Dismissed

Sri M S Lingaprabhu v. Sri Siddappa

Karnataka HC8 Sept 2021RSA/1495/2018

Case brief

AI extract

What is this about?

Partition suit by legal representatives claiming half share in joint family properties, with defendants relying on a registered Will of 1968 bequeathing properties to the propounder's daughters. The Will was held unproved as no attesting witness was examined and the propounders did not enter the witness box; property of an issueless daughter was held to revert to the heirs of her father. Both seco

What the court decided

AI extract

Sri M S Lingaprabhu Vs Sri Siddappa — Partition | Karnataka HC (2021)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 08^TH DAY OF SEPTEMBER, 2021

¶3

BEFORE

¶4

THE HON’BLE MR. JUSTICE E.S. INDIRESH

¶5

REGULAR SECOND APPEAL NO.1495 OF 2018 c/w

¶6

REGULAR SECOND APPEAL NO.1494 OF 2018

¶7

RSA No.1495 of 2018

¶8

BETWEEN:

¶9

Sri M S Lingaprabhu S/o Sadashivaiah Aged about 50 years R/at Madanayakanahalli Hirekyathanhalli Post Dasanapura Hobli-562 162 Bengaluru North Taluk.

¶10

…Appellant

¶11

(by Smt. Usha M V, Advocate)

¶12

AND:

¶13

Sri Siddappa S/o late Chennappa Aged about 49 years

¶14

Sri C Revanna S/o late Chennappa Aged about 38 years Both are R/at No.50, IV Main Byraveshwaranagar Nagarbhavi Main Road Bengaluru-560 072.

¶15

Chennappa Since dead by his LRs

¶16

¶17

Smt. Dakshayani W/o Shashi Shankar Aged about 31 years D/o late Chennappa

¶18

Sri Siddamadamma W/o late Chennappa Aged about 53 years

¶19

Both R3 and R4 are R/at No.63, 6^th Cross Near Telephone Exchange Chandra Layout Bengaluru-560 040.

¶20

L S Revanna and Smt. Gowramma, Both are expired and theirs LRs are already on record as R5 to 7

¶21

Sri Renukaswamy S/o L S Revanna Aged about 43 years

¶22

Sri Rajashekar S/o L S Revanna Aged about 38 years

¶23

Smt. Gangammanni D/o L S Revanna Aged about 39 years

¶24

R5 to R7 are R/at Hadripura Kadanur Post Doddabelavangala Hobli Doddaballapur Taluk-561 204. Bengaluru Rural Disrict.

¶25

Smt. Gangamma S/o M K Sadashivaiah

¶26

¶27

Aged about 71 years R/at Madanayakanahalli Post Hirekyathanahyalli Dasanapura Hobli-562 162 Bengaluru North Taluk.

¶28

…Respondents (by Sri M V Vedachala, Advocate for C/R1, R2 to 4; Sri V F Kumbar, Advocate for R5 to 8)

¶29

This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 13.04.2018 passed in Regular Appeal No.10022 of 2017 on the file of the IV Additional District and Sessions Judge, Doddaballapura, dismissing the appeal and filed against the judgment and decree dated 23.01.2008 passed in OS.No.127 of 2002 (Old O.S.No.654 of 1998) on the file of the Civil Judge (Sr. Dn), Doddaballapura.

¶30

RSA No.1494 of 2018

¶31

BETWEEN:

¶32

Smt. Gangamma W/o M K Sadashivaiah Aged about 81 years R/at Madanayakanahalli Post Hirekyathanahyalli Dasanapura Hobli-562 162 Bengaluru North Taluk.

¶33

Sri Renukaswamy S/o Revanna Aged about 52 years

¶34

Sri Rajashekar S/o L S Revanna Aged about 47 years

¶35

Smt. Gangammanni Siddagangamma W/o late Revanna Aged about 49 years

¶36

¶37

Appellants 2 to 4 are R/at Hadripura, Kadanur Post Doddabelavangala Hobli Doddaballapur Taluk-561 204. Bengaluru Rural District.

¶38

…Appellants

¶39

(by Sri V F Kumbar, Advocate)

¶40

AND:

¶41

Sri Siddappa S/o late Chennappa Aged about 40 years

¶42

Sri C Revanna S/o late Chennappa Aged about 39 years

¶43

Smt. Dakshyanamma W/o late Shashishankar D/o late Chennappa Aged about 46 years

¶44

Smt. Siddamadhamma W/o late Chennappa Aged about 68 years Presently R1 to 4 are R/at No.63, 6^th Cross Near Telephone Exchange Chandra Layout Bengaluru-560 040.

¶45

M Lingaprabhu S/o M L Sadashivaiah Aged about 49 years R/at Madanayakanahalli Madavara Post-562 162 Bengaluru North Taluk.

¶46

…Respondents

¶47

(by Sri M V Vedachala, Advocate for C/R1, R2 to 4; Smt. Usha M V, Advocate for R5)

¶48

¶49

This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 13.04.2018 passed in Regular Appeal No.10023 of 2017 on the file of the IV Additional District and Sessions Judge, Doddaballapura, Bengaluru Rural District, dismissing the appeal and modifying the judgment and decree dated 23.01.2008 passed in OS No.127 of 2002 on the file of the Senior Civil Judge and JMFC, Doddaballapura.

¶50

These Appeals coming on for admission, this day, the Court delivered the following:

¶51

J U D G M E N T

¶52

These appeals are filed by the legal representatives of defendant No.3 and defendant No.1 and the legal representatives of defendant No.2, assailing the common judgment and decree dated 13^th April, 2018 in Regular Appeal No.10022 of 2017 and Regular Appeal No.10023 of 2017 on the file of the IV Additional District and Sessions Judge at Doddaballapura, confirming the judgment and decree dated 23^rd January, 2008 passed in OS No.127 of 2002 (Old OS No.654 of 1998) by the Senior Civil Judge and JMFC, Doddaballapura, modifying the share of the properties.

¶53

For the sake of convenience, parties in these appeals are referred to with their status before the trial Court.

¶54

The facts of the case for the purpose of adjudication of these appeals are that, the plaintiffs have filed suit for partition

¶55

¶56

and separate possession in respect of suit schedule properties, so also, claming half share in all suit schedule items No.1 to 16 by division in metes and bounds. Plaintiffs also challenged the Will dated 26^th February, 1968 executed by the father of defendants 1 and 2 contending that the same is not binding upon the plaintiffs. It is the case of the plaintiffs that the original propositus-late Chennappa and late Rudramma had six children viz. C.H. Revanna, C.H. Siddappa, C.H. Puttarevanna, late Nanjamma, late Puttaiah and late Puttamma. Except C.H. Revanna and C.H. Siddappa, remaining four children died without any issues and therefore, the entire suit schedule properties are required to be divided between C.H. Revanna and C.H. Siddappa. C.H. Revanna died leaving behind two daughters, viz. Gangamma (defendant No.1) and Gowramma. Defendant No.3(a) is the son of Gangamma (defendant No.1). Late Gowramma had three children, viz. Renukaswamy [Defendant No.2(a)], Rajashekaraiah [defendant No.2(b)] and Gangammanni [defendant No.2(c)]. In respect of the second branch of the linealogy of late Chennabasappa, late Chennappa (Defendant No.4) was the son of late C.H. Siddappa. C H Siddappa died in the year 1969 leaving behind Chennappa. The

¶57

¶58

said Chennappa died on 25^th April, 2006, leaving behind his wife Siddamadamma [defendant No.4(b)] and three children viz. Siddappa (plaintiff No.1); H.C. Revanna (plaintiff No.2); and Smt. Dakshayini [defendant No.4(a)]. It is the case of the plaintiffs that after the death of Chennappa, defendants’ fatherC.H. Revanna was managing the affairs of the family and by misusing the status of kartha of the family, was disposing of the ancestral properties, whimsically. It is also the case of plaintiffs that there was no partition between C.H. Revanna and C.H. Siddappa and both the sons of late Chennappa were continued to be in the joint family. It is further averred in the plaint that the said C.H. Revanna has created a Will dated 18^th June, 1968 bequeathing portion of the joint family properties in favour of defendants 1 and 2 without the consent of other family members, and the said Will is not binding on the plaintiffs including their father late Chennappa (Defendant No.4). It is further stated in the plaint that, since the suit schedule properties are the joint family properties and as such, late C.H. Revanna had no authority to bequeath the joint family properties in favour of defendants 1 and 2 and therefore, the plaintiff sought for share in all the suit schedule properties. In view of

¶59

¶60

the same, the plaintiff caused legal notice dated 12^th October, 1998 to the defendants claiming share in the suit schedule property and thereafter, filed OS No.654 of 1998 before the trial Court seeking relief of partition and separate possession in respect of the suit schedule property. The said OS No.654 of 1998 was re-numbered as OS No.127 of 2002. The suit was contested by defendant No.1 and the legal representatives of the defendants 2, 3 and 5. It is the defence of the defendants that plaintiffs never lived with defendants as members of the joint family and the main propositus-Chennappa had purchased certain properties in the name of the joint family members for their convenience and after his death, the father of defendant C.H. Revanna was able to manage the affairs of the joint family. It is the specific defence of defendants 1 and 2 that, the suit schedule properties mentioned in the registered Will dated 18^th June, 1968, are the properties purchased by C.H. Revanna and therefore, same are self-acquired properties of their father-C.H. Revanna. It is also stated in the written statement that late Chennappa, father of the plaintiffs had filed OS No.74 of 1998 before the trial Court seeking relief of declaration and injunction and thereafter, pursuant to the interim order passed by the trial

¶61

¶62

Court, mutation entries have been changed. It is also stated in the written statement that the third defendant has challenged the change of entries in the revenue records in RA No.99/97-98 before the Assistant Commissioner and same was cancelled. It is also averred in the written statement that the suit is barred by time and defendants 1 and 2 have contended that the plaintiffs are not entitled for any relief and accordingly, sought for dismissal of the suit.

¶63

Defendant No.3-Gowramma, wife of late Puttarevanna filed written statement contending that the plaintiffs are not entitled for share in the suit schedule property and also highlighted the fact that the father of the plaintiff-defendant No.4 has filed OS No.74 of 1998 before the competent Court seeking relief of declaration and permanent injunction in respect of the suit items 4, 8 to 11 and 13 against defendants 1 to 3. Defendant No.3 further contended that she is in exclusive possession and enjoyment of items 9 to 11 of the suit schedule properties and as such, sought for dismissal of the suit.

¶64

Defendant No.5 also filed written statement reiterating the contentions raised by defendants 1 and 2 and accordingly sought for dismissal of the suit. The trial Court, based on

¶65

¶66

pleadings on record, formulated the following issues for its consideration:

¶67

“ 1. Whether plaintiffs prove that suit schedule properties are still joint family ancestral in nature between him and the defendants as acquired by the main propositor Channappa and his elder son C H Revanna?

¶68

2. Whether plaintiffs further prove that Regd. Will 18.06.68 executed by their senior uncle late C H Revanna was to bequeath the joint family properties in favour of his daughters defendants No.1 an 2, in the capacity as kartha so to say it is not binding upon their interest along with defendant No.4?

¶69

3. Whether 3^rd defendant prove that suit schedule items NO.7 to 11 exclusively belongs to her by virtue of an Order passed by the Assistant Commissioner in R A NO.19/97-98?

¶70

4. Whether 5^th defendant proves that suit schedule Items No.1 and 12 exclusively belongs to him as succeeded from his parents?

¶71

5. Whether the plaintiffs are entitle to get Partition and Separate possession, if so at what share and in which of the properties?

¶72

6. Whether the plaintiffs’ suit is bared by limitation?

¶73

7. Whether plaintiffs suit valuation and court fee paid is incorrect and insufficient?

¶74

¶75

8. For what Order of Decree? ”

¶76

Plaintiff No.1 was examined as PW1 and he produced 36 documents and same were marked as Exhibits P1 to P36. On the other hand, defendants have examined two witnesses as DW1 and DW2 and produced 67 documents and same were marked as Exhibits D1 to D67. The trial Court, after considering the material on record, by its judgment and decree dated 23^rd January, 2008 decreed the suit of the plaintiffs, holding that the plaintiffs are entitled for half share in all the suit schedule items 1 to 16. Consequently, the trial Court held that the Will dated 26^th February, 1968 as null and void and not binding on the plaintiffs. Being aggrieved by the judgment and decree passed by the trial Court, the defendant No.3(a); defendants 1, 2(a), 2(b), 2(c) and defendant No.5 have filed Regular Appeals No.10022 and 10023 of 2017 respectively, and same were resisted by the plaintiffs. The First Appellate Court, after considering the material on record, by its judgment and decree dated 13^th April, 2018, dismissed the appeals, consequently, modified the share of the parties. Being aggrieved by the judgment and decree passed in Regular Appeal No.10022 of 2017, legal representatives of defendant No.3 have preferred

¶77

¶78

Regular Second Appeal No.1495 of 2018; and defendants 1 and 2(a) to 2(c) have preferred Regular Second Appeal No.1494 of 2018 challenging the judgment and decree passed in Regular Appeal No.10023 of 2017.

¶79

Heard Sri V.F. Kumbar and Smt. Usha M.V., learned counsel appearing of the appellants and Sri M.V. Vedachala, learned counsel appearing for the respondents.

¶80

Sri V.F. Kumbar, learned counsel appearing for the appellants submitted that the defendant No.4 has filed OS No 74 of 1998, seeking relief of declaration and he refers to averments made in the plaint at paragraphs 6 to 8 and argued that the defendant No.4 admitted about the partition effected between sons and the daughter of late Chennappa i.e. partition amongst C.H.Revanna, C.H.Siddappa, C.H.Puttarevanna and late Nanjamma. He also refers to the written statement filed by the defendants therein who are the defendants 1 to 3, who have denied the claim of the plaintiff therein with regard to partition. He also refers to Exhibit D1-Sale deed dated 05^th March, 1948 which discloses that Nanjamma had purchased the suit schedule property. He further contended that items 4, 13 and 18 are the joint family properties; items 1 and 12 are the properties

¶81

¶82

belonging to Nanjamma; and items 9 to 11 are the subject matter of the Will dated 18^th June, 1968 bequeathed by late C.H. Revanna in favour of defendants 1 and 2. He further submitted that item No.12 is purchased by Nanjamma and she had a foster son (defendant No.5) through the first wife of her husband and therefore, it is his contention that since the defendant No.5 is born to late Shivalingaiah who is the husband of the Nanjamma and as such, there is no question of reverting back of Nanjamma’s property to her parents. Referring to Exhibit D7, he further contended that items 4 and 8 of the suit schedule property belong to Rudramma (mother of Revanna and Siddappa). He further contended that lands in Survey No.129/7, 162/4 and 28 belong to defendant No.3-Gowramma wife of Puttarevanna. Referring to provisions under Section 58 of the Evidence Act, he contended that father of the plaintiff No.4 admitted about the partition in the earlier suit and therefore, it is his submission that the impugned judgment and decree passed by the courts below require interference in this appeal.

¶83

Per contra, Sri M.V Vedachala, learned counsel appearing for the respondents contended that both the courts below, on facts, have concurrently held that plaintiffs are entitled

¶84

¶85

for their legitimate share in the suit schedule properties and therefore, no interference is required in this appeal. He further contended that the language employed in Section 15(2) of the Hindu Succession Act, 1956 is very clear and in the event of death of the daughter leaving behind no issues, the property inherited by the said daughter shall revert back to the common stock of the parents. He also referred to paragraph 3 of the Exhibit P33, paragraph 15 of Exhibit P34 and paragraph 6 of Exhibit P35 and submitted that the defendants 1 to 3 herein have pleaded in the written statement that there is no partition in the family and therefore, the finding recorded by the both the courts below is just and proper and do not call for any interference in this appeal. In order to buttress his arguments, he relied upon the judgment of the Hon'ble Supreme Court in the case of CHINTHAMANI AMMAL v. NANDAGOPAL GOUNDER AND ANOTHER reported in (2007)4 SCC 163.

¶86

Having heard the learned counsel appearing for the parties, I have carefully considered the finding recorded by both the Courts below and perused the original records. In order to ascertain the factual aspects of the case it is relevant to

¶87

¶88

understand the genealogical tree of late Chennappa’s family

¶89

(original propositus), which is as follows:

¶90

Channappa
(Propositus-died long back)
Rudramma (Wife-died long back)

¶91

C H Revanna C H Siddappa C H Puttaiah Puttamma C H Nanjamma
(died issueless) (died issueless) Puttarevanna W/o
Gowramma Shivalingai
(Deft. No.3) ah L S
Gowramma Gangamma M S Revanna-
(Deft.No.1) (Deft.No.2) Channappa Lingaprabhu D5
(Deft.No.4)
Claiming as Through
Siddamadamma
Legatee under first w/o
(Deft.No.4(b)
Lingaprabhu L S Revanna will and brought Shivalingai
as LR ah, namely
(deft No.5)
No.Deft.No.3 Siddaganga
1.Siddappa mma
1.Renukamurthy (Plaintiff No.1) And
Deft No.2(a) 2. Revanna husband of
2. Rajashekar (Plaintiff No.2)
Deft No.2(b) 3.Dakshayani
3.Gangammanni (Defendant No.4(a)
Deft No.2(c)

¶92

Perusal of the aforementioned family tree of late Chennappa would substantiate the fact that late Chennappa and his wife Rudramma had six children, viz. C.H. Revanna (father of defendants 1 and 2); C.H. Siddappa [father of defendant No.4 and grandfather of plaintiffs 1 and 2 and defendant No.4(a)]; C.H. Puttarevanna (husband of Defendant No.3); Smt. Nanjamma w/o. late Shivalingaiah; Puttaiah; and Puttamma. Puttaiah and Puttamma died leaving behind no legal heirs.

¶93

¶94

Nanjamma died leaving behind her husband Shivalingaiah and her foster son L.S. Revanna-defendant No.5.

¶95

Perusal of the finding recorded by the trial Court would clearly indicate that it is the main contention of the plaintiffs that there is no partition in respect of the suit schedule property and the father of the defendant-C.H. Revanna was managing the joint family affairs as kartha. The plaintiffs have taken a plea that the Will dated 18^th June, 1968 executed by late C.H. Revanna in favour of defendants 1 and 2 is surrounded with suspicious circumstances. In this regard, I have also carefully considered the plaint in OS No.74 of 1998 (Exhibit D60). The said suit is filed by the defendant No.4-father of the plaintiffs and paragraphs 6 to 8 plaint reads as under:

¶96

“ 6. The third defendant submits that as there is no such partition taken place as alleged in the plaint, the allegation made that the partition taken place is all false and frivolous, the properties mentioned in the Will are all not the joint family or ancestral properties. The plaintiff have made an application before the revenue authorities, by giving a false information that there are no other heirs except himself. The revenue authorities in collusion with the plaintiff have mutated the entries behind the back of these defendants. The same was challenged before the competent authority, after orders, the Tahsildar passed an

¶97

¶98

order, thereafterwards the plaintiff suppressing the said facts, have filed the present suit. The revenue entries have been mutated only on the false information given by the plaintiff herein, in the year 1996-97. Immediately after coming to know about the entries, the third defendant has preferred an revenue appeal in Regular Appeal No.99/97-98 before the Assistant Commissioner, Doddaballapur Sub-Division, Bangalore. After hearing, the revenue entries are set aside by order dated 08.05.98 and remanded the matter to the Tahsildar, Doddaballapur. After remandal, the Tahsildar has ordered to effect the entries in the name of Original persons, as it was earlier to mutation in the year 1996-97 and at present the revenue entries are standing in the revenue entries in the year 1996-97. Therefore, at present the revenue entries are in the names of Rudramma, Puttarevanna and Revanna, these facts will establish that these properties have not been fallen to the share of father of the plaintiffs as alleged in the plaint.

¶99

7. The averments of the plaintiff stated at paragraph No.8 of the plaint that C H Revanna and Puttarevanna executed a registered Will on 26.02.1968 in favour of Smt. Gangamma and Gowramma, the daughters of C H Revanna, bequeathing all the properties which were allotted to their share in the family oral partition and C H Puttarevanna who had no issues, signed the registered Will a witness are all false. The third defendant submits that Mr C H Revanna executed a registered Will on 17.06.68 in view of his two daughters Smt. Gangamma and Smt. Gowramma, the defendants 1 and 2 the self acquired

¶100

¶101

properties of C H Revanna. The husband of third defendant Mr. C H Puttarevanna had affixed his signature as a witness and not as a party to the Will.

¶102

8. The averments of the plaintiff stated at paragraph No.9 of the plaint, the plaintiff is cultivating the schedule properties, exclusively enjoying the schedule properties are all false and the plaintiff be put to strict proof of the said averments. The averments of the plaintiff that the defendants herein are strangers and they have no manner of right of any kind on the schedule properties are all false and the further averments stated in the same paragraph that the defendants are trying in all illegal methods to dispossess the plaintiff, grab the schedule properties from the plaintiff are all false and the plaintiff put to strict proof the said averments. ”

¶103

I have also carefully considered the Exhibit P33, wherein the defendants herein have pleaded in the written statement denying the partition between the grand father of the plaintiffs and his brothers. It is the defence of defendants 1 and 2 that the suit schedule property have not been allotted to the exclusive share of plaintiff’s father. The defendant No.3 in her written statement OS No.74 of 1998 (Exhibit P35), at paragraph 6 has narrated that there was no partition in the family. However, the said suit, came to be disposed as withdrawn and no finding was recorded by the trial Court. In the background of

¶104

¶105

these admitted facts, I have carefully considered Exhibit D61Will dated 06^th February, 2003 executed by defendant No.3 in favour of the Lingaprabhu [defendant No.3(a)]. In this regard, I have carefully considered the oral evidence adduced by PW1. The main controversy in this suit is with regard to devolution of property of Nanjamma. Perusal of the finding recorded by the trial Court at paragraphs 10 to 13 would clearly establish the fact that the trial Court, after appreciation of the material on record, rightly, affirmed the fact that the plaintiffs have proved that the suit schedule properties are the joint family properties. In fact, the defendants 1 and 2 have not entered the witness box and offered themselves for cross-examination and therefore, an adverse inference has to be drawn that the defendants 1 and 2 have failed to prove that their father-C.H. Revanna had legally bequeathed the property in their favour. The defendants have not proved the execution of the Will dated 18^th June, 1968 as required under Section 68 of Indian Evidence Act by examining one of the witnesses to the said Will and therefore, the finding recorded by the trial Court on Issue No.2 is just and proper. In this regard it is useful to refer to the dictum of the Apex Court in the case of H. VENKATACHALA IYENGAR v. B.N. THIMMAJAMMA

¶106

¶107

AND OTHERS reported in AIR 1959 SC 443. In the said judgment, the Hon'ble Supreme Court has laid down the guidelines for validating testamentary disposition. The same reads thus:

¶108

“ What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that

¶109

¶110

every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the, prudent mind in such matters. ”

¶111

Further, at paragraph 22 of the said judgment the Hon'ble Supreme Court has observed thus:

¶112

¶113

“ 22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that it there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. ”

¶114

Perusal of the evidence on record, would clearly establish the fact that the defendants 1 and 2 have not made any effort to prove the Will as required under law and therefore, the Will dated 18^th June, 1968 is not binding on the plaintiffs. It is trite law that any amount of document produced by the parties without proving the execution of said documents, cannot be considered to decide the lis between the parties. It is the bounden duty of the parties to prove the documents with cogent evidence before the trial Court and in the absence of adducing any evidence, no document would not enure to the benefit of such parties. In the instant case, neither the defendants 1 and 2

¶115

¶116

have stepped into the witnesses box nor got examined the witnesses to the Will and therefore, the finding recorded by the trial Court is just and proper. I have also carefully considered the arguments advanced by the learned counsel regarding Section 15 of the Hindu Succession Act, 1956. Section 15 of the Act reads as follows:

¶117

“ 15. General rules of succession in the case of female

¶118

Hindus.—

¶119

(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,—

¶120

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

¶121

(b) secondly, upon the heirs of the husband;

¶122

(c) thirdly, upon the mother and father;

¶123

(d) fourthly, upon the heirs of the father; and

¶124

(e) lastly, upon the heirs of the mother.

¶125

(2) Notwithstanding anything contained in sub-section (1),—

¶126

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and

¶127

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or

¶128

¶129

daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband. ”

¶130

Perusal of the language employed in the Section 15 of the Act would makes it clear that the property inherited by the daughter from her parents would revert back in the absence of the deceased being issueless. I have carefully considered statement and objects of the Hindu Succession Act. The same

¶131

reads thus:

¶132

“STATEMENT OF OBJECTS AND REASONS:

¶133

This, the third instalment of the Hindu Code, seeks to amend and codify the law relating to intestate succession. The original draft of the provisions relating to intestate succession contained in the Rau’s Committee bill underwent substantial changes in the hands of the Select Committee which considered the Rau’s Committee Bill in 1948. This Bill follows to a large extent the scheme adopted by the Select Committee but takes into account the various suggestions made from time to time for the amendment of the Select Committee’s version of the Bill. In particular, special provisions have been included for regulating succession to the property of intestates governed by the Marumakkattayam, Aliyasantana or Nambudri Laws of Inheritence.”

¶134

¶135

The intention of the legislature is that in the event of daughter who had inherited the property from her parents died without any issues, the property would revert back to the common stock of the parents (see AIR 2002 SC 1).

¶136

In the instant case, Nanjamma died leaving behind no children and defendant No.5 is the foster son born to the first wife of her husband late Shivalingaiah and in view of the language employed in Section 15(2) of the Hindu Succession Act, the word ‘deceased’ means the daughter died leaving behind no issues and therefore, the finding recorded by the trial court is just and proper. I have also carefully considered the law declared by the Apex Court in CHINTAMANI AMMAL (supra). In the said decision, the Apex Court observed that in law there exists a presumption in regard to the continuance of a joint family. The party who raises a plea of partition is to prove the same. The Apex Court further observed that even separate possession of portion of property by the co-sharers itself would not lead to presumption of partition. Applying the ratio laid down by the Apex Court to the facts on hand, though the defendants 1 and 2 have referred to execution of the Will dated 18^th June 1968 by their father C.H. Revanna, however, failed to

¶137

¶138

prove the execution of the said Will by examining the witness to the Will as required under law and that too, defendants 1 and 2 have not stepped into the witnesses box to urge their contentions as enumerated in the written statement and therefore, the finding recorded by the both the Courts below rejecting the contention of the defendants Nos.1 and 2, is just and proper.

¶139

In this regard, I have carefully examined the finding recorded by the First Appellate Court and the First Appellate Court, after re-appreciating the material on record, had come to a conclusion that the children of late C.H. Revanna and C.H. Siddappa are entitled for half share out of the suit schedule properties and the First Appellate Court also rightly held that there is no pleading by the parties with regard to considering the defendant No.5 as the legal representative to succeed to the estate of late Nanjamma. The First Appellate Court has also considered the finding recorded by the trial Court with regard to the fact that the Will dated 18^th June, 1968 is not proved by the propounder of the Will as required under law and as such, rightly affirmed the judgment and decree passed by the trial Court, which requires no interference in this appeal. In view of the

¶140

¶141

recent judgment of the Apex Court in the case of VINEETA SHARMA v. RAKESH SHARMA reported in 2020(9) SCC 1, allotment of share in favour of defendants 4(a) and 4(b) is just and proper and do not call for any interference in this appeal. Hence, I do not find any perversity or illegality in the impugned judgment and decree passed by the courts below and both the Courts below, on appreciation of material on record, rightly decreed the suit in favour of the plaintiffs and as such, the appeals are dismissed as devoid of merits. Parties to the suit are directed to divide the properties, is accordance with law, in terms of the observation made above before the final decree proceedings. Since the appellants have not made out a case for formulation of substantial question of law as required under 100 of Code of Civil Procedure, so also, no interference is called for in these appeals against the judgment and decree passed by the courts below, the same are confirmed and the appeals are dismissed at the stage of Admission itself.

¶142

Sd/JUDGE

¶143

lnn

Sri M S Lingaprabhu v. Sri Siddappa

Case brief

What is this about?

What the court decided

Sri M S Lingaprabhu v. Sri Siddappa

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt Jayamma Vs Sri Venkatarama Bhovi

B R Basanth Kumar Vs M.B.P.Kamakshi

Sri Mohammed Aslam Pasha Vs Sri Mohammed Rasool @ Babu

Smt v. B. Lalitha Vs v. B. Muddamma

Sri Kannan Vs B H Ramesh

B C Ramalingaiah Vs L Jayaramu