Smt Rajeevi Shedthi vs Sri Narayana Rai
2023 Latest Caselaw 1353 Kant

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     IN THE HIGH COURT OF KARNATAKA, BENGALURU

       DATED THIS THE 16TH DAY OF FEBRUARY, 2023

                           BEFORE

       THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                 R.F.A.NO. 823 OF 2006 (PAR)

BETWEEN

SMT. RAJEEVI SHEDTHI
W/O VISHWANATHA RAI
AGED 75 EYARS
R/O GUNDALA HOUSE
BADAGA BOLLURU POST AND VILLAGE
BANTWAL TALUK, D.K.
                                               ...APPELLANT
(BY SRI. A.KESHAVA BHAT, ADVOCATE)

AND

1.      SRI. NARAYANA RAI
        S/O LATE GANGU HENGSU
        AGED 78 YEARS
        TALAKALA PADA HOUSE
        KOLAME POST, MANGALORE TALUK.

        SINCE DEAD BY HIS LR.'S

1(a)    SMT. SARVANI RAI
        W/O LATE NARAYANA RAI
        AGE: MAJOR.

1(b)    SMT. NIRYUPA SHETTY
        D/O LATE NARAYANA RAI
        AGE: MAJOR.

1(c)    MS. SRINIDHI
        D/O LATE. NARAYANA RAI
        AGE: MAJOR.
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1(d)   SRI. NITYANANDA RAI
       S/O LATE. NARAYAN RAI
       AGE: MAJOR.

       RESPONDENTS 1(a) to (d) are
       RESIDENT OF KOLAMBE VILLAGE
       KOLAMBE POST
       VIA BAJPE, MANGALORE TALUK
       D.K. DISTRICT

2.     SMT. MEENAKSHI SHETTI
       W/O RAGHU SHETTY
       AGED ABOUT 79 YEARS
       R/AT: BANDARA HOUSE
       BADAGA BOLLURU POST AND VILLAGE
       BANTWAL TALUK
       D.K. DISTRICT.

       (SINCE DEAD, APPELLANT AND R-3 & R-4 ARE
       TREATED AS HER LR'S, AS PER ORDER
       DATED: 10.01.2013 ON MEMO)

3.     SMT. KUMDUDAKSHI SHETTI
       W/O BABU SHETTI
       AGED ABOUT 73 YEARS
       R/AT: AGARI HOUSE
       KALENCHURE VILLAGE
       KUPPE PADAVU POST
       MANGALORE TALUK.

4.     SMT. REVATHI SHETTY
       W/O SRI. SUNDARA SHETTY
       AGED ABOUT 73 YEARS
       PUNIKEDADI HOUSE
       KUTHETHOOR VILLAGE
       BAJAV POST, MANGALORE TALUK
                                            ...RESPONDENTS

(BY SRI.K.RAMABHAT, ADV. FOR R1(A & D), ADVOCATE
R1(B) 1(E), R2 TO R4 ARE SD & UNREPRESENTED)

       THIS APPEAL IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC       AGAINST THE JUDGEMENT AND DECREE
DT.19.01.2006 PASSED IN O.S.NO.98/1998 ON THE FILE OF THE II
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ADDL.CIVIL JUDGE (SR.DN.) MANGALORE, DISMISSING THE SUIT
FOR PARTITION AND SEPARATE POSSESSION.

         THIS APPEAL IS BEING HEARD AND RESERVED ON
22.08.2022 COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                           JUDGMENT

This appeal by the unsuccessful plaintiff in

O.S.No.98/1998 on the file of the II Addl.Senior Civil Judge,

Mangalore, is directed against the impugned judgment and

decree dated 19.01.2006 whereby the appellant - plaintiff's

suit for partition and separate possession of her alleged 1/5th

share in the suit schedule property was dismissed by the trial

court.

2. For the sake of convenience, parties are referred to

by their respective ranks in the trial court i.e., appellant as

plaintiff and respondents as defendants.

3. Heard learned counsel for the appellant and learned

counsel for the respondent and perused the material on

record.

4. Brief facts giving rise to the present appeal are as

follows:-

The plaintiff is the sister of the 1st defendant and

defendants 2 to 5 are their sisters. One Smt.Gangu Hengsu

was the mother of plaintiff and defendants and the parties are

governed by 'Madras Aliasanthana Law of Inheritence'. It is

contended that the plaintiff, the defendants and their mother

are decedents of one Devappa Shetty and at a oral partition

between the family members of Devappa Shetty, plaintiff, the

defendants and their mother Gangu Hengsu started cultivating

the suit schedule property which fell to their share, the tenancy

being joint family tenancy. It is contended that both Gangu

Hengsu and her son Narayan Rai, defendant No.1 herein filed

applications for grant of occupancy rights in Form No.7 before

the Land Tribunal under the Karnataka Land Reforms Act,

pursuant to which, joint occupancy rights in relation to the suit

schedule property was granted jointly in favour of Gangu

Hengsu and 1st defendant vide order of the Land Tribunal

dated 17.09.1981.

4.1 It is further contended that though the occupancy

rights was granted jointly in favour of Gangu Hengsu and

Narayan Rai - defendant No.1, the same was a grant in favour

of the entire joint family including the plaintiff and defendants 2

to 4, all of whom became entitled to 1/6th share each in the

suit schedule property which was a joint family property.

Plaintiff also contended that upon the demise of Gangu

Hengsu on 18.08.1993, her 1/6th undivided share in the suit

schedule property devolved upon the plaintiff and defendants

1 to 4 herein who became entitled to 1/5th share each in the

suit schedule properties and plaintiff and defendants are in

joint possession and enjoyment of the suit schedule

properties.

4.2 It is further contended that despite the plaintiff's

repeated request to the 1st defendant to effect partition of the

suit schedule properties and put her in separate possession of

her 1/6th share, the 1st defendant did not comply with the said

request and as such, the plaintiff instituted the aforesaid suit

against the defendants.

4.3 The 1st defendant entered appearance and

contested the suit by filing his written statements, while the

defendant No.4 having entered appearance did not file her

written statement. The defendants 2 and 3 remained ex-parte

and did not contest the suit.

4.4 Pursuant to the pleadings of the parties, the trial

court framed the following issues:-

(1) Whether the plaintiff proves that the plaint schedule property originally belongs to late Devappa Shetty, the common ancestor of Aliasanthana family of Gangu Hengsu?

(2) Whether the plaintiff proves that the plaint schedule properties were in possession and enjoyment of late Gangu Hengsu?

(3) Whether the plaintiff proves that plaint schedule properties are family properties and herself and defendants have 1/5th rights in the plaint schedule properties?

(4) Whether the plaintiff proves that herself and the defendants are in joint and constructive possession of the plaint schedule property?

(5) Whether the 1st defendant proves that late Gangu Hengsu has executed her last registered will and testament dated 28.07.1993?

(6) Whether the plaintiff is entitled for the relief as prayed for?

4.5 Plaintiff examined herself as PW-1 and one witness

as PW-2 and Exs.P1 to P10 were marked on her behalf. The

1st defendant examined himself as DW-1 and three witnesses

as DW-2 to DW-4 and Exs.D1 to D5 were marked on his

behalf. After hearing the parties, the trial court proceeded to

answer issues 1 to 4 in the 'negative' against the plaintiff,

thereby holding that the suit schedule properties were not the

joint family properties, in which she had 1/5th share and that

she was not in joint possession and enjoyment of the suit

schedule properties. The trial court also answered issue No.5

in favour of the 1st defendant, thereby holding that he had

proved the alleged will dated 28.07.1993 said to have been

executed in his favour by Gangu Hengsu. Accordingly, the trial

court proceeded to dismiss the suit by passing impugned

judgment and decree which is assailed in the present appeal.

5. The following points arise for consideration in the

present appeal:-

(1) Whether the appellant-plaintiff proves that the suit

schedule property was joint family property of plaintiff and

defendants?

(2) Whether the trial court was justified in holding that

the 1st defendant had proved the alleged Will dated

26.07.1993 said to have been executed by Gangu Hengsu in

his favour?

(3) Whether the impugned judgment and decree passed

by the trail court warrants interference in the present appeal?

Re-Point No.1:-

6. A perusal of the impugned judgment and decree will

indicate that the trial court has come to the conclusion that the

plaintiff had not established that the suit schedule property

was the joint family property of the plaintiff and the defendants

along with their mother Gangu Hengsu. While arriving at the

said conclusion, the trial court also held that the pleadings and

evidence disclosed that the suit schedule property did not

originally belonged to the common ancestor Devappa Shetty.

In this context, it is relevant to state that a perusal of the

averments made in the plaint, written statement, evidence of

PW-1 (plaintiff) and PW-2 as well as the evidence of

defendant No.1 (DW-1) was sufficient to indicate that both the

plaintiff and defendant No.1 had admitted and contended in

unequivocal terms that the suit schedule property originally

belonged to Devappa Shetty, the common ancestor and

subsequently, the family of Gangu Hengsu including the

plaintiff and defendants were cultivating the suit schedule

property as tenants.

6.1 The pleadings and evidence on record also

establishes that since Gangu Hengsu and her children i.e., the

plaintiff and defendants herein inherited the suit schedule

property and were cultivating the same as tenants till Gangu

Hengsu and 1st defendant filed applications for grant of

occupancy rights before the Land Tribunal on behalf of the

joint family comprising of Gangu Hengsu and her children.

Ex.P1 is the copy of the order passed by the Land Tribunal

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dated 17.09.1981, which clearly establishes that the grant of

occupancy rights jointly in favour of Gangu Hengsu and

defendant No.1 was not towards their individual rights but for

and on behalf of the joint family comprising of Gangu Hengsu

and her children i.e., the plaintiff and defendants. So also, the

said order of the Land Tribunal at Ex.P1 also refers to the

statements and admissions made by 1st defendant to the

effect that the suit schedule property was originally taken on

lease by Devappa Shetty and had come to Gangu Hengsu

and her children from his family.

6.2 It is an undisputed fact that the order of the land

tribunal had attained finality and become conclusive and

binding upon Gangu Hengsu and defendant No.1 and the

contents of the said order clearly establishes that the grant of

occupancy rights, albeit in the joint names of Gangu Hengsu

and 1st defendant was for the benefit of the entire joint family

of the plaintiff and defendants and their mother Gangu

Hengsu.

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6.3 Upon re-appreciation, re-evaluation and

reconsideration of the entire material on record, I am of the

considered opinion that the trial court has misread and

misconstrued the pleadings and evidence of the parties, which

clearly established that the suit schedule property was the

joint family property of Smt.Gangu Hengsu and her children

i.e., the plaintiff and defendants herein and that all of them had

1/6th undivided share in the suit schedule property during the

life time of Smt. Gangu Hengsu.

6.4 Under these circumstances, the findings recorded

by the trial court on issues 1 to 4 deserve to be set aside by

holding that the suit schedule property was the joint family

property of the plaintiff and defendants 1 to 4 and Smt.Gangu

Hengsu during her life time and all of them were in joint

possession and enjoyment of the suit schedule property.

Point No.1 is accordingly answered in favour of the

plaintiff by holding that the suit schedule property is the joint

family property of the plaintiff and defendants.

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Re-Point No.2:-

7. While dealing with Point No.1, I have already come

to the conclusion that the suit schedule property was the joint

family property of the plaintiff, defendants and her mother

Smt.Gangu Hengsu and all of them had undivided 1/6th share

each during the lifetime of Smt.Gangu Hengsu.

7.1 The next question that arises for consideration is,

whether the defendant No.1 had proved the Registered Will

dated 28.07.1993 alleged to have been executed by Gangu

Hengsu in his favour.

7.2 In this regard, the trial court framed issue No.5 and

answered the same in favour of the 1st defendant. While

arriving at the said conclusion, the trial court took into account

the pleadings and evidence of the parties, in particular, the

Registered Will dated 28.07.1993 marked as Ex.D3 and held

as under:-

ISSUE No.5

18. The burden is upon the 1st defendant to prove issueno.5 as the defendant contended that Gangu Hengsu has executed her last registered will and testament dated: 26.07.1993 in the written statement.

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D.W.1 also deposed in his evidence that his mother late Gangu Hengsu died in the year 1993 and executed her last will and testament when she was in sound state of mind on 28.07.1993 and according to the terms of the will her share in the plaint schedule property has been bequeathed in his favour and he has been cultivating the plaint schedule properties as the absolute owner thereof. D.W.1 has also produced the death certificate of Gangu Hengsu marked as Ex.D.1 and will is marked as Ex.D.3. The said documents are marked as Ex.D.3. The said documents are marked without any objections by the plaintiff. The defendants has clearly stated that his mother has executed the will and his mother died in the year 1993 and the defendant also contended in his written statement that Gangu Hengsu has died in the Year 1993 and the defendant also contended in his written statement that Gangu Hengsu has died in the year 1993. On perusal of the evidence of P.W.1 she has denied the execution of the Will Ex.D.3 by Gangu Hengsu . P.W.1 also deposed in her evidence that Gangu Hengsu died intestate in the Year 1993. D.W.1 also stated that his mother Gangu Hengsu died at Kolambe Village in the Pade House and he has also denied the suggestion that before the execution of the will his mother was died and Ex.D.3 is concocted by him.

19. The advocate for the plaintiff has argued that Ex.D.3 is not proved by the defendant and the will shall

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be attested by 2 or 3 witnesses each of whom has seen the testator sign or affix his mark to the will or has been some other persons sign the will in the presence and by the direction of the testator or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than on witness be present at the same time, and no particular form of attestation shall be necessary and Ex.D.3 is hit by section 63(c) of the Indian Succession Act and whenever a will is executed it should be signed and executed by the testator in the presence of at least 2 attesting witnesses and the evidence of the D.W.2 shows that he prepared the will and the will was signed by the Gangu Hengsu in his office and in the present of 2 attesting witnesses and Gangu Hengusu also brought 2 witnesses and put the LTM in their presence and according to D.W.2 Gangu Rai signed the will in the presence of attesting witness, But D.W. 4 one of the attester has not stated so and another witness Prakash was not present at the time when D.W. 4 signed the will as witness when the signature in the will is disputed the 1st defendant ought to have referred the signature appearing in Ex.D.3 to the handwriting expert for comparison at signature of Gangu Rai with some other admitted signature and no attempt has been made by the defendants to prove the signature of Gangu Rai in

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the will referring the same to the expert and the date of death of Gangu Rai is also in dispute and 2 death certificates are produced and Ex.P9 is the death certificate which shows that Gangu Rai died on 11.11.1992 and Ex.D.4 is the death certificate produced by the 1st defendant as per which Gangu Rai died on 18.08.1993. D.W. 3 as stated that Gangu Rai died on 18.08.1993 and the entries in the death registered are made by the village Accountant has not been examined and therefore adverse interference has to be drawn for non-examination of the village Account. But on perusal of he documents produced by the plaintiff shows that Gangu Rai died on 11.12.1992, but the plaintiff clearly admitted in the chief-examination itself that Gangu Hengsu died in the year 1993. On perusal of the plaint pleadings also the plaintiff has stated in para III (1) of the Plaint that late Gangu Hengsu died intestate in the year 1993. D.W.3 has stated that in Ex.P.9, No.9 is over written and D.W.3 also produced Ex.D.5 death certificate and on perusal of death certificate Ex.D.5 at page 8 it shows Gangu @ Veeramma died on 18.08.1993 and the same has been registered on 23.08.1993 and the person who informed the date of death is Narayana Rai of Kolambe Village, on perusal of Ex.D.4 also shows that the date of death of Gangu @ Veeramma is 18.08.1993. P.W.1 also admitted that Gangu Hengsu Rai died in the year 1993. Hence the

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document Ex.D.5 clearly shows that the date of the death of Gangu Hengsu.

20. On perusal of the written statement it is clear that the 1st defendant has contended that there is registered will executed by Gangu Hengsu. But there has been no joinder filed by the plaintiff either by denying the date of death of Gangu Hengsu or denying the execution of the will by the Gangu Hengsu. More Ex.D.3 is marked without any objections. D.W.1 has also examined the scribe of the Will as D.W.2 . D.W.2 has stated that Gangu Hengsu went to their office and he himself prepared the will Ex.D.3 and he also identified the signature at Ex.D.3(a) and he also got registered the will and Gangu Hengsu was aware of the facts stated in the will and he also stated that Gangu Hengsu is his distant relative and he further states that he is able to identify the witness who attested the will, but not possible to say their names. D.W.4, Dhananjaya, attester of the Ex.D.3 also stated that he has seen Gangu Hengsu and Gangu Hengsu got written the will and attested the document and he also identified the signature at Ex.D.3(b) Gangu Hengsu asked him to put his signature as a witness and will has been written in the office of M.S.Shetty and at the time of executing the will, Gangu Hengsu was in good state of mind and he also stated that he knows Gangu Hengsu as she was coming to him to obtain the certified copies of land Tribunal orders and Gangu

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Hengsu instructed the document writer to prepare the will and affix the thumb impression in the presence of witness. D.W.4 has stated in his cross-examination that;

" £À£ÀUÉ ¥ÀæPÁ±ï gÀªÀgÀ ¸À»AiÀÄ ¥ÀjZÀAiÀÄ ¸ÀºÀ EgÀĪÀÅ¢®è. £Á£ÀÄ ¥ÀæPÁ±ï gÀªÀgÀ ¸ÀªÀÄPÀëªÀÄ AiÀiÁªÁUÀ®Æ «¯ï UÉ ¸À» ªÀiÁrgÀĪÀÅ¢®è."

The said fact clearly shows that D.W.4 does not know parkas. But D.W.4 stated that:

" UÀAUÀÄ ºÉAUÀ¸ÀÄ gÀªÀgÀ ºÉ¨ÉânÖ£À UÀÄgÀÄvÀ£ÀÄß ºÁPÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è AiÀiÁgÁågÀÄ ºÁdjzÀÄÝ JAzÀÄ £À£ÀUÉ UÉÆwÛgÀĪÀÅ¢®è, £Á£ÀÄ EzÉÝ£ÀÄ.

Hence it clearly shows that other persons were present at the time of execution of the will. But D.W.4 is not aware of the names of the persons who are all present at that time.

21. On perusal of the cross-examination of P.W.1 she also stated that;

" £ÁªÀÅ CPÀÌ vÀAVAiÀÄgÀÄ ªÀÄzÀĪÉAiÀiÁzÀ £ÀAvÀgÀ 1£Éà ¥ÀæwªÁ¢ ªÀÄzÀÄªÉ ªÀiÁrPÉÆArgÀÄvÁÛgÉ JAzÀÄ ºÉüÀĪÀÅzÀÄ ¤d. £À£Àß ªÀÄUÀ¼À ªÀÄzÀĪÉAiÀÄ RZÀð£ÀÄß 1£Éà ¥ÀæwªÁ¢AiÀĪÀgÉà ªÀiÁrgÀÄvÁÛgÉ JAzÀÄ ºÉüÀĪÀÅzÀÄ ¤d. £ÀªÀÄä vÁ¬ÄAiÀĪÀgÀÄ C«zÁåªÀAvÀgÀÄ CVzÀÄÝ ºÉ¨ÉânÖ£À UÀÄgÀÄvÀ£ÀÄß ºÁPÀÄwÛzÀÝgÀÄ. £ÀªÀÄä vÁ¬Ä 1£Éà ¥ÀæwªÁ¢AiÀÄ eÉÆvÀqÀ ªÁ¸À«zÀÝgÀÄ JAzÀÄ ºÉüÀĪÀÅzÀÄ ¤d. £À£Àß vÁ¬ÄAiÀĪÀgÀ J¯Áè RZÀÄðUÀ¼À£ÀÄß 1£Éà ¥ÀæwªÁ¢AiÀĪÀgÉà £ÉÆÃrPÉƼÀÄîwÛzÀÝgÀÄ JAzÀgÉ ¤d. £ÀªÀÄä vÁ¬ÄUÉ 1£Éà ¥ÀæwªÁ¢AiÀĪÀgÀ ªÉÄÃ¯É ¦æÃw EvÀÄÛ JAzÀgÉ ¤d. 1£ÉÃ

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¥ÀæwªÁ¢ £À£Àß vÁ¬ÄAiÀĪÀgÀ£ÀÄß ZÉ£ÁßV £ÉÆÃrPÉÆArgÀÄvÁÛgÉ. £ÀªÀÄä vÁ¬ÄAiÀĪÀgÀÄ ªÀÄ£ÉAiÀįÉèà ªÀÄÈvÀ ¥ÀnÖgÀÄvÁÛgÉ."

The said facts clearly shows that the 1st defendant has looked after his mother and spend all the expenses and the1st defendant also performed the marriage of the plaintiff as well as the other defendants by spending money and also met the expensed of the marriage of the daughter of the plaintiff and after the marriage of the plaintiff and the defendants, the 1st defendant is married which has been admitted by P.W.1 herself during cross-examination. P.W.1 further stated in her cross-examination that she is aware of the fact that she is aware of the fact that her mother has not executed the will as she looked after her mother. But she herself admitted that the 1st defendant also performed the marriage of the plaintiff as well as the other defendants by spending money and also met the expenses of the marriage of the daughter of the plaintiff and after the marriage of the plaintiff and the defendants, the 1st defendant is married which has been admitted by P.W.1 herself during cross- examination. P.W.1 further stated in her cross- examination that she is aware of the fact that she is aware of the fact that her mother has not executed the will as she looked after her mother. But she herself admitted that the 1st defendant looked after her mother and also met the family expenses.

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23. The advocates for the defendants has relied on a decision reported in AIR 1962 Supreme Court 567 (Rani Purnima Debi and another vs. Kumar Khagendra Narayana Deb and another) in which it is held thus:

(a) Succession Act (1925) Section 63 - Will - Execution - Effect of registration of will - F.A. No. 19 of 1950 (Probate) decided by Assam High Court reversed.

If a will has been registered, that is circumstances, prove its genuineness. But the mere fact that a will is registered Will not by itself by sufficient to dispel all suspicion regarding it where suspicion exists without submitting the evidence registration to a close examination. if the evidence as to registration on a close examination reveals that he registration was made in such a manner that it was brought home to the testator that the document of which he was admitting the execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the Will. But if the evidence as to the registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of Will or did not satisfy himself in some other way (as. for example, by seeing eh testator, reading the Will), that the testator knew that it was a will the execution of which he was admitting the

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fact that the Will was registered would not be much value. Registration may taken place without the executant really knowing what he was registering.

23. The advocate for the defendants has also relied on a decision reported in ILR 2004 Kar.3975 Hon'ble Supreme Court (Jayamma vs Mariya Bai dead by proposed Lrs and another) in which it is held thus:-

A. KARNATAKA LAND REFORMS ACT, 1961( KARNATAKA ACT NO. 10 OF 1962 ( AS AMENDED BY KARNATAKA ACT NO.1 OF 1974) -

SECTION 2 (12) SECTION 21(1) AND SECTION -61 FAMILY PROHIBITION OF ASSISGNMENT OF ANY INTEREST- ASSIGNEE/LEGATEE NOT member of family- Restriction of transfer of land- Legatee had been bequeathed the granted land under the provision of Karnataka Land Reforms Act, contrary of the statutory embargo- whether such transfer by will to a person who is not member of the family as defined under Section 2(12), a valid transfer- HELD - that the testator could not have executed the will in favour of a person who could not be declared to be a tenant having occupancy right. Such a will would be void ab-initio and therefore non est in the eye of law. The statutory embargo an transfer of land is stricter in a case where the tenant has become occupant that a land held by a tenant simpliciter. The embargo on transfer is not only by way of sole, gift, exchange, mortgage, lease but also by assignment. What is permitted under law is partition of land amongst the members of the family. The legislative intent that the land should not be allowed to go the hands of stranger to the family manifest where as in terms of section 21 strangers to the family of the tenant to come upon the land is not allowed, the tenor of section 61 is that except partition amongst the co- shares, no transfer of the property, in any manner, is permissible. In view of the purport and object the legislature sought to achieve by enacting the said

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provision the expression assignment would include a will.

24. It is clear from Ex.D.3 the will is a registered Will. Having regard to the circumstances to prove the genuineness of the will. P.W.1 herself admits that the 1st defendant has looked after the mother and met all the expenses and also performed the marriages of the plaintiff as well as the other defendants by spending money and also met the expenses and also performed the marriages of her daughter and after the marriages of the plaintiff and the other defendants, the 1st defendant is married. P.W.1 also admits that:

1£Éà ¥ÀæwªÁ¢ £À£Àß vÁ¬ÄAiÀĪÀgÀ£ÀÄß ZÉ£ÁßV £ÉÆÃrPÉƼÀÄîwÛzÀÝgÀÄ JAzÀÄ ºÉüÀĪÀÅzÀÄ ¤d.

Moreover there is no pleading regarding the disputing the LTM of Gangu Hengsu by the plaintiff and as admitted by the plaintiff the date of death Gangu Hengu in the year 1993. P.W.1also admitted that his mother having good state of mind. The evidence of the 1st defendant is corroborated with the documentary evidence and also supported by the evidence of the witnesses scribe and attester of the will. Hence, I answer this issue in the affirmative.

7.3 The trial court also upheld the claim of defendant

No.1 that Gangu Hengsu had expired on 18.08.1993 as per

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the death certificate Ex.D4 produced by 1st defendant and not

on 11.12.1992 as per the alleged death certificate produced

by the plaintiff. The trial court also came to the conclusion

that the evidence of the attesting witness DW-4 and the scribe

DW-2 and the propounder - 1st defendant (DW-1) were

sufficient to prove the due execution, attestation and validity of

the will said to have been executed by Gangu Hengsu in

favour of the 1st defendant.

7.4 Upon re-evaluation, re-appreciation and

reconsideration of the entire material on record, I am of the

view that the finding recorded by the trial court on issue No.5

holding that 1st defendant had proved the will dated

28.07.1993 does not suffer from any illegality or infirmity

warranting interference by this Court in the present appeal.

Accordingly Point No.2 is answered in favour of

respondent No.1.

Re-Point No.3:-

8. While dealing with Point no.1, I have already held

that during the lifetime of Smt.Gangu Hengsu, the plaintiff,

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defendants and Smt.Gangu Hengsu had 1/6th undivided share

in the suit schedule property. While answering Point No.2, I

have come to the conclusion that the 1st defendant has

successfully proved the registered Will dated 28.07.1993.

However, since Smt.Gangu Hengsu herself had 1/6th share in

the suit schedule property, the registered Will would be valid

only to the extent of Smt.Gangu Hengsu's 1/6th share in the

suit schedule property and not in respect of the entire suit

schedule property. In other words, while plaintiff and

defendants 2 to 4 would be entitled to 1/6th share each in the

suit schedule property, the 1st defendant would be entitled to

2/6 (1/6th + 1/6th bequeathed by Smt.Gangu Hengsu under

the registered Will) = 1/3rd share in the suit schedule property.

Thus, while plaintiff, defendant No.2, defendant No.3 and

defendant No.4 would be entitled to 1/6th share each in the

suit schedule property, defendant No.1 would be entitled to

1/3rd share in the suit schedule property and the impugned

judgment and decree passed by the trial court deserves to be

set aside declaring that the plaintiff, defendant No.2,

- 24 -

defendant No.3 and defendant No.4 are entitled to 1/6th share

each in the suit schedule property and defendant No.1 would

be entitled to 1/3rd share in the suit schedule property.

Point No.3 is answered accordingly.

9. In the result, I pass the following:-

ORDER

(i) Appeal is partly allowed.

(ii) The impugned judgment and decree dated

19.01.2006 passed by the trial court in O.S.No.98/1998 is

hereby set aside.

(iii) The appellant and respondents 2 to 4 are declared

as being entitled to 1/6th share each in the suit schedule

property.

(iv) The 1st respondent is being entitled to 1/3rd share in

the suit schedule property.

(v) Registry to draw up the decree accordingly.

Sd/-

JUDGE Srl.