Regular second appeal in a partition suit involving succession and a disputed will. The High Court held that the courts below correctly found the properties remained joint family status and the will was executed under suspicious circumstances, leading to dismissal of the appeal.
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 12TH DAY OF FEBRUARY, 2024 BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 907 OF 2020 (PAR)
BETWEEN:
R/AT KARTHIKERE VILLAGE AND POST,
CHIKKAMAGALURU TALUK 570101
…APPELLANT
(BY SMT.ANUSHA ASUNDI, ADVOCATE FOR SRI.A.MADHUSUDHANA RAO.,ADVOCATE)
AND:
Digitally signed by SUMA B N Location: High Court of Karnataka
S/O LATE SRI THIMMARAJU, AGED ABOUT 81YEARS, AGRICULTURIST,
SINCE DECEASED, REPRESENTED BY LRS:
2(1) TO 2(5) ARE R/AT KARTHIKERE VILLAGE AND POST CHIKKAMAGALURU TALUK,
(CAUSE TITLE AMENDED VIDE ORDER DATED 12.02.2024)
RESPONDENT Nos.2 TO 5 ARE R/AT KARTHIKERE VILLAGE AND POST, CHIKKAMAGALURU TALUK-570107
…RESPONDENTS
(BY SRI.VARDHAMAN.V. GUNJAL., ADVOCATE FOR R1; R3, R4, R5, R2(1), R2(2), R2(4) & R2(5) ARE SERVED)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 19.11.2019 PASSED IN RA.NO.38/2018 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHIKKAMAGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 25.06.2018 PASSED IN O.S.NO.138/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, CHIKKAMAGALURU.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by defendant No.5, aggrieved by the
judgment and decree dated 25.06.2018 passed in O.S.No.138/2014 on the file of Principal Senior Civil Judge and CJM, Chikkamagaluru (for short “the trial Court”) which is confirmed by judgment and order dated 19.11.2019 passed in R.A.No.38/2018 on the file of the Principal District and Sessions Judge, Chikkamagaluru (for short “the First Appellate Court”).
of plaint schedule properties which consists of landed and residential properties. It is the contention of the plaintiff that defendant Nos.1, 2, 4 and late Rangaraju are children of late Thimmaraju. The plaintiff and defendant No.3 are the children of late Rangaraju who passed away in 1993 and they are the surviving legal heirs of Rangaraju. The family of the plaintiff and defendants is a Hindu undivided joint family governed under Mithakshara Law. That the plaint schedule properties are the ancestral joint family properties. It is contended that the plaintiff is in joint and constructive possession of the plaint schedule properties.
It is contended that item No.8 of the plaint schedule property though not entered in the assessment register, it
has been in possession and enjoyment of the plaintiff’s family from time immemorial. The plaintiff is not aware of the Will dated 13.01.1993 allegedly executed by her father who was bed ridden for more than 3 years prior to his death. He was not in a position to understand the worldly affairs and was unable to recognize the relatives and his own daughters, having lost memory. During the said
period, it is contended that alleged Will has been created by defendant No.3 in order to make unlawful gain. When the father of the plaintiff had only 1/3rd share in the plaint schedule properties, the plaintiff being one of the legal heirs of her father was entitled for 1/6th share in the plaint schedule properties. Since the request of the plaintiff was refused, she filed a suit for partition.
admitted the case of the plaintiff and consented for granting share to the plaintiff as claimed and decree to be passed as prayed for.
relatives. On 13.01.1993, he had executed the Will allotting 26 guntas of land in item No.1 of the suit schedule properties in favour of the plaintiff. As such, defendant No.3 was ready to give the said 26 guntas of land in item No.1 of the suit schedule properties. Hence, sought for dismissal of the suit.
1. Whether the plaintiff proves that the schedule properties are her joint family properties?
2. Whether the defendant No.3 proves that her father executed a Will dated
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13.01.1993 and allotted 26 guntas of land in Sy.No.277/6 in favour of plaintiff and hence plaintiff is entitle for share only in suit item No.1?
3. Whether the plaintiff is entitle for the relief claimed in the above suit?
4. What order or decree?
plaint schedule properties, defendant No.4 having 2/32 share in all the plaint schedule properties. Being aggrieved by the same, the appellant herein who is defendant No.5 in the suit filed appeal in R.A.No.38/2018 before the First Appellate Court. By judgment and order dated 19.11.2019 considering the grounds urged, the First Appellate Court framed the following points for its consideration:
1. Whether learned trial Judge erred in not holding that suit properties were joint family properties and plaintiff has share in the said properties as on the date of suit?
2. Whether learned trial Judge erred in not holding that late Rangaraju executed Will dt:13.1.1993 in favour of plaintiff, defendant Nos.3 and 5 by virtue of said Will, suit for partition is not maintainable?
registered and Rangaraju was in sound mind while executing the Will. D.W.2 who is an attesting witness to the said document has been examined in compliance of the requirement of provisions of Evidence Act, warranting no further proof regarding the genuineness of the Will. She submits that the trial Court and First Appellate Court could not have taken the matter of non-production of Will before the Revenue Authorities after the demise of Rangaraju to be a serious issue to decline the case of the appellant regarding genuineness of the Will. Thus, she submits that non-consideration of the evidence by the trial Court and First Appellate Court has resulted in perversity giving rise to substantial questions of law.
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severance of the joint family status pursuant to the oral partition that had taken place between late Rangaraju and his brothers. That in view of the said severance of joint family status pursuant to the oral partition, Rangaraju has become the absolute owner of the suit schedule properties capable of disposition. It is the further contention of the contesting defendants that Rangaraju had indeed bequeathed an extent of 26 guntas of land in item No.1 of the suit schedule properties in favour of the plaintiff indicating his sound mind of disposition. However, the trial Court and First Appellate Court have declined to accept the said contention of the contesting defendants for the reasons that the contesting defendants not being able to prove the purported oral partition by leading any acceptable evidence. No witnesses have been examined to prove the oral partition. Though reliance is placed heavily on the so called admission made by the plaintiff that Rangaraju and his brothers were residing separately and cultivating their portions of the land purported to have been allotted to their shares, the same would not be
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sufficient enough to substantiate the requirement to prove the oral partition. It is settled position of law that burden of proof of oral partition is on the one who asserts as the said burden has to be discharged in the manner known to law. It is equally settled position of law that oral partition could be proved by production of public documents if the parties have acted upon such oral partition.
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Admittedly, deceased Rangaraju was residing with defendant No.3. The Will though having been executed on 13.01.1993, Rangaraju stated have passed away on 29.04.1993, the suit in question has been filed in the year 2014. As rightly taken note by the trial Court and First Appellate Court, the said Will has never seen light of the day till the suit was filed by the plaintiff. Justification sought to be given by the contesting defendants is that family members were in cordial relationship and there was no need for them to have brought the Will to claim their
share of the properties. This very contention taken by the contesting defendants is doubtful as the Will was never acted upon even by the contesting defendants, till the suit was filed. If at all, their relationship was cordial, nothing prevented the contesting defendants to have brought the documents in public and seek for entering their names in the revenue records to the extent of their shares bequeathed by Rangaraju in favour of plaintiff and defendants.
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Sd/JUDGE
MPK
List No.: 2 Sl No.: 10
2 issues framed by the court
Whether the schedule properties remained joint family properties and the executed Will was genuine valid?
Whether substantial questions of law arise to interfere with the factual findings of the courts below?
Smt Kamalamma K.R.
Puttaraju
Rangaraj S/O Late Puttaraju
Sri Mallaraj S/O Late Puttaraju
Sri. Keshavaraj S/O Late Puttaraju
Smt. Sarasvathi D/O Late Puttaraju
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
