Karnataka High Court
Smt Jayamma vs R Abbaiah Reddy on 1 February, 2025
Author: S.G.Pandit
Bench: S.G.Pandit
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RFA No. 1139 of 2009
C/W RFA No. 1141 of 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE S.G.PANDIT
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 1139 OF 2009 (PAR)
C/W
REGULAR FIRST APPEAL NO. 1141 OF 2009
IN RFA NO. 1139/2009
BETWEEN:
1. SMT. JAYAMMA
SINCE DECEASED BY LR'S
1(A). V. GAYATHRI
W/O V. ASHWATH REDDY
AGED ABOUT 50 YEARS
R/AT M. RAMAIAH REDDY COMPOUND
KODIHALLY, JEEVAN BHIMANAGAR POST
Digitally signed by
SHARMA ANAND VARTHUR HOBLI
CHAYA BANGALORE SOUTH TALUK
Location: High
Court of Karnataka BANGALORE
...APPELLANT
(BY SRI. UDAYA HOLLA, SENIOR COUNSEL FOR
SRI. G.R. LAKSHMIPATHY REDDY AND
SRI. H.M. SHIVALINGAIAH, ADVOCATES)
AND:
1. R. ABBAIAH REDDY
SINCE DECEASED BY LR'S
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RFA No. 1139 of 2009
C/W RFA No. 1141 of 2009
1(A). SAROJAMMA
W/O LATE R. ABBAIAH REDDY
AGED ABOUT 62 YEARS
1(B). A. JAGADISH
S/O LATE R. ABBAIAH REDDY
AGED ABOUT 40 YEARS
1(C). A. VIMALA
D/O LATE R. ABBAIAH REDDY
AGED ABOUT 47 YEARS
1(D). A. JYOTHI
D/O LATE R. ABBAIAH REDDY
W/O G. JANARDHAN REDDY
AGED ABOUT 44 YEARS
ALL ARE R/AT KODIHALLY
VARTHUR HOBLI
BANGALORE EAST TALUK
INDIRANAGAR(POST)
BANGALORE
2. R. VIJAYA RAGAV REDDY
S/O LATE M. RAMAIAH REDDY
AGED ABOUT 63 YEARS
NO.108, 8TH CROSS ROAD
M. RAMAIAH REDDY COMPOUND
KODIHALLY, INDIRANAGAR POST
BANGALORE
3. SMT. CHOWDAMMA
SINCE DEAD BY LRS
4. SMT. PAPAMMA
SINCE DEAD BY LRS
4(A).SUNANDHA
DEAD BY HER LRS
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RFA No. 1139 of 2009
C/W RFA No. 1141 of 2009
4(A)(A). M. RAMESH ASHWATH
S/O ASHWATANARAYANA REDDY
MAJOR
4(A)(B). SMT. PRATHIBA
D/O ASHWATANARAYANA REDDY
MAJOR
4(A) (A) AND 4(A)(B) ARE R/AT NO.29/1
17TH E MAIN, 72 CROSS, V BLOCK
RAJAJINAGAR, BANGALORE-10
4(B). SMT. PARVATHAMMA
W/O NARAYAN REDDY
D/O LATE PAPAMMA
AGED ABOUT 54 YEARS
R/AT KOPPA VILLAGE
HULIMANGALA POST
ANEKAL TALUK
BANGALORE DISTRICT-562 106
4(C). DR. SUSHEELAMMA
W/O A. SANJEEVA REDDY
D/O LATE PAPAMMA
AGED ABOUT 53 YEARS
R/AT E/26/6-DRDO TOWNSHIP
HULIMANGALA POST
ANEKAL TALUK
BANGALORE DISTRICT-562 106
4(D). VENUGOPAL REDDY
S/O LATE PAPAMMA
AGED ABOUT 50 YEARS
R/AT PAVAN GARDEN
NEAR KATTERAMMA TEMPLE
KODIHALLY, INDIRANAGAR POST
BANGALORE-560 008
...RESPONDENTS
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RFA No. 1139 of 2009
C/W RFA No. 1141 of 2009
(BY SRI. S.M. CHANDRASHEKAR, ADVOCATE FOR R1[A & B];
SRI. M. SREENIVAS, ADVOCATE FOR R1[C & D];
SRI. ASHOK B. PATIL, ADVOCATE FOR R2;
R3 DEAD;
SRI. A. SAMPATH, ADVOCATE FOR R4 [A TO C] & R5;
R4[D] - SERVED AND UNREPRESENTED)
THIS RFA FILED IS U/SEC.96 OF CPC, AGAINST AND
JUDGMENT AND DECREE DATED 26.06.2009 PASSED IN OS
NO.1646/1987 ON THE FILE OF THE XV ADDL. CITY CIVIL
JUDGE, BANGALORE CITY DISMISSING THE SUIT FOR THE
RELIEF OF PARTITION AND SEPARATE POSSESSION.
IN RFA NO. 1141/2009
BETWEEN:
1. V. GAYATHRI
W/O ASHWATH
R/AT KODIHALLY VILLAGE
VARTHUR HOBLI
BANGALORE SOUTH TALUK-560 008
...APPELLANT
(BY SRI. GURURAJU C.D AND
SRI. SAMPATH A, ADVOCATES)
AND:
1. SMT. JAYAMMA
W/O LATE VENKATARAMA REDDY
AGED ABOUT 70 YEARS
R/AT RAMAIAH REDDY COMPOUND
KODIHALLY, JEEVAN BHIMANAGAR POST
VARTHUR HOBLI
BANGALORE SOUTH TALUK-560 008
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RFA No. 1139 of 2009
C/W RFA No. 1141 of 2009
2. R. ABBAIAH REDDY
SINCE DECEASED BY LR'S
SAROJAMMA
W/O LATE R. ABBAIAH REDDY
AGED ABOUT 62 YEARS
R/AT KODIHALLY, VARTHUR HOBLI
ULSOOR POST
BANGALORE-560 008
3. A. JAGADISH
S/O LATE R. ABBAIAH REDDY
AGED ABOUT 40 YEARS
R/AT KODIHALLY, VARTHUR HOBLI
ULSOOR POST
BANGALORE-560 008
4. A. VIMALA
D/O LATE R. ABBAIAH REDDY
AGED ABOUT 47 YEARS
R/AT KODIHALLY
VARTHUR HOBLI
ULSOOR POST, BANGALORE-560 008
5. A. JYOTHI
D/O LATE R. ABBAIAH REDDY
W/O G. JANARDHAN REDDY
AGED ABOUT 44 YEARS
R/AT KODIHALLY, VARTHUR HOBLI
ULSOOR POST
BANGALORE-560 008
6. R. VIJAYA RAGAV REDDY
S/O LATE M. RAMAIAH REDDY
AGED ABOUT 63 YEARS
R/AT KODIHALLY, VARTHUR HOBLI
ULSOOR POST
BANGALORE-560 008
7. PAPAMMA
DEAD BY LRS
SUNANDHA
W/O ASWATJAMARAUAMA REDDY
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RFA No. 1139 of 2009
C/W RFA No. 1141 of 2009
D/O LATE PAPAMMA
AGED ABOUT 56 YEARS
R/AT NO.29/1, 17TH E MAIN
72 CROSS V BLOCK, RAJAJINAGAR
BANGALORE-10
7(A).M. RAMESH ASHWATH
S/O SRI. ASHWATHNARAYANA REDDY
SMT. SUNANADA
MAJOR
7(B).MRS. PRATHIBA
S/O SRI. ASHWATHNARAYANA REDDY
SMT. SUNANADA
MAJOR
R7(A) AND (B) ARE RESIDING
AT NO.29/1, 17TH E MAIN
72 CROSS, 5TH BLOCK
RAJAJINAGAR, BBMP
BENGALURU-560 010
8. PARVATHAMMA
W/O NARAYAN REDDY
D/O LATE PAPAMMA
AGED ABOUT 54 YEARS
R/AT KOPPA VILLAGE
HULIMANGALA POST
ANEKAL TALUK
BANGALORE DISTRICT-562 106
9. DR. SUSHEELAMMA
W/O A. SANJEEVA REDDY
D/O LATE PAPAMMA
AGED ABOUT 53 YEARS
R/AT 3/26/6-DRDO TOWNSHIP
CV RAMAN NAGAR POST
BANGALORE-93
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RFA No. 1139 of 2009
C/W RFA No. 1141 of 2009
10. VENUGOPAL REDDY
S/O LATE KATE PAPAMMA
AGED ABOUT 50 YEARS
R/AT PAVAN GARDEN
KATTERAMMA TEMPLE KODIHALLY
INDIRANAGAR POST
BANGALORE-560 008
...RESPONDENTS
(BY SRI. UDAYA HOLLA, SENIOR COUNSEL FOR
SRI. G.R. LAKSHMIPATHY REDDY, ADVOCATE FOR R1
SRI. M. HANUMANTHAIAH, ADVOCATE FOR R2 & R3;
SRI. M. SREENIVAS, ADVOCATE FOR R4 & 5;
SRI. ASHOK B. PATIL, ADVOCATE FOR R6;
SRI. K. KRISHNASWAMY, ADVOCATE FOR R7 TO 9;
R10, R7(A & 7(B) ARE SERVED)
THIS RFA IS FILED U/SEC.96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 26.06.2009 PASSED IN OS
NO.1646/1987 ON THE FILE OF THE XV ADDL. CITY CIVIL
AND SESSIONS JUDGE, BANGALORE (CCH-3), DISMISSING
THE SUIT OF THE PLAINTIFF THEREIN FOR PARTITION,
MESNE PROFITS AND ALSO DISMISSING THE LRS OF
DEFENDANT NO.4 AND DEFENDANT NO.5 THEREIN FOR
SHARE.
THESE REGULAR FIRST APPEALS HAVING BEEN
RESERVED FOR JUDGMENT COMING ON FOR
PRONOUNCEMENT OF THIS DAY, RAMACHANDRA D.
HUDDAR J., DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
AND
HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
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RFA No. 1139 of 2009
C/W RFA No. 1141 of 2009
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR)
These two appeals are directed against the
judgment and decree dated 26.06.2009, passed in O.S.
No.1646/1987 by the XV Additional City Civil and
Sessions Judge at Bangalore City (CCH-3). RFA No.
1139/2009 is filed by the plaintiff in the said suit
challenging the dismissal of her claim for partition and
separate possession, mesne profits, and other reliefs
concerning the suit schedule properties. RFA No.
1141/2009 is filed by Defendant No.5 in the said suit,
contesting the rejection of her claim based on a Will
purportedly executed by her grandmother Smt.
Chowdamma.
2. For the sake of clarity and convenience, the
parties to these appeals are referred to by their
respective ranks as assigned in the trial Court.
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3. The suit was initially filed against Defendant
Nos. 1 to 4. During the pendency of the proceedings,
Defendant No. 1 passed away and his legal
representatives were brought on record. Subsequently,
Defendant Nos. 3 and 4 also passed away. The legal
representatives of Defendant No. 3 were already on
record, as they were the plaintiff and Defendant Nos. 1
and 2. Upon the demise of Defendant No. 4, their legal
representatives were brought on record and shown as
Defendant Nos. 4(a) to 4(d). Following the demise of
Defendant No. 3, Defendant No. 5 filed an interim
application under Order 22 Rule 10 of the Code of Civil
Procedure (CPC) seeking to be impleaded as a party to
the suit. This request was based on the claim that
Defendant No. 5 was a legatee under a Will allegedly
executed by the deceased Defendant No. 3 during her
lifetime, wherein she bequeathed her purported share in
the suit schedule properties. Pursuant to the application,
the cause-title in the plaint was amended to reflect these
changes. For clear understanding of the relationships
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between the parties involved, a genealogical chart is
provided below:
Genealogy
Late Ramaiah Reddy (Died on 04/12/1986)
&
Late Smt. Chowdamma Wife (Deft. No.3)
Late Smt. Papamma Smt. Jayamma Late R. Abbaiah Reddy R.Vijayaraghava
(daughter (daughter-Plaintiff) (Son Deft No.1) Reddy
Deft No.4) w/o (Son Deft No.2)
Late Venkataramana Reddy
V. Gayathri
(Deft. no.5)
D.1(a) D.1(b) D.1(c) D.1(d)
Smt. Sarojamma A. Jagadish A. Vimala A. Jyothi
(Wife) (Son) (daughter) (daughter)
wife of wife of
Janardhana G. Janardhana
Reddy Reddy
LRs
Smt. Sunanda Parvathamma Susheelamma Venugopala Reddy
w/o Aswatha w/o Narayana w/o A. Sanjiva [D.4(d)]
naraya Reddy Reddy
Reddy [D.4(b)] [D.4(c)]
[D.4(a)]
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The Brief facts presented by the plaintiff in her
plaint, relevant for the disposal of these appeals,
are as under -
4. The plaintiff filed a suit against the defendants
seeking relief for partition, separate possession of the
suit schedule properties by metes and bounds, mesne
profits, and costs of the suit. Her case is that her father,
late M. Ramaiah Reddy, was the propositus of the family
and passed away on December 4, 1986, leaving behind
the plaintiff and defendants No. 1 to 4 as his legal
representatives. Defendant No. 3 is the wife of late M.
Ramaiah Reddy, named Smt. Chowdamma.
5. In the wedlock between M. Ramaiah Reddy and
Smt. Chowdamma, four children were born i.e, the
plaintiff, Jayamma, defendant No. 4, Papamma (both
daughters), and defendants No. 1 and 2 (both sons). The
plaintiff states that she was married to her maternal
uncle's son, Venkataramana Reddy, and they had one
daughter, defendant No. 5, V. Gayathri, who is deaf and
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dumb. Defendant Nos. 4(a) to 4(d) are the children of
deceased defendant No. 4, Papamma, as per the cause
title.
6. The plaintiff contends that the suit schedule
properties described in Schedules 'A' to 'J' of the plaint
are joint family properties acquired by her father, M.
Ramaiah Reddy. According to her, her father passed
away intestate on December 4, 1986. He was the Jodidar
of Kodihally Village and after the enactment of the Inam
Abolition Act, the lands were vested with the
Government. Subsequently, on her father's application,
'A' schedule lands were registered in his name as an
occupant.
7. The plaintiff asserts that her husband passed
away on February 10, 1975, leaving behind herself and
defendant No. 5. After her husband's demise, she
returned to her parental home and resided with her
father in Kodihally. It was her father, M. Ramaiah Reddy,
who managed all the properties, including constructing
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numerous houses. Many of these houses were leased
out. In addition to immovable properties, he owned
house properties in areas such as Ulsoor, Sampangiram
Nagar and other locations within the limits of Hindustan
Aeronautics Limited, the Sanitary Board, and other
areas, as described in the suit schedule.
8. She further alleges, that although some
properties are nominally registered in the names of
defendants No. 1 and 2, they are not their self-acquired
properties. Instead, they are part of the joint family
properties. She asserts her right to 1/5th share in all the
properties listed in the suit schedule.
9. The plaintiff states that, since defendants Nos.
1 and 2 neglected to care for her and her daughter, she
demanded a partition in December 1986. Upon denial,
she filed this suit seeking the aforementioned reliefs.
Accordingly, she prays that the suit be decreed as prayed
for.
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and 2 appeared and filed a joint written statement. In
their statement, they admitted the relationship as stated
by the plaintiff in her plaint. They acknowledged that the
plaintiff and the 4th defendant are the married daughters
of the deceased Ramaiah Reddy and Chowdamma, and
that they themselves are the sons. While admitting that
Ramaiah Reddy passed away on December 4, 1986, they
denied the claim that he died intestate. Furthermore,
they contended that the description of the properties
mentioned in the plaint is inaccurate.
11. The specific defence of Defendants Nos. 1 and
2 is that, until 1969, they resided with their father as
members of a Hindu Joint Family. However, in 1969, a
partition took place, and they became separate from the
joint family. They asserted that Item Nos. 15 and 16
mentioned in the 'A' schedule did not belong to their
father. According to them, these properties were merely
conveyed to their father as security for loans extended
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by him to the original owners of the properties, with a
condition for repayment. They further claimed that they
were never in possession of these properties.
12. While admitting that occupancy rights were
granted in the name of their father, they contend that,
their father did not have absolute ownership, title, or
possession over the properties. They contend that, Item
Nos. 1 to 9 and 12 listed in the 'A' schedule, half of Item
Nos. 1 to 13 and 15 in the 'E' schedule, and the house in
Ulsoor mentioned in the 'G' schedule were ancestral and
joint family properties. These properties were allegedly
shared among their father, his brother, and others and
were allotted to their father during a partition effected in
1945.
13. Additionally, they claimed that Item Nos. 10,
11, 13, and 14 from the 'A' schedule, the properties
listed in the 'B' schedule, Item Nos. 9, 10, and 14 in the
'E' schedule, and Item Nos. 1 to 4 and 6 in the 'C'
schedule belonged to the joint family of Ramaiah Reddy
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and Defendants Nos. 1 and 2. They further stated that
these properties were acquired through the income
generated by the joint family.
14. The specific defence of Defendants Nos. 1 and
2 is that, in 1969, their father, as the Karta of the joint
family, effected a partition among himself, Defendant No.
1, and Defendant No. 2. Consequently, their father came
into possession of the properties allotted to him,
identified as 'A' schedule property mentioned in the
written statement. Defendant No.1 received the share
described as the 'B' schedule property and the 'C'
schedule property was allotted to Defendant No. 3.
Therefore, the joint family properties of Ramaiah Reddy
and his two sons, Defendants Nos. 1 and 2, had already
been partitioned.
15. Item Nos. 1 to 14 were registered in their
father's name, and he was in possession and enjoyment
of these properties until his demise. They claimed that
Serial Nos. 3, 4, 10, and 14 were acquired by the
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Government and the compensation for these properties
was apportioned and shared among them. They denied
that their father was the Jodidar of Kodihally Village and
also refuted the claim that the properties listed in the 'B'
to 'H' suit schedules were the self-acquired properties of
Ramaiah Reddy. Furthermore, they asserted that the
plaintiff had included other unrelated properties in the
suit schedules and contend that the plaintiff is not
entitled to any share.
16. After the partition, Defendants Nos. 1 and 2
acquired certain properties through their own earnings
which cannot be classified as joint family properties.
They also established their own businesses. It is further
contended that, after her marriage, plaintiff lead a happy
married life with her husband. However, for reasons best
known to her, she left her husband's company, and both
she and her husband began residing separately in
Kodihally. They admitted that her husband passed away
on February 10, 1975, leaving behind the plaintiff and
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Defendant No. 5 as his legal heirs. They stated that the
plaintiff and her aunt lived together but, denied the
plaintiff's claim that she started residing in her parents'
house after her husband's death. They also denied the
allegation that they neglected her.
17. It is contended that, oral partition had already
taken place in 1969, followed by a written memorandum
of partition, and hence plaintiff cannot claim any share.
The properties allotted during the partition were
described as 'A,' 'B,' and 'C' properties in the
memorandum of partition and have been referred to as
'X,' 'Y,' and 'Z' in the written statement for convenience.
This partition was acted upon, and their names are
reflected in the relevant revenue records. They contend
that, the plaintiff's claim for partition is baseless and
unfounded.
18. Defendants Nos. 1 and 2 further contended
that their father, Ramaiah Reddy, out of love and
affection, bequeathed the properties allotted to him by
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executing a Will dated November 30, 1986, in favour of
Defendants Nos. 1 and 2. They asserted that the Will
was executed while their father was in a sound state of
mind, thereby making them the absolute owners of the
properties left behind by him. Consequently, they took
possession of the properties bequeathed to them under
the Will, which has been acted upon. They also claimed
that there was no occasion for the plaintiff to demand
partition.
19. Defendant No. 5 filed a consenting written
statement supporting the plaintiff's plaint and its
averments. Defendant No. 5 further claimed that
Defendant No. 3, her grandmother, during her lifetime
and in a sound state of mind, executed a Will dated
September 21, 1989. By virtue of this Will, Defendant
No. 5 became the owner of the properties left behind by
Defendant No. 3. Defendant No. 5 stated that since she
was deaf and dumb and was cared for by the plaintiff,
Defendant No. 3 executed the Will in her favour.
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20. In response to this written statement,
Defendants Nos. 1 and 2 filed a rejoinder denying all
assertions made by Defendant No. 5. Furthermore,
Defendant No. 4 also claimed a share in the properties.
As a result, Defendants Nos. 1 and 2 prayed for the
dismissal of the suit, while Defendant No. 4 (now
represented by her legal representatives) and Defendant
No. 5 prayed for the reliefs claimed in their respective
written statements.
21. In light of the conflicting pleadings presented
by both parties, the learned Trial Court framed total of
eight issues, along with four additional issues, which are
as follows:
1. "Whether the Plaintiff proves that the
properties are the absolute properties of
Ramaiah Reddy and died intestate on
4.12.1986?
2. Whether the defendants 1 and 2 proves
separation from joint family after 1969?
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3. Whether the defendants 1 and 2 proves that
there was partition between them and
Ramaiah Reddy?
4. Whether the plaintiff proves that the
properties are the joint family properties and
the plaintiff is entitled one fifth share?
5. Whether the plaintiff is entitled for mesne
profits?
6. Whether the Court fee paid is sufficient?
7. Whether the plaintiff and the third defendant
entitled for share?
8. What Decree or Order?
Additional issues
1. Does the Defendant No.5, proves that original
Defendant No.3 Smt. Chowdamma executed a
Will dated 21.09.1989 and bequeathed her
interest in the suits schedule properties as
contended?
2. Whether the Defendant No.5 further proves
that by virtue of Will Deed dated 21.09.1989
executed by Late Chowdamma, she has
succeeded to the suit schedule properties and
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as such, she is entitled to get a share in it
equal to that of the plaintiff?
3. Do the defendants No.1 and 2 proves that the
defendant No.5, is not the only L.R. of original
defendant No.5 Smt.Chowdamma as
contended?
4. Whether the defendants 1 and 2 further
proves that the alleged Will Deed dtd:
21.09.1989 executed by Chowdamma is a got
up and concocted document as contended".
22. To substantiate her case, the plaintiff
personally took the witness stand as PW1 and introduced
documents marked as Exs.P1 to P59, thereby concluded
her evidence. In rebuttal, the defendants presented the
testimony of seven witnesses, designated as DWs.1 to 7,
and submitted documents marked as Exs.D1 to D310,
thereby closed their case.
23. Upon hearing the arguments and carefully
considering both the oral and documentary evidence, the
learned Trial Court rejected the evidence of the plaintiff,
as well as that of Defendant Nos. 4 and 5. The Court
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determined that a partition had already taken place in
1969, which had been duly executed. It further held that
the late Ramaiah Reddy had executed a Will during his
lifetime, while in a sound state of mind, in favour of
Defendants Nos. 1 and 2, thereby making them the
absolute owners of the properties bequeathed to them.
The Court also discredited the alleged Will said to have
been executed by Smt. Chowdamma in favour of
Defendant No. 5. As a result, the Court dismissed both
the plaintiff's suit and Defendant No.5's claim.
24. Consequently, the plaintiff has now approached
this Court challenging dismissal of her suit, while
Defendant No. 5 has filed a separate appeal, as
mentioned above, contesting the Court's findings
concerning the alleged Will executed by Smt.
Chowdamma in her favour.
25. The learned counsel for the appellant in RFA
No.1139/2009 would ardently contends that, the learned
Trial Court's dismissal of the plaintiff's suit is erroneous.
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He argues that, under Section 6 of the Hindu Succession
Act, which recognizes a daughter as a coparcener, and
considering that the defendants have failed to present
credible and legally admissible evidence, the Trial Court
should have ruled in favor of the plaintiff, granting her
1/5th share in the suit schedule properties.
26. He would further submit that, although the
defendants have relied upon Ex.D9, this document is
unregistered and has never been formally acknowledged
as a partition deed. As the schedule properties are joint
family properties and no partition has taken place,
learned Senior Counsel, Sri. Udaya Holla, asserts that
the Trial Court should have properly considered the
evidence presented by the plaintiff, including documents
marked Exs.P1 to P59. According to him, Ex.D9 was
never acted upon, and as such, the properties must be
regarded as joint family properties belonging to both the
plaintiff and the defendants. Therefore, under the
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provisions of the Hindu Succession Act, the plaintiff is
entitled to her rightful share.
27. Additionally, learned Senior Counsel would
submit that, while Defendants Nos. 1 and 2 rely on the
purported Will of Ramaiah Reddy, it is significant that the
testator passed away within four days of allegedly
executing the Will. This raises doubts regarding his
mental capacity at that time and his ability to execute a
valid Will. Moreover, the fact that the Will makes no
provision for the plaintiff's maintenance--she being a
widow or for her daughter, who is deaf and dumb,
further casts doubt on the Will's authenticity. Learned
Senior Counsel argues that these suspicious
circumstances surrounding the Will have not been
dispelled by the defendants.
28. Learned Senior Counsel would submit that, a
thorough examination of the testimony of the attesting
witnesses, alongside the evidence of R. Vijayaraghava
Reddy (Defendant No. 2), reveals that the defendants
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have not substantiated their defence in accordance with
the law. Furthermore, the witnesses presented by the
defendants fail to inspire confidence in their assertions.
Learned Senior Counsel also points out that the testator,
being 85 years old and suffering from trembling hands,
did not have his signatures sufficiently validated, thereby
further undermining the authenticity of the Will.
29. The plaintiff highlights the following suspicious
circumstances surrounding the Will:
(a) Exclusion of wife, daughter, deaf and dumb
grand-daughter in the said Will and thus the said
Will is unnatural. No explanation whatsoever in
the said Will about their exclusion.
(b) Testator was 85 years old and his hands were
shaking and he was suffering from nerve problem
and was unable to execute the Will as he was not
in sound state of mind.
(c) Recitals in the Will do demonstrate about
favouring defendant Nos.1 and 2 only and the
reasons for the same is lacking.
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30. The learned Senior Counsel further submits
that the aforementioned suspicious circumstances have
not been dispelled, and it is inconceivable that the
testator would have disinherited his wife, daughters, and
grandchild. He further points out that even item No.17 of
the schedule properties is conspicuously absent from the
Will. In support of his argument, the learned Senior
Counsel cites the following judgments:
(i) Kavita Kanwar v. Pamel Mehta and Others -
(2021) 11 SCC 209.
(ii) Vineeta Sharma v. Rakesh Sharma and Others -
(2020) 9 SCC 1.
(iii) Union of India and Others v. Vasavi Cooperative
Housing Society Limited and Others - (2014) 2
SCC 269.
(iv) Rani Purnima Debi and Another v. Kumar
Khagendra Narayan Deb and Another - AIR 1962
SC 567.
(v) H. Venkatachala Iyengar v. B.N. Thimmajamma
and Others - AIR 1959 SC 443.
(vi) Kalyan Singh, London Trained Cutter, Johri
Bazar, Jaipur v. Smt. Chhoti and Others - (1990)
1 SCC 266.
- 28 -
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31. Per contra, the learned counsel for the
contesting respondents contend that, the learned Trial
Court, after considering all the evidence, rightly
concluded that the plaintiff has no case. It is submitted
that, as partition had already been effected in 1969
between Ramaiah Reddy and his two sons (defendants
Nos. 1 and 2), and the partition had been duly executed,
the plaintiff cannot maintain a suit seeking partition.
According to the respondents, the deceased, Ramaiah
Reddy, had an immense affection for defendants Nos. 1
and 2, who had been caretakers for him, and, out of love
and affection, he executed the Will bequeathing his
properties allotted to him in the 1969 partition.
32. Moreover, the Will allegedly provides for the
welfare of the plaintiff by assigning her house properties.
It also includes a provision that until the lifetime of
defendant No. 3, she would be under the care and
custody of defendants Nos. 1 and 2. The learned counsel
for the respondents further contends that the plaintiff,
- 29 -
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wielding considerable influence over defendant No. 3,
forcibly took her to her house and fabricated a Will
purportedly executed by defendant No. 3 in favour of her
daughter. The respondents assert that the plaintiff
actively participated in the creation of the Will, which
was allegedly executed while defendant No. 3 was
bedridden and unable to execute any document.
Consequently, they argue that, the Will allegedly
executed by Smt. Chowdamma in favour of defendant
No. 5 is a fabricated, concocted document, which confers
no legal right upon defendant No. 5.
33. The learned counsel for the legal
representatives of defendants Nos. 4 and 5 supports the
plaintiff's case and defends the validity of the purported
Will allegedly executed by defendant No. 3 in favor of
defendant No. 5. According to the counsel, defendant
No. 5, as the legatee of the Will, has lawfully acquired
ownership of the properties left behind by the deceased-
defendant No.3.
- 30 -
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34. The learned counsels representing both the
plaintiff and the defendants have, in support of their
respective submissions, referred to various pleadings,
the evidence presented on record, both oral and
documentary, as well as the findings of the learned Trial
Court.
35. We have given careful and thorough
consideration to the facts of the case and the arguments
put-forth by both parties. In light of the submissions
made by the learned Senior Counsel on either side, we
have reviewed the pleadings, the evidence presented,
both oral and documentary, and the findings of the
learned Trial Court. In our view, the following points
emerge for our consideration in this appeal:
i. Whether the suit schedule properties, as
described in the suit schedule appended to
the plaint, constitute the ancestral and joint
family properties of Ramaiah Reddy, thereby
entitling the plaintiff to her legitimate share in
the same?
- 31 -
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ii. Whether defendants Nos. 1 and 2 have
successfully established the existence of a
prior partition before 20.11.1969, and
whether the memorandum of partition as per
Ex.D9 is valid and binding?
iii. What is the legal effect of Ex.D9, the so-
called memorandum of partition?
iv. Whether defendants Nos.1 and 2 have proved
that the deceased Ramaiah Reddy executed a
Will as per Ex.D276 on 30.11.1986, the
certified copy of which is produced at
Ex.D258, when he was in sound state of mind
and bequeathed the properties allotted to him
as per Ex.D9 in their favor?
v. Whether defendant No. 5 has proved that the
deceased, Chowdamma (defendant No. 3),
during her lifetime, bequeathed her
contingent share in the suit schedule
properties by virtue of a Will dated
21.09.1989, executed when she was of sound
mind, thereby making her the owner of the
properties described in the Will marked as
Ex.D5?
vi. Whether the findings of the trial Court are
based on the evidence presented by both
parties, or are they otherwise flawed?
vii. Whether the judgment and decree of the trial
Court warrant interference by this Court?
- 32 -
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Points Nos. 1 to 3 are considered collectively, as
they form the central issues for determination in
this matter.
36. The crux of the plaintiff's case rests on the
assertion that the suit schedule properties are ancestral
and joint family properties of Ramaiah Reddy, and as his
daughter, she is entitled to a share as a co-parcener. She
contends that, due to the refusal of defendant Nos. 1
and 2 to effectuate a partition, she was compelled to file
a suit for partition. The plaintiff's claim hinges on her
status as a co-parcener, which, following the amendment
to the Hindu Succession Act, entitles her to a share in
the properties. The burden of proof lies on the plaintiff to
establish her continued co-parcenership in the joint
family, alongside defendant Nos. 1 to 3, and to
demonstrate her entitlement as a co-parcener.
37. It is a well-established principle that while
there is a presumption of the family being joint, there is
no automatic presumption that all properties held jointly
by the family are characterized as joint family properties.
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Even if the manager of the joint family holds ancestral or
acquired properties, this alone does not transform the
properties into joint family assets. The law stipulates
that it is the responsibility of the party asserting that the
properties are joint family properties to substantiate this
claim with credible legal evidence. There must be
appropriate pleadings and evidence to establish this. In
light of this, it is imperative to carefully examine the
pleadings, the oral and documentary evidence
presented, and determine whether the plaintiff has
successfully established her claim to co-parcenary
status.
38. Before delving into the other aspects of the
case, certain undisputed facts must be acknowledged.
The genealogy presented in the pleadings is not in
dispute. It is also undisputed that M. Ramaiah Reddy
passed away on 4.12.1986 and the plaintiff's husband
passed away in 1975. Furthermore, the suit schedule
properties were acquired by M. Ramaiah Reddy during
- 34 -
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his lifetime as part of a partition between him and his
brother. During his lifetime, he managed the properties
and constructed several houses.
39. PW1, the plaintiff, has reiterated the assertions
made in the plaint in her sworn testimony. She claims
that following her father's death, defendant Nos. 1 and 2
assumed possession of the suit properties and managed
the family's affairs. She also contends that her father-in-
law had gifted certain portions of his properties in Belur
Nagasandra Village to her mother, Chowdamma. In
relation to those properties, her brothers filed a suit for
partition. However, the plaintiff asserts that her father
did not execute any formal documents concerning the
properties given to her. She further testifies that her
father maintained accounts for the construction of
houses, and that seven houses were built on the land
provided to her. The properties are partially leased out to
others. According to her testimony, the khata for the
houses was transferred about 16 to 17 years before her
- 35 -
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testimony in Court. She further mentions a compromise
in a suit involving the intervention of her father.
40. The plaintiff claims that her father, a
landholder in Kodihally village, was not a Jodidar. She
acknowledges a partition between her father and his
brother about 40 to 45 years prior to her testimony. She
asserts, for the first time, that the suit properties were
purchased by her father before her birth. To circumvent
the provisions of the Urban Land Ceiling Act, she claims
that a memorandum of partition, Ex.D9, was created.
Several of her assertions are contradicted by defendant
Nos. 1 and 2. The plaintiff admits that the names of
defendant Nos. 1 and 2 appear in relation to Schedule-D,
E, and F properties, and acknowledges that she and her
sister had filed a suit seeking an injunction against their
brothers. Defendant Nos. 1 and 2 claim that the
plaintiff's intervention caused a dispute among the
women of their family, though the plaintiff denies this.
- 36 -
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41. The plaintiff concedes that both defendant Nos.
1 and 2, and their father, had separate ration cards. She
also states that the 1969 partition appears to have been
acted upon but, was created to comply with the Urban
Land Ceiling Act. A thorough review of the plaintiff's
testimony reveals several contradictions and admissions
that suggest her lack of knowledge about key facts. The
plaintiff admits that she was given certain properties by
her father and allowed to construct houses on them. The
property records reflect her name after the construction
of the houses. However, she claims ignorance regarding
how the khata was transferred to her name. She further
admits that her husband was alive when her father sold
the survey trees belonging to her husband. She has
failed to produce documents to substantiate her claim
that the suit properties are self-acquired properties of
her father. Additionally, she admits receiving
compensation for the acquisition of certain properties but
has not provided records to support her claim.
- 37 -
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42. Notably, the plaintiff admits that, a partition
took place between her father and his brother concerning
their family properties. This admission undermines her
claim that the suit properties are self-acquired by her
father. She denies the 1969 partition and the allocation
of five properties in Kodihally to her father's share,
though she acknowledges the existence of properties
described in Schedule-E and F that were allotted to
defendant Nos. 1 and 2. However, the plaintiff has failed
to provide evidence to support her claim that the suit
properties were self-acquired by her father. Additionally,
she has shown ignorance about her father and his
brothers possessing independent ration cards. Her lack
of knowledge, as evidenced in her cross-examination,
casts doubt on her credibility and the factual basis of her
claims.
43. DW4, R. Vijaya Raghav Reddy, the second
defendant, testifies in alignment with the contents of the
written statement filed by him and the first defendant.
- 38 -
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He acknowledges the familial relationship and provides a
detailed account of his family's history. He states that his
grandfather, Muniyappa, performed the marriage of his
father and uncle. According to his testimony, following
the marriage of the plaintiff and defendant No.4, all
family members, except the plaintiff and defendant No.4,
resided with their father, who was the "Karta" of their
family. He asserts that the properties were acquired by
his father through ancestral inheritance and, from the
income derived from these ancestral properties, his
father purchased additional properties. These properties,
according to him, were also partitioned between his
father and his uncle.
44. It is his evidence that the entire suit schedule
property consists of ancestral properties, joint family
properties, and self-acquired properties belonging to him
and the first defendant. He further contends that, even
prior to 1969, there was an oral partition of the ancestral
and joint family properties between his father, the first
- 39 -
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defendant, and himself. After this oral partition, they
began living separately and enjoyed their respective
shares of the properties acquired through this partition.
In 1969, this oral partition was formalized and reduced
into writing through a memorandum of partition, which,
according to his evidence, has been implemented since
the time of the oral partition. He identifies Ex.D9 as the
memorandum of partition that reflects the division of
properties.
45. Additionally, he states that in 1942, the HAL
Factory was established near Kodihally, and the HAL
Sanitary Board was formed at that time. As a result, the
properties located within the jurisdiction of the HAL
Sanitary Board, except for Item No. 6 in Schedule A,
became non-agricultural lands and were converted into
sites. He notes that Item No. 6 is a garden land that still
exists. The properties listed in Schedule A include several
sheet-roofed sheds and houses.
- 40 -
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46. Regarding B-Schedule properties, he explains
that these were acquired by his father through a
government grant in a public auction. He further asserts
that Items 1 and 2 in Schedule C do not belong to their
family. However, Item 3 in Schedule C contains a
residential house, which he identifies as the family's
residential property. The family residence is situated
jointly in Survey Nos. 219/1 and 220/2, and Item No. 5
is located in Survey No. 220/2, while Item No. 9 is
situated within the A-schedule properties.
47. He further testifies that the properties listed in
the D-schedule are his self-acquired assets, purchased in
1974 through a registered sale deed from one Papaiah of
Kurubarahalli. With respect to the E-schedule, he states
that Items 1, 15 sites formed in Survey Nos. 219/1,
218/1, 220/1, and 220/2. Item 14 of the E-schedule
belongs to the first defendant, situated in Survey No.
218/1. He also confirms that Item 15 in the A-schedule
- 41 -
NC: 2025:KHC:5096-DB
belongs to his father and his uncle, having been allotted
to them in the partition.
48. He goes on to explain that Item 7 of the A-
schedule, measuring 0.25 guntas in Survey No. 84/2,
was divided between his uncle and father, each receiving
10 guntas, while the remaining 5 guntas were purchased
by the first defendant from his maternal grandfather,
Muniswamappa. Khathas were duly effected for these
properties.
49. Throughout his testimony, DW4 has
consistently maintained that, pursuant to Ex.D9, the
properties were partitioned by metes and bounds even
prior to 1969. He further asserts that, as partition has
already taken place, plaintiff cannot seek a division of
the properties again.
50. DW4 was subjected to a rigorous cross-
examination by the plaintiff. However, throughout his
cross-examination, DW4 consistently maintained his
- 42 -
NC: 2025:KHC:5096-DB
position regarding the existence of an oral partition that
took place well before 1969, as well as the memorandum
of partition executed in 1969. All suggestions put forth to
him were categorically denied. It is not disputed by the
plaintiff that the properties were acquired by the
government through land acquisition proceedings, in
which the plaintiff, along with his mother and sister, were
parties. The Court had issued notices to them, and they
were awarded their respective shares in the
compensation. This fact has not been contested by the
plaintiff.
51. Further, it was revealed during the cross-
examination that the taxes for the properties were paid
independently by their father and by DW1 and DW2,
each concerning the properties they owned. The
suggestions made during the cross-examination reveal
that, while the plaintiff concedes the existence of the oral
partition and the contents of Ex.D9, she simultaneously
denies the partition itself. Notably, in her pleadings,
- 43 -
NC: 2025:KHC:5096-DB
there is no mention of the oral partition or Ex.D9. The
plaintiff has sought a partition based on general
allegations in her plaint, despite knowing about the prior
partition. Her failure to plead about the partition or
acknowledge about the existence of the document
undermines her case, suggesting that she sought
partition based on strategic considerations. The cross-
examination directed at DW4 sought to challenge the
authenticity of Ex.D9, yet DW4 unequivocally stated that
the terms of Ex.D9 were dictated by his father, with the
scribe, Patel Nanjareddy, recording the contents as
instructed. It was admitted that Nanjareddy was a
childhood friend of DW4's father, but this does not
diminish the validity of his involvement in the execution
of the document. The witnesses to Ex.D9 were from the
same village but were not related to either the plaintiff
or the defendants. One of the witnesses, Govind Reddy,
is no longer alive, while Y.V. Annaiah, another witness,
hails from Yelachenahalli Village. DW4 confirmed that
movable properties were not included in the partition
- 44 -
NC: 2025:KHC:5096-DB
under Ex.D9. He further testified that even today, he and
his brother reside in separate houses. He denied the
suggestion that Ex.D9 was fabricated or created by him
and defendant no.1. Thus, the cross-examination of DW4
solidifies the fact that there was an oral partition prior to
1969, and that Ex.D9 was formalized in writing in 1969.
When examined, Ex.D9 was executed on a stamp paper
of Rs.50/- on 20.11.1969, in the presence of the
Panchayat members. The document explicitly states that
an oral partition had occurred before 20.11.1969 in order
to resolve family disputes. According to the terms of the
oral partition, the properties were to be enjoyed by the
father of the plaintiff, Ramaiah Reddy, and his two sons,
i.e., defendant nos. 1 and 2. The key recital in Ex.D9
regarding the oral partition reads as follows:
"¸À£ï ¸Á«gÀzÀ MA¨sÉå£ÀÆgÀ CgÀªÀvÉÆÛA¨sÀvÀÛ£É E¸À« £ÀªÉA§gÀÄ ªÀiÁºÉ
vÁjÃPÀÄ E¥ÀàvÀÛgÀ®Äè, ¨ÉAUÀ¼ÀÆgÀÄ r¹ÖçPïÖ ¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÀÄ,
ªÀvÀÆðgÀÄ ºÉÆç½, ºÉZï.J.J0ï. ¸Áå¤lj ¨ÉÆÃrðUÉ ¸ÉÃjzÀ PÉÆÃrºÀ½î
UÁæªÀÄzÀ°è ªÁ¸À ªÀiÁqÀÄwÛgÀĪÀ 0ÉÃlÄ ²æà ªÀÄĤAiÀÄ¥Àà£ÀªÀgÀ »jAiÀÄ ªÀÄUÀ£ÁzÀ,
¸ÀĪÀiÁgÀÄ 70 ªÀµÀð ªÀAiÀĸÀÄì¼Àî JA.gÁªÀÄAiÀÄå gÉrØAiÀiÁzÀ £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß
»jAiÀĪÀÄUÀ Dgï C§âAiÀÄå gÉrØ ªÀÄvÀÄÛ JgÀqÀ£ÉAiÀÄ ªÀÄUÀ «dAiÀÄgÁWÀªÀ gÉrØ
DzÀ £ÁªÀÅUÀ¼ÀÄ F PɼÀUÀqÉ ¸ÁQëºÁQgÀĪÀ ¥ÀAZÁ¬ÄwzÁgÀgÀÄUÀ¼À ªÉÆRÛ F
ªÉÆzÀ0Éà £ÁªÀÅUÀ¼ÀÄ £ÀªÀÄä PÀÄlÄA§zÀ UÉÆAzÀ® ¸ÀªÀĸÉåUÁV £ÁªÀÅ £ÁªÀÅUÀ¼ÀÄ
- 45 -
NC: 2025:KHC:5096-DB
¥ÀAZÁAiÀÄvÀgÀ ¸ÀªÀÄPÀëªÀÄ dĨÁ£É jÃw £ÀªÀÄä PÀÄlÄA§zÀ D¹Û ¥Á¹ÛUÀ¼À£ÀÄß
ºÀAaPÉ ªÀiÁrPÉÆAqÀÄ C jÃw £ÁªÀÅUÀ¼ÀÄ £ÀªÀÄä £ÀªÀÄä ¨sÁUÀPÉÌ §AzÀ D¹Û
¥Á¹ÛUÀ¼À£ÀÄß £ÁªÀÅ ¨ÉÃgÉ ¨ÉÃgÉAiÀiÁV C£ÀĨsÀ«¸ÀÄwÛzÀÄÝ ªÉÄîÌAqÀ jÃw £ÀªÀÄä
¨sÁUÁA±À «µÀAiÀÄzÀ°è AiÀiÁªÀ «zsÀªÁzÀ zÁR0ÉAiÀÄ£ÀÄß £ÁªÀÅUÀ¼ÀÄ ªÀiÁrPÉƼÀîzÉ
EzÀÄÝzÀjAzÀ F ªÉÆzÀ0Éà £ÁªÀÅUÀ¼ÀÄ ªÀiÁrPÉÆArgÀĪÀ «¨sÁUÀ CA±ÀªÀ£ÀÄß
¤¢ðµÀ×¥Àr¸À®Ä PÁUÀzÀ ¨ÉÃPÁzÀÄzÀjAzÀ ªÀÄvÀÄÛ £ÀªÀÄä £ÀªÀÄä ªÀåªÀºÁgÀUÀ¼À£ÀÄß
¨ÉÃgÉ ¨ÉÃgÉ ªÀiÁqÀPÉƼÀî®Ä ¸ÀºÀ zÁR0É £ÁªÀÅUÀ¼ÀÄ »AzÉ ªÀiÁrPÉÆArgÀĪÀ
«¨sÁUÀzÀ ¥ÀæPÁgÀ £ÀªÀÄä £ÀªÀÄä ¨sÁUÀPÉÌ §AzÀ ºÀAaPÉ ¸ÀévÀÄÛUÀ¼À µÉqÀÆå0ï ¥ÀnÖ
ªÀiÁr D 'J', '©' '¹' µÉqÀÆå0ï ¥ÀnÖUÀ¼À°è CAzÀgÉ 'J' µÉqÀÆå0ï£À°è
vÉÆÃj¹gÀĪÀ ¸ÀévÀÄÛUÀ¼ÀÄ ²æà JA.gÁªÀÄAiÀÄå gÉrØAiÀiÁzÀ £À£ÀUÀÆ '©' µÉqÀÆå0ï£À°è
vÉÆÃj¹gÀĪÀ ¸ÀévÀÄÛUÀ¼ÀÄ Dgï. C§âAiÀÄå gÉrØAiÀiÁzÀ £À£ÀUÀÆ ªÀÄvÀÄÛ '¹' µÉqÀÆå0ï£À°è
vÉÆÃj¹gÀĪÀ ¸ÀévÀÄÛUÀ¼ÀÄ «dAiÀÄgÁWÀªÀ gÉrØUÀÆ ªÉÄÃ0É ºÉýzÀ »A¢£À dĨsÁ£É
¨sÁUÀzÀ°è §AzÀ ¸ÀévÀÄÛUÀ¼ÉAzÀÄ M¦àPÉÆAqÀÄ ªÀiÁrPÉÆAqÀ 'J', '©' '¹' µÉqÀÆå0ïUÀ¼À
M¦àUÉ PÀgÁgÀÄ ¥ÀvÀæ ¸À»"
52. At the time of marking this document, neither
the plaintiff nor the contesting defendants raised any
objection.
53. DW.6, Y.V. Annaiah, testified before the trial
Court regarding the oral partition between Ramaiah
Reddy and defendants Nos. 1 and 2 prior to 1969. He
also provided evidence concerning Ex.D9, affirming that
he was present when Ex.D9 was written. According to his
testimony, Ramaiah Reddy instructed the writing of
Ex.D9, and the scribe recorded it accordingly. He signed
Ex.D9 as per Ex.D9(d) to D9(g), along with Ramaiah
- 46 -
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Reddy and his two sons, as well as the attesting
Panchayathdars. Annaiah confirmed that he is not
related to Ramaiah Reddy. Despite cross-examination by
the plaintiff and the contesting defendants, Annaiah
remained consistent in his statement regarding his
involvement in the preparation of Ex.D9.
54. Similarly, DW.7, Nagaraj Ranganna, an
independent witness and deed writer, testified before the
trial Court. He confirmed that, following Ramaiah Reddy's
instructions, he visited Ramaiah Reddy's house and
wrote Ex.D9 in the presence of witnesses and
Panchayathdars. He identified the persons present,
including Patel Nanjareddy and others, and confirmed
the contents of Ex.D9. Ranganna further affirmed that
Ramaiah Reddy was in good health when the document
was written. He identified his signature as the scribe
(Ex.D9[m] to D9[p]) and the signatures of Ramaiah
Reddy and his sons (Ex.D9[h] to D9[l]). The plaintiff did
- 47 -
NC: 2025:KHC:5096-DB
not effectively cross-examine DW.7 to dispute his
evidence.
55. Ex.D8 is a statement made by Ramaiah Reddy
before the Special Tahsildar for Inam Abolition, in which
he explained how he acquired the properties mentioned
in the statement. This document, showing how Ramaiah
Reddy acquired the properties listed in the schedule, was
not disputed by the plaintiff or other contesting
defendants.
56. Upon a thorough review of the pleadings,
evidence, and documents, it is clear that there was an
oral partition between Ramaiah Reddy and his two sons,
and that this partition was reduced to writing as per
Ex.D9, which has been consistently acted upon. The
question now arises whether a Hindu father, under the
Mitakshara law, has the authority to effect a partition.
According to "Manes Hindu Law," XIV Edition, at page 81
(para. 471), the following text is found-
- 48 -
NC: 2025:KHC:5096-DB
"A Hindu father under the Mithakshara can effect a
partition between himself and his sons without their
consent. This text has been held to apply not only to
property acquired by the father himself but, also to
ancestral property. The father has power to effect
division not only between himself and his sons but, also
between the sons inter se."
57. The learned author, in the above statement of
law, has referred to several judgments rendered by the
Courts. According to Hindu Law, a father is competent to
make a partition during his lifetime, and such a partition
binds his sons. This is not because the sons have
consented to the arrangement but because the father
has the authority to do so, although subject to certain
restrictions in the family's interest. Therefore, under the
Mitakshara School of Hindu Law, a father has the
undisputed right and privilege to effect a partition
between himself and his sons, whether they are major or
minor, without their consent. He may divide the property
physically or merely divide the status. However, the
partition must be fair and equal.
- 49 -
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58. If this principle is applied to the present case,
it is evident that Ramaiah Reddy, during his lifetime,
effected the oral partition and subsequently effected the
memorandum of partition as per Ex.D9. Following his
instructions, the memorandum of partition was created.
This partition was not disputed by defendants Nos. 1 and
2, his sons, and neither the plaintiff nor defendant No. 4
raised any objection at that time. To substantiate that
the partition was effected and acted upon, all the
sharers, namely Ramaiah Reddy and defendants Nos. 1
and 2, began living separately, cultivating their
respective properties, and conducting independent
proceedings before the Land Acquisition Court. The
compensation awarded was distributed among the
sharers, including the plaintiff, in accordance with their
respective shares. Therefore, as the learned trial Court
rightly observed, the claim that no partition occurred
holds no evidentiary value, as alleged by the plaintiff.
- 50 -
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59. It is a settled principle of law that when a
family arrangement or partition occurs and a subsequent
memorandum of partition is drawn up, such a
memorandum of partition does not need to be
registered. The Hon'ble Apex Court, in the case of
Roshan Singh & Ors vs Zile Singh & Ors1, laid down
this principle in Para-16 of the judgment, where it was
held as follows:
"16. In the present case, admittedly there was a
partition by metes and bounds of the agricultural lands
effected in the year 1955 and the shares allotted to the
two branches were separately mutated in the revenue
records. There was thus a disruption of joint status. All
that remained was the partition of the ancestral
residential house called rihaishi, the smaller house
called baithak and ghers/ghetwars. The document
Exh.P-12 does not effect a partition but merely records
the nature of the arrangement arrived at as regards the
division of the remaining property. A mere agreement
to divide does not require registration. But if the writing
itself effects a division, it must be registered.
See: Rajangam Ayyar v. Rajangam Ayyar, LR (1923) 69
AIR 1988 SC 881
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IA 123 and Nani Bai v. Gita Bai, AIR (1958) SC 706. It
is well-settled that the document though unregistered
can however be looked into for the limited purpose of
establishing a severance in status, though
that severance would ultimately affect the nature of the
possession held by the members of the separated family
as co-tenants. The document Exh.P-12 can be used for
the limited and collateral purpose of showing that the
subsequent division of the properties allotted was in
pursuance of the original intention to divide. In any
view, the document Exh.P-12 was a mere list of
properties allotted to the shares of the parties."
60. When a document establishes a partition by
metes and bounds, it does not require registration if it
has already been acted upon. This document, upon
careful consideration, can be used to demonstrate the
status and validity of the partition, as asserted by the
defendants. The Hon'ble Apex Court, in the case of
Ravinder Kaur Grewal & Ors. v. Manjit Kaur &
Ors.2, addressed the issue of "whether a family
settlement or family arrangement requires compulsory
registration". The Court held that, the necessity for
(2020) 9 SCC 706
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registration depends on whether the document: (a)
creates or transfers a right in immovable property for the
first time, or (b) is a memorandum recording pre-
existing rights or arrangements already settled between
the parties concerning immovable property. It was
concluded that only in case (a) would compulsory
registration be required.
61. In the present case, the portion extracted
above clearly indicates that an oral partition was effected
prior to 1969 and was subsequently reduced to writing
as per Ex.D9. This document is binding, and upon
reading the full text of Ex.D9, it is evident that it records
the terms of a family settlement in a definitive form. As
per this partition, the properties listed in 'A' schedule
were allotted to Ramaiah Reddy, the 'B' schedule
properties to defendant No. 1, and the 'C' schedule
properties to defendant No. 2. The evidence provided by
DW.1 and his witnesses supports the contention that the
settlement was voluntary and free from any fraud,
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coercion, or undue influence. It represents an equitable
division between the father and his two sons.
62. Therefore, as per the ruling of the Hon'ble
Apex Court in the aforementioned judgment, Ex.D9 does
not require compulsory registration. The plaintiff has not
pleaded any facts to suggest that Ex.D9 was the result of
fraud or misrepresentation, and only bare suggestions
were put forth to DW.4 and his witnesses. Upon
considering all factual aspects, it can be conclusively
stated that while the plaintiff has established that the
suit schedule properties are ancestral and joint family
properties of Ramaiah Reddy, she has failed to prove her
legitimate share as claimed. Conversely, defendant Nos.
1 and 2 have successfully demonstrated that an earlier
partition took place before 1969, and Ex.D9, the
Memorandum of Partition, was executed to formalize the
prior oral partition, following the instructions of Ramaiah
Reddy. This partition has been acted upon.
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63. Therefore, as the learned trial Court rightly
held, Ex.D9 is a valid document with legal effect and
serves as the Memorandum of Partition, which does not
require registration under the provisions of the
Registration Act. Accordingly, Point No.1 is answered
partly in the 'Affirmative', while Point Nos. 2 and 3 are
answered in the 'Affirmative'.
POINT NO.4
64. It is the specific defence of Defendants Nos. 1
and 2 that the deceased, Ramaiah Reddy, executed a
Will (Ex.D276) on 30.11.1986, when he was in a sound
state of mind, bequeathing his properties, which were
allotted to him under Ex.D9, to Defendants Nos. 1 and 2.
To substantiate this, Defendant No. 2, DW.4, has testified
about the execution of the Will by his father in favour of
himself and Defendant No. 1. DW.4 has been consistent
in his testimony, stating that his father was in good
health and of sound mind when the Will was executed.
The plaintiff, however, argues that her father was 85
years old at the time of his death and had not made any
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provision for her, her sister, or her deaf and dumb
daughter. Hence, the plaintiff contends that the Will is
invalid and surrounded by suspicious circumstances.
65. One significant issue raised by the plaintiff is
that the Will-Ex.D276 which is also referred at Ex.D258
the certified copy, was executed on 30.11.1986, but
Ramaiah Reddy passed away on 04.12.1986, just four
days later. This short time frame, according to the
plaintiff, raises doubts about the genuineness of the Will.
However, to prove the validity of the Will, DW.4 has
consistently testified that his father was in sound mind
when the Will was executed, and that the Will bequeaths
the properties described in Ex.D9, which were allotted to
him.
66. To establish the proper attestation of the Will,
Defendants Nos. 1 and 2 have examined DW.5, K.M.
Krishna Reddy, an attesting witness. DW.5 testified that
Ramaiah Reddy, who resided at Kodihally Village, had a
close relationship with him and frequently visited his
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home. He stated that Ramaiah Reddy and his wife were
living together, while the plaintiff and the defendants
lived separately. According to DW.5, approximately one
month before the execution of the Will, Ramaiah Reddy
had discussed giving his properties to his sons. Later, in
November 1986, Ramaiah Reddy called DW.5 to his
house to be present when the Will was written. On that
occasion, Ramaiah Reddy, his wife, and others, including
Shanbog Ramarao, Munireddy, Erappa, and Dr. Jayaram
Reddy, were present. DW.5 further testified that Ramaiah
Reddy instructed Mr. Ramarao, the scribe, to write the
Will. After the Will was written, it was read aloud to all
present, and Ramaiah Reddy accepted its contents,
signing both his signature and thumb impression due to
his shaking hands. The signatures of the attesting
witnesses, Erappa, Munireddy, DW.5, and Dr. Jayaram
Reddy, were then affixed to the Will, with each witness
identifying their signatures on Ex.D276 (Ex.D276(a) to
Ex.D276(k)).
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67. DW.5 also testified that the Will was registered
in 1987, after the death of Ramaiah Reddy. The Sub-
Registrar issued a notice to him, and after recording the
statements of the attestors, the Will was duly registered.
Although DW.5 underwent intensive cross-examination
by both the plaintiff's counsel and the contesting
defendants, his testimony remained consistent, and no
significant discrepancies were highlighted to undermine
his evidence.
68. To further support the execution of the Will,
the defendants rely on the evidence of the scribe, Mr. K.
Ramarao, who was examined in a civil suit (O.S.
No.6368/1980) and testified that, at the instructions of
Ramaiah Reddy, he wrote the Will marked as Ex.D276.
Mr. Ramarao identified the signature of the testator,
Ramaiah Reddy, and the signatures of the witnesses. The
cross-examination of Mr. Ramarao confirms that he was
the one who scribed the Will as per the instructions of
the testator.
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69. In light of the combined evidence of DW.4, the
attesting witness, and the scribe, it is clear that the
deceased, Ramaiah Reddy, was in a sound state of mind
when he executed the Will (Ex.D276), which bequeaths
the 'A' schedule properties allotted to him under Ex.D9 to
his two sons, Defendants Nos. 1 and 2. The evidence of
the witnesses, along with the formalities of execution
and registration, supports the legitimacy of the Will.
Therefore, the execution of the Will, Ex.D276, is
established and should be upheld as a valid document.
70. Upon reviewing the provisions of Section 63 of
the Hindu Succession Act, 1925, and Section 68 of the
Indian Evidence Act, 1872, it is clear that compliance
with both is essential for the validity of a Will. A plain
reading of these sections indicates that the requirements
set out under Section 63 of the Hindu Succession Act
must be strictly followed for the execution of the Will to
be properly proved under Section 68 of the Evidence Act.
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71. In the recent judgment of Meena Pradhan v.
Kamla Pradhan3, the Hon'ble Supreme Court observed
that, a Will is a testamentary instrument by which a
person disposes of his property during his lifetime to be
effective upon his death. It is a legally recognized
method of bequeathing property and carries an inherent
sanctity. Since the testator, at the time of executing the
Will, will not be available to testify regarding the
circumstances surrounding the execution of the Will,
stringent requirements for proving the validity of the Will
have been statutorily prescribed to prevent any
manipulation or fraud.
72. Furthermore, the Hon'ble Supreme Court in the
aforementioned case referred to the principles laid down
in H. Venkatachala Iyengar v. B.N. Thimmajamma4,
which set out the essential criteria for proving the
validity and execution of a Will. These principles, detailed
(2023) 9 SCC 734
AIR 1959 SC 443
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in paragraphs 10.1 to 10.11 of the judgment, provide a
clear framework for ensuring that the execution of a Will
is in accordance with legal standards.
"10.1. The Court has to consider two aspects :
firstly, that the will is executed by the testator, and
secondly, that it was the last will executed by him;
10.2. It is not required to be proved with
mathematical accuracy, but the test of satisfaction of
the prudent mind has to be applied.
10.3. A will is required to fulfil all the formalities
required under Section 63 of the Succession Act, that is
to say:
(a) The testator shall sign or affix his mark to the will
or it shall be signed by some other person in his
presence and by his direction and the said signature or
affixation shall show that it was intended to give effect
to the writing as a will;
(b) It is mandatory to get it attested by two or more
witnesses, though no particular form of attestation is
necessary;
(c) Each of the attesting witnesses must have seen
the testator sign or affix his mark to the will or has seen
some other person sign the will, in the presence and by
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the direction of the testator, or has received from the
testator a personal acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the will
in the presence of the testator, however, the presence
of all witnesses at the same time is not required;
10.4. For the purpose of proving the execution of the
will, at least one of the attesting witnesses, who is alive,
subject to the process of Court, and capable of giving
evidence, shall be examined;
10.5. The attesting witness should speak not only
about the testator's signatures but also that each of the
witnesses had signed the will in the presence of the
testator;
10.6. If one attesting witness can prove the
execution of the will, the examination of other attesting
witnesses can be dispensed with;
10.7. Where one attesting witness examined to
prove the will fails to prove its due execution, then the
other available attesting witness has to be called to
supplement his evidence;
10.8. Whenever there exists any suspicion as to the
execution of the will, it is the responsibility of the
propounder to remove all legitimate suspicions before it
can be accepted as the testator's last will. In such
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cases, the initial onus on the propounder becomes
heavier.
10.9. The test of judicial conscience has been
evolved for dealing with those cases where the
execution of the will is surrounded by suspicious
circumstances. It requires to consider factors such as
awareness of the testator as to the content as well as
the consequences, nature and effect of the dispositions
in the will; sound, certain and disposing state of mind
and memory of the testator at the time of execution;
testator executed the will while acting on his own free
will;
10.10. One who alleges fraud, fabrication, undue
influence et cetera has to prove the same. However,
even in the absence of such allegations, if there are
circumstances giving rise to doubt, then it becomes the
duty of the propounder to dispel such suspicious
circumstances by giving a cogent and convincing
explanation.
10.11. Suspicious circumstances must be "real,
germane and valid" and not merely "the fantasy of the
doubting mind [Shivakumar v. Sharanabasappa, (2021)
11 SCC 277] ". Whether a particular feature would
qualify as "suspicious" would depend on the facts and
circumstances of each case. Any circumstance raising
suspicion legitimate in nature would qualify as a
suspicious circumstance, for example, a shaky
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signature, a feeble mind, an unfair and unjust
disposition of property, the propounder himself taking a
leading part in the making of the will under which he
receives a substantial benefit, etc."
73. In addition to the statutory requirements
discussed above, the propounder of the Will must
establish the following elements:
(a) The testator executed the Will voluntarily, without
any external pressure or influence.
(b) The testator possessed a sound state of mind at
the time of execution.
(c) The testator was aware of the nature and
implications of the Will.
(d) The Will was not executed under any suspicious
circumstances.
74. Turning to the facts of the case, although the
learned Senior Counsel for the plaintiff has raised
arguments regarding the testator's age (85 years), his
frail health, his shaking hands, his inability to sign, and
his failure to make provisions for his deaf and dumb
granddaughter and two daughters, the evidence
presented by both the scribe and the attesting witnesses
contradicts these claims. The scribe and attesting
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witnesses have affirmed that the testator was in a sound
state of mind when executing the Will and was capable
of affixing both his signature and thumb impression.
Furthermore, it is established that the testator had
already made provisions for the plaintiff by allocating
landed and house properties prior to the execution of the
Will, which may have led him to decide not to include
further provisions for her. While it is true that the
testator passed away within four days of executing
Ex.D276, the testimony of the scribe and the attesting
witnesses confirms that he was in full possession of his
faculties at the time of its execution. A thorough review
of the record, when considered alongside the provisions
of law and the precedents set by the Hon'ble Apex Court,
reveals that the Will was duly executed by the testator,
who was of sound mind, and was signed by him in the
presence of witnesses, who attested to the document.
The scribe and attesting witnesses consistently
corroborate that the testator was fully aware of the
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contents of the Will, which was read to him before he
signed it.
75. As for the allegations made by the plaintiff and
contesting defendants, we find no conclusive evidence in
the record to suggest that the testator was in a
compromised state of mind at the time of executing
Ex.D276 or that the Will was executed under any
suspicious circumstances. Additionally, no evidence has
been presented to establish that the Will was a result of
undue influence. The learned trial Court, having
examined the intentions of the testator in making a
testament in favor of his two sons, has rightly drawn its
conclusions. The propounders of the Will have produced
the scribe and attesting witnesses, whose testimonies
affirm the testator's mental and physical condition at the
time of execution. The celebrated judgment in H.
Venkatachala Iyengar supra has clearly delineated the
standard of proof required for establishing the validity of
a Will, as distinct from other types of documents. The
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relevant passage from the judgment is found on page
451, paragraph 18, which states:
"18. xxxx The party propounding a will or otherwise
making a claim under a will is no doubt seeking to
prove a document and, in deciding how it is to be
proved, we must inevitably refer to the statutory
provisions which govern the proof of documents.
Sections 67 and 68 of the Evidence Act are relevant
for this purpose. Under Section 67, if a document is
alleged to be signed by any person, the signature of
the said person must be proved to be in his
handwriting, and for proving such a handwriting
under Sections 45 and 47 of the Act the opinions of
experts and of persons acquainted with the
handwriting of the person concerned are made
relevant. Section 68 deals with the proof of the
execution of the document required by law to be
attested; and it provides that such a document shall
not be used as evidence until one attesting witness
at least has been called for the purpose of proving its
execution. These provisions prescribe the
requirements and the nature of proof which must be
satisfied by the party who relies on a document in a
Court of law. Similarly, Sections 59 and 63 of the
Indian Succession Act are also relevant. Section 59
provides that every person of sound mind, not being
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a minor, may dispose of his property by will and the
three illustrations to this section indicate what is
meant by the expression "a person of sound mind" in
the context. Section 63 requires that the testator
shall sign or affix his mark to the will or it shall be
signed by some other person in his presence and by
his direction and that the signature or mark shall be
so made that it shall appear that it was intended
thereby to give effect to the writing as a will. This
section also requires that the will shall be attested by
two or more witnesses as prescribed. Thus the
question as to whether the will set up by the
propounder is proved to be the last will of the
testator has to be decided in the light of these
provisions. Has the testator signed the will? Did he
understand the nature and effect of the dispositions
in the will? Did he put his signature to the will
knowing what it contained? Stated broadly it is the
decision of these questions which determines the
nature of the finding on the question of the proof of
wills. It would prima facie be true to say that the will
has to be proved like any other document except as
to the special requirements of attestation prescribed
by Section 63 of the Indian Succession Act. As in the
case of proof of other documents so in the case of
proof of wills it would be idle to expect proof with
mathematical certainty. The test to be applied would
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be the usual test of the satisfaction of the prudent
mind in such matters."
76. When the aforementioned principles are
applied to the present facts, it is our considered opinion
that the learned trial Court has accurately interpreted
and applied the relevant provisions of law, as well as the
judgments of the Hon'ble Apex Court. The trial Court has
correctly concluded that the propounders of the Will have
duly complied with the necessary legal requirements for
proving the Will. Furthermore, the trial Court has
provided a well-reasoned judgment upholding the
validity of the Will. In light of this, we find no grounds to
interfere with the trial Court's findings. Accordingly, point
No. 4 raised above is answered in the 'Affirmative'.
Point NO.5:
77. The specific assertion of Defendant No. 5 is
that the deceased, Chowdamma (third defendant),
during her lifetime, executed a Will dated 21st
September 1989, bequeathing her share in the suit
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schedule properties. As a result, upon Chowdamma's
demise, Defendant No. 5 claims to have become the
absolute owner of the suit properties, as outlined in the
Will marked as Ex.D5.
78. To substantiate the claims made in the Will,
the Power of Attorney holder of Defendant No. 5, who is
also her husband, has appeared before the trial Court
and deposed on her behalf, citing that Defendant No. 5 is
both deaf and mute and unable to provide evidence
herself. The Power of Attorney holder has specifically
stated that, during her lifetime, Chowdamma executed
the Will in question (Ex.D5) in 1989.
79. He further testified that he hails from
Gowribidnur, and that the plaintiff, Jayamma, is his
mother-in-law, while the fourth defendant is
Chowdamma's sister. He clarified that he had no
knowledge of any legal proceedings between the plaintiff
and Defendants Nos. 1 and 2, except concerning the suit
properties in question. He confirmed that, along with the
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plaintiff, he regularly attended Court hearings related to
the civil suit filed by the plaintiff (OS No. 1646/1987).
80. The witness candidly admitted that
Chowdamma never informed him of the Will's execution
during her lifetime. He also confessed his ignorance
regarding the names of the attestors, namely Devappa,
Patel Ramaiah, and Narayanappa, and that he was not
present when the Will was executed. According to his
testimony, approximately three days before the Will's
execution, Chowdamma requested his assistance in
having a document written and registered. Following her
request, he accompanied her to the Bar Association in
Bengaluru, where she met with a lady advocate. The
lady advocate advised Chowdamma to return after three
days. When they reconvened, Chowdamma handed over
a handwritten document to the advocate, who then
directed him to have it typed. He proceeded to have the
document typed on a white paper, which was reviewed
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and approved by both Chowdamma and the lady
advocate.
81. The witness further stated that he became
aware of the content of the Will through his wife. Upon
being shown a document in Court, he identified it but
denied that it was the original document he had typed,
though he acknowledged having typed the content on a
white paper. He mentioned that the lady advocate had
instructed him to ensure the typed matter was correct
and to have it typed on stamped paper, which he
subsequently did. According to the witness, the deceased
Chowdamma ultimately executed the Will (Ex.D5) in
favor of Defendant No. 5.
82. Defendant No. 5, in her capacity as the
propounder of the Will, examined the scribe of the Will,
Smt. Vijayalakshmi, Advocate, who testified as DW.2.
According to her evidence, at the instructions of
Chowdamma, she prepared the Will. DW.1, the husband
of Defendant No. 5, did not mention in his testimony that
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one Narayanappa accompanied them throughout the
process. However, DW.2 stated that Narayanappa
brought Chowdamma, who was a paralytic patient and
had difficulty in walking, to her office. DW.1 had stated
that they went to the Bar Association in Bengaluru,
whereas DW.2 testified that Chowdamma and
Narayanappa came directly to her office.
83. DW.2 further stated that, at the time of
preparation of the Will, Chowdamma's mental condition
was good, and she was capable of understanding the
contents of the document. DW.2 identified Ex.D5 and
confirmed that Chowdamma had taken the draft from
her and had it typed. She also explained the contents of
the Will to Chowdamma. According to DW.2, both
Chowdamma and Narayanappa requested her to
accompany them when the Will was to be registered.
After a few days, they went together to the office of the
Sub-Registrar in Bengaluru, where, in addition to
Chowdamma, another young boy was present.
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84. The evidence provided by DW.2 suggests that
DW.1, the husband of Defendant No. 5, was consistently
present with Chowdamma from the time they met DW.2
until the registration of the Will. This implies that DW.1
played an active role in the creation and execution of the
Will, Ex.D5. Furthermore, DW.2 was able to identify
Chowdamma's thumb impression on the document,
confirming its authenticity.
85. In her cross-examination, DW.2 specifically
stated that it was Narayanappa who brought
Chowdamma to her office to provide instructions for the
preparation of the Will. She clarified that on that
particular day, she did not take instructions but merely
noted down the details regarding the Will. Narayanappa
informed her that Chowdamma, his neighbour, wished to
execute a Will. DW.2 also noted Chowdamma's health
condition, mentioning that she was suffering from
paralysis. After taking further instructions, DW.2
prepared a note sheet for drafting the Will, which was
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typed on the date of its registration. However, the
evidence presented by DW.1 contradicts this account.
DW.1 specifically mentioned the presence of both
himself, Ashwatha Reddy, and another elderly individual
at the time of the registration of the Will.
86. When examining the testimonies of DW.1 and
DW.2, both witnesses provided consistent accounts
regarding the instructions given by Chowdamma for the
preparation of the Will. Additionally, Defendant No. 5
examined H.M. Devappa, who claimed to be an attesting
witness to the Will (Ex.D5). As per his testimony, at
Chowdamma's request, he accompanied her to the Sub-
Registrar's office, where he identified Ex.D5, the Will,
and Chowdamma's thumb impression. He also identified
the presence of DW.2 and confirmed his signature on
Ex.D5 (p). During cross-examination, attempts were
made to highlight certain interactions between Devappa
and Jayamma, but he denied these claims. Devappa also
denied allegations of any ill will between him and DWs. 1
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and 2. He further stated that it was DW.1, Ashwatha
Reddy, who called him to accompany Chowdamma. He
unequivocally stated that the Will was not drafted in his
presence but was written in the Sub-Registrar's office,
where he, along with Ramaiah, Chowdamma, and
Narayanappa, were present. According to him, DW.1
brought Chowdamma to the Sub-Registrar's office,
where she executed the Will in favor of Defendant No. 5,
Gayathri.
87. The evidence presented by DWs. 1 to 3
indicates active involvement of DW.1, the husband of
Defendant No. 5, in the execution of the Will. As
Defendant No. 5 is the beneficiary of the Will, and DW.1
is her husband, it is argued that this close involvement
raises concerns about the genuineness of the Will. To
further substantiate this claim, Defendant No. 2, K.R.
Vijayaraghav Reddy, appeared before the trial Court as
DW.4, asserting that the Will was a fabricated document.
He discussed the earlier partition between his father and
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uncle, as well as the 1969 partition between himself, his
father, and his brother, along with the memorandum of
partition (Ex.D9). According to his testimony, he was
involved in business in Kodihally and looked after his
bedridden mother, Chowdamma. He denied any
involvement of Defendant No. 5 or the plaintiff in this
care. DW.4 further stated that the Will set up by
Defendant No. 5 was the result of coercion, fraud, and
misrepresentation. He claimed that his mother was
forcibly taken by the plaintiff while she was completely
bedridden, and that the Will was created by Defendant
No. 5 in collusion with the plaintiff in an attempt to seize
the property through deceit.
88. Upon reviewing the entire testimony of DWs. 1
to 3, it is evident that a partition had already taken place
as per Ex.D9, and at that time, Chowdamma's husband
was still alive. Under Hindu law, a wife has no share in
the property during her husband's lifetime; her
succession rights only open upon his demise. In this
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case, Ex.D258 came into existence well before Ex.D5.
Defendant Nos. 1 and 2 have successfully established
the Will executed by their father in their favor. The
primary grievance of Defendant No. 5 and the plaintiff
appears to be that no provision was made for Defendant
No. 5's welfare and that no property was allocated to the
plaintiff.
89. However, the evidence, particularly that
presented by PW.1, indicates that property had been
allocated to the plaintiff before the partition as per
Ex.D9, and it was she who constructed houses based on
a plan obtained by the deceased Ramaiah Reddy. The
trial Court carefully considered the factual history of the
Ramaiah Reddy family, from 1945 until his death, and
concluded that no sufficient evidence has been presented
by either the plaintiff or Defendant No. 5 to discredit the
contents of Ex.D9, the memorandum of partition.
90. It is brought on record that, there was a
severance of joint family status as far back as 1969, and
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the partition occurred before the execution of Ex.D9, the
provisions of Section 6 of the Hindu Succession Act (HS
Act), as amended by the Karnataka State Amendment
and the 2005 Central Amendment, do not apply. The
partition was carried out, and the partition deed was duly
acted upon. Testimonies confirm that following the
partition, deceased Ramaiah Reddy took steps to effect
the changes in the revenue records (Waradi) to reflect
the division of property, and subsequently, he began
residing separately with Chowdamma, as did Defendant
Nos. 1 and 2. Therefore, the partition deed was
implemented, and the claims of Defendant No. 5 and the
plaintiff do not alter the legally binding nature of the
partition that occurred prior to the execution of Ex.D9.
91. In the judgment of the Hon'ble Supreme
Court in Vineeta Sharma v. Rakesh Sharma5, the
position of a daughter with respect to inheritance has
been clarified. Regarding the Will propounded by
(2020) 9 SCC 1
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Defendant No. 5, it is essential to prove the Will in
accordance with the statutory provisions governing the
proof of documents. Sections 67 and 68 of the Evidence
Act, along with Sections 59 and 63 of the Indian
Succession Act, are relevant for this purpose. Section 59
of the Succession Act stipulates that a person of sound
mind, not being a minor, may dispose of his property
through a Will. Section 63 of the Act further requires that
the testator must either sign or affix a mark to the Will,
or it must be signed by another person in the testator's
presence and by their direction, with the signature or
mark clearly indicating the intent to execute the
document as a Will. This principle was reaffirmed by the
Hon'ble Supreme Court in the celebrated judgment in H.
Venkatachala supra.
92. Despite Defendant No. 5 setting up the Will,
the physical and mental capacity of the deceased
Chowdamma to execute the Will has not been sufficiently
established. She was suffering from paralysis, and the
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evidence presented indicates that her mental condition
was debilitated. Chowdamma had no right to the
property after the partition, and in light of her husband's
prior execution of a Will, it is improbable that
Chowdamma still held rights to the property and could
execute a Will in favor of Defendant No. 5. The
disposition of property in this manner appears unnatural
and unlikely, especially when considering the relevant
circumstances brought forth by Defendant Nos. 1 and 2.
93. Furthermore, the evidence of DWs. 1 to 3
suggests that the execution of the Will may not have
been the result of the testator's free will and intent.
DW.1, the husband of Defendant No. 5, played a
prominent role in the execution of the Will and was
present throughout the process, acting as the
beneficiary's spouse. The sequence of events such as the
meeting with the advocate at the Bar Association, the
visit to the office of the Sub-Registrar, and the execution
of the Will has not been proved in accordance with legal
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requirements. Inconsistencies in the evidence and
incorrect recitals further undermine the credibility of the
Will. While Defendant No. 5 has been impleaded based
on Ex.D5, this alone is insufficient to prove the Will in
accordance with the law. From these suspicious
circumstances, it is reasonable to question the validity of
Ex.D5 and conclude that the Will cannot be accepted as
genuine.
94. The learned counsel for the appellant-plaintiff
contends that, in light of the suspicious circumstances
outlined in the synopsis, the Will executed by
Chowdamma in favour of Defendant No. 5 has been
proved. While there is no dispute regarding the principles
laid down in the cited judgments. The counsel
emphasizes that, given the facts and circumstances of
the case, including the partition of family properties that
took place well before 1969 and was confirmed in 1969
as per Ex.D5, the status of the parties must be
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considered under the legal framework that existed at
that time.
95. At the time of the partition and severance of
joint family status, which occurred before the Hindu
Succession Act, 1956, the plaintiff and her sister were
not coparceners in the family of Ramaiah Reddy. Even if
we consider the 1990 (Karnataka Amendment) for the
sake of argument, it is important to note that the status
of a daughter was only recognized as a coparcener under
the Hindu Succession (Karnataka Amendment) Act,
1990, effective from September 30, 1994. Prior to that,
under the Hindu Succession Act of 1956, which was in
force at the time of the partition, daughters did not have
the status of coparceners and could not claim a share in
the joint family property.
96. Furthermore, even under the provisions of the
Karnataka Amendment, 1990, the daughter was granted
the right to claim a share at the time of partition, and it
is not permissible when partition had not already taken
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place. In the present case, since the partition occurred
long before the amendment, the provisions of Section 6A
of the Hindu Succession Act, as inserted by the
Karnataka Amendment, do not apply.
97. Additionally, the Central Amendment to the
Hindu Succession Act, which came into force on
September 9, 2005, granted daughters the status of
coparceners and recognized their birthright to
coparcenary property. However, the proviso to Section 6
of the Act specifically clarifies that "nothing in the sub-
section shall affect or invalidate any disposition,
alienation, partition, or testamentary disposition that
took place before December 20, 2004". Therefore, the
amended provisions of the Hindu Succession Act,
including the recognition of daughters as coparceners, do
not apply to the present case as the relevant
transactions occurred prior to this date.
98. If this proviso is applied to the present facts of
the case, it is clear that, a partition had taken place long
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before 1969, and this partition was formalized in writing
as a memorandum of partition under Ex.D9 in 1969.
Furthermore, the Will set up by Defendant Nos. 1 and 2,
executed by Ramaiah Reddy in 1986, is duly proved in
accordance with the law as per Ex.D276, which was
created much before December 20, 2004. Therefore, the
amended provisions of the Hindu Succession Act, namely
the Karnataka Amendment of 1990 and the Central
Amendment of 2005, have no bearing on the present
case.
99. The learned trial Court has also concluded that
if Chowdamma had any entitlement to property as the
wife of the deceased Ramaiah Reddy, she would only
have had a share by virtue of her husband's death.
However, under Ex.D276, Ramaiah Reddy bequeathed all
of his properties to Defendant Nos. 1 and 2. In addition,
he made provisions for his daughter (the plaintiff) and
wife, giving certain immovable properties to the plaintiff.
The Will, Ex.D276, explicitly reads as under -
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"£À£ÀUÉ E§âgÀÄ ºÉtÄÚªÀÄPÀ̼ÀÄ E§âgÀÄ UÀAqÀÄ ªÀÄPÀ̼ÀÄUÀ½UÁV-
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UÀAqÀÄ ªÀÄPÀ̼ÀÄ £ÀªÀÄä Rað¤AzÀ®Æ ¸ÀºÀ £ÉgÀªÉÃj¹ PÉÆnÖgÀÄvÉÛêÉ. C®èzÉ £Á£ÀÄ £À£Àß
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PÀnÖ¹PÉÆnÖgÀÄvÉÛêÉ. £À£Àß UÀAqÀ ªÀÄPÀ̽UÀÆ ¸ÀºÁ CªÀgÀ ªÀÄzÀĪÉUÀ¼À£ÀÄß ¸ÀºÁ F
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vÀgÀºÉAiÀÄ vÉÆAzÀgÉ K£ÀÆ EgÀĪÀÅ¢0Áè £À£ÀUÀÆ £À£Àß ºÉAqÀw ²æêÀÄw ZËqÀªÀÄä¤UÀÆ
FUÁUÀ0Éà ªÀAiÀĸÁìV £ÁªÀÅ £ÀªÀÄä ªÀÈzÁÝ¥ÀåUÀ½AiÀÄ°è EgÀÄvÉÛêÉ. £À£ÀUÉ FZÉUÉ
DgÉÆÃUÀåzÀ ¹Üw ªÀÈzÁÝ¥ÀåzÀ zÀ±É¬ÄAzÀ QëÃtªÁUÀÄwÛgÀĪÀÅzÀjAzÀ E£ÀÄß ªÀÄÄAzÉ
£À£Àß PÁ0Á£ÀAvÀgÀ £À£Àß ¨sÁUÀPÉÌ §AzÀÄ £À£Àß C£ÀĨsÀªÀzÀ°ègÀĪÀ F PɼÀV£À
µÉqÀÆå°£À°è vÉÆÃj¹gÀĪÀ £À£Àß D¹Û ¥Á¹ÛUÀ¼À£ÀÄß £À£Àß £ÀAvÀgÀ £À£Àß ªÀÄPÀ̼ÀÄUÀ½UÉ
ªÀÄÄAzÉ AiÀiÁªÀ «zsÀªÁzÀ vÀAmÉ vÀPÀgÁgÀÄUÀ¼ÀÄ GAmÁUÀ¨ÁgÀzÉAzÀÄ £À£ÀUÉ
- 86 -
NC: 2025:KHC:5096-DB
zÉúÀzsÁqÀåð DgÉÆÃUÀå ¨sÁUÀå eÁÕ¥ÀPÀ §Ä¢Ý±ÀQÛ ZÉ£ÁßV EzÀÄÝ £Á£ÀÄ
fêÀAvÀªÁVgÀĪÁUÀ°Ã £À£Àß ªÀÄPÀ̼ÀÄUÀ¼À°è AiÀiÁgÀÄ AiÀiÁjUÉ £À£Àß D¹Û ¥Á¹ÛUÀ¼ÀÄ
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ºÉAqÀwAiÀÄ£ÀÄß £À£Àß UÀAqÀÄ ªÀÄPÀ̼ÁzÀ Dgï. C§âAiÀÄå gÉrØ ªÀÄvÀÄÛ PÉ.Dgï.
«dAiÀÄgÁWÀªÀgÉrØ E§âgÀÆ ªÀÄvÀÄÛ CªÀgÀ ºÉAqÀw ªÀÄPÀ̼ÀÄ ¸ÀºÁ vÀAzÉ
vÁ¬ÄUÀ¼ÁzÀ £ÀªÀÄä£ÀÄß ªÉÆzÀ°£ÀAvÉAiÉÄà ¦æÃw ªÁ¸Àì®å UËgÀªÀUÀ½AzÀ £ÉÆÃqÀÄvÁÛ
PÁ® PÁ®PÉÌ £ÀªÀÄä DgÉÆÃUÀå AiÉÆÃUÀPÉëêÀÄUÀ¼À£ÀÄß «ZÁj¸ÀÄvÁÛ £ÀªÀÄä£ÀÄß DgÉÊPÉ
ªÀiÁqÀÄwÛgÀĪÀÅzÀjAzÀ E£ÀÄß ªÀÄÄAzÉAiÀÄÆ ¸ÀºÁ £À£Àß ªÉÄîÌAqÀ E§âgÀÄ UÀAqÀÄ
ªÀÄPÀ̼ÀÄ £À£ÀߣÀÄß ªÀÄvÀÄÛ £À£Àß ºÉAqÀwAiÀÄ£ÀÄß EzÉà jÃw DgÉÊPÉ ªÀiÁqÀÄvÁÛ £ÀªÀÄä
AiÉÆÃUÀ PÉëêÀÄ ¸ÀªÀiÁZÁgÀUÀ¼À£ÀÆß £ÉÆÃrPÉÆAqÀÄ £ÀªÀÄä£ÀÄß ¸ÀzÀÎw ºÉÆA¢¸ÀÄvÁÛgÉ
JA§ ¨sÀgÀªÀ¸É ªÀÄvÀÄÛ £ÀA©PÉ £À£Àß E§âgÀÄ UÀAqÀÄ ªÀÄPÀ̼À°è £À£ÀUÉ ¸ÀA¥ÀÆtðªÁV
£ÀA©PÉ EgÀĪÀÅzÀjAzÀ £À£ÀUÉ ¸ÉÃjzÀ F PɼÀPÀAqÀ µÉqÀÆå°£À°è vÉÆÃj¹gÀĪÀ £À£Àß
¸ÀévÀÄÛUÀ¼ÀÄ £À£Àß UÀAqÀÄ ªÀÄPÀ̼ÁzÀ ªÉÄîÌAqÀ Dgï. C§âAiÀÄågÉrØ ªÀÄvÀÄÛ PÉ.Dgï.
«dAiÀÄ gÁWÀªÀgÉrØ E§âjUÀÆ £À£Àß £ÀAvÀgÀ ¸ÉÃgÀvÀPÀÌzÀÄÝ."
100. Furthermore, the Will expressly states
that, in the event of his death before his wife, Ramaiah
Reddy's two sons are instructed to take care of
Chowdamma. It also includes provisions for her care,
with clear direction for his sons to look after her. The
recitals in the Will demonstrate that the plaintiff and her
sister, as daughters of Ramaiah Reddy, were well
provided for. It is stated that during the partition, three
divisions were made, and properties were allocated to
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both daughters, including the constructed of houses. This
suggests that the Will was a natural one, making
provisions for his wife and two daughters.
101. The evidence of PW.1 indicates that she
received properties from her in-laws, and it appears that
both the plaintiff and Papamma are leading comfortable
life with their respective families. It is plausible that the
testator, Ramaiah Reddy, intended to bequeath his share
of the partitioned property to his two sons. The learned
trial Court, after considering all these factors, concluded
that, based on the Memorandum of Partition and the
Wardi issued by Ramaiah Reddy, the record of rights had
been updated to reflect separate ownership for him and
his two sons. The trial Court rightly observed that,
Defendant No. 5 failed to prove the Will (Ex.D5) dated
21.09.1989, purportedly executed by Chowdamma in her
favor. Moreover, the Will dated 30.11.1986 (Ex.D276)
was duly proved in accordance with the law. Therefore,
Point No. 5 is answered in the negative.
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Point Nos. 6 and 7:
102. Upon a comprehensive analysis of Points
1 to 5, we have arrived at the conclusion that the
plaintiff has not succeeded in establishing that the
subject properties are joint family properties. Further, we
have determined that the provisions of the Hindu
Succession (Amendment) Act, 1990 Karnataka, and the
Hindu Succession (Amendment) Act of 2005 are
inapplicable to the facts of the present case.
103. The learned trial Court has duly
considered all relevant aspects and has correctly rejected
the plaintiff's claim. The trial Court's findings are
consistent with established legal principles and are
substantiated by the facts of the case. Accordingly, the
impugned judgment and decree passed by the trial Court
warrant no interference from this Court.
104. Both the plaintiff and defendant no. 5
have failed to establish entitlement to any relief, let
alone the relief sought in their respective pleadings. In
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NC: 2025:KHC:5096-DB
light of the foregoing discussion, the appeals filed by the
plaintiff and defendant no. 5 stand dismissed, with no
order as to costs.
105. Resultantly, we pass the following:
ORDER
i. RFA Nos.1139/2009 and
1141/2009 are hereby dismissed.
ii. The Judgment and Decree passed
in O.S. No.1646/1987 by the XV
Additional City Civil and Sessions
Judge, Bangalore City (CCH No. 3)
on 26th June 2009, is hereby
upheld and affirmed.
iii. In view of the familial ties and the
peculiarities of the matter, this
Court, in its discretion, refrains
from passing any order as to costs.
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NC: 2025:KHC:5096-DB
iv. The records of the trial Court,
along with a copy of this judgment,
shall be returned to the trial Court.
Sd/-
(S.G.PANDIT)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
SMJ/Sk/ct-vg
