High Court allowed appeal against decree on partition suit. It set aside lower court judgment which held 1957 Will unproved and remanded matter for fresh disposal to address execution of Will and determination of shares.
Impugned judgment and decree set aside; matter remitted to Trial Court for fresh disposal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL NO. 161 OF 2006 (PAR)
BETWEEN:
DEAD BY LRS.
Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA
BOTH ARE R/AT NO.18/1, 2nd CROSS, PARASHURAM GARDEN,
NEAR LAKSHMIPURAM BURIAL GROUND,
BHARATHI NAGAR, H.A.L. II STAGE,
BENGALURU - 560 008.
1(C). SMT.S.DHANALAKSHMI, AGED ABOUT 57 YEARS, D/O LATE C.SESHACHALAM,
ALL ARE R/AT NO.17, CLEVELAND TOWN, BANGALORE - 560 005.
ALL ARE R/AT NO.17, CENTRAL STREET, CLEVELAND TOWN, BANGALORE - 560 005.
ALL ARE R/AT NO.22, KESHAVANAGAR, KALYAN NAGAR POST, TEACHER’S COLONY, BANGALORE - 560 043.
(BY SRI.R.VIJAYAKUMAR AND SRI. K.S. RAMESH, ADVOCATES; A1(E) - ABATED)
AND:
D/O LATE ANKAIAH, SINCE DEAD BY HER LRS.
D/O LATE ANUSUYAMMA, AGED ABOUT 54 YEARS.
4(C). SHASHIKALA, D/O LATE ANUSUYAMMA, AGED ABOUT 50 YEARS.
NC: 2023:KHC:39263 RFA No. 161 of 2006
4(D). DEVIKARANI, D/O LATE ANUSUYAMMA,
AGED ABOUT 50 YEARS.
4(E). GOVERDHAN, S/O LATE ANUSUYAMMA, AGED ABOUT 46 YEARS.
LRS 4(A) TO 4(E) ARE RESIDING AT NO.4/1, VIVIANI ROAD, SAGAYAPURAM, BENGALURU - 560 005.
…RESPONDENTS
(BY SRI.ABHINAV R., ADVOCATE FOR R1; SRI.SUDARSHAN S., ADVOCATE FOR R2 TO R5)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:10.11.2005 PASSED IN O.S.NO.3636/92 ON THE FILE OF THE XXII ADDL. CITY CIVIL JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri.R.Vijayakumar, learned counsel for the appellants.
No.1 is present.
A suit for partition and separate possession came to
be filed by Sri.Gopinath @ A.Venugopal against the children of Sri.Chinnaraju.
NC: 2023:KHC:39263 RFA No. 161 of 2006
executed another registered Will on 04.11.1957 whereunder the sharing pattern has been altered. Taking note of the fact that Sri.Ankaiah has died and his only son - Sri.Gopinath @ A.Venugopal (plaintiff) has remained in the branch of Sri.Ankaiah and Sri.Chinnaraju has got six children, sharing pattern needs to be altered. In other words, sharing pattern has been made equally for plaintiff and six children to be shared as 1/7th share each, in the Will dated 04.11.1957.
NC: 2023:KHC:39263 RFA No. 161 of 2006
granting 50% of share to the plaintiff and 50% of share to the defendants as per the original ratio in the Will dated 15.12.1229.
issue No.3 has been framed by the Trial Court as under:
"3. Whether the defendants prove that they have succeeded to the property as per the Will dated 04.11.1957 after complying with the conditions therein?"
NC: 2023:KHC:39263 RFA No. 161 of 2006
has grossly erred in holding that Will dated 04.11.1957 is not proved in accordance with law which was not the burden that was cast on the defendant inasmuch as in the cross examination of P.W.1, while drawing attention to the Will dated 04.11.1957, it has been suggested by the defendant that plaintiff and children of Sri.Chinnaraju are entitled to the share equally and the same has been admitted by P.W.1.
NC: 2023:KHC:39263 RFA No. 161 of 2006
also to establish the Will dated 04.11.1957 are not properly executed by joining the necessary issues and also to place additional evidence on record.
NC: 2023:KHC:39263 RFA No. 161 of 2006
ORDER
iii. Matter is remitted to the Trial Court for fresh disposal in accordance with law.
iv. Parties are at liberty to furnish draft issue, which is appropriate for resolving the issue with regard to Ex.P.3.
v. Parties are entitled to place additional evidence on record. However, material evidence already on record is not permitted to be withdrawn by either of the parties.
vi. Taking note of the fact that suit is of the year 1992, Trial Court shall dispose of the matter on or before
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30.06.2024. It is needless to
emphasize that parties shall cooperate for the disposal of the suit.
vii. Parties shall appear before the Trial Court without further notice on 24.11.2023 and on the same day, shall file the draft issue.
viii. The decree of the suit in O.S.No.26419/2007 will be subject to the outcome of the present suit after the disposal of the present suit afresh in accordance with law.
Sd/JUDGE
KAV List No.: 1 Sl No.: 35 CT:SNN
2 issues framed by the court
Whether the impugned judgment holding the 1957 Will unproved should be remanded to Trial Court for fresh consideration.
Whether the share of parties should be decided based on the 1929 Will or the subsequent 1957 Will.
C. SESHACHALAM (DEAD BY LRS)
SMT.RADHA
SRI.S.SATYANARAYANA
C.GOPAL (DEAD BY HIS LRS)
SRI Gopinath @ A VENUGOPAL
V SRISHANANDA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
