Dismissed

K Shivakumar v. Smt Channamma

Karnataka HC29 Aug 2024RSA/502/2016

Case brief

AI extract

What is this about?

Partition suit where defendants propounded a 2003 will by their mother bequeathing survey land to defendant No.7. Both courts below disbelieved the will on suspicious circumstances and attestation defects. The High Court answered the will question against the appellants and modified the shares applying Vineeta Sharma to grant daughters equal coparcenary shares.

What did the court decide?

Appeal dismissed; judgment and decree of courts below modified to quantify shares: plaintiff Nos.2-4 with defendant No.8, LRs of defendant No.6, and defendants Nos.2-5 and 7 each entitled to 1/7th sha

K Shivakumar Vs Smt Channamma — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:34925 RSA No. 502 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF AUGUST, 2024 BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA

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REGULAR SECOND APPEAL NO.502 OF 2016 (PAR)

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BETWEEN:

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K. SHIVAKUMAR AGE: 61 YEARS, S/O. LATE A. KRISHNAPPA,

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K. NAGENDRA AGE: 38 YEARS, S/O. A. KRISHNAPPA,

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PRAKASH AGE 52 YEARS, S/O. LATE A. KRISHNAPPA,

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APPELLANTS 1 TO 3 ARE R/AT DYAVALINGAIAHNA PALYA, HEJJALA POST – 571 511 BIDADI HOBLI, RAMANAGARA TALUK AND DISTRICT.

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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SMT. RANGAMMA W/O. LATE PUTTARAJU AGE: 67 YEARS, D/O. LATE A. KRISHNAIAH, R/AT HALINA SUBBANNA HOSA BEEDI, YELAHANKA, BENGALURU.

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SMT. KANTHAMMA AGE: 55 YEARS, W/O. LATE SATTAPPA, D/O. LATE A. KRISHNAIAH, R/AT NO.21, OPP: KAVERI ENGLISH SCHOOL, 7^TH CROSS, I MAIN ROAD, SHAKAMBARINAGARA – 560 069 (J.P.NAGAR), BENGALURU. ... APPELLANTS

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(BY SRI N.V. VASANTH, ADVOCATE)

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AND:

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SMT. CHANNAMMA AGE: 65 YEARS, W/O. LATE K. SRIPATHI, RESPONDENT NOS.2 TO 4 & 9 ARE TREATED AS LR’s OF R-1(DEAD)

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(AMENDED CARRIED OUT AS PER ORDER DATED 15/06/2023)

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S. GIRISHA AGE: 41 YEARS, S/O. LATE K. SRIPATHI,

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S. SURESH AGE: 38 YEARS, S/O. LATE K. SRIPATHI,

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S. NAGESH AGE: 34 YEARS, S/O. LATE K. SRIPATHI

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ALL ARE R/AT DYAVALINGAIAHNA PALYA, HEJJALA POST – 571 511. BIDADI HOBLI, RAMANAGARA TALUK.

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SMT. NEELAMMA AGE: 64 YEARS, W/O. LATE GANGADHARAPPA D/O. LATE A. KRISHNAIAH, SINCE DEAD BY LR’s.

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G. PURUSHOTHAM AGE: 49 YEARS,

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CHANDRASHEKAR AGE: 47 YEARS,

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JAYARAM AGE: 45 YEARS,

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YOGESH AGE: 41 YEARS,

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RESPONDENT NOS.5 TO 8 ARE SONS OF GANGADHARAPPA AND SMT. NEELAMMA, R/AT NO.49, 4^TH MAIN ROAD, MEENAKSHINAGARA, (KAMAKSHIPALYA) NEW EXTENSION, BENGALURU – 560 079.

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PREMALATHA AGE: 51 YEARS, W/O. GIRIRAJ, R/AT MARASANDRA VILLAGE, MADHURAI HOBLI, KANAKASAWADI POST – 561 203 DODDABALLAPURA TALUK, BENGALURU DISTRICT. ... RESPONDENTS

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(BY SRI MOHAN S., ADVOCATE FOR R-2, R-3 & R-4.; SRI KALYAN R., ADVOCATE FOR R-5 TO R-8; SRI T.R. RANGASWAMY, ADVOCATE FOR R-9; V/O. DATED 15/06/2023 – R-2 TO R-4 & R-9 ARE LR’s OF DECEASED R-1)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 27.02.2016 PASSED IN R.A.NO.15/2013 ON THE FILE OF THE III ADDL. DISTRICT AND SESSIONS JUDGE, RAMANAGARA, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 30.08.2012 PASSED IN O.S.NO.165/2004 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM, RAMANAGARA.

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THIS APPEAL COMING ON FOR DICTATION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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Defendant Nos.2, 3, 4, 5 and 7 are before this Court in the regular second appeal assailing the judgment and decree dated 27.02.2016 in R.A. No.15/2013 on the file of the III Additional District and Sessions Judge, Ramanagara (‘the First Appellate Court’ for short) and the judgment and decree in O.S. No.165/2004 dated 30.08.2012 on the file of the Principal Senior Civil Judge and CJM, Ramanagara (the ‘Trial Court’ for short).

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This Court, while admitting the appeal on 08.08.2016, has framed the following substantial questions of law:

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“(i) Whether the lower appellate court is justified in modifying the judgment and decree passed by the trial Court and awarding 1/7^th share out of 1/4^th share of the first respondent’s husband?

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(ii) Whether the Will date 2-2-2003 executed by the first defendant in favour of the second defendant bequeathing the land bearing Sy.No.53 of Hejjala Village to an extent of 3 acres 101 ½ guntas and 30 guntas is proved, in accordance with law?”

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At the time of arguments, this Court has re-

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framed/rectified the substantial question of law framed by this Court as under:

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“1. Whether the First Appellate Court is justified in modifying the judgment and decree passed by the Trial Court and awarding 1/7^th share out of 1/4^th share of Krishnaiah-husband of defendant No.1?.

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2. Whether the Will dated 02.02.2003 executed by defendant No.1 in favour of defendant No.7 bequeathing the land bearing survey No.53 of Hejjala village to an extent of 3 acres 10 ½ guntas and 30 guntas is proved in accordance with law?”

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Sri N.V. Vasanth, learned counsel for the appellants and Sri Mohan .S, learned counsel for the respondent Nos.2, 3 and 4, Sri Kalyan .R, learned counsel for respondent Nos.5 to 8 and Sri T.R. Rangaswamy, learned counsel for respondent No.9 have been heard on the substantial questions of law and the judgment and decree of the Courts below including the original records have been perused.

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Learned counsel for the appellants would urge the following grounds:

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i. That the Trial Court has erred in decreeing the suit, holding that the plaintiffs and defendant No.8 together are entitled for 1/8^th share and the legal representatives of defendant No.6 together are entitled for 1/8^th share in the suit schedule properties.

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ii. That the Courts below have erroneously held that the plaintiff is entitled for share in suit item Nos.4, 6, 8 to 12, which were the exclusive properties of defendant No.1.

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iii. That the Courts below have erroneously answered additional issue in the negative holding that the defendants have failed to prove the execution of the Will in favour of defendant No.7 by defendant No.1, without considering that the defendants have proved the execution of the Will in accordance with Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 and the corresponding Section 67 of Bharatiya Sakshya Adhiniyam, 2023.

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Per contra , learned counsel appearing for the respondents submits that the Courts below have rightly held that the defendants have failed to prove the execution of Will by defendant No.1 in favour of defendant No.7, and the plaintiffs are entitled for share in the self acquired properties of defendant No.1. While supporting the judgment and decree of the First Appellate Court, learned counsel points out the error committed by the First Appellate Court in modifying the judgment and decree of the Trial Court by awarding 1/7^th share out of 1/4^th share of Krishnayya contrary to the settled proposition of law as held by the Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and Others¹ (Vineeta Sharma) , and notional share allotted needs to be modified by awarding equal share to the plaintiffs, even in the absence of any appeal preferred by the plaintiffs against the judgment and decree of the First Appellate Court.

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1 2020(3) KCCR 1993 (SC)

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7. Before answering substantial question of law

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No.1, substantial question of law No.2 is considered and

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answered by this Court.

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RE: Substantial Question of Law No.2

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8. Suit for partition and separate possession in

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respect of item Nos.1 to 12 of the suit schedule properties,

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the family pedigree is as under:

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Krishnayya Minijamma (defendant No.1)

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Shripathi Neelamma Rangamma Shivakumar K.Nagendra Kantamma Prakash (Died in (D-6) (D-5) (D-2) (D-3) (D-7) (D-4) 1991) Channamma (P-1) Premalatha Girisha Suresh Nagendra (D-8) (P-2) (P-3) (P-4)

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The plaint avers that the suit schedule

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properties are the joint family properties of plaintiffs and defendants and there is no division of the joint family properties among the sons of Krishnayya and the plaintiffs are entitled for 1/5^th share in the suit schedule properties.

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Defendant No.1-Minajamma filed her written statement on 31.12.2004, inter alia, contending that item Nos.1 to 3 are the joint family properties, the plaintiffs and defendants are entitled for their legitimate right and share, however, in respect of item No.4, i.e., survey No.53/1 measuring 4 acres ½ guntas, according to defendant No.1, it is her exclusive property, having received the property by a gift deed from her father-Putta Revaiah under the registered gift deed dated 24.06.1943 and that item No.4 constitutes the stridhana property and is her exclusive property of which she is in peaceful possession and enjoyment. Defendant No.1 specifically stated that the plaintiffs and other defendant Nos.2 to 7 have no manner of right, title or interest over suit item No.4 and the said property is not liable to be partitioned among the plaintiffs and defendants. The prayer of the defendant in her written statement was to dispose of the suit allotting the legitimate share in item Nos.1 to 3 in the suit schedule properties.

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Defendant Nos.2 to 4 filed their written

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statement, inter alia, contending that they have no objection for partition of suit item Nos.1 to 3 subject to the condition that the plaintiffs will pay the share of discharge of debts incurred by Krishnayya during his lifetime and to make provisions for the expenses of marriage of defendant No.3.

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Defendant No.6 filed written statement

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admitting the claim of the plaintiffs and consenting for decree of the suit granting 1/8^th share to the plaintiffs and defendant Nos.1 to 7 each in respect of the suit schedule properties.

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Defendant No.1-Minijamma died on

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27.08.2010, during the pendency of the suit.

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Defendant Nos.2, 3 and 4 amended the written statement, inter alia, contending that defendant No.1Minijamma has executed a Will in respect of item No.4, Survey No.53 on 08.02.2003 to an extent of 3 acres, 10 ½

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guntas in favour of defendant No.8 and 30 guntas in favour of defendant No.7 during her lifetime. Plaintiffs filed rejoinder to the amended written statement contending that the alleged Will executed by defendant No.1 in favour of defendant No.7 is false, illegal, forged and concocted for the purpose of the suit and to defeat the legal rights of the plaintiff and that defendant No.1 has not executed any Will as alleged by defendant Nos.2 to 4 and the plaintiff is entitled for share in item No.4 of the suit schedule properties on death of defendant No.1.

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The Trial Court, on the basis of the pleadings, framed the following issues:

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“1. Do the plaintiffs prove that the suit properties are the joint family properties of themselves and the defendants No.1 to 4 as alleged?

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2. Do the defendants No.1 to 4 prove that the suit item No.4 is the Sthridhana property of the defendant No.1 as alleged?

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3. Do the defendants No.2 to 4 prove that the defendant No.2 discharged loan made by

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A.Krishnaiah to the tune of Rs.60,000/- out of his earnings as alleged?

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4. Do the plaintiffs prove their 1/8^th share in the schedule properties as alleged?

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5. Is it necessary to make a provision for the expenses of 3^rd defendant marriage?

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6. Whether the plaintiffs are entitled for the relief of partition and separate possession as prayed?

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7. What order or decree?

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ADDITIONAL ISSUE

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1. Whether the defendants No.2 to 5 and 7 proves that the 1^st defendant has executed a Will in respect of her property on 08.02.2003 conferring right in Sy.No.53 of Hejjala Village to an extent of 3 acres 10½ guntas and 30 guntas in favour of 7^th defendant during his life time?”

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Before the Trial Court, plaintiff No.1 examined himself as P.W.1 and marked documents at Exs.P1 to P18.

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On the other hand, defendants examined four witnesses as

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D.W.1 to 4 and marked documents at Ex.D1 to D23.

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The Trial Court, on the basis of the pleadings,

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oral and documentary evidence, arrived at a conclusion that:

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i. Plaintiffs have proved that the suit properties are the joint family properties of the plaintiffs and defendants,

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ii. On additional issue regarding proof of the Will in respect of item No.4 in favour of defendant No.7 by defendant No.1, the Trial Court arrived at a conclusion that the defendants have failed to prove that defendant No.1 has executed a Will dated 08.02.2003 in favour of defendant No.7 and that the evidence placed by defendants themselves creates suspicious circumstances and answered additional issue in the negative.

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iii. The Trial Court, by judgment and decree, held that item Nos.1 to 3, 5, 7, 8 and 10 are the ancestral joint family properties of plaintiffs and defendants and item Nos.4, 6, 9, 11 and 12 are the self acquired properties of defendant No.1 and in view of death of defendant No.1 during the pendency of the suit, the husband of plaintiff

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No.1 and father of other plaintiffs, defendant No.8, namely, K. Sripati, defendant Nos.2 to 7 being the sons and daughters of defendant No.1-Minijamma are entitled for equal share.

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And by judgment and decree, the Trial Court decreed the suit of the plaintiffs, holding that plaintiffs and defendant No.8 together are entitled for 1/8^th share and LRs of defendant No.6 together are entitled for 1/8^th share in the suit schedule properties.

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Aggrieved, defendant Nos.2, 3, 4, 5 and 7 preferred the appeal before the First Appellate Court, the First Appellate Court, while re-appreciating and reconsidering the entire oral and documentary evidence, confirmed the findings recorded by the Trial Court on additional issue and held that defendant Nos.2, 3 and 4 have failed to establish the execution of Will by defendant No.1 in favour of defendant No.7 in respect of item No.4 and while confirming the judgment and decree of the Trial Court in regard to the findings on additional issue, the

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First Appellate Court modified the awarding of share to the plaintiffs and defendants by placing reliance on the decision of the Apex Court in the case of Prakash and others Vs. Phulavati and others² as the law prevailed at that time and held that plaintiff Nos.2 to 4 and defendant No.8 together are entitled for 1/7^th share out of 1/4^th share allotted to Krishnayya in item Nos.1, 2, 3, 5 and 7 of the suit schedule properties and 1/7^th share in item Nos.4, 6, 8 to 12 of the schedule properties.

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The additional issue framed by the Trial Court reads as under:

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“ 1. Whether the defendants No.2 to 5 and 7 proves that the 1^st defendant has executed a Will in respect of her property on 08.02.2003 conferring right in Sy.No.53 of Hejjala Village to an extent of 3 acres 10½ guntas and 30 guntas in favour of 7^th defendant during his life time? ”

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The burden was on defendant Nos.2 to 5 and 7 to prove that defendant No.1 has executed Will on

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2 Civil Appeal NO.7217/2013

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08.02.2003 conferring the right in respect of item No. 4 in

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favour of defendant No. 7.

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While considering the validity and execution of the Will, following principles are required for proving the validity and execution of the Will, the Apex Court in the case of Meena Pradhan and others Vs. Kamla Pradhan and another³ has laid down the following principles, which is enumerated as under:

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“i. The court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him;

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ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.

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iii. A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:

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(a) The testator shall sign or affix his mark to the Will or it shall be signed by some

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3 Civil Appeal No.3351/2014

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other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will;

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(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;

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(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures;

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(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;

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iv. For the purpose of proving the execution of the Will, at least one of the attesting witness, who is alive, subject to the process of Court, and capable of giving evidence, shall be examined;

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v. The attesting witness should speak not only about the testator’s signatures but also that each of the witnesses had signed the will in the presence of the testator;

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vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;

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vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;

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viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator’s last Will. In such cases, the initial onus on the propounder becomes heavier.

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ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the

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time of execution; testator executed the Will while acting on his own free Will;

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x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.

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xi. Suspicious circumstances must be ‘real, germane and valid’ and not merely ‘the fantasy of the doubting mind’. Whether a particular feature would qualify as ‘suspicious’ would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc.”

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The statutory compliance is that:

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i. The Will executed by the testator and it was the

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last Will and the testator has signed the Will out of her own free will;

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ii. At the time of execution, he/she had a sound state of mind;

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iii. She was aware of the nature and effect thereof;

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iv. The Will was not executed under any suspicious circumstances.

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In the instant case, the Will said to be executed by defendant No.1 in favour of defendant No.7, defendant No.1 filed her written statement on 31.12.2004, she specifically averred that neither the plaintiffs nor the other defendants have any manner of right, title or interest in respect of item No.4 of the suit schedule properties, which is her exclusive property. The written statement was filed way back in the year 2004 and the Will said to be executed by defendant No.1 is on 08.02.2003. There is not even whisper in the written statement about defendant No.1 having any extra affection on defendant No.7 to execute the Will in her favour, on the other hand, defendant No.1 specifically stated that neither the plaintiffs and defendants would have any share in item

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No.4, making the intention of the testator very clear that defendant No.1 did not intend to give away her properties to defendants.

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In order to prove the validity and execution of the Will, which is marked at Ex.D.20, defendant No.2 was examined as D.W.1, the propounder of the Will, defendant No.7 was examined as D.W.2, and two witnesses were examined as D.W.3 and D.W.4. D.W.1-defendant No.2 is shown as witness to Ex.D.20, D.W.1 in his evidence, however, deposes that he got the knowledge about the execution of the Will by defendant No.1, this evidence clearly shows that he was a participant in execution of the Will.

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D.W.2-defendant No.7 in her examination-in-

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chief deposes that defendant No.1 executed Will in her favour to an extent of 3 acres 10 ½ guntas and 30 guntas in favour of defendant No.3, during her cross-examination, D.W.2 deposes that she has no knowledge about her

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mother having executed a Will in her favour during her life time.

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D.W.3 and D.W.4 are the attesting witnesses,

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there is contradictions in the evidence of D.W.3 and D.W.4, D.W.3 in his cross-examination states that the Will was read over and he has signed and went away, he also deposes that defendant Nos.2 and 3 also signed the Will on the said date, defendant Nos.2 and 3 are the children of defendant No.1 and the Will is also executed in favour of defendant No.3.

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D.W.4 deposes that he was present when the

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Will was executed by defendant No.1 and he signed as a witness, further that, defendant No.1 affixed her LTM in the presence of the witnesses and executed the Will and defendant Nos.2 and 3 were witnesses. In the crossexamination, D.W.4 admits that defendant No.2 is his friend and Will was typed at near Sarakki Gate at the

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instance of defendant No.2 – D.W.1, the relevant portion

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of cross-examination of D.W.4 reads as under:

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“£Á£ÀÄ ¥ÀÅ£ÀB ºÉÃ¼ÀÄªÀÅzÉÃ£ÉAzÀgÉ £ÁªÀÅ ¨ÉgÀ¼ÀZÀÄÑ ªÀiÁqÀÄªÀ eÁUÀPÉÌ ºÉÇÃUÀÄªÀµÀÖgÀ¯ÉèÃ J¯Áè gÉrAiÀiÁVzÉ £ÀqÉ¬Äj JAzÀÄ ºÉÃ½zÀgÀÄ. »ÃUÉ ºÉÃ½zÀÄÝ ²ªÀPÀÄªÀiÁgï ºÁUÉ £ÁªÀÅ ºÉÇgÀvÀÄ §AzÉªÀÅ. «ÄtdªÀÄä ºÉ¨ÉâlÄÖ UÀÄgÀÄvÀÄ ºÁQzÀÄÝ £Á£ÀÄ £ÉÆÃr®è JAzÀgÉ «ÄtdªÀÄä ºÉ¨ÉânÖ£À UÀÄgÀÄvÀÄ ºÁPÀÄwÛzÀÝgÀÄ. DUÀ ²ªÀPÀÄªÀiÁgï gÀªÀgÀÄ J¯Áè DVzÉ £ÀqÉ¬Äj JAzÀÄ ºÉÃ½zÀgÀÄ. £Á£ÀÄ ªÀÄvÀÄÛ ²ªÀPÀÄªÀiÁgï ªÀÄvÀÄÛ E£ÉÆß§âgÀÄ C°è ¸À» ªÀiÁqÀ§ºÀÅ¢vÀÛ®èªÉÃ JAzÀgÉ ºÉ¨ÉânÖ£À UÀÄgÀÄvÀÄ ºÁQ¹PÉÆAqÀÄ ºÉÆgÀlÄ ©nÖzÀÝgÀÄ. DzÀÝjAzÀ £À£Àß ¸À» ªÀiÁr¹PÉÆAr®è. PÁAvÀªÀÄä£ÉÆA¢UÉ ±Á«ÄÃ¯ÁV £ÁªÀÅ ¸ÀÄ¼ÀÄî ºÉÃ¼ÀÄwÛzÉÝÃªÉ JAzÀgÉ ¸ÀjAiÀÄ®è. ²ªÀPÀÄªÀiÁgÀ £Á£ÀÄ C£ÉÆÃ£ÀåªÁVzÉÝÃªÉ, £Á£ÀÄ ªÀÄvÀÄÛ ²ªÀPÀÄªÀiÁgï gÀªÀgÀÄ vÀÄA¨Á DwäÃAiÀÄ ¸ÉßÃ»vÀgÀÄ JAzÀgÉ ¸Àj, M§âgÀ ªÀiÁvÀÄ M§âgÀÄ ©lÄÖPÉÆAqÀ®è JAzÀgÉ ¸Àj.”

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(emphasis supplied)

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The cross-examination of D.W.4 indicates that

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before he went to put his signature on Ex.D.20, Minijamma had already put her LTM and defendant No.2Shivakumar (D.W.1) was present and he asked all the witnesses that everything is ready and instructed them to move. The cross-examination of D.W.4 clearly indicates that he has not seen the testator affixing the signature on the Will, nor each of the attesting witnesses have seen the

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testator sign or affix her mark, and each of the witnesses has not signed the Will in the presence of the testator. The attesting witnesses have not spoken about the testator signature nor about each of the witnesses having signed the Will in the presence of the testator. The evidence of D.W.3 and D.W.4 do not fulfill the formalities required under Section 63 of the Indian Succession Act, 1925.

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The contest was made by defendant No.2 who was present at the time of alleged execution of the Will in favour of defendant No.7 and is also one of the witness, the active participation of defendant No.2 made the Trial Court and the First Appellate Court to arrive at a conclusion that the validity and execution of the Will is not proved in accordance with Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 and the corresponding Section 67 of Bharatiya Sakshya Adhiniyam, 2023. Accordingly, the

¶172

25 - NC: 2024:KHC:34925 RSA No. 502 of 2016

¶173

substantial question of law No.2 framed by this Court is answered against the appellants.

¶174

RE: Substantial question of law No.1

¶175

The First Appellate Court modified the judgment and decree of the Trial Court by awarding notional partition in the share of Krishnayya, considering the law that prevailed at that point of time, in light of recent decision of the Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma & Ors.⁴ , the law is well settled that the daughters are to be treated as coparcener and are entitled for equal share in the joint family properties, the Apex Court at paragraph No.137 has held as under:

¶176

“137. Resultantly, we answer the reference as under:

¶177

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 amendment in the same manner as son with same rights and liabilities.

¶178

4 (2020) 9 SCC 1

¶179

26 -

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NC: 2024:KHC:34925 RSA No. 502 of 2016

¶181

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 20^th day of December, 2004.

¶182

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.

¶183

137.4. The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or 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.

¶184

137.5. In view of the rigor of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory

¶185

27 - NC: 2024:KHC:34925 RSA No. 502 of 2016

¶186

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 of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.”

¶187

Plaintiff Nos.2 to 4, defendant No.8 are together entitled for 1/7^th share, the legal representatives of defendant No.6 are entitled for 1/7^th share, defendant Nos.2, 3, 4, 5 and 7 are entitled for 1/7^th share each and substantial question of law No.1 framed is answered accordingly and this Court pass the following:

¶188

ORDER

¶189

i. Regular second appeal is hereby

¶190

dismissed .

¶191

ii. The judgment and decree of the Courts below is modified to the extent of quantification of shares.

¶192

28 - NC: 2024:KHC:34925 RSA No. 502 of 2016

¶193

iii. Plaintiff Nos.2 to 4, defendant No.8 together are entitled for 1/7^th share. The legal representatives of defendant No.6 together are entitled for 1/7^th share, defendant Nos.2, 3, 4, 5 and 7 are entitled for 1/7^th share each.

¶194

iv. Decree to be drawn accordingly.

¶195

Sd/(K.S. HEMALEKHA) JUDGE

¶196

MBM List No.: 2 Sl No.: 11

K Shivakumar v. Smt Channamma

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K Shivakumar v. Smt Channamma

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