[Cites 3, Cited by 0]
Karnataka High Court
Yashodha W/O Krishnamurthy vs Shivanandappa Krishnappa Arkachari on 9 April, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RFA No. 100258 of 2015
C/W RFA.CROB No. 100009 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
DATED THIS THE 9TH DAY OF APRIL, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
REGULAR FIRST APPEAL NO.100258 OF 2015 (PAR/POS)
C/W
RFA CROSS OBJ NO.100009 OF 2018
IN RFA NO.100258/2015
BETWEEN:
1. YASHODHA W/O. KRISHNAMURTHY,
AGE: 71 YEARS, OCC. HOUSEHOLD WORK,
R/O. SHIVAMOGGA,
PRESENTLY R/O. H.NO. 124, AHIMSA MARGA,
I STAGE, SIDHARTHA NAGAR, MYSURU.
2. PUSHPAVATI W/O. IRAPPA ARKACHARI,
AGE: 69 YEARS, OCC. HOUSEHOLD WORK,
R/O. BOMMANAHALLI,
Digitally signed TQ. HANGAL, DIST. HAVERI.
by YASHAVANT
NARAYANKAR
Location: HIGH
COURT OF
KARNATAKA
3. SHASHIREKHA W/O. DEVENDRAPPA NIMBARAGI,
DHARWAD
BENCH
Date: 2026.04.15
AGE: 67 YEARS, OCC. HOUSEHOLD WORK,
10:29:40 +0530
R/O. SHASHIDEV, YALAKKISHETTAR COLONY,
TQ. AND DIST. DHARWAD.
4. GEETA W/O. RAJENDRA ACHARA,
AGE: 54 YEARS, OCC. HOUSEHOLD WORK,
R/O. KADENANDIHALLI, TQ. SHIKARIPUR,
DIST. SHIVAMOGGA.
5. SHOBHA W/O. RAVINDRA OKALI,
SINCE DECEASED BY HIS LRS.
5A. AKSHAYA S/O. LATE RAVINDRA OKALI,
AGE: 29 YEARS, OCC. PRIVATE SERVICE,
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RFA No. 100258 of 2015
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NO.201, LIG-9, AKSHAYA PARK,
GOKUL ROAD, HUBBALLI,
DIST. DHARWAD-580030.
5B. AAKARSH S/O. LATE RAVINDRA OKALI,
AGE: 28 YEARS, OCC. PRIVATE SERVICE,
NO.201, LIG-9, AKSHAYA PARK,
GOKUL ROAD, HUBBALLI,
DIST. DHARWAD-580030.
...APPELLANTS
(BY SRI. S.G. KADADAKATTI, SRI. LINGESH V. KATTEMANE AND
SRI. B.M. HOLIYAPPANAVAR, ADVOCATES FOR A1-A4, A5(A,B))
AND:
1. SHIVANANDAPPA KRISHNAPPA ARKACHARI,
SINCE DECEASED BY HIS LRS.
1A. CHANDRALEKHA W/O. SHIVANANDAPPA ARKACHARI,
AGE: 64 YEARS, OCC. HOUSE MAKER,
R/O. VIJAYANAGAR, 3RD CROSS,
HIREKERUR-581111,
TQ. HIREKERUR, DIST. HAVERI.
1B. DAYANAND S/O. SHIVANANDAPPA ARKACHARI,
AGE: 36 YEARS, OCC. ADVOCATE,
R/O. VIJAYANAGAR, 3RD CROSS,
HIREKERUR-581111,
TQ. HIREKERUR, DIST. HAVERI.
2. CHANDRASHEKARMURTHI,
S/O. SHIVANANDAPPA ARKACHARI,
AGE: 40 YEARS, OCC. NO WORK,
R/O. VIJAYANAGAR, HIREKERUR-581111,
TQ. HIREKERUR, DIST. DHARWAD.
...RESPONDENTS
(BY SRI. M.B. HIREMATHAD AND
SRI. PRAKASH R. BADIGER, ADVOCATES FOR R1 (A, B) AND R2)
THIS RFA IS FILED UNDER SECTION 96 OF CPC, PRAYING TO
CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND
DECREE DATED 29.08.2015 PASSED BY THE COURT OF SENIOR
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RFA No. 100258 of 2015
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HC-KAR
CIVIL JUDGE AND JMFC., HIREKERUR IN O.S.NO.52/2014 AND
DECREE THE SUIT AS PRAYED BY ALLOWING THIS APPEAL AND ETC.
IN RFA.CROB NO. 100009/2018
BETWEEN:
1. SRI. SHIVANANDAPPA S/O. KRISHNAPPA ARKACHARI,
AGED ABOUT 62 YEARS, OCC. BUSINESS,
R/O. VIJAYANAGAR, HIREKERURU, TQ. HIREKERUR,
DIST. HAVERI-581111.
2. SRI. CHANDRASHEKARMURTHI,
S/O. SHIVANANDAPPA ARKACHARI,
AGED ABOUT 42 YEARS, OCC. NO WORK,
R/O. VIJAYANAGAR, HIREKERURU, TQ. HIREKERUR,
DIST. HAVERI-581111.
...CROSS OBJECTORS
(BY SRI. M.R. HIREMATHAD AND
SRI. PRAKASH R. BADIGER, ADVOCATES FOR A1 (A,B) AND A2)
AND:
1. SMT. YASHODHA W/O. KRISHNAMURTHY,
AGE: 74 YEARS, OCC. HOUSEWIFE,
R/O. H.NO.124, AHIMSA MARGA,
IST STAGE, SIDDARTHA NAGAR,
MYSORE, TQ. AND DIST. MYSORE-570001.
2. SMT. PUSHPAVATI W/O. IRAPPA ARKACHARI,
AGE: 68 YEARS, OCC. AGRICULTURE,
R/O. BOMMANAHALLI,
TQ. HANGAL, DIST. HAVERI-581164.
3. SMT. SHASHIREKHA W/O. DEVENDRAPPA NIMBARGI,
AGE: 66 YEARS, OCC. HOUSEWIFE,
R/O. SHASHIDEV, YALAKKISHETTAR COLONY,
AT: TQ. AND DIST. DHARWAD-580008.
4. SMT. GEETA W/O. RAJENDRA ACHARA,
AGE: 62 YEARS, OCC. HOUSEWIFE,
R/O. SHIKARIPUR, DIST. SHIVAMOGGA-577427.
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5. SMT. SHOBHA W/O. RAVINDRA OKALI,
SINCE DECEASED BY HIS LRS.
5A. AKSHAYA S/O. LATE RAVINDRA OKALI,
AGE: 29 YEARS, OCC. PRIVATE SERVICE,
R/O. 201, LIG-9, AKSHAYA PARK,
GOKUL ROAD, HUBBALLI,
DIST. DHARWAD-580030.
5B. AAKARSH S/O. LATE RAVINDRA OKALI,
AGE: 28 YEARS, OCC. PRIVATE SERVICE,
NO.201, LIG-9, AKSHAYA PARK,
GOKUL ROAD, HUBBALLI,
DIST. DHARWAD-580030.
...RESPONDENTS
(BY SRI. S.G. KADADAKATTI AND SRI. LINGESH V. KATTEMANE,
ADVOCATES FOR R1 TO R5, R5 (A,B) (VAKALATH FILED IN R/O. R2-R5;
R5-DECEASED)
THIS RFA CROB IN RFA NO.100258/2015 FILED UNDER ORDER 41
RULE 22(1) AND (2) OF CPC, PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE PASSED IN O.S.NO.52/2014 DATED 29.08.2015 BY THE
LEARNED SENIOR CIVIL JUDGE AND JMFC., HIREKERUR AND DISMISS
THE SUIT IN O.S.NO.52/2014 WITH COST THROUGH OUT IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL AND CROSS OBJECTION, COMING ON FOR
FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED
THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
AND
HON'BLE MR. JUSTICE B. MURALIDHARA PAI
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ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
Heard the respective counsel, both in the appeal as
well as in the cross-objection.
2. The appeal and cross-objection arise out of the
judgment and decree dated 29.08.2015 in O.S.No.52/2014
passed by the Senior Civil Judge and JMFC, Hirekerur (for
short 'the Trial Court'), whereby the Trial Court granted the
relief only in favour of plaintiff Nos.3 to 5 that they are
entitled for 1/3rd notional share in the share of their father
i.e., Krishnappa, who passed away and suit of the plaintiff
No.1 and 2 was dismissed.
3. Being aggrieved by the judgment and decree
decreeing the suit in part in favour of plaintiff No.3 to 5 and
dismissing the suit of the plaintiff No.1 and 2, the present
appeal is filed by the plaintiffs questioning the grant of 1/3rd
notional share in the share of the ancestor-Krishnappa in
favour of plaintiff No.3 to 5. The cross-objection is filed by
the defendants questioning the judgment and decree,
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granting share in favour of the plaintiff No.3 to 5 and
disbelieving the Will, which is marked at Ex.D.1.
4. The factual matrix of the case of the plaintiffs
before the trial Court, while seeking the relief of partition and
separate possession in respect of the suit schedule
properties by the plaintiffs, is that they are entitled for 1/6th
share each in the suit schedule properties. There is no
dispute with regard to the relationship between plaintiffs and
defendant No.1. It is stated in the plaint that the said
Krishnappa Gururayappa Arkachari died on 08.07.1991 and
his wife Smt.Sushilamma predeceased him on 25.12.1986.
The suit schedule properties are residential house,
commercial complex and open space situated at Hirekerur. It
is contended that the suit schedule Item Nos.1 to 13 are the
self-acquired properties of Krishnappa Gururayappa
Arkachari and suit schedule Item No.14 was purchased by
the defendant No.1 from the income of the suit schedule
Item No.1 to 13. Krishnappa Gururayappa Arkachari had a
jewellery shop. Suit schedule properties are the properties
acquired by Krishnappa Gururayappa Archakari and no
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partition had taken place during the lifetime of Krishnappa.
The said Krishnappa Gururayappa Achakari has not executed
any testamentary document during his lifetime. The plaintiffs
are married and they are residing in their matrimonial
houses. The defendant No.1, behind their back, got mutated
his name to the suit schedule properties after the death of
the father-Krishnappa Gururayappa Arkachari. On several
occasions, the plaintiffs asked the defendant No.1 to effect a
partition. However, the defendant No. 1, for one or the other
reason, dragged the matter and hence, the plaintiffs filed
suit for the relief of partition and separate possession.
5. In pursuance of the suit summons, defendant
No.1 and 2 appeared before the trial Court through their
counsel and filed the common written statement. The
defendants have denied the contents of the plaint. Defendant
No.1 contented that he had made savings and out of the said
savings, he purchased the property bearing VPC No.421/1 on
20.08.1987 and the said property is his self-acquired
property and subsequently, commercial complex has been
constructed in the said property and the plaintiffs have no
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share in the self-acquired property of defendant No.1, and
even suit Item No.14 is also not the joint family property and
it is self-acquired property of the defendant No.2, who
purchased it on 18.11.2010 out of self-earnings from its
previous owner. These two properties are self-acquired
properties of the defendant No.1 and 2. The plaintiffs have
no right, interest or title over the suit schedule properties.
The suit schedule Item Nos.2 to 13 are bequeathed by the
father under Will dated 25.08.1989 and he executed said Will
in the presence of witnesses, which is scribed by
Ganapathrao Kulakarni. By virtue of the said Will, the
defendant No.1 is the absolute owner of the suit schedule
properties. The defendant No.1 had spent ₹15,00,000/- for
construction of the building in suit schedule properties, the
present value of which is more than ₹1,00,00,000/-. The
defendant No.1, out of his own earnings, had spent huge
amount towards marriage expenses of the plaintiffs. The
defendant intended to file counter-claim against the
plaintiffs. The plaintiffs have no share in the suit schedule
properties and hence, prayed for dismissal of the suit.
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6. In order to prove their case, plaintiff No.5 filed
her affidavit in lieu of examination-in-chief, who is examined
as PW1, and also examined PW2 and produced the
documents marked at Ex.P.1 to P.40. On the other hand,
defendant No.1 and 2 have filed their affidavit in lieu of their
examination-in-chief and examined as DW1 and DW3 and led
their evidence. They also got examined two witnesses on
their behalf as DW2 and DW4 and got marked documents as
Ex.D1 to D3. The trial Court, having considered both oral and
documentary evidence available on record, answered the
issue No.1 partly in affirmative and came to the conclusion
that plaintiff No.3 to 5 are entitled for share over the
property in the share of the father and answered the issue
No.2 and 3 in the affirmative holding that all the properties
belonged to the propositus- Krishnappa Gururayappa
Arkachar and all of them are the joint family members, but
not proved the joint possession as claimed and answered
Issue No.5 in affirmative in coming to the conclusion that
suit schedule property is standing in the name of defendant
No.1 alone in the Pattan Panchayath records and not binding
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on the shares of the plaintiffs but also answered Issue No.7
that there is a cause of action and answered the Issue No.9
partly in affirmative that they are entitled for partition and
separate possession and answered the additional Issue No. 1
as negative in coming to the conclusion that the Will is not
proved and decreed the suit partly.
7. Being aggrieved by the judgment and decree of
the dismissal of the suit in favour of the plaintiff No.1 and 2
and granting of share only in the share of the father in
favour of the plaintiff No.3 to 5, the appeal in RFA
No.100258/2015 is filed.
8. The counsel appearing for the appellants in his
arguments would vehemently contend that the very
approach of the trial Court is erroneous particularly with
regard to the plaintiff No.1 and 2 is concerned that they born
prior to 1956 and they are not entitled for share over the
properties. The counsel would submit that the father died in
the year 1991 and succession opened in the year 1991 and
the mother pre-deceased him in the year 1986 and there
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were 14 properties. The counsel would submit that Item
No.1 to 13 are the properties belonged to the father and
though property was purchased in the year 2010 in the name
of defendant No.2 by the defendant No.1, but they were
purchased by utilising the funds of the family from Item No.1
to 13 and hence all the plaintiffs are entitled for 1/6th share
each and the Trial Court ought not to have dismissed the suit
of the plaintiff No.1 and 2. The very approach of the trial
Court in only granting notional shares in the property of the
father in favour of plaintiff No.3 to 5 is also erroneous and
hence, it requires interference of this Court.
9. The counsel appearing for the appellants would
vehemently contend that there is no dispute that the father
had acquired the property in Item No.2 to 13 but he would
vehemently contend that the Item No.1 was purchased out
of the income of the defendant No.1. The defendant No.1
purchased the same in the year 1987 through his self-
earnings and the same is not a property of the father.
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10. The counsel would also submit that Item No.14
was also purchased in the year 2010 subsequent to the
death of the father. The counsel would submit that even
though father was alive in the year 1987 while purchasing
the property, but he had no earnings and it was purchased
out of self-earned money of the defendant No.1. The counsel
would also submit that even though property Item No.2 to
13 are purchased by the father, the father had executed a
Will in the year 1989 in terms of Ex.D1, wherein also
specifically mentioned the reasoning as to why the Will is
executed in favour of the defendant No.1 and already
daughters were married. Even provision was also made to
the last daughter, who was not married at the time of
execution of the Will/Ex.D1. The counsel also submits that
the very admission on the part of PW1 itself is very clear
regarding father having an intention to Will away the
property. PW2 has stated that their father was having an
intention to execute the Will. The counsel also would submit
that when there is a Will in favour of the defendant No.1, the
plaintiffs are not entitled for any share and granting of share
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in favour of the plaintiff No.3 to 5 is also erroneous. The
counsel also would submit that in order to prove the Will,
DW2 and DW4, who are the attesting witnesses, were
examined and proved the Will in compliance of Section 63
and Section 68 of the Indian Succession Act and when such
being the case, the Trial Court ought not to have granted the
relief in favour of the plaintiff No.3 to 5 and hence filed the
cross-objection before this Court that the trial Court has
committed an error and hence prayed the Court to allow the
cross-objection and dismiss the appeal filed by the plaintiff
No.1 to 5.
11. Having heard the counsel appearing for the
appellants and also the counsel appearing for the
respondents and on perusal of the oral and documentary
evidence available on record, the points that would arise for
the consideration of this Court are as under:
i) Whether the trial Court committed an error in
dismissing the suit of the plaintiff No.1 and 2
in coming to the conclusion that they were
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born prior to 1956 and they are disentitled for
the share?
ii) Whether the trial Court committed an error in
granting only notional share in favour of the
plaintiff No.3 to 5 in the share of the co-
parcners i.e., the father?
iii) Whether the trial Court committed an error in
granting the relief in favour of plaintiff No.3 to
5 also as contented by the cross-objector?
iv) Whether the trial Court committed an error in
not disbelieving Ex.D1 that Will has not been
proved?
Point Nos.(i) to (iv):
12. Having heard the respective counsel and on
perusal of the material on record and the pleadings of the
plaintiffs as well as the defendants, it is very clear that it is
the case of the plaintiffs that Item No.1 to 13 are purchased
by the father and Item No.14 is also purchased out of the
income of Item No.1 to 13, and the father was doing the
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business. The very same business was continued and the
defendant No.1 and 2 were also taking care of the business
of the family.
13. Per contra, it is the contention of the counsel
appearing for the defendant No.1 and 2 that there is no
dispute with regard to the father purchased the property
Item No.2 to 13, but very specific contention is that Item
No.1 and 14 are purchased out of the self earnings of the
defendant No.1 and 2 and there is a Will in favour of
defendant No.1 in respect of item Nos.2 to 13.
14. Having considered the pleadings of the plaintiffs
as well as defendants, this Court has to consider the
evidence of witnesses. The PW1, who is plaintiff No.5,
deposed before the trial Court in terms of the pleadings of
the plaintiffs and also got marked the documents on behalf
of the plaintiffs. In the cross-examination of PW1, she
categorically admitted that she is a graduate and the
business of the family started by the father, he used to get
the ornaments prepared and selling the same, and the father
and defendant No.1 both were doing the business. She also
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admitted that when she was in her younger age, her father
had taken treatment in Meggan Hospital and was not doing
any work and she also cannot tell how much income her
father was getting. It is also elicited in the evidence that
Item No.1 to 13 are the self-acquired properties of the father
and the admission was given that father was suffering from
diabetes and not working more, but she claimed that her
father used to sit in the jewellery shop and doing business.
She admitted that her sisters were married to the well of
families. However, stated that Item No. 1 was though
purchased in the name of the defendant No.1, but it was
purchased through the income of the family and even
defendant No.2 also does the very same business.
15. This witness also admitted that their father used
to sign both in Kannada and English and also she knows
G.V.Angadi, who is working as a lecturer and Badiger,
Engineer, who is no more and also the B.C.Megalkeri and
C.S.Mathad, both of them are lecturers in her college and
her father was having worldly knowledge and not having any
mental illness and was not alive at the time of her marriage,
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but the gold and silver ornaments were kept in the bank
locker and after her marriage, the ornaments and money,
which were in the locker, came to her possession. The
suggestion that Item No.1 to 5, 7 and 8 and the other items
were given to defendant No.1 through the Will is not
admitted. She admitted that defendant No.1 and she were
having cordial relationship and he was not having any ill-will
to cause her any harm and also not having any intention to
commit any fraud against her. It is admitted that plaintiff
No.1 to 3 are born prior to 1956.
16. The PW1 also examined one witness as PW2. PW2
deposed before the trial court that the property at item
No.14 is purchased through the income of Item No.1 to 13.
This witness was also subjected to cross- examination and
admitted that the jewellery shop belongs to Krishnappa but
they were not preparing gold ornaments and also admitted
that the defendant No.1 was looking after the said business.
This witness also admitted that Defendant No.1 was having
the business at Hirekerur near Meti-Basavana Temple and
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also there was a treasury and the said business was shifted
to chavadi circle.
17. The defendant No.1 was examined as DW1 and
he reiterated the averments made in the written statement
in his evidence and in his cross-examination he admitted
that Item No. 2 to 13 are purchased by the father. It is
suggested that Item No.1 was purchased by the father and
got it changed in his name, but the same was denied. It is
suggested that through the income of Item No.2 to 13, Item
No. 14 property was purchased, but the said suggestion is
also denied. However, he admitted that after the death of
the father he got changed the property Item No.2 to 13 to
his own name and while changing the same the consent of
the plaintiffs was taken, but this witness denied the said
suggestion and deposed that based on the Will, he got
changed the name. He admitted that Item No.1 property was
purchased in his name and khata got changed into his name.
It is suggested that Item No.6, 9 and 13 properties are not
included in the Will and the said suggestion was also denied.
He admitted the recital of Will that the executor of the Will
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was not having good health, the father had not executed any
Will and the same is created, but the said suggestions are
also denied.
18. The defendants also examined DW2 to prove the
Will and DW2 deposed that Will was executed on 25.08.1989
and he had information about the same and the father of the
parties only given the instructions to prepare the Will and the
same was written by one Ganapathirao Kulakarni and others
have also signed the Will i.e., V.S. Badiger, B.C. Megalakeri,
C.S. Mathad and in their presence only the executor had
executed the Will.
19. This witness also identified the signature of
Krishnappa on Ex. D1 as Ex.D1(a) and his signature as
Ex.D1(b). This witness was subjected to cross-examination
and in the cross-examination he stated that Ex.D1 came into
existence in the year 1989 and at the time of writing the
Will, the defendant No.1 was not present. There is an
admission that Krishnappa, the father of the parties, was
treating all the daughters and the son equally and also
admitted that he was doing the jewellery business. The
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suggestion was made to this witness that at the instance of
defendant No.1, forcefully created the document of
Ex.D1/Will, but the same is denied.
20. The DW3 is another witness i.e. defendant No.2
and he also reiterated the evidence in line with the evidence
of DW1 and this witness was also subjected to cross-
examination and in the cross-examination he admitted that
he was born in the year 1982.
21. DW4 is another attesting witness to the Will and
in his evidence he also deposed about the execution of the
Will on 25.08.1989 and stated that after the death of the
executor of the Will, in order to avoid complications, the
same was executed voluntarily. He also deposed that the
witness V.S. Badiger and other witnesses have also signed
the Will in his presence, the executant also signed the
document in his presence and he was having good health at
the time of execution of the Will. This witness was subjected
to cross-examination. He identified his signature and also the
signature of the executant of the Will as Ex.D1(a) and D1(c).
This witness admitted that the Will was written on the white
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paper and no page numbers were mentioned and there was
no signature in the first page and second page. He admits
that Shivanand/ defendant No.1 and one Sri C.S. Mathad are
his classmates and also admitted that in Ex.D.1, boundary
descriptions of each of the properties is not mentioned. This
witness admitted that the Will was shown in the year 1997
and he did not suggest him to get the probate.
22. Having reassessed both the evidence of PW1 and
PW2 as well as the evidence of DW1 to DW4 and also the
pleadings of the plaintiffs and defendants, there is no dispute
with regard to the fact that Item No. 2 to 13 are purchased
by the father. Both the parties admit the same and only
dispute is in respect of Item No.1 and 14 properties.
Defendant No.1 claims that Item No.1 and 14 are purchased
by him out of his own earnings. On the other hand, it is the
contention of the plaintiffs that, out of the income earned
from Item No.2 to 13, and out of the family business, which
was started by the father, these items were purchased.
23. The trial Court while appreciating the evidence
available on record, took note of the admission on the part of
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PW1 and came to a conclusion that plaintiff Nos.1 and 2
were born prior to 1956. Thus, the very approach of the trial
Court is erroneous, since the father died in the year 1991,
the succession opens in the year 1991. The Court has to take
note of devolution of the property on the death of the father
and not that they were born prior to 1956 and succession
opens only on the death of the father. It is also important to
note that mother was predeceased to the father. Having
considered the material available on record, it is not in
dispute that Item No.1 was purchased in the year 1987 by
the defendant No.1 in his name and no doubt, father was
alive in the year 1987 at the time of purchasing of Item
No.1. But the Court has to take note of admission on the
part of PW1 in the cross-examination that father was
suffering from diabetes and also taken the treatment at
Mecgan Hospital and not helping the business of defendant
No.1 and defendant No.2 and though business was started
by the father, at the first instance, the admission is very
clear that business was carried by defendant No.1 and his
son. When such admission is also available, it is very clear
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that plaintiffs No.1 to 4 are married prior to the death of the
father and only PW1 was married subsequent to the death of
the father. It is also important to note that PW1 categorically
admits in her evidence that at no point of time, defendant
No.1 was having any intention to cheat and defraud PW1 and
her relationship was very cordial with defendant No.1 and all
these factors clearly disclose that there was a good cordial
relationship between the parties. When such being the case
and when the admission was given by PW1 that DW1 and
DW2 were continued the business and the business is also
only that they were getting the ornaments prepared from
others and selling the same and there was no any huge
investment for the said business by the family. When such
being the case, it is a personal skill of the defendant No.1
and 2 and when such material was available before the Court
and also the property i.e. Item No.14 was purchased in the
year 2010 and the death of the father was in 1991, almost
19 years they continued the business and purchased the
same. When such materials were available before the Court,
the trial Court committed an error in appreciating the
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evidence available on the record and committed an error in
granting the relief in respect of Item No.1 and 14 as against
the admission of PW1.
24. With regard to the execution of the Will is
concerned by the father in the year 1989, it has to be noted
that this Will not see the light of the day for a period of 14
years and the said Will came into existence, according to
defendant No.1, in the year 1989 and also they found the
same after 14 years and also though PW1 claims that he got
changed the property based on the Will, but the material is
very clear that he got changed all the properties in his name
based on Wardi and not on the Will. Based on the Will, if got
changed all revenue records, then there would have been
force in the contention of the counsel appearing for
defendant No.1 and the very existence of the Will is doubtful
and no doubt, PW1 categorically admits in her evidence with
regard to the witnesses to the Will. But the fact is that
disinheriting the daughters while executing the Will, except
stating that already performed the marriage and made
provision to perform the marriage of another daughter, that
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itself cannot disinherit the daughters. It is emerged during
the course of evidence that the executant of the Will i.e.
father was having equal love and affection in respect of the
daughters as well as the son. When such being the case, for
disinheriting the daughters by the father, no reasons are
assigned. Apart from that, if the Will comes to the light
immediately after the death of the father, then there would
have been force in the submission of counsel appearing for
the defendant No.1 and DW4 also says that he has seen the
Will in 1997.
25. Having considered the said fact into
consideration, the Will is also not a registered document and
though the witnesses are also the educated witnesses, but
the very proving of the Will does not inspire the confidence
of the Court and hence, the Court has not accepted the Will.
When such being the material available on record, the trial
Court has given the reasoning for not accepting the Will. We
do not find any error on the part of the trial Court in
disbelieving the document Ex.D1, which comes to light after
19 years and when such material available on record, the
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very approach of the trial Court is erroneous that plaintiff
No.1 and 2 are not entitled for share on the ground that they
were born prior to 1956 and also the trial Court committed
an error in granting the relief in respect of Item No.1 and 14.
The evidence available on record is not pursued in a proper
perspective and hence, the judgment and decree of the trial
Court requires to be modified. Hence, we answer the points
accordingly.
26. In view of discussions made above, we pass the
following:
ORDER
(i) The appeal as well as the cross objections are
allowed in part.
(ii) The judgment and decree of the trial Court in
dismissing the suit of plaintiff No.1 and 2 is
hereby set aside and decreed in favour of
plaintiffs No.1 and 2 also.
(iii) The plaintiff Nos.1 to 5 and defendant No.1
are entitled for equal share i.e. 1/6th each in
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Item No.2 to 13. The suit filed by the plaintiffs
in respect of Item Nos.1 and 14 is dismissed.
(iv) Draw the modified decree accordingly.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(B. MURALIDHARA PAI)
JUDGE
YAN/ JTR
CT:PA: LIST NO.: 1 SL NO.: 16
