Karnataka High Court
Mallamma W/O Neelkanthrao vs Rajshekhar S/O Late Neelkanthrao on 15 September, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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RSA No. 7213 of 2012
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IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
REGULAR SECOND APPEAL NO.7213 OF 2012 (DEC)
BETWEEN:
MALLAMMA
W/O NEELKANTHRAO
SINCE DECEASED BY LRS
1. BASSAMMA
W/O GUNDAPPA,
AGE: 65 YEARS,
OCC: HOMEMAKER AND AGRI.,
R/O: MANHALLI,
TQ: AND DIST: BIDAR - 585 403.
2. CHANDRAMMA
W/O BASAVARAJ UDAMNALLI,
Digitally signed AGE: 61 YEARS,
by RENUKA OCC: HOMEMAKER AND AGRI.,
Location: HIGH R/O: AIYONALLI,
COURT OF
KARNATAKA TQ: AND DIST: KALABURAGI - 585 307.
...APPELLANTS
(BY SRI. RESU MAHENDER REDDY, SENIOR COUNSEL APPEAR
FOR SRI. R. J. BHUSARE, ADVOCATE)
AND:
1. RAJSHEKHAR
S/O LATE NEELKANTHRAO,
AGE: 65 YEARS,
OCC: AGRICULTURE,
R/O: VILLAGE HOKRANA (B),
TQ. AND DIST: BIDAR - 585 403.
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2. MAHADEVI
D/O LATE NEELKANTHRAO,
W/O: ANNARAO RAMPURE,
AGE: 70 YEARS,
OCC: HOMEMAKER,
R/O: DONGARGAON,
TQ. AND DIST: KALABURAGI - 585 313.
3. VIMALAVATHI
D/O LATE NEELKANTHRAO,
W/O PRABHUSHETTY ACHI,
AGE : 68 YEARS,
OCC: HOMEMAKER,
R/O: REKULAGI,
TQ: AND DIST: BIDAR - 585 227.
4. NIRMALA
D/O NEELKANTHRAO,
W/O SHIVASHARANAPPA CHONDE,
AGE: 65 YEARS,
OCC: HOMEMAKER,
R/O: NOUBAD,
TQ: AND DIST: BIDAR - 585 402.
...RESPONDENTS
(BY SRI K.M.GHATE, ADVOCATE FOR RESPONDENTS;
V/O DATED 15.10.2024, APPELLANTS NO.2 AND 3 ARE
TREATED AS LR'S OF DECEASED APPELLANT NO.1)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, PRAYING A)
TO CALL FOR THE RECORDS IN R.A.NO.143/2004 ON THE FILE
OF THE FAST TRACK-II COURT AT BIDAR AND O.S.NO.52/1995
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR. DN.) BIDAR,
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FOR EXAMINING THE SAME, B) SET ASIDE THE JUDGMENT
AND DECREE DATED 21.03.2012 PASSED IN R.A.NO.143/2004
BY THE FAST TRACK - II COURT, AT BIDAR AND CONFIRM THE
JUDGMENT AND DECREE DATED 30.06.2004 PASSED IN
O.S.NO.52/1995 BY THE PRINCIPAL CIVIL JUDGE (SR. DN.)
BIDAR, BY ALLOWING THE ABOVE APPEAL AND ETC., C)
CONSEQUENTLY, DISMISS THE SUIT OF THE
PLAINTIFFS/RESPNDENTS, D) IN ALTERNATE THE MATTER MAY
KINDLY BE REMANDED TO THE COURT BELOW BACK FOR
FRESH DISPOSAL FOR HEARING ON MATERIAL ISSUES AS PER
PLEADINGS OF THE PARTIES BY GIVING SUFFICIENT
OPPORTUNITIES ON BOTH PARTIES TO LEAD ORAL AND
DOCUMENTARY EVIDENCE IF ANY, IN ACCORDANCE WITH LAW
AND E) GRANT SUCH OTHER RELIEFS AS THIS HON'BLE COURT
DEEMS FIT TO GRANT TO THE APPELLANTS/DEFENDANTS IN
THE CIRCUMSTANCES OF THE CASE, INCLUDING THE COSTS
OF THE APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS REGULAR SECOND APPEAL, COMING ON FOR
DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS
DELIVERED THEREIN AS UNDER:
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CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR
AMARANNAVAR
ORAL JUDGMENT
This appeal is filed by defendants No.1 to 3 praying
to set-aside the judgment and decree dated 21.03.2012
passed in R.A.No.143/2004 by the Fast Track Court - II,
Bidar confirming the judgment and decree dated
30.06.2004 passed in O.S.No.52/1995 by the Prl. Civil
Judge (Sr. Dn), Bidar.
02. The appellants No.1 to 3 were defendants No.1
to 3 and respondents No.1 to 4 were plaintiffs No.1 to 4 in
O.S.No.52/1995.
03. The case of the plaintiffs as averred in the
plaint is that plaintiff No.1 is the son and other plaintiffs
are the daughters born to late - Sri. Neelkanthrao through
his legally wedded wife namely Smt. Neelamma wife of
Neelkanthrao now deceased. The father of the plaintiffs
namely Neelhanthrao and plaintiff No.1 were joint owners
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in possession of the ancestral lands Sy.No.51 measuring
21 acres 01 gunta now entered in the ROR as Sy.No.51/A
measuring 10 acres 28 guntas R.A. of Rs.11.75 paise and
Sy.No.51/2AA measuring 10 acres 28 guntas R.A. of
Rs.11.74 paise and Sy.No.89 entirely measuring 28 acres
01 gunta now entered in the ROR as Sy.No.89/A
measuring 14 acres 01 gunta of R.A. Rs.35-4 paise and
Sy.No.89/AA measuring 14 acres R.A. of Rs.35-46 paise
and a residential house bearing Panchayat No.111 and
cattle shed bearing Panchayat No.22, all situated at village
Hokrana Tq: and Dist: Bidar.
a) Plaintiff No.1 along with his father were jointly
cultivating the said suit lands as coparceners and the
plaintiffs father - Neelkanthrao in the capacity of Manager
and Karta of Hindu Joint family consisting of himself, his
wife - Smt. Neelamma and plaintiff No.1 a coparcener,
managed the family affairs till his life time. Plaintiffs Nos.2
to 4 after their marriages residing along with their
respective husbands.
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b) The father of plaintiff No.1 namely Neelkanthrao
expired on 01.06.1991 after a long sickness. After his
death the entire suit properties are inherited and
succeeded by the plaintiffs as joint owners and joint
possessors, as the plaintiffs' mother - Smt. Neelamma had
already expired.
c) During the life time of the father, in order to see
that the above said suit lands should not exceeds the
ceiling limits prescribed under the Land Reforms Act, has
got entered the suit lands Sy.No.51/2-AA measuring 10
acres 28 guntas and Sy.No.99/AA measuring 14 acres in
the name of plaintiff No.1 and the remaining suit lands
have been detained by him in his name without effecting
any partition of the joint family properties. Even if, the
entries were made in the name of plaintiff No.1, but
plaintiff No.1 and his father both have jointly cultivated all
the suit lands detailed above in the capacity of joint
owners and joint possessors and no partition by metes and
bounds has taken place.
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d) After death of the father, the plaintiffs have
succeeded to the suit properties in the capacity of joint
owners and plaintiff No.1 being the only male member in
the family is cultivating the suit lands in the capacity of a
Karta and Manager.
e) In fact, the defendants have got no right or
interest and they are not concerned either with the family
or the properties of the plaintiffs, but defendant No.1 is
malafidely claiming herself to the second wife of late -
Neelkanthrao and she also claims that defendant Nos.2
and 3 are her daughters born through late - Neelkanthrao.
But in fact, defendant No.1 is neither the second wife nor
defendant Nos.2 and 3 are born through Neelkanthrao.
The said Neelkanthrao cannot take the second wife and
marry with defendant No.1 during the year 1962 during
the life time of his legally wedded wife - Smt. Neelamma
who has expired during the year 1988. As such, the
defendants have got no right in the suit properties.
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f) After the death of plaintiff's father, defendant No.1
approached the village accountant for sanction of mutation
of land Sy.No.51/2A and Sy.No.89/A which were nominally
standing in the name of late - Neelkanthrao on the bogus
grounds that late - Neelkanthrao had bequeathed the said
lands Sy.No.51/2A and Sy.No.89/A along with half of the
suit house, in her favour under a registered Will deed vide
document No.2/91-92 dated 19.04.1991. In fact, late -
Neelkanthrao has neither bequeathed the above said
properties nor he was entitled to execute any Will deed in
favour of defendant No.1 nor she gets any right or interest
to the said suit properties. In fact, the said Neelkanthrao
was suffering from T.B. and other diseases like paralysis
etc., and he was bedridden for a period of more than two
years prior to his death. For his treatment, he was also
admitted in the Civil Hospital, Bidar and he was unable to
walk, talk and listen also, due to the above said diseases.
So, the so called Will deed has been forged and created by
defendant No.1 in order to deprive the plaintiffs of their
legal rights and interest in the properties left by the
deceased.
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g) During the pendency of the mutation proceedings
before the Naad Tahsildar Mahballi, defendant No.1 has
clearly admitted that she is the second wife of late -
Neelkanthrao and that the said lands are being cultivated
and managed by plaintiff No.1 alone, but in spite of that,
the Naad Tahsildar while rejecting the objection to the
petitions filed by plaintiff No.1 has sanctioned the
mutation in the name of defendant No.1 on 13.02.1992.
Aggrieved with that plaintiff No.1 filed an appeal before
the Asst. Commissioner, Bidar, which is also dismissed in
File No.REV/APPL/CR-5/92-93 dated 10.02.1995.
h) After death of the father, the plaintiffs alone are
entitled to inherit and succeed to the properties left by
their deceased father and the defendants have no concern
at all with the same and so the plaintiffs may be declared
to be the joint owners and joint possessors of lands
Sy.No.51/2A, 51/2AA, Sy.No.89/A and 89/AA and also to
the suit house.
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i) In case, the suit for declaration of joint ownership
of the plaintiffs with regard to the suit lands and the suit
house cannot be decreed for any reason, then the
plaintiffs alternatively claim the partition and separate
possession of their legal share in the suit lands and the
suit house as per the provisions of the Hindu Law and the
plaintiffs may be allotted their 5/6th share in the suit
properties by way of partition.
j) The suit is alternatively for partition and separate
possession of the suit properties, the plaintiffs asked the
defendants to admit the joint ownership and joint
possession of the plaintiffs over the suit properties.
04. The defendants have filed the written statement
denying the case of the plaintiffs and contended that paras
Nos.1 to 4 of the plaint are not correct. It is true that
plaintiff No.1 is the son and plaintiffs Nos.2 to 4 are the
daughters born to late - Neelkanthrao through his wife -
Smt. Neelamma. The allegations of the plaintiffs that the
father of the plaintiffs, Neelkanthrao and plaintiff No.1
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were the joint owners and possessors of the suit lands and
the suit houses and were cultivating jointly as coparceners
and the father of the plaintiffs namely Neelkanthrao in the
capacity of the Manager and Karta of the Hindu Joint
family consisting of himself, his wife - Smt. Neelamma
and plaintiff No.1 as coparceners managed family affairs
till his life time, are all wrong and false facts in view of the
facts noted in further paras of this written statement. It is
true that the father of the plaintiffs expired on
01.06.1991, but is wrong to say that he died after a long
sickness. It is also wrong to say that after his demise, the
entire suit properties are inherited and succeeded by the
plaintiffs as joint owners and joint possessors.
a) That paras Nos.5 to 7 of the plaint, are absolutely
wrong and false, hence, denied. The allegations of the
plaintiffs that during the lifetime of their father, he in order
to see that the above said suit lands, should not exceed
the ceiling limits prescribed under the Land Reforms Act
has not entered the suit lands Sy.No.51/2/AA measuring
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10 acres 28 guntas and 89/AA measuring 14 acres in the
name of plaintiff No.1 and remaining suit lands have been
detained by him in his name without effecting any
partition of the joint family properties are all wrong and
false facts. Further allegations of the plaintiffs that even if
the entries were made in the name of plaintiff No.1, but
plaintiff.1 and his father both have jointly cultivated all the
suit lands in the capacity of the joint owners and joint
possessors and no partition by metes and bounds had
taken place are all wrong and false facts. It is also wrong
to say that after the death of the father, the plaintiffs have
succeeded to the suit property in the capacity of joint
owners and plaintiff No.1 being the only male member in
the family is cultivating the suit lands in the capacity of a
Karta and Manager. The further allegations of the plaintiffs
that the defendants have got no right or interest and they
are not concerned either with the family or the properties
of the plaintiffs and defendant No.1 is malafidely claiming
herself to be the second wife of late Neelkanthrao and
defendants Nos.2 and 3 are born to her through
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Neelkanthrao are all wrong and false. It is also wrong to
say that the marriage of defendant No.1 with late -
Neelkanthrao took place in the year 1962. In fact,
Neelkanthrao married with defendant No.1 in the year
1953 itself as per the custom prevailing in their
community.
b) That para No.8 and repeated para No.8 and para
No.9 of the plaint are all wrong and false and hence,
denied. It is true that defendant No.1 on the basis of the
registered Will deed bearing document No.2/91-92 dated
19.04.1991, approached the village accountant for
sanction of mutation of the lands as mentioned therein,
but the dishonest plaintiff No.1 filed objections for the said
mutation, but the Naad Tahsildar, Manhalli dismissed his
petition. Aggrieved by that order, plaintiff No.1 has filed
an appeal before the Asst. Commissioner, Bidar and the
said appeal is also dismissed on 10.02.1995. Accordingly,
name of defendant No.1 is entered in the ROR as the
exclusive owner and possessor and all the defendants are
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enjoying the said properties as mentioned in the Will need
jointly. The plaintiffs have no right or concern with
ownership and possession of the lands and the houses
shown in the Will deed. The allegations of the plaintiffs
that late - Neelkanthrao has neither bequeathed the suit
property, he was entitled to execute any Will Deed in
favour of the defendants nor they get any right and
interest in the suit properties are all wrong and false facts.
The further allegations of the plaintiffs that the said
Neelkanthrao was suffering from T.B. and other diseases
like paralysis etc. and he was bedridden for a period of
more than two years prior to his death and for his
treatment, he was admitted in Civil Hospital, Bidar as he
was unable to walk, talk and listen due to the above said
diseases and so the so called will deed has been forged
and created by defendant No.1 in order to deprive the
plaintiffs of their equal rights and interest in the properties
left by the deceased are all wrong and false facts. It is true
that defendant No.1 is the second wife of late
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Neelkanthrao and their marriage being performed in the
year 1953 as per the custom prevailing in their
community. But, it is wrong to say that defendant No.1
admitted before the Naad Tahsildar, to the effect that the
plaintiffs are cultivating and managing the suit properties
after the demise of late Neelkanthrao. It is true that the
Naad Tahsildar, sanctioned the mutation in the name of
defendant No.1 on 13.02.1992 and aggrieved with that
mutation, plaintiff No.1 filed appeal before the Asst.
Commissioner, Bidar which is also dismissed on
10.02.1995, after due enquiry and after hearing both the
parties. The allegations of the plaintiffs that after the
demise of their father, the plaintiffs alone are entitled to
inherit and succeed to the properties left by their deceased
father and the defendants have no concern at all and so
the plaintiffs are to be declared as the joint owners and
joint possessors of the suit lands and the suit house are all
wrong and false facts in view of the facts noted in further
paras of this written statement.
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c) That para Nos.10 to 12 of the plaint are not
correct. The allegations of the plaintiffs that if by any
reason the suit for declaration for joint ownership of the
plaintiffs with regard to the suit lands and the suit house
cannot be decreed for any reasons, than the plaintiffs
claim alternatively the partition and separate possession of
their legal shares in the suit lands and the suit house as
per Hindu Law for allotment of 5/6th share in the suit
property be way of partition are absolutely wrong and
false. The further allegations of the plaintiffs that the suit
is alternatively for partition and separate possession of the
suit properties and they asked the defendants to admit the
joint ownership and joint possession of the plaintiffs over
the suit properties which have been denied by them on
24.02.1995 which is shown as the date of cause of action
are all wrong and false facts. The plaintiffs have got no
cause of action to file this suit. The date of denial and the
date of cause of action shown by the plaintiffs are
fictitious.
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d) That plaintiff No.1 and deceased - Neelkanthrao
were the members of the divided family and partition had
taken place in between them by metes and bounds and
accordingly, entries were changed in the revenue records.
As such, the plaintiff's allegation that the said entries are
made to save the suit lands from ceiling under the Land
Reforms Act, becomes absolutely wrong and false.
e) That the deceased - Neelkanthrao, due to the
services rendered by the defendants and being fully
satisfied with them has bequeathed the lands and the
house shown therein exclusively owned and possessed by
him, he being the divided member, rightly and legally in
favour of the defendants by executing a duly registered
Will deed bearing Document No.2/91-92 dated
19.04.1991, with his own free will and consent with sound
mind and good senses and without any duress or coercion
from any sides and after understanding the contents in full
read-over and explained to him in Kannada Languages
best known to him, he signed the Will in presence of the
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attesting witnesses thereto. After the demise of
Neelkanthrao, the defendants alone inherited and
succeeded to all the properties left by the deceased -
Neelkanthrao based upon the Will deed which has been
acted upon. The mutations have rightly been sanctioned
and the entries in the revenue records are made in the
name of defendant No.1 as the exclusive owner and
possessor thereof and all the said properties are in the
joint enjoyment of the defendants. The plaintiffs have got
no right or concern whatsoever with the said properties.
f) The suit of the plaintiffs in the present form is not
legally tenable. The suit of the plaintiffs is not within time
in terms of the reliefs claimed.
05. On the basis of the above pleadings, the Trial
Court has framed the following issues:-
I.Whether plaintiffs prove that they are joint
owners in possession of suit properties?
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II.Whether plaintiffs further prove that will Deed
dated 19-04-1991 is null and void, ineffective
against their rights and interest?
III.Whether plaintiffs alternatively prove that the
suit properties are joint family properties liable
for partition and they are entitled for 5/6th share
and separate possession by effecting partition by
metes and bounds?
IV.Whether defendants prove the previous partition
in the family properties between the plaintiffs
and deceased Neelkanthrao as alleged in para-8
of the written statement?
V.whether plaintiffs are entitled for the relief of
injunction sought for ?
VI.What order or decree?
06. The plaintiffs examined PW.1 to 4 and got
marked Ex.P.1 to 16. The defendants examined DW.1 to 4
and got marked Ex.D.1 to Ex.D.3.
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07. The Trial Court after hearing and appreciating
the evidence on record has answered issue Nos.1 to 3 and
5 in the negative and issue No.4 in the affirmative and
dismissed the suit of the plaintiffs.
08. Aggrieved by the same, the plaintiffs have filed
appeal in R.A.No.143/2004 on the file of Fast Track Court
- II, Bidar. The First Appellate Court after hearing the
arguments on both sides has formulated the following
points for consideration:-
I.Whether the impugned judgment and decree
passed by the lower Court in O.S.No.52/1995
dated 30.06.2004 is perverse, capricious,
erroneous and against the law and merits of the
case and further interference of this Court is
needed.?
II.What order.?
09. The appellate Court has answered point No.1 in
the affirmative and set-aside the judgment and decree
passed by the Trial Court and decreed the suit partly
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holding that the plaintiffs are entitled to 1/5th share each
in the suit properties and 1/30th share of their father's
share 1/5th, in the suit properties. Challenging the
judgment and decree of the First Appellate Court the
defendants have filed the present appeal.
10. The appeal came to be admitted to consider the
following substantial question of law:-
"Whether the First Appellate Court is legally
correct in granting 1/5th share to each of the
plaintiffs when there are seven legal
representatives of the deceased -
Neelkanthrao.?"
11. Heard the learned Senior Counsel for the
appellants and the learned counsel for the respondents.
12. Learned Senior Counsel for the appellants
would contend that the Will - Ex.D.2 dated 19.04.1991 is
a registered Will and it is executed by Neelkanthrao in
favour of defendants No.1 to 3 bequeathing his properties
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in favour of defendants No.1 to 3. The said Neelkanthrao
died on 01.06.1991. Defendants No.1 to 3 filed an
application for mutating their names in the revenue
records on the basis of said Will and for the said
application, plaintiff No.1 has filed objections on
31.01.1991. The copy of the said objections is at Ex.P.6.
In the said objections, plaintiff No.1 has denied the Will
stating that it is a bogus and created one. The Naad
Tahasildar by his order dated 13.02.1992 has allowed
application. The plaintiffs have filed an appeal before the
Assistant Commissioner and the same came to be
dismissed on 10.02.1995. He submits that the plaintiffs
came to know regarding the said Will and their objections
(Ex.P.6) dated 31.01.1991 contains averments that Will is
created and it is not genuine. Therefore, the cause of
action to file the suit seeking declaration that Will is null
and void arose on 31.01.1991 and the suit filed on
06.04.1995 is beyond period of limitation, since Article 52
of the Limitation Act, provides the limitation of 03 years
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for seeking declaration from the date of right to sue first
accrues. He contended that the defendants have taken the
said defence of the limitation in the written statement. He
prays for formulating the additional substantial question of
law on the point of limitation.
13. He further contends that there was a partition
in between Neelkanthrao and his son - Rajshekhar
(plaintiff No.1) in the year 1978 and ½ share has been
given in land properties to plaintiff No.1 - Rajshekhar and
½ share has been retained by Neelkanthrao. Therefore,
the said properties retained by him are his absolute
properties and he has right to bequeath his properties in
favour of defendants No.1 to 3. He further submits that
there are mutation entries with respect to the said division
of properties in between Neelkanthrao and his son -
Rajshekhar and the said mutation entries have sought to
be produced under I.A.No.2/2012 filed under Order 41
Rule 27 of CPC, along with copy of the mutation register,
records of rights of Sy.Nos.51/2A, 51/2AA, 89/A and
89/AA are sought to be produced.
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14. The said documents would indicate the fact of
division of the properties among Neelkanthrao and his son
Rajshekhar - plaintiff No.1. Therefore, the said document
is required for deciding the lis between the parties.
15. He further contends that PW.3 who is one of the
attesting witnesses to Will - Ex.D.2 has denied he
attesting Will as per Section 71 of the Evidence Act, which
provides that if the attesting witness denies the execution
of the Will it is to be proved by other evidence. DW.3 is
another attesting witness and evidence will establish the
execution of the Will by Neelkanthrao in favour of
defendants No.1 to 3. He submits that the plea of ceiling
of land holding for division of the properties in between
the said Neelkhanth Rao and his son Rajshekhar (plaintiff
No.1) in the year 1978 is a name sake defence since there
was no ceiling of land holdings, if the holding of a person
is less than 53 acres of land.
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16. He placing reliance on the judgment of the
Hon'ble Supreme Court in the case of Metpalli Lasum Bai
(since dead) and others vs. Metapalli Muthaih (D) by
Lrs, reported in 2025 SCC OnLine SC 1488 has
contended that the Will is registered, a presumption about
genuineness has to be drawn and it is for other party to
disprove it. With these, he prayed to allow the appeal and
restore the judgment and decree passed by the Trial
Court.
17. Learned counsel for the respondents would
contend that the defendants have not obtained probate
with regard to Will - Ex.D.2. The medical records produced
i.e., Ex.P.7 are the medical card of Neelkanthrao and
discharge summary at Ex.P.8 issued by District Surgeon
indicates that he was T.B. patient and he was admitted in
the Hospital during August-1991. Therefore, he was not
having sound status of mind to execute the Will and there
is a evidence of PW.3 in support of the said aspect. He
submits that at least 02 witnesses are required for validity
of the Will. As PW.3 has denied the attesting Will, the Will
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does not comply Section 63 (c) of the Indian Succession
Act. On that point, he places reliance on the decision of
the Hon'ble Supreme Court in the case of Dhani Ram
(dead) through LRs and others vs. Shiv Singh,
Manu/SC/1090/2023.
18. He submits that the mutation proceedings on
the basis of Will are not maintainable as it is the domain of
the Civil Court to decide the validity of the Will. On that
point, he places reliance on the decision of the Madhya
Pradesh High Court in the case of Geeta Paliwal w/o
Late Shri Durgashankar and others vs Sitaram s/o
Shri. Madhoprasad and others in W.P.No.2578/2022
decided on 15.08.2023.
19. He submits that the question of validity of WILL
must be determined by the Civil Court and question of title
has to be referred to the Civil Court and there is no period
of limitation as prescribed. On that point, he relied upon
the decision of the Madhya Pradesh High Court in the case
of Ramgopal Kanhalyalal vs. Chetu Batte, reported in
AIR 1976 MP 160.
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20. He submits that if both the Courts have
concurrently held that the Will set-up by the plaintiffs is
not a genuine document, then this Court cannot reassess
the evidence relating to proof of Will by having recourse to
Section 100 of CPC. On that point, he places reliance upon
the decision of the Coordinate Bench of this Court in the
case of Smt. Nagarathnamma and others vs. Sri. H. B.
Rajashekharaiah and others in RSA.No.2182/2011
decided on 13.02.2023.
21. He further contended that if the relief sought is
not adequate or proper, the Court has got power to mould
under Order VII Rule 7 of CPC. On that point, he places
reliance on the decision of the Coordinate Bench of this
Court in the case Danamma Kom Yanka Chaluvadi and
others vs. Lalita Kom Hanumantappa Chaluvadi and
others, Manu/KA/0827/2023.
22. He further submits that defendants ought to
have sought declarations based on the Will and they have
not sought such a relief. The First Appellate Court has
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rightly appreciating the evidence has decreed the suit of
the plaintiffs. He further submits that in the second appeal
an application under Order 41 Rule 27 of IPC seeking
production of additional documents, cannot be entertained
and moreso the documents produced along with
application are obtained in the year 2012 and there is no
case made out for not producing the said documents in the
Trial Court. With these, he prayed to dismiss the appeal.
23. Having heard the learned counsels on both the
parties, this Court perused the impugned judgments and
Trial Court records.
24. Appellants No.1 to 3 were defendants and
respondents No.1 to 4 were plaintiffs No.1 to 4 before the
Trial Court.
25. Plaintiffs No.1 to 4 are son and three daughters
of Neelkanthrao and his wife Smt. Neelamma. The said
Smt. Neelamma died in the year 1988 and the said
Neelkanthrao died on 01.06.1991. The said Neelkanthrao
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had a second wife by name Smt. Mallamma and she is
defendant No.1. Defendants No.2 and 3 are two daughters
of Smt. Neelamma and Neelkanthrao. Even though the
plaintiffs have earlier disputed the relationship of
defendants No.1 to 3 with Neelkanthrao, the evidence
produced by the parties established that the said Smt.
Mallamma (defendant No.1) is a second wife and
defendants No.2 and 3 are two daughters of the said
Neelkanthrao through Smt. Mallamma (defendants No.1).
It is also not in dispute that Neelkanthrao married to
defendant No.1 - Smt. Mallamma during lifetime of his
first wife Smt. Neelamma. The said Smt. Mallamma
(defendant No.1) died during the pendency of this appeal
and appellants No.2 and 3 who are two daughters are her
legal heirs.
26. It was specific defence of the defendants that in
the year 1978 there was a partition between the said
Neelkanthrao and his son - Rajshekhar (plaintiff No.1) and
in the said partition ½ share in the suit properties was
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given to Rajshekhar (plaintiff No.1) and ½ share has been
retained by the said Neelkanthrao. The said partition is
disputed by the plaintiffs. The plaintiffs contended that
there was ceiling limit of holding of the lands and in order
to over-come the same, the properties were divided
among Neelkanthrao and his son Rajshekhar. PW.1 has
admitted in his cross-examination that his father informed
him about mutation of his name in the revenue records in
respect of the property, after mutation, his name in the
said records has been entered during the year 1978-79
and his name was mutated in respect of the land bearing
Sy.No.89/AA and Sy.No.51/2AA and his father's name was
mutated in respect of land Sy.No.89/A and Sy.No.51/2A.
He has also admitted that he has dug bore-well in middle
of the properties. Ex.P.10 RTC of Sy.No.51/2AA measuring
10 acres 28 guntas was standing in the name of
Rajshekhar (plaintiff No.1). Ex.P.11 RTC of Sy.No.89/AA
measuring 14 acres is in the name of Rajshekhar (plaintiff
No.1). The land bearing Sy.No.51/2A measuring 10 acres
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28 guntas is standing in the name of defendant No.1 (Smt.
Mallamma) and RTC of the same at Ex.P.1 and so also
land Sy.No.89/A measuring 14 acres 01 gunta which is at
Ex.P.3 standing in the name of Smt. Mallamma. The name
of Smt. Mallamma came to be mutated to the suit
properties on the basis of Will - Ex.D.2, said to have been
executed by Neelkanthrao in favour of defendants No.1 to
3. The entry of name of plaintiff No.1 in the record of
rights pertaining to the property bearing Sy.No.51/2AA
measuring 10 acres 28 guntas and Sy.No.89/AA
measuring 14 acres in the name of plaintiff No.1. It
indicates that there was a division in the properties in
between plaintiff No.1 - Rajshekhar and his father
Neelkanthrao. Prior to the entry of name of Smt.
Mallamma relating to the suit properties, the name of
Neelkhantrao was mutated. Except the oral say of plaintiff
No.1 / PW.1 that in order to over-come ceiling of land
holdings, the properties were divided, no other evidence
has been placed on record. The said enforcement of ceiling
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of land holdings has been ended in the year 1973-74 and
it was not existing during the year 1978-79. The very fact
that Neelkanthrao married to defendant No.1, during the
life time of his first wife Smt. Neelamma. It appears that in
order to over-come the disputes among the first wife and
second wife and to keep the first wife and her children
separately, the said division of the properties might have
been taken place. The said suggestion put to PW.1 in his
cross-examination has been denied by him. The Trial Court
placing reliance on the decision of the Division Bench of
this Court reported in AIR 1984 NOC 237 (KAR), has
held that when a citizen with a view to gain some
advantage effects a partition, leans in favour of his
honesty of purpose and legal behaviors and presumes that
the partition is real and valid. It could not assume that a
Sham documents was brought about with a view to defect
the provisions of law. The Trial Court further rightly held
that conduct of PW.1 - Rajshekhar developing his portion
of land only by digging a bore-well and irrigating ½ of the
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suit property with the help of bore-well and raising the
sugarcane goes to show that there was partition in the
year 1978.
27. The First Appellate Court observing that no
mutation has been produced to show that as per the
partition in the year 1978 has disbelieved the same and
held that there was no partition. In order to over-come the
said observation of the First Appellate Court, the
appellants have filed I.A.No.2/2012 under Order 41 Rule
27 of CPC seeking production of additional evidence by
producing 05 documents. Among the five documents, one
is certified copy of the mutation register of the Village
Hokrana (B), which is in Hindi / Modi language with
translation copy indicate that there was a mutation in the
year 1978 regarding the partition in between Neelkanthrao
and his son - Rasjshekhar.
28. Considering the said documents and other
documents produced before the Trial Court, regarding
mutation of the properties in the name of plaintiff No.1 -
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Rajshekhar and issuing of separate RTC in respect of the
property Sy.No.51/2AA measuring 10 acres 28 guntas and
Sy.No.89/AA measuring 14 acres will establish that there
was a partition in between Neelkanthrao and his son -
Rajshekhar. As there are already documents on record
regarding the mutation of the properties as per the
division in the year 1978 in between Neelkanthrao and his
son - Rajshekhar (plaintiffNo.1). The production of the
additional evidence by way of documents produced under
I.A.No.2/2012 filed under Order 41 Rule 27 of IPC, is not
necessary.
29. Considering the above aspects, the Trial Court
has rightly held that item Nos.1 and 2 of the suit
properties i.e., Sy.No.51 and 89 have equally divided
among Neelkanthrao and his son - Rajshekhar in the year
1978 and rightly held that issue No.4 has been proved by
the defendants.
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30. The Trial Court placing on the evidence of DW.3
along with evidence of DW.1 held that Ex.D.2 - Will
executed by Neelkanthrao in favour of defendants No.1 to
3 bequeathing his share of the properties is proved. The
First Appellate Court placing reliance on the evidence of
PW.3 and documents at Exs.P.7 and 8 medical records of
Neelkanthrao has held that Ex.D.2 - Will has not been
proved and the said Neelkanthrao was not in sound status
of mind at the time of executing the Will. The said finding
of the Trial Court and the First Appellate Court cannot be
interfered with in this second appeal under Section 100 of
CPC.
31. It is not in dispute that the suit properties are
coparcenery properties of Neelkanthrao and joint family
members of Neelkanthrao. In the case of Vineeta
Sharma vs. Rakesh Sharma and others, reported in
AIR 2020 SC 3717, the Hon'ble Supreme Court held that
the daughter is also a coparcener and has equal share to
that of a son in the coparcenery properties. They are also
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entitled to the share in the coparcenery properties, if there
was no partition among coparceners. In Para No.129 the
Hon'ble Supreme Court observed thus:-
"129. Resultantly, we answer the reference as
under:
(i) The provisions contained in substituted
Section 6 of the Hindu Succession Act, 1956
confer status of coparcener on the daughter
born before or after amendment in the same
manner as son with same rights and liabilities.
(ii) The rights can be claimed by the
daughter born earlier with effect from
9.9.2005 with savings as provided in Section
6(1) as to the disposition or alienation,
partition or testamentary disposition which
had taken place before 20th day of December,
2004.
(iii) Since the right in coparcenary is by birth,
it is not necessary that father coparcener
should be living as on 9.9.2005.
(iv) The statutory fiction of partition created
by proviso to Section 6 of the Hindu
Succession Act, 1956 as originally enacted did
not bring about the actual partition or
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disruption of coparcenary. The fiction was only
for the purpose of ascertaining share of
deceased coparcener when he was survived by
a female heir, of ClassI as specified in the
Schedule to the Act of 1956 or male relative of
such female. The provisions of the substituted
Section 6 are required to be given full effect.
Notwithstanding that a preliminary decree has
been passed the daughters are to be given
share in coparcenary equal to that of a son in
pending proceedings for final decree or in an
appeal.
(v) In view of the rigor of provisions of
Explanation to Section 6(5) of the Act of 1956,
a plea of oral partition cannot be accepted as
the statutory recognised mode of partition
effected by a deed of partition duly registered
under the provisions of the Registration Act,
1908 or effected by a decree of a court.
However, in exceptional cases where plea of
oral partition is supported by public
documents and partition is finally evinced in
the same manner as if it had been affected by
a decree of a court, it may be accepted. A plea
of partition based on oral evidence alone
cannot be accepted and to be rejected
outrightly."
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32. The Hon'ble Supreme Court held that in view of
the explanation to Section 6 (5) of Hindu Succession Act,
1956 it is held that where a plea of oral partition is
supported by public documents and partition is final by
evinced in the same manner, as if it had been effected by
a decree of a Court, it may be accepted.
33. In the case on hand, the evidence establishes
that there was a partition between Neelkanthrao and his
son Rajshekhar (plaintiff No.1) in the year 1978 and it is
evidenced by public document i.e., mutation and entry in
the revenue records of the properties. In view of the said
prior partition in between plaintiff No1 and Neelkhanthrao,
plaintiffs No.2 to 4 who are daughters of Neelkanthrao and
through his first wife Smt. Neelamma are not entitled to
partition and share in the coparcenery properties. They are
entitled to share in the properties of Neelkanthrao which
were allotted to him in the partition taken place in the
year 1978.
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34. In view of the said partition in the year 1978,
the share allotted to Neelkanthrao became his separate
properties. After his death, his children are entitled to
share in them. Defendants No.2 and 3 are also children /
daughters of Neelkanthrao through his second wife - Smt.
Mallamma (defendant No.1), as properties were allotted to
the share of Neelkanthrao, are his separate properties,
being children of second wife (invalid marriage) they are
also entitled to share in them along with plaintiffs No.1 to
4. Therefore, plaintiffs No.1 to 4 and defendants No.2 and
3 are entitled to share in the properties of Neelkanthrao.
Defendant No.1 - Mallamma being a second wife married
to Neelkanthrao during the life time of his first wife Smt.
Neelamma, is not entitled to any share in the properties of
Neelkanthrao. Therefore, plaintiffs No.1 to 4 and
defendants No.2 and 3 are entitled to equal share in the
properties of Neelkanthrao i.e., Sy.No.51/A measuring 10
acres 28 guntas and Sy.No.89/A measuring 14 acres 01
gunta. The house property bearing Panchayat No.111 and
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cattle shed bearing Panchayat No.22 situated in Hokrana
village of Bidar Taluka are joint family ancestral properties
of Neelkanthrao. Therefore, plaintiffs No.1 to 4 being the
son and three daughters are entitled to equal share in the
said properties. Defendants No.2 and 3 being the children
of invalid married are not entitled to share in the said
house properties.
35. Learned counsel for the appellants much argued
on the limitation for filing the suit. The suit is filed for
partition and for declaration that Will executed by
Neelkanthrao is null and void. The said Will is held to be
not proved by the defendants. As the main relief of the
plaintiffs is for partition of the suit properties, there is no
any limitation for filing the suit for partition. Moreso, the
suit for partition is filed after the death of Neelkanthrao.
36. Considering the above aspects, the substantial
question of law answered accordingly. In the result, the
following;
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ORDER
I. The appeal is allowed in part.
II. The judgment and decree passed by the First
Appellate Court in R.A.No.143/2004 is modified as
under:-
A. The suit in O.S.No.52/1995 is partly decreed.
B. Plaintiffs No.1 to 4 and defendants No.2 and 3
are entitled for 1/6th share each in the property
gunta situated at Hokrana (B) village.
C. Plaintiffs No.1 to 4 are entitled to 1/4th share
each in the house property bearing Panchayat
No.111 and Cattle Shed bearing Panchayat
No.22 situated at Hokrana (B) village.
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D. The parties are entitled to partition and
separate possession of their respective shares
by metes and bounds.
Draw Preliminary Decree accordingly.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
KJJ
Ct;Vk
