SRI R C BASAVARAJU vs SMT CHANDRAMMA
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RD
DATED THIS THE 23 DAY OF SEPTEMBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
REGULAR SECOND APPEAL NO. 1783 OF 2017 (PAR)
BETWEEN:
SRI R C BASAVARAJU
S/O CHANNABASAPPA,
AGED ABOUT 56 YEARS
R/O DURGI STREET,
RAMASAMUDRA VILLAGE,
CHAMARAJANAGAR TOWN
AND IDSTRICT-571 313.
…APPELLANT
(BY SRI. P MAHESHA, ADVOCATE)
AND:
1. SMT CHANDRAMMA
W/O LATE MAHADEVAPPA,
AGED ABOUT 77 YEARS
2. SMT.CHINNATHAYAMMA
W/O LATE MAHADEVAPPA
D/O LATE CHANNABASAPPA
AGED ABOUT 69 YEARS.
RESPONDENT NO. 1 AND 2 ARE
BOTH R/O BASAVANAPURA VILLAGE
HARADANAHALLI HOBLI
CHAMARAJANAGARA TALUK
CHAMARAJANAGARA DISTRICT – 571 313.
SMT RATHNAMMA
W/O CHANNABASAPPA
DEAD BY LRS.
3. SMT. SHYLAJA
D/O. RATHANAMMA
W/O NAGARAJU
AGED ABOUT 51 YEARS.
R/O. H.NO.390, B, BLOCK,
POLICE QUARTERS JALAPURI
MYSORE-570001.
SIGN
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4. SMT. SHARADAMMA
D/O RATHNAMMA,
W/O DORESWAMY
AGED ABOUT 48 YEARS,
KANNUR VILLAGE,
KOLLEGALA TALUK
AND DISTRICT – 571 440.
5. SMT. PRABAMANI
D/O RATHANAMMA
W/O PRASHIVAMURTHI
AGED ABOUT 46 YEARS.
7. SMT. KAMALAMMA
D/O. LATE CHANNABASAPPA
AGED ABOUT 58 YEARS,
RESPONDENT NO.5, 6 AND 7 ARE
ALL R/O DURGI STREET
RAMASAMUDRA VILLAGE
CHAMRAJANAGARA TOWN
CHAMRAJANAGARA DISTRICT – 571 313.
SRI.LINGAPPA
S/O LATE PARVATHAPPA
DEAD BY LRS.
8. SMT.NAGAMMA,
W/O LATE LINGAPPA,
AGED ABOUT 76 YEARS,
9. SRI. RAJU @ SHIVANANJAPPA
S/O LATE LINGAPPA
AGED ABOUT 41 YEARS,
10. SMT. KAMALAMMA
D/O LATE LINGAPPA
AGED ABOUT 49 YEARS.
RESPONDENT NO. 8, 9 AND 10 ARE
R/AT CHANNAPPAONAPURA VILLAGE,
CHAMARAJANAGARA TALUK
AND DISTRICT-571 313.
11. SRI.NANJUNDASWAMY
S/O LATE LINGAPPA,
AGED ABOUT 51 YEARS,
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R/O DURGI STREET,
RAMASAMUDRA VILLAGE,
CHAMARAJANAGARA TOWN-571313.
12. SMT. BASAMMANNI @ BORAMANNI
D/O LATE LINGAPPA
AGED ABOUT 46 YEARS,
BISALVADI VILLAGE,
CHAMARAJANAGARA TALUK
CHAMARAJANAGARA DISTRICT-571 313
13. SMT. MEENAKSHI
D/O LATE LINGAPPA
AGED ABOUT 44 YEARS
R/O HANDRAKALLI VILLAGE,
CHAMARAJANAGARA TALUK-571 313.
14. SMT. NANJAMMANNI
D/O LATE LINGAPPA,
W/O GURUPADAPPA,
AGED ABOUT MAJOR,
R/O KOMARAVADI VILLAGE,
CHAMARAJANAGAR TALUK-571 313
…RESPONDENTS
(BY SMT. KAVYA ANIL KUMAR, FOR
SRI. ANIL KUMAR, ADVOCATES, C/R-2 TO R-7)
THIS RSA IS FILED UNDER SEC.100 OF CPC., 1908, AGAINST THE
JUDGMENT AND DECREE DATED 22.04.2017 PASSED IN RA NO.1/2008
ON THE FILE OF THE PRL.DISTRICT AND SESSIONS JUDGE, AT
CHAMARAJANAGAR DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 30.10.2007 PASSED IN OS NO.243/2002
ON THE FILE OF THE CIVIL JUDGE (SENIOR DIVISION)
CHAMARAJANAGAR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL JUDGMENT
The appellant was the defendant No.1 in O.S.No.343/2002
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filed by respondents 1 to 4 - plaintiffs against the appellant and 2
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defendant for partition and separate possession of their 1/5 share
each in the suit schedule immovable properties and for other
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reliefs. The said suit having been contested by the appellant – 1
nd
defendant and 2 defendant, the Trial court proceeded to pass the
impugned judgment and decree dated 30.10.2007 decreeing the
suit of the plaintiffs in respect of the suit schedule properties,
except land bearing Sy.No.29/2 situated at Budithittu village,
Chamarajanagar District. Aggrieved by the said judgment and
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decree of the Trial court, the appellant – 1 defendant preferred an
appeal in R.A.No.1/2008 which was dismissed by the First
Appellate Court with a small / slight modification by holding that by
virtue of the Will dated 21.10.2005 at Ex.P47 executed by plaintiff
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No.1 in favour of plaintiff No.4, she would be entitled to 2/5 share
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in the suit schedule properties, while the plaintiffs 2, 3, and 1
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defendant would be entitled to 1/5 share each in the suit schedule
properties except Sy.No.29/2 referred to supra. Aggrieved by the
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impugned judgments and decrees passed by the Trial court and
the First Appellate court, appellant is before this Court by way of
the present appeal.
2. Heard learned counsel for the appellant and learned
counsel for respondents 2 to 7 and perused the material on record.
3. In addition to reiterating the various contentions urged in
the appeal and referring to the material on record, learned counsel
for the appellant submits that both the Courts committed an error in
coming to the conclusion that the suit schedule properties were the
separate and self acquired properties of late Channabasappa
without appreciating that the alleged Will dated 23.11.1936 alleged
to have been executed in his favour had not been proved by the
plaintiffs in accordance with law. It was submitted that the First
Appellate Court erred in allowing I.A.No.6 filed by the respondents
by coming to the erroneous conclusion that the plaintiff No.1 had
executed a Will dated 21.10.2005 in favour of plaintiff No.4 by
improper and erroneous appreciation of the material on record. It
was also submitted that both the Courts committed an error in
failing to appreciate that the suit was bad for non-joinder of all joint
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family properties and also barred by limitation and failure to
appreciate this, by both the Courts has resulted in erroneous
conclusion and as such, the impugned judgments and decrees of
both the Courts deserve to be set aside and the suit of the plaintiffs
was liable to be dismissed.
4. Per contra, learned counsel for the respondents would
support the impugned judgments and decrees and submits that
there is no merit in the appeal and that the same is liable to be
dismissed.
5. A perusal of the material on record will indicate that it is
an undisputed fact and a matter of record that plaintiff No.1 was the
wife of late Channabasappa and the plaintiffs 2 to 4 are their
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daughters, while 1 defendant was the only son of late
Channabasappa. It was contended that the late Channabasappa
who expired on 27.09.1987, acquired the suit schedule properties
vide registered Will dated 23.11.1936 executed in his favour and
the suit schedule properties were succeeded to by the plaintiffs
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being his wife and daughters along with 1 defendant, who did not
comply with the request and demands of the plaintiffs to effect
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partition and division of the suit schedule properties, despite
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issuance of legal notice, to which, the 1 defendant issued an
untenable reply, thereby constraining the plaintiffs to institute the
aforesaid suit against the defendants.
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6. The 1 defendant admitted his relationship with the
plaintiffs but disputed and denied the various other allegations and
claim made by the plaintiffs and contended that at the time of their
marriages, his father had paid huge sums of money, jewelry etc., to
plaintiffs 2 to 4 and also spent huge amounts towards their
marriages and even thereafter, his father Channabasappa had
provided funds to the plaintiffs 2 to 4 to purchase other properties
and accordingly, the plaintiffs do not have any share in the suit
schedule properties and the suit was liable to be dismissed.
nd
7. The 2 defendant who is not a family member filed a
separate written statement interalia contending that among the suit
schedule properties, Sy.Nos.88/2, 29/2 and 31/2 are not joint family
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properties of the plaintiffs and 1 defendant and as such, the suit
was liable to be dismissed.
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8. Based on the aforesaid pleadings, the Trial court framed
the following issues:-
“ 1. Whether the plaintiffs prove that all the
schedule properties except the house are the selfacquired
properties of Channabasappa, the father of the plaintiffs
No.2 to 4.?
2. Whether the defendant proves that after the
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dearth of Channabasappa, the 1 plaintiff ahs taken away
the cash and jewellary wroth more than Rs.1,00,000/-?
3. Whether the defendant proves that his father
has spent Rs.50,000/- to Rs.2,00,000/-out of the family
funds for the marriage of plaintiffs no.2 to 4?
4. Whether defendant proves that the plaintiffs
father gave Rs.1,00,000/-each to the plaintiffs no.2 to 4 and
they have purchased properties in their names and also in
the name of their husband and Children?
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5. Whether the plaintiffs are entitled to 4/5 share
in the suit schedule properties?
6. Whether the plaintiffs are entitled to partition
and separate possession?
7. Whether the plaintiffs are entitled to mesne
profits?
8. To what relief’s?”
9. The plaintiff No.4 examined herself as PW-1 and
documentary evidence at Exs.P1 to P46 were marked, while
defendants 1 and 2 examined themselves as DW-1 and DW-2 and
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documentary evidence at Exs.D1 to D21 were marked on their
behalf.
10. After hearing the parties, the Trial court came to the
conclusion that the suit schedule properties, except Sy.No.29/2
were the separate and self acquired properties of late
Channabasappa and accordingly, answered issue No.1 in favour of
the plaintiffs. Issues 2 to 4 were answered against the defendants
and their defence that huge sums of money, cash, jewelry etc.,
were given by late Channabasappa to plaintiffs 2 and 4 who had
purchased properties in the name of their husband and children
was rejected by the Trial court, which proceeded to decree the suit
in favour of the plaintiffs except Sy.No.29/2 by holding as under:-
REASONS
“ 7. Before assigning reasons it is better to note some
admitted facts in between the parties. The parties i.e.,
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plaintiffs and the 1 defendant admitted the existing
relationship between them. Even the defendant NO.1 has
taken specific contention that the plaintiff No.1 has taken
away the cash and jewellary worth more than Rs.1,00,000/-
and his father spent Rs.50,000/- to Rs: 2,00,000/- for the
performance of marriage of the plaintiffs No.2 to 4. Even he
has also taken contention that his father has given Rs:
1,00,000/- each to the defendants No.2 to 4 from the said
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amount, they got purchased the properties in the name of
their husband and children. Now the question before this
Court is that Whether the performance of marriages and
giving amount to the daughters is to be considered as allotting
shares to them in the joint family properties.
8. Issue No.1 The burden of proof of this issue
lies on the plaintiff. The plaintiff has taken specific contention
that, except house the remaining properties are self-acquired
properties of plaintiffs. In order to prove the same, the plaintiff
No.4 has go herself examining as PW-1. On going through
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the list of said sworn statement reveals that the 1 defendant
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is her brother and 2 defendant is junior uncle and she has
reiterating the plaint averments and she has produced Death
Certificate of her father marked at Ex.P1, Regd. Sale deed is
marked at Ex.P2, Six original sale deeds are marked at Ex.P3
to P16, four index of lands are marked at Ex.P11 to P14, six
records of rights are marked at Ex.P15 to P20, 11 R.T.C.
marked at Ex.P32 and P33, Registered will executed by
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Lingappa is marked at Ex P 34 in favour of 4 defendant,
copy of notice is marked at Ex.p35, reply is marked at
Ex.P36. The Ex.P3 is the registered sale deed, wherein the
said Channabasappa has purchased the Sy no.29/2
measuring 0.24 guntas. As per Ex.P4 this is also certified
copy of original sale deed where Channabasappa has
purchased Tari land. Even on perusal of E.x P5 to P10 it
discloses the purchase of suit properties by Channabasappa.
These registered sale deeds shows that the suit properties
are the self-acquired properties of deceased Cahnnabasappa,
who is the father of plaintiffs N0.2 to 4 and defendant No.1
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and husband of 1 plaintiff. On the basis said documents this
Court can easily come to conclusion that the plaintiffs have
proved this issue satisfactorily. Hence, I answer this issue in
affirmative.
9. Issue No.2 to 4. These issues are interlinked to
each other so they need common discussion to avoid
repetition.
The burden of proof of these issues lies on the
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defendant No.1. The 1 defendant has go himself examines
as DW-2. He has taken main contention that his mother taken
away cash and jewellary was more than worth Rs.1,00,000/-
which is equivalent to her share in the suit properties. Even
he has taken contention that his father performed the
marriages of plaintiffs No.2 to 4 by spending Rs.50,000/-to
Rs. 2,00,000/- and even further he ahs also taken contention
that his father has given Rs.1,00,000/- to the plaintiffs No.2 to
4 from which the plaintiffs No.2 to 4 have purchased the
property in the name of their husband and children and taken
contention that the amount paid by his father and
performance of marriage and taking away the cash and
jewellary by his mother is equivalent to the shares of the
plaintiffs No.1 to 4 in the suit schedule properties. But in this
regard, the defendant No.1 has not produced any material
documents. Even it is well established principles of law that
performing of marriages by the father and giving amount to
the plaintiffs No.2 to 4 is not to be considered as allotting
shares in the joint family property to them. The defendant has
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produced one sale deed marked at Ex. D1, wherein the 1
plaintiff has executed the said sale deed for Rs. 1,10,000/- On
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going through the said sale deed the reason for the selling the
land described as “
£À£Àß zÀgÀzÀÄ ¤«ÄvÀÛ CAzÀgÉ £À£Àß UÀȺÀ PÀÈvÀåzÀ
RaðUÀÆ ºÁUÀÆ ¸Á® wÃj¹ªÀÅzÀPÀÆÌ ªÀÄvÀÄÛ EArAiÀÄ£ï ¨ÁåAPï ¸Á®
wÃj¸ÀĪÀÅzÀPÀÆÌ ±ÉqÀÆå¯ï ¸ÀévÀÛ£ÀÄß UËgÀߪÉÄAmï gÀÆ.1,11,000( gÀÆ. MAzÀÄ ®PÀë
On going through the
ºÀ£ÉÆßAzÀÄ ¸Á«gÀUÀ½UÉÀ) PÀæAiÀÄPÉÌ PÉÆnÖzÉÝãÉ.
above said recital it is crystal clear that the sale of property
was not for her personal use, it is for the use of family legal
necessity and repayment of bank loan. On the basis of above
said sale deed this Court cannot come to conclusion that the
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1 plaintiff has to taken away the cash and jewellary worth
Rs.1,00,000/-. Even the contention which has been urged by
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the 1 defendant in his written statement goes against to the
recitals of the sale deed. On the basis of above reasons, this
Court comes to conclusion that the defendant has failed to
prove these issues satisfactorily. Hence, I answer these
issues in negative.
10. Issue No.5 to 7. These issue are in respect of
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4/5 share in the suit properties and mesne profit. In the
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instant case, the 2 defendant has also got examines as DW-
1. He was taken specific contention that the Sy no. 88/2, 31/2
and 29/2 are not the joint family properties of plaintiffs and the
defendant No.1 So. They are not entitle for any share in the
said property.
11. The learned counsel for the plaintiff Sri. R.V.
has vahementally contended that the Sy no.88/2 is wrongly
mentioned as 88/1 in the suit schedule and Sy no.31/2 is also
the joint family properties. But he item No.3 in Sy no. 29/2 is
not the joint family property. So, he has no objections to grant
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shares of the plaintiffs excluding Sy No.29/2 with
measurement 2.17 acres.
12. The learned counsel Sri S.G. for defendant No.2 has
vehementally contended that there is no pleading that Sy
no.88/2 is the joint family instead of Sy No. 88/1. But the
plaintiff has produced registered sale deed in this aspect
nd
which is marked at Ex.P3. Even the 2 defendant has failed
to show that he is the owner of Sy No.88/2 and also Sy
nd
No.31/2 before this Court. So, the objections raised by the 2
defendant’s counsel during the course of his arguments is
only tenable in respect of Sy no. 29/2. Hence there is no legal
hurdle before this Court to allot shares as requested by the
plaintiffs in the suit schedule properties excluding Sy No.29/2.
Moreover, the plaintiffs are entitled for mesne profits by
holding separate enquiry. So, I answer these issued
accordingly and I proceed to pass the following.
ORDER
Suit of the plaintiffs is herby decreed with cost against
the defendants, by holding that the plaintiffs are entitled for
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4/5 share in the suit schedule properties my metes and
bounds except sy no.29/2.
Parties should bear their own cost due to existing
relationship.
Draw preliminary decree accordingly.”
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st
11. The appellant – 1 defendant challenged the judgment
and decree of the Trial court by filing R.A.No.1/2008 which was
initially dismissed by the First Appellate Court vide judgment and
decree dated 18.01.2014; however, since plaintiff No.1 –
Smt.Chandramma wife of late Channabasappa had expired during
the pendency of the appeal before the First Appellate Court,
plaintiff No.4 propounded a registered Will dated 21.10.2005 said
to have been executed in her favour by her mother,
Smt.Chandramma; accordingly, in addition to dismissing the
appeal, the First Appellate court remitted the matter back to the
Trial court to consider the issue regarding the aforesaid Will of
Smt.Chandramma dated 21.10.2005 and proceed further in the
matter. Aggrieved by the aforesaid judgment and decree of the
First Appellate Court in R.A.No.1/2008 dated 18.01.2014, RSA
No.657/2014 and MSA No.36/2014 were preferred by the appellant
herein before this Court, which disposed of both the appeals by
setting aside the said judgment and decree of the First Appellate
Court and remitted the matter back to the First Appellate Court for
reconsideration afresh and in accordance with law by securing the
evidence recorded by the Trial court on the aforesaid Will dated
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21.10.2005 said to have been executed by plaintiff No.1 in favour
of plaintiff No.4. Accordingly, the additional evidence of the parties
was secured by the First Appellate Court from the Trial Court which
had recorded the evidence of PWs 2 to 5 as well as DW-2 and
documentary evidence in the form of the aforesaid registered Will
dated 21.10.2005 executed by plaintiff No.1 in favour of plaintiff
No.4 was marked as Ex.P47 and the Ration card at Ex.P48.
12. The First Appellate court framed the following points for
consideration;
“ (1) Whether plaintiffs prove that all the suit schedule
properties are separate or self acquired properties of
Channabasappa, the husband of plaintiff No.1 and father of
plaintiffs No.2 to 4?
(2) Whether appellant/defendant No.1 Proves that
some of the properties are joint and ancestral properties and
hence, he has got ½ share along with his father
Channabasappa?
(3) Whether plaintiff No.4 proves that plaintiff No.1
has executed WILL marked at Ex P.47 and hence she is
th
entitled for 2/5 share in suit schedule properties?
(4) Whether appellant/ defendant No.1 proves that
the Judgment and decree of the trial Court are perverse and
unsustainable and interference of this Court is required>
(5) What order?”
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13. After hearing the parties, the First Appellate court came
to the conclusion that the suit schedule properties were the
separate and self acquired properties of late Channabasappa and
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that the plaintiffs and 1 defendant were entitled to equal 1/5
share in all the properties except Sy.No.29/2 and the claim of the
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1 defendant that the suit schedule properties are the ancestral
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and joint family properties of 1 defendant and his father
Channabasappa was liable to be rejected. The First Appellate court
also held that plaintiff No.4 had successfully proved the Will dated
21.10.2005 executed in her favour by her mother, plaintiff No.1 to
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the extent of her 1/5 share in the suit schedule properties, as a
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result of which, while plaintiffs 2, 3 and 1 defendant would be
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entitled to 1/5 share each in the suit schedule properties, the
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plaintiff No.4 would be entitled to 2/5 (1/5 + 1/5 ) share in the
suit schedule properties except Sy.No.29/2 as held by the Trial
court. While arriving at the said conclusion, the First Appellate
Court has held as under:-
“ 21. Points No.1 and 2 : Since points No.1 and 2 are
interconnected, they are dealt with together in order to avoid
repetition of discussion.
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22. For the sake of convenience, parties will be
referred to by their ranks as shown in trial Court.
23. There is no dispute between the parties with
regard to the relationship. There is no dispute that plaintiff
No.1 is wife of Channabasappa and plaintiffs No.2 to 4 are
daughters of Channabasappa and defendant No.1 is son of
Channabasappa. So also there is no dispute that one
Channabasavana Lingappa had two daughters by name
Rachamma and Basamma and Basamma had married
Parvathappa and said Basamma and Parvathappa had four
children by name Channabasappa, Bhadramma, Rachappa
and Lingappa (defendant No.2). Plaintiff No.1 is wife of said
Channabasappa, plaintiffs No.2 to 4 are daughters of said
Channabasappa and defendant No.1 is son of said
Channabasappa.
24. The main dispute is with regard to nature or
characteristics of suit schedule properties. The plaintiffs have
contended that all the suit schedule properties except item
No.5 (2 houses situated in Durgi gudi street, Ramasamudra,
Chamarajanagar ) are self acquired properties of
Channabasappa and Channabasappa had acquired those
properties under WILL executed by his maternal grandfather
Channabasavana Lingappa. Defendant No.1 has contended
in para 11(b) of written statement that Channabasavaiah @
Channabasappa (who is father of plaintiffs No.2 to 4 and
defendant No.1) was entitled to the share of his mother
Basamma bearing Sy.No.29/1 measuring 2 acres 19 gunta
out of 4 acres 39 gunta and Sy.No.30 measuring 2 acres 11
gunta and Sy.No.25/1 measuring 14 gunta which had fallen
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to the share of Parvathaiah (father of Channabasappa) as
per law. Defendant No.1 has also contended in para No.11
(b) of written statement that Channabasavana Lingappa
(maternal grandfather of Channabasappa) had executed
settlement deed by way of WILL and therefore remaining
properties were acquired by Channabasappa and hence the
said properties are ancestral properties.
25. It is settled principle of law that when any person
contends that any property of the joint family is ancestral
property or joint family property, the burden lies on him to
establish that said property is ancestral property or joint
family property. If any member of the family asserts that any
property is self acquired or separate property, the burden lies
on such person to establish that said property is self
acquired or separate property of particular member. In the
present case, defendant No.1 has contended that some of
the properties are ancestral properties. According to
defendant No.1, as contended in para No.11 (b) of written
statement Sy.No.29/1 measuring 2 acres 19 gunta, Sy.No.30
measuring 2 acres 11 gunta and Sy.No.25/1 measuring 14
gunta were properties of Basamma who is mother of
Channabasappa and hence they are ancestral properties.
But it is pertinent to note here that the name of father of
Channabasappa is Parvathappa @ Parvathaiah. But
Channabasappa has not acquired any of the properties from
his father Parvathappa @ Parvathaiah. Even if
Channabasappa acquires property from his mother
Basamma, they became his separate properties.
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26. Defendant No.1 who has been examined as DW.2
has produced one sale deed at Ex.D.1 and 15 RTCs at
Ex.D.2 to D.16 and some assessment register extracts at
Ex.D.17 to D.21. Ex.D.2 to D.17 RTCs. do not disclose the
name of Parvathappa who is father of Channabasappa i.e.,
paternal grandfather of plaintiffs No.2 to 4 and defendant
No.1. The defendant No.1 has not produced any documents
like RTC, etc., to show that any of the suit schedule
properties were belonging to his grandfather Parvathappa.
When a property is acquired by the father, father’s father or
father’s father’s father, it is ancestral property. If the property
is acquired other than from the father, grandfather or great-
grandfather such property will be called as separate
property. The keen perusal of even contention of defendant
No.1 clearly reveals that all the suit schedule properties were
acquired by father of defendant No.1 Channabasappa under
WILL executed by Channabasavana Lingappa i.e., the
maternal grandfather of Channabasappa. Even the
contention of the defendant No.1 as contended in para
No.11(b) of written statement is taken as “true”, the property
shown in para No.11 (b) of the written statement Sy.No.29/1
measuring 2 acres 19 gunta, Sy.No.30 measuring 2 acres 11
gunta and Sy.No.25/1 measuring 14 gunta were acquired by
Parvathappa from his mother Basamma, again it becomes
property acquired from the mother which falls under Section
15 of Hindu Succession Act. But as stated supra, defendant
No.1 has not produced any documents to show that any of
the properties were standing in the name of his paternal
grandfather i.e. , Parvathappa @ Parvathaiah.
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27. On the contrary, plaintiffs have produced one
original WILL at Ex.P.2 and certified copy of said WILL at
Ex.P.34, which clearly reveal that Channabasavana
Lingappa has executed said WILL in favour of Lingappa
defendant No.2 and one Rachappa. The said defendant
No.2 is the brother of Channabasappa and he is not class-1
heir of Channabasappa. Therefore, defendant No.2 is not
entitled for any share in these suit schedule properties,
belonging to Channabasappa.
28. Plaintiffs have produced another registered WILL
executed by Channabasavana Lingappa in favour of
Channabasappa (father of plaintiffs No.2 to 4 and defendant
No.1 and husband of plaintiff No.1) on 23.11.1936, under
which he had bequeathed two house properties (item No.5 of
suit schedule property) and Sy.No.647 measuring 39 gunta
[item no.4(1)] and Sy.No.88/2 measuring 2 acre 19 gunta
[item no.4(2)] and Sy.No.31 [item no.2(4)] and Sy.No.22/1
[item no.2(1)], totally 6 properties in favour of
Channabasappa who is father of plaintiffs No.2 to 4 and
defendant No.1. Therefore, these properties are separate
properties of Channabasappa. The plaintiffs have produced
sale deeds at Ex.P.3 to P.10. The said documents clearly
reveal that the remaining properties were purchased by
Channabasappa either in his name or in the name of his wife
Chandramma (plaintiff No.1) or in the name of defendant
No.1 who is son of Channabasappa. Therefore, it is clear
that all the suit schedule properties are separate and self
acquired properties of Channabasappa, who is father of
plaintiffs No.2 to 4 and defendant No.1. Hence, the joint
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family had no ancestral or joint family property. Even if some
of the properties were purchased out of joint family fund,
since these properties were self acquired or separate
properties, the purchased properties do not acquire the
nature or characteristics of the ancestral or joint family
properties.
29. In ILR 2000 Karnataka, 3695 between
Smt.Kumbalgunte Gowramma, Since deceased by her LRs
and other Vs. Kumbalagunte Dodda Veeranna, since dead
by LRs., it is clearly held as under:-
(A) HINDU LAW Whether sole serving
coparcener can gift the compacery property that
has come to him? – Sole serving co-parcener has
a right to gift the property as if it were his separate
property.
30. Therefore, it is clear that some of the suit schedule
properties which were acquired by Channabasappa under
Ex.P.37 WILL are his separate properties and remaining
properties which were purchased by Channabasappa under
Ex.P.3 to P.10 sale deeds and Ex.P.40, 42, 44 sale deeds
are self acquired properties. Hence, Section 8 of Hindu
Succession Act is applicable. Plaintiff No.1 being the wife of
Channabasappa, plaintiffs No.2 to 4 are being the daughters
of Channabasappa and defendant No.1 being son of
Channabasappa are entitled for equal share under Section 8
of Hindu Succession Act, 1956 i.e., 1/5th share in all the suit
schedule properties.
31. Even defendant No.2-Lingappa who is brother of
Channabasappa who has been examined as DW.1 clearly
admits in his cross-examination at page No.1 that
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Channabasavana Lingappa had executed two WILLS and
under one WILL he had bequeathed the property in his
favour and under another WILL he had bequeathed the
property in favour of his elder brother Channabasappa. DW.1
further clearly admits in page No.2, at para No.6 of his cross-
examination that Channabasavana Lingappa had executed
one WILL and under the same he bequeathed one backyard
and Sy.No.667(1A) measuring 36 gunta in his favour and
Channabasavana Lingappa had also executed WILL in
favour of his elder Channabasappa (father of plaintiffs No.2
to 4 and defendant No.1). He further clearly admits in page
No.2 para No.7 of his cross-examination that all the suit
schedule properties and houses were belonging to
Channabasavana Lingappa and he had executed WILL in
favour of Channabasappa, who is father of plaintiff No.2 to 4
and defendant No.1. This admission of defendant No.2 also
clearly establishes that all the suit schedule properties are
separate properties to Channabasappa since he had
acquired the same under Ex.P.37 WILL from his maternal
grandfather Channabasavana Lingappa and
Channabasappa had purchased some of the properties as
shown in Ex.P.3 to P.10, Ex.P.40 to P.44 sale deeds. Hence,
plaintiffs have established that all the suit schedule
properties are separate or self acquired properties of
Channabasappa. Defendant No.1 has failed to establish that
some of the properties are joint family property or ancestral
property and therefore he has got half share along with his
father Channabasappa. Accordingly point No.1 is held in
the Affirmative and point No.2 held in the Negative.
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32. Point No.3 : Plaintiff No.4 has contended that
plaintiff No.1 is her mother and she expired during the
pendency of this appeal and she has execucted WILL in her
favour bequeathing her 1/5th share in her favour and
therefore, she is entitled for 1/5th share of plaintiff No.1 and
another 1/5th share of her share totally 2/5th share. The
plaintiff No.4 has produced said registered WILL at Ex.P.47.
Earlier plaintiff No.4 has been examined herself as PW.1.
After remanding the matter by this Court, PW.1 was further
examined and cross examined and plaintiff No.4 has
examined 4 witnesses as PWs.2 to 5 in order to prove the
said WILL. The main contention of Learned Counsel for
defendant No.1 is that plaintiff No.1-Chandramma was 80 or
85 years old and she was not knowing what she was doing
and Ex.P.47 WILL was created by plaintiff No.4. No doubt,
PW.1 admits in page No.11 of her cross-examination that her
mother Chandramma was about 80 or 85 years old. She also
admits that her mother Chandramma had undergone a major
operation and she was admitted in JSS Hospital and even
after discharge she was attending for follow-up treatment.
But she clearly states in page No.12 of her cross-
examination that her mohter Chandramma was residing with
her and even defendant No.1 did not come when she expired
and she herself and her sons performed all obsequies
ceremony. PW.1 clearly states in page No.14 of her cross-
examination that 3 or 4 months earlier to the death of her
mother, her mother had given said WILL to her and she had
not accompanied her mother while executing the WILL.
PW.1 clearly denied in page No.16 of her cross-examination
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that her mother was not keeping good health and her mental
capacity was not sound and she was suffering from short of
eyesight at the time of execution of said WILL.
33. Plaintiff No.4 has examined one Brungesh as
PW.2 after remanding the matter. PW.2-Brungesh clearly
states in his evidence that he had taken his grandmother
Chandramma to the Scribe and to the Sub-Registrar office.
PW.2-Brungesh is none other than the son of Rathnamma
who is plaintiff No.3 in the case. But his evidence clearly
reveals that usually plaintiff No.1 Chandramma used to go
with this Brungesh and PW.2-Brungesh had taken plaintiff
No.1-Chandramma to Sub-Registrar office as well as to the
Scribe. Plaintiff No.4 has examined two attesting witnesses
by name Nandeeswara Swamy and S.Kantharaj as PWs.3
and 4. PWs.3 and 4 have clearly stated in their evidence that
Chandramma had called them to Sub-Registrar office and
plaintiff No.1-Chandramma gave instructions to Scribe
C.Mahadevappa and C.Mahadevappa got typed the WILL
marked at Ex.P.47 and thereafter Chandramma got
registered the WILL with the help of Scribe C.Mahadevappa.
PW.3-Nandeeshwara Swamy has identified his signature on
WILL at Ex.P.47(a) and he has identified the LTM of
Chandramma at Ex.P.47(c to f) and signature of another
attesting witness Kantharaju at Ex.P.47(b). PW.3-
S.Kantharaju also states that Chandramma had called him
and she gave instructions and one C.Mahadevappa wrote
the WILL i..e, got typed the WILL and then C.Mahadevappa
got registered the WILL. PW.3 identifies his signature on
WILL at Ex.P.47(b) and signature of another attesting
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witness Nandeeshwara Swamy at Ex.P.47(a) and the
signature of the Scribe C.Mahadevappa at Ex.P.47(g).
Though PWs.2 and 3 were cross examined in length, nothing
worth was elicited through their mouth to show that
Chandramma was not present while executing the WILL or
Chandramma was not in sound state of mind to execute the
WILL. No doubt, PWs.3 and 4 admit in their cross-
examination that they were not aware which property was
bequeathed to whom and they were not aware the details of
the property . But attestation means that the executant of the
document should sign in their presence or should
acknowledge that he has signed particular document and
then these attesting witnesses should sign in the presence of
executant. The keen perusal of evidence of PWs.3 and 4
Nandeeshwara Swamy and S.Kantharaju clearly reveal that
they were present and observed the execution of the WILL
by Chandramma and Chandramma putting LTM on Ex.P.47
and they signed the WILL as attesting witnesses in the
presence of Chandramma. The plaintiff has also examined
son of Scribe C.Mahadevappa by name Shanthamurthy
since the Scribe C.Mahadevappa is no more as PW.5. PW.5-
Shanthamurthy clearly states in his evidence that he is
familiar with the signature of his father and he identifies the
signature of his father on Ex.P.47 WILL at Ex.P.47(g). The
keen perusal of evidence of PWs.2 to 5 coupled with
contents of Ex.P.47 clearly reveal that plaintiff No.1
Chandramma had executed WILL bequeathing her 1/5th
share in suit schedule properties in favour of plaintiff No.4-
Kamalamma under registered WILL dated 21.10.2005.
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Though properties are not identified, plaintiff No.1
Chandramma has clearly stated in Ex.P.47 WILL that her
1/5th share in a schedule property (suit schedule
properties)shall go to the plaintiff No.4 Kamalamma after her
death. Mere registration of the WILL does not dispense with
proof of the WILL. But registration of the WILL ensures that
Chandramma herself executed the WILL since her
photographs, LTM were taken in the Sub-Registrar office.
There is no chances of manipulating the photograph and
LTM of Chandramma since WILL was registered before Sub-
Registrar on 22.10.2005 at about 11.50 AM. The plaintiffs
have also produced Ration card of plaintiff No.1
Chandramma at Ex.P.48 to show that she was residing alone
and she was not residing with defendant No.1. The evidence
of PW.1-Kamalamma clearly reveals that deceased
Chandramma was residing with plaintiff No.4 and she was
not residing with defendant No.1 and plaintiff No.4 and her
children were looking after deceased Chandramma and
therefore she had executed WILL in favour of plaintiff No.4
bequeathing her 1/5th share in suit schedule properties.
Therefore, plaintiff No.4 has got her 1/5th share and 1/5th
share of plaintiff No.1 by virtue of WILL executed on
21.10.2005 which was registered on 22.10.2005 i.e.,
Ex.P.47. Accordingly, point No.3 is held in the
Affirmative .
34. Point No.4 : The trial Court has considered all the
aspects of the case. The trial Court has appreciated both oral
and documentary evidence of both the parties in right
perspective. Even defendant No.1 who has been examined
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as DW.1 clearly admits in page No.10 (page No.2) of his
cross-examination that one Channabasavana Lingappa is his
father’s maternal grandfather and he had distributed his
properties to his father and his younger brother (defendant
No.2). DW.2 admits in page No.4 (page No.12) of his cross-
examination that all the suit schedule properties are
properties of Lingappa son of Channabasavaiah and plaintiff
No.1 had sold some properties in favour of husband of
plaintiff No.4. This version also clearly reveals that some of
the suit schedule properties are separate properties of
Channabasappa and some properties are self acquired
properties of Channabasappa. Hence, viewed from any
angle, it is clear that Section 8 of Hindu Succession Act,
1956 is applicable and therefore, plaintiffs No.1 to 4 and
defendant No.1 being class-1 heirs are entitled for equal
share. Therefore, trial Court has rightly considered all the
aspects of the case and trial Court has also applied the law
correctly. But due to subsequent changes i.e., the death of
plaintiff No.1 and since plaintiff No.1 had executed WILL in
favour of plaintiff No.4, plaintiff No.4 is now entitled for 2/5th
share (her 1/5th share and 1/5th share of plaintiff No.1) and
th
plaintiff No.2 and 3 and defendant No.1 are entitled for 1/5
share each. Hence, it cannot be said that the Judgment and
decree of the trial Court are perverse and illegal and
interference of this Court is required. Accordingly, point No.4
is held in the Negative.
35. Point No.5: For the forgoing reasons and in view
of above discussion, I proceed to pass following order:
O R D E R
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The appeal preferred by appellant/defendant No.1 is
dismissed.
Consequently, the Judgment and decree of the trial
Court is Confirmed with following modification since Ex.P.47
is proved :
The suit of the plaintiff is decreed and plaintiff No.4 is
th
entitled for 2/5 share and plaintiffs No.2 and 3 and
defendant No.1 are entitled for 1/5th share each and suit
schedule properties shall be partitioned by meets and
bounds except Sy.No.29/2 (since Learned Counsel for
respondent plaintiffs No.2 to 4 also admit the same) into five
shares and separate possession be delivered accordingly.
In view of the circumstance of the case, both parties
are directed to bear their own cost of this appeal.
Draw preliminary decree accordingly.”
14. A perusal of the impugned judgments and decrees of the
Trial court and the First Appellate Court will clearly indicate that
both the Courts have recorded categorical findings of fact that late
Channabasappa had acquired the suit schedule properties by
virtue of a Registered Will at Ex.P2 dated 23.11.1936 executed in
his favour and upon his demise on 27.09.1987, his wife - plaintiff
No.1, his daughters, viz., plaintiffs 2 to 4 and his son, appellant –
st th
1 defendant would be entitled to equal 1/5 share each in the suit
schedule properties as Class-1 heirs in terms of Section 8 of the
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Hindu Succession Act, 1956 and consequently, all of them would
be entitled to equal share in the suit schedule properties. In this
context, it is necessary to advert to one contention urged on behalf
of the appellant, who contends that the suit schedule properties
were ancestral and joint family properties, in which, late
st
Channabasappa and 1 defendant were entitled to half share each
and it is only the half share of Channabasappa that would devolve
st
by succession upon the plaintiffs and 1 defendant under Section 6
of the Hindu Succession Act, since late Channabasappa expired on
27.09.1987, prior to the Amendment to Section 6 of the said Act,
which came into force w.e.f. 09.09.2005; the said contention is only
to be noted to be rejected in the light of the judgment of the Larger
Bench of the Apex Court in the case of Vineeta Sharma vs.
Rakesh Sharma & others – (2020) 9 SCC 1, wherein it is held as
under:-
137. Resultantly, we answer the reference as under:
137.1. The provisions contained in substituted
Section 6 of the Hindu Succession Act, 1956 confer status
of coparcener on the daughter born before or after the
amendment in the same manner as son with same rights
and liabilities.
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137.2. 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 the 20th day of December, 2004.
137.3. Since the right in coparcenary is by birth, it is
not necessary that father coparcener should be living as on
9-9-2005.
137.4. The statutory fiction of partition created by the
proviso to Section 6 of the Hindu Succession Act, 1956 as
originally enacted did not bring about the actual partition or
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 Class I as
specified in the Schedule to the 1956 Act 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.
137.5. In view of the rigour of provisions of the
Explanation to Section 6(5) of the 1956 Act, 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 (sic effected) by a decree
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of a court, it may be accepted. A plea of partition based on
oral evidence alone cannot be accepted and to be rejected
outrightly.
138. We understand that on this question,
suits/appeals are pending before different High Courts and
subordinate courts. The matters have already been delayed
due to legal imbroglio caused by conflicting decisions. The
daughters cannot be deprived of their right of equality
conferred upon them by Section 6. Hence, we request that
the pending matters be decided, as far as possible, within
six months.
139. In view of the aforesaid discussion and answer,
we overrule the views to the contrary expressed in Prakash
v. Phulavati The opinion expressed in Danamma v. Amar is
partly overruled to the extent it is contrary to this decision.
Let the matters be placed before appropriate Bench for
decision on merits.”
15. As stated supra, in the light of the judgment of the Apex
st
Court in Vineeta Sharma’s case supra, plaintiffs 2 to 4 and 1
th
defendant would be entitled to equal 1/5 share each in the suit
schedule properties, regardless of whether the properties were self
acquired properties of late Channabasappa or whether they were
joint family / ancestral properties or not and consequently, I am of
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the considered opinion that both the Courts were fully justified in
decreeing the suit filed by the plaintiffs against the defendants.
st
16. Insofar as the contention urged by the appellant – 1
defendant that his father late Channabasappa had given cash,
jewelry etc., to the plaintiffs 2 to 4 and spent huge amounts of
money towards their marriages and even subsequently, provided
funds to them to purchase other properties in the names of their
husbands and children is concerned, both the Courts have
recorded categorical findings of fact to the effect that the said
contention urged by the appellant had not been established by him
by adducing legal or acceptable evidence and the said findings
based on evidence and the material on record do not warrant
interference by this Court in the present appeal.
17. Insofar as the findings of the First Appellate court that
th
plaintiff No.1 had bequeathed her undivided 1/5 share in the suit
schedule properties in favour of plaintiff No.4 vide registered Will
dated 21.10.2005 are concerned, the First Appellate Court has
taken into account the evidence of the attesting witnesses viz.,
PWs 3 and 4 as well as the evidence of PW-2 and PW-5, son of
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the scribe of Ex.P47 – Will in order to record a finding of fact that
plaintiff No.4 had successfully proved the Will in accordance with
Section 68 of the Evidence Act r/w Section 63 of the Indian
Succession Act. The said findings of fact recorded by the First
Appellate Court based on legal and acceptable evidence, also
cannot be said to be capricious or perverse nor suffer from any
illegality or infirmity warranting interference by this Court in the
present appeal.
18. Accordingly, I do not find any question of law much less
substantial question of law arising for consideration in the present
appeal which is devoid of merit and is accordingly dismissed at the
stage of admission itself.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
SV/SRL
List No.: 1 Sl No.: 38