will and signed the Will in presence of the
attesting witnesses and each of the attesting witnesses
signed the Will in the presence of testator. From the
provisions of Section 63(c) of Indian Succession Act,
1925 and definition of attestation in Section 3 of the
Transfer of Property Act and Section 68 of Indian
Evidence Act, the execution of a document will have to be
proved by calling at least one of the attesting witnesses
and attestation itself has to be proved in the form in
which Section 63(c) of India Succession Act, requires.
The evidence of DW.2 in the present case on hand clearly
falls short of proving due execution as required under
clause (c) of Section 63 of the Indian Succession Act,
1925. There is no positive evidence indicating that the
Will was executed voluntarily and freely and the testator
knew and approved the contents of Will. Both the Courts
have found that the profounder has failed to remove
reasonable doubts surrounding the execution of the Will.
Therefore, both the Courts having taken note of these
significant details have come to conclusion that legatees
have failed to prove due execution of Will. Therefore, the
substantial question of law No.2 has to be answered in
affirmative.
18. The appellants have taken a specific
contention that the widow of Laxman namely Janabai has
bequeathed her share in the suit schedule properties and
the said fact was brought to the notice of the First
Appellate Court by producing the same. It is not in
dispute that the parties are governed under the Bombay
School of Law. Under the Bombay School of law, in the
event there is a partition, a wife/widow as the case may
be, would take a share on par with husband and children.
Therefore, in the present case on hand, Janabai who is
widow of Laxman is also entitled for equal share along
with her husband and children. The appellants have set
up a Will. At this stage under Section 100 of CPC, the
said controversy cannot be adjudicated. However, the
controversy as to whether Janabai has bequeathed her
share in the suit schedule properties can be worked out in
final decree proceedings. Therefore, the judgment cited
by the learned counsel appearing for the appellants in the
case of S.Sai Reddy Vs. S.Narayan Reddy and
others2 and in case of Ganduri Koteshwaramma and
another Vs. Chakiri Yanadi and another3 are squarely
applicable to the present case on hand.
19. It is a trite law that where parties are litigating
in a partition suit and if there is death of any one of the
family members and if a Will is set up, then the same has
to be adjudicated in the very same proceedings rather
than filing independent suit. It is not feasible to relegate
a party to file an independent suit because the claim of
legatees under the Will would have direct bearing on the
quantification. If legatees succeed in establishing the due
execution of Will, then the share that would be carved out
inrespect of testator's share, would be succeeded by the
legatees. If Will is not proved, then there will be
invariably enlargement of shares. So all these disputed
questions which are intertwined have a bearing on
quantification of share and have to be worked out in final
(1991) 3 SCC 647
(2011) 9 SCC 788
decree proceedings, if a preliminary decree is already
drawn.
20. Therefore, the substantial question of law
formulated at point No.3 has to be answered in negative.
Consequently the substantial question of law formulated
at point No.1 has also to be answered in the negative. It
is not in dispute that the parties are governed by Bombay
School of law. The judgment cited by learned counsel
appearing for the appellants in the case of Chamu
Jinnappa Sheri and others Vs. Savitri Yeshwantrao
Chagule and others4 and in the case of Gurupad
Khandappa Magdum Vs. Hirabai Khandappa
Magdum and others5 are squarely applicable to the
present case on hand. Even if there is a death of Janabai,
her share has to be carved out and there will not be a
merger of her share, unless the alleged Will executed by
ILR 2004 KAR 4738
5(
1978) 3 SCC 383
Janabai is examined and adjudicated in appropriate
proceedings.
21. In that view of the matter this Court is of the
view that substantial question of law framed at point No.1
has to be answered in the negative.
22. Now both the Courts have declined to grant
any relief to the purchasers. Though there is no contest
by the purchasers, however, that would not take away
the right of the purchasers. In the present case on hand
the due execution of sale deed is not in dispute. What is
under dispute is that suit Item No.10 to 14 properties are
also joint family ancestral properties and therefore,
defendant No.1 had no authority to sell the entire extent
of the land. Since appellants 16 to 17 have not stepped
into the witness box, the question of legal necessity also
cannot be gone into. But does not preclude appellants 6
to 17 in proceedings, this Court to at-least hold the sale
deed valid to the extent of share of defendant No.1-
Laxman.
23. I find some force in the submission made by
the learned counsel appearing for the appellants 6 to 17.
Therefore, the substantial question of law No.3
formulated by this Court also has to be answered in
affirmative thereby holding that the sale deed is valid to
the extent of share of defendant No.1 and appellants 6 to
17 are entitled to work out their equitable remedies in the
final decree proceedings.
24. Since the second appeal is arising out of
partition suit and the Hon'ble Apex Court in the case of
Vineeta Sharma Vs. Rakesh Sharma6 has held that
the benefit of amended provisions of Section 6 of the
Hindu Succession Act are applicable retrospectively, the
quantification done by both the Courts below by adopting
ILR 2020 KAR 4370
notional partition is contrary to the dictum laid down by
the Apex Court in the judgment cited supra.
25. Laxman and Janabai are blessed with six
children i.e., four sons and two daughters. In that view of
the matter defendant No.1, widow Janabai and their
children together will take 1/8th share in the suit schedule
properties. In that view of the matter sale deed executed
by Laxman in suit Item No.10 to 14 properties is valid to
the extent of share of defendant No1.
26. With these observations, the appeal is
allowed in part.
Sd/-
JUDGE
YAN/EM
