Smt.Smita W/O Subhash Vs Sri.Vithoba

1(A). GEETA W/O. RAMESH PANDURANG PRABHU AGE: 73 YEARS, OCC: HOUSEHOLD, R/O. 14-C, PAVAN PARIJATH LINK ROAD, NEW KEMPEGOUDA LAYOUT, BEHIND RR LAYOUT, BANASHANKARI 3^RD STAGE, BANGALORE-560085.

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1(B). CHETAN S/O. RAMESH PANDURANG PRABHU AGE: 48 YEARS, R/O. 14-C, PAVAN PARIJATH LINK ROAD,

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NEW KEMPEGOUDA LAYOUT, BEHIND RR LAYOUT, BANASHANKARI 3^RD STAGE, BANGALORE-560085.

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1(C). RAKHA PRASHANT SHENOY AGE: 50 YEARS, OCC: HOUSEHOLD, R/O. MITHA APARTMENTS ROAD, NEAR SHEDIGUDDA MARKET, KARANGALPADY, MANGALURU-575003.

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SMT. PREMA D/O. PANDURANGA PRABHU @ SMT. SHAILA W/O. RATNAKAR G. PAI, AGE: 69 YEARS, OCC: HOUSEHOLD, R/O. B-3, TATANIDYUT CO-OP. HSG SOCIETY, PLOT NO.25, SECTOR 9A, VASHI, NEW MUMBAI-400703.

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SRI. PRAMOD S/O. VASANT PRABHU SUBHASH P. BHANDEKAR, AGE: 65 YEARS, OCC: DOCTOR, R/O: 885, 1^ST FLOOR, V BLOCK, RAJAJINAGAR, BENGALORE-560010.

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SRI. ANNAN S/O. VASANTH PRABHU SINCE DECEASED BY HIS LR’s.

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4(A). SMITHA W/O. ANANTH PRABHU AGE: 60 YEARS, OCC: HOUSEHOLD, R/O. ADVOCATE N.K PAI COMPOUND, NEAR NELLIKERI BUSTAND TQ: KUMTA, DIST: UTTAR KANNADA-581343.

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4(B). VASANTH S/O. ANANTH PRABHU AGE: 35 YEARS, OCC: ENGINEER, R/O. ADVOCATE N.K PAI COMPOUND, NEAR NELLIKERI BUSTAND TQ: KUMTA, DIST: UTTAR KANNADA-581343.

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4(C). PRAJAKTHA D/O. ANANTH PRABHU AGE: 32 YEARS, OCC: DOCTOR, R/O. ADVOCATE N.K PAI COMPOUND, NEAR NELLIKERI BUSTAND TQ: KUMTA, DIST: UTTAR KANNADA-581343.

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SMT. SMITA W/O. SUBHASH P. BANDEKAR AGE: 63 YEARS, OCC: HOUSEWIFE, R/O: 885, 1^ST FLOOR, V BLOCK, RAJAJINAGAR, BENGALORE-560010.

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SMT. GEETA W/O. DEVIDAS KAMATH AGE: 61 YEARS, OCC: HOUSEWIFE, R/O: NILKOD, POST: AREANGADI, TQ: HONAVAR, DIST: UTTAR KANNADA-581343.

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SMT. VIJAYA W/O. MADHAV NAYAK SINCE DECEASED BY HIS LR’s.

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7(A). MADHAV NAYAK AGE: 70 YEARS, OCC: BANK OFFICER, R/O. 63, RBI COLONY, JAYANAGAR 3^RD BLOCK (EAST), BENGALURU-560011.

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7(B). PRASHANT S/O. MADHAV NAYAK AGE: 37 YEARS, OCC: DOCTOR, R/O. 63, RBI COLONY, JAYANAGAR 3^RD BLOCK (EAST), BENGALURU-560011.

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SMT. SWETHA W/O. MADHAV SONDHE AGE: 57 YEARS, OCC: HOUSEWIFE, R/O: 392, 23^RD MAIN, 2^ND STAGE, BTM LAYOUT, BENGALORE-560076.

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SRI. RATHNAKAR S/O. GOPAL PAI SINCE DECEASED BY HIS LR’s.

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9(A). SHAILA W/O. RATHNAKAR PAI AGE: 77 YEARS, OCC: HOUSEHOLD, R/O. B.CO-OP. HSG SOCIETY, PLOT NO.25, SECTION 9A, VASHI, NEW MUMBAI-400703.

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9(B). SHOBHA W/O. SUNIL BHANDAKAR AGE: 55 YEARS, OCC: HOUSEHOLD, R/O. B.CO-OP. HSG SOCIETY, PLOT NO.25, SECTION 9A, VASHI, NEW MUMBAI-400703.

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9(C). SANGEETHA D/O. RATHNAKAR PAI AGE: 51 YEARS, OCC: HOUSEHOLD, R/O. B.CO-OP. HSG SOCIETY, PLOT NO.25, SECTION 9A, VASHI, NEW MUMBAI-400703.

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9(D). KIRAN S/O. RATHNAKAR PAI AGE: 49 YEARS, OCC: ENGINEER, R/O. B.CO-OP. HSG SOCIETY, PLOT NO.25, SECTION 9A, VASHI, NEW MUMBAI-400703.

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…RESPONDENTS

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(BY SRI. GANAPATI M.BHAT, ADVOCATE FOR R1(A) TO (C); SRI. PRAKASH S.UDIKERI, ADVOCATE FOR R4(A) TO (C); SRI. B.M.ANGADI, SMT. RATNAMALA G.H. AND SRI. SUBHASH SALAGAR, ADVOCATES FOR R5, R6, R7(A) AND (B) AND R8)

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(NOTICE TO R2, R3, R9(A), R9(C) AND R9(D) ARE SERVED; NOTICE TO R9(B) IS HELD SUFFICIENT)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 28.01.2016 PASSED IN O.S.NO.9/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE,

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HONAVAR, PARTLY DECREEING DECLARATION.

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THE SUIT FILED FOR

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IN RFA NO.100098 OF 2016:

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BETWEEN:

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SMT. SMITA W/O. SUBHASH P. BANDEKAR, AGE: 71 YEARS, OCC: HOUSEWIFE, R/O: NO.884, 1^ST FLOOR, V BLOCK, RAJAJINAGAR, BANGALORE-560010.

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SMT. GEETA W/O. DEVIDAS KAMATH, AGE: 69 YEARS, OCC: HOUSEWIFE, R/O: NILKOD POST AREANGADI, TQ: HONNAVAR-581334.

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SMT. VIJAYA W/O. MADHAV NAYAK, SINCE DECEASED BY HER LR’s.

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3(A). UDAM MADHAVA NAYAK AGE: 72 YEARS, OCC: PENSIONER.

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3(B). DR. UDAM PRASHANTH S/O. MADHAVA NAYAK, AGE: 38 YEARS, OCC: DOCTOR

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BOTH ARE R/O. #63, RBI COLONY, JAYANAGAR 3^RD BLOCK, (EAST), BANGALORE-560011.

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SMT. SWETHA W/O. MADHAV SOUDHE AGE: 64 YEARS, OCC: HOUSEWIFE, R/O: NO.I-402, AKME BALLET, OUTER RING ROAD, B/H., ARENA MALL, OPP: SAMSUNG OFFICE, MAHADEVAPURA, MARATHHALLI, BENGLORE-560037.

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…APPELLANTS

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(BY SRI. B.M.ANGADI, SMT. RATNAMALA G.H. AND SRI. SUBHASH SALAGAR, ADVOCATES FOR R1, R2 & R4)

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(APPEAL AGAINST A3 IS ABATED V/O DTD.2.9.2022)

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AND:

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SRI. VITHOBA S/O. PANDURANGA PRABHU, AGE: 82 YEARS, OCC: BUSINESS, R/O: DURGADEVI ROAD, DURGAKRI, TQ: HONNAVAR-581334.

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SRI. RAMESH S/O. PANDURANGA PRABHU, SINCE DECEASED BY HIS LR’s.

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2(A). GEETA S/O. RAMESH PANDURANGA PRABHU, AGE: 73 YEARS, OCC: HOUSEWIFE.

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2(B). CHETAN S/O. RAMESH PANDURANGA PRABHU, AGE: 73 YEARS,

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BOTH ARE R/O: 14C, LINK ROAD, NEW KEMPEGOWDA LAYOUT, BSK R R LAYOUT, 3^RD STAGE, BANGALORE-560085.

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2(C). REKHA PRASHANT SHENOY AGE: 73 YEARS, OCC: HOUSEWIFE, R/O: MITHA APARTMENT ROAD, NEAR SHEDIGUDDA MARKET, KARANGALPADY, MANGALURU-575003.

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SMT. PREMA @ SHAILA D/O. PANDURANGA PRABHU, AGE: 76 YEARS, OCC: HOUSEWIFE,

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R/O: B-3, TATANIDYUT, CO-OP. HSG SOCIETY, PLOT 25, SECTOR 9A, VASHI, NEW MUMBAI-400703.

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SRI. PRAMOD S/O. VASANTH PRABHU, SUBHASH P. BZNDEKAR, AGE: 72 YEARS, OCC: DOCTOR, R/O: NO.884, 1^ST FLOOR, V BLOCK, RAJAJINAGAR, BANGALORE-560010.

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SRI. ANANT S/O. VASANTH PRABHU SINCE DECEASED BY HIS LR’s.

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5(A). SMITH W/O. ANANT PRABHU AGE: 60 YEARS, OCC: HOUSEWIFE.

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5(B). VASANTH S/O. ANANT PRABHU AGE: 35 YEARS, OCC: ENGINEER.

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5(C). PRAJAKTHA D/O. ANANT PRABHU AGE: 35 YEARS, OCC: DOCTOR,

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ALL ARE R/O. ADVOCATE N.K.PAI COMPOUND NEAR NELLIKERI BUSTAND, TQ: KUMTA, DIST: UTTAR KANNADA-581343.

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SRI. RATHNAKAR S/O. GOPAL PAI SINCE DECEASED BY HER LR’s.

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6(A). SHAILA W/O. RATHNAKAR PAI AGE: 77 YEARS, OCC: HOUSEWIFE.

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6(B). SHOBHA SUNIL BHANDARKAR AGE: 55 YEARS, OCC: HOUSEWIFE,

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BOTH ARE R/O. #14-C, PAVAN PARIJAT LINK ROAD, NEW KEMPEGOUDA LAYOUT, BANSHANKARI 3^RD STAGE, BENGALORE-560085.

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6(C). SANGEETA D/O. RATHNAKAR PAI AGE: 51 YEARS, OCC: HOUSEWIFE.

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6(D). KIRAN S/O. RATHNAKAR PAI AGE: 49 YEARS, OCC: ENGINEER,

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R/O. B-3, TATANIDYUT, CO-OP. HSG SOCIETY, PLOT 25, SECTION 9A, VASHI, NEW MUMBAI-400703.

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…RESPONDENTS

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(BY SRI. V.G.BHAT, ADVOCATE FOR R1; SRI. A.S.PATIL AND SRI. SABEEL AHMED, ADVOCATES FOR R3 AND R6(A) TO (D); SRI. PRAKASH S.UDIKERI, ADVOCATE FOR R4 AND R5)

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(NOTICE TO R2(A) TO (C) AND R5(A) TO (C) ARE SERVED)

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THIS RFA IS FILED UNDER SECTION 96 R/W. ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 28.01.2016 PASSED IN O.S.NO.9/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, HONAVAR, PARTLY DECREEING THE SUIT FILED FOR DECLARATION

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

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CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND

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THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)

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Both these appeals arise out of the common judgment and decree dated 28.01.2016 passed in O.S. No.9/2014 by the Senior Civil Judge, Honnavar (for short, ‘the Trial Court’), whereby the Trial Court partly decreed the suit filed by the plaintiff against the defendant for partition and separate possession of his alleged share in the suit schedule immoveable property and for other reliefs.

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RFA No.100089/2016 is preferred by the plaintiff,

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while RFA No.100098/2016 is preferred by defendant Nos.5 to 8.

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For the purpose of convenience, the parties are referred to by their respective ranks before the Trial Court.

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The plaintiff instituted the aforesaid suit inter alia contending that one Vithoba Ramachandra Prabhu was the original propositus who had three sons viz., Panduranga,

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Ramachandra and Vasant and one daughter Shanti to succeed to his estate as his heirs and legal representatives. The eldest son Panduranga expired on 17.02.2011 leaving behind Vithoba (plaintiff No.1), Ramesh (defendant No.1) and Prema @ Shaila (defendant No.2). So also the third son, Vasanth as well as his wife Sushila expired leaving behind two sons Pramod (defendant No.3) and Anant (defendant No.4) as well as four daughters Smita, Geeta, Vijaya and Swetha (defendants No.5 to 8 respectively). Sri Ramachandra, the other son of Vithoba died issueless, while Vithoba's daughter - Shanthi expired in the year 1953, leaving behind a son Rathnakar who is arrayed as defendant No.9 in the suit.

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The plaintiff–Vithoba, son of Panduranga, instituted the aforesaid suit, inter alia contending that his father Panduranga had bequeathed his undivided share in the suit schedule properties in his favour, vide registered ‘Will’ dated 10.02.2005 as a result of which, Vithoba, who was already entitled to a share in the suit schedule properties by birth, became entitled to the undivided share of his father Panduranga also. It was also contended that Shanthi, daughter of the original

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propositus Vithoba Ramachandra Prabhu, married in 1946 and expired in 1953 and as such, her son Ratnakar (defendant No.9) was not entitled to any share in the suit schedule properties. It was further contended that the plaintiff got issued a lawyer’s notice dated 31.01.2014 to the defendants calling upon them to effect partition and separate possession and to put the plaintiff in possession of his legitimate share in the suit schedule properties and since the defendants did not take any steps in this regard, the plaintiff filed the instant suit seeking declaration that he is entitled to his legitimate share in the suit schedule properties and for other reliefs.

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It is a matter of record and an undisputed fact that

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suit ‘A’ schedule properties comprises landed properties, while suit ‘B’ schedule properties comprises house properties.

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Defendant No.1 filed his written statement admitting the relationship between the parties, however, disputing and denying the alleged ‘Will’ dated 10.02.2005 said to have been executed by Panduranga in favour of the plaintiff. It was contended that the plaintiff was not entitled to the share claimed

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by plaintiff and appropriate orders may be passed by partitioning and dividing the suit schedule properties.

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The defendant No.2 also filed a separate written statement reiterating the contentions urged by defendant No.1 and inter alia disputed and denied the alleged ‘Will’ dated 10.02.2005 propounded by the plaintiff and submitted that the suit schedule properties may be divided by granting all the parties their legitimate share in the suit schedule properties.

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The defendant Nos.4 to 8 as well as defendant No.9

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also filed separate written statements reiterating the various contentions urged in the written statement of defendants No.1 and 2, and sought for appropriate orders to be passed.

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Based on the aforesaid pleadings, the Trial Court

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framed the following issues:

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“1. Whether the plaintiff proves that late Panduranga S/o. Vithoba Prabhu executed the Will dated 10-2-2005 bequeathing his 1/3^rd share in the family property in favour of the plaintiff?

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2. Whether the plaintiff proves that the partition entered into between late Panduranga Prabhu

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and children of Vasant Prabhu dated 5-32005 has not been acted upon?

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3. Whether the defendant no.9 proves that the partition deed dated 5-3-2005 is a created document?

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4. Whether the defendant no.6 proves that in view of partition deed dated 5-3-2005 only the agricultural lands of the family are required to be partitioned?

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5. Whether the plaintiff proves that he has spent Rs.20,64,316/- and the defendants are liable to reimburse the same according to their share as contended in para 7 of the plaint?

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6. Whether the plaintiff proves that the defendants are liable to reimburse the loan amount of Rs.5,00,000/- borrowed from Honavar K.D.C.C. Bank?

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7. Whether the plaintiff proves that he is entitled for 2/3^rd share in ½ share of late Panduranga Vithoba Prabhu ?

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8. Whether the defendant no.6 proves that she is entitled for 1/6^th share in southern side 0- 3-8 and kharab land 0-1-0 in Sl.No.1 of 'A' schedule and building nos. 2230, 2231B, 2231C existed therein and she is entitled for 1/12^th share in Sl.Nos.2 to 14 of 'A' schedule?

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9. Whether the defendant no.9 proves that he is entitled for 1/3^rd share in the suit properties?

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10. Whether the defendant no.1 proves that he is entitled for 1/6^th share in the suit properties?

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11. What order or decree?”

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The plaintiff examined himself as P.W.1 and one more witness as P.W.2 and documentary evidence at Exs.P.1 to P.43 were marked. On behalf of the defendants, defendants No.4 and 9 examined themselves as D.W.1 and D.W.3 and another witness as DW.2., and documentary evidence Exs.D.1 to D.15 were marked.

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After hearing the parties, the Trial Court came to the conclusion answering issue No.1 supra against the plaintiff by holding that he had failed to establish that his father late Panduranga had executed a ‘Will’ dated 10.02.2005 bequeathing his 1/3^rd share in the suit schedule properties in favour of the plaintiff. The Trial Court came to the conclusion that the alleged partition deed dated 05.03.2005 said to have been entered into between the branches of Panduranga and Vasanth was not acted upon and accordingly answered issue Nos. 2, 3 and 4 and

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consequently proceeded to pass the impugned judgment and decree declaring that the plaintiff and defendants No.1 and 2 were entitled to 1/6^th share each in the suit schedule properties, while among the family members representing the branch of Vasanth, brother of Panduranga and the son of Vithoba Ramachandra Prabhu, were entitled to their respective shares by declaring that the two sons were entitled to a larger share and the daughters were entitled to a smaller share in the notional share of Vasanth.

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Aggrieved by the impugned judgment and decree insofar as it relates to rejection of the claim of the plaintiff pursuant to the alleged ‘Will’ dated 10.02.2005 executed by his father, the plaintiff has preferred R.F.A. No.100089/2016. Similarly, aggrieved by grant of a lesser share in the suit schedule properties belonging to the branch of their father Vasanth in the suit schedule properties, defendants No.5 to 8 have preferred RFA 100098/2016.

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Heard the learned counsel for the parties and perused the material on record.

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The following points arise for consideration in the present appeals:

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(i) Whether the Trial Court was justified in coming to the conclusion that the plaintiff had failed to establish that late Panduranga had executed his last ‘Will’ and testament dated 10.02.2005, bequeathing his undivided share in the suit schedule properties in favour of the plaintiff?

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(ii) Whether the Trial Court was justified in granting a lesser share in favour of the daughters of Vasanth i.e., defendants No.5 to 8 and granting a larger share to the sons of Vasanth i.e., defendants No.3 and 4, and by not granting any share in favour of defendant No. 9 in the suit schedule properties?

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(iii) Whether the impugned judgment and decree passed by the Trial Court warrants interference by this Court in the present appeal?

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Regarding Point No.(i)

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A perusal of the material on record will indicate that the relationship between the parties is not in dispute. It is also

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an undisputed fact that the original propositus Vithoba

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Ramachandra Prabhu had three sons viz. Panduranga, Ramachandra and Vasanth, and one daughter Shanti who died in the year 1953. Similarly, Panduranga, the eldest son of Vithoba Ramachandra Prabhu expired on 17.01.2011. According to the plaintiff, his father Panduranga had executed Ex.P.38 his last ‘Will’ and testament, dated 10.02.2005 bequeathing his undivided share in the suit schedule properties in favour of the plaintiff. The said ‘Will’ is disputed and denied by the defendants.

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In order to prove the said ‘Will’, the plaintiff examined the attesting witness i.e., Vasanth Ganapathi Shanbhag as P.W.2, and he has been cross-examined by the defendants. While dealing with issue No.1 pertaining to proof of ‘Will’, though Ex.P.38 is the original ‘Will’ which is duly registered, the Trial Court came to the conclusion that the said ‘Will’ had not been duly proved by the plaintiff on the ground that there were discrepancies and admissions in the crossexamination of P.W.2 – the attesting witness. In this context, the Trial Court also disbelieved the evidence of P.W.2 on the ground that he was not a close person to the family of the plaintiff of

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Panduranga, son of Vithoba Ramachandra Prabhu, and as such, he had no occasion to sign the ‘Will’ as an attesting witness.

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In our considered opinion, the Trial Court failed to consider and appreciate the initial presumption regarding execution, genuineness, legality and validity of a registered ‘Will’, on account of the same being registered, can be inferred and drawn from the factum of registration as held by the Apex Court in the case of Metpalli Lasum Bai Vs. Metpalli Muthaih¹ wherein it is held as under:

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“ Discussion and Conclusion: -

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7. We have heard learned counsel for the parties and with their assistance perused the impugned judgment and the material available on record.

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8. At the outset, we may note that it is an admitted position as emerging from the record that after the death of M. Ramanna, the revenue entries (Khasra Pahunis) of the land in question were entered in the name of M. Rajanna. This Court has been apprised that as per the prevailing revenue laws in the State of Andhra Pradesh, these entries provide evidence of ownership over the land. The subject suit was filed by plaintiff-Lasum Bai specifically basing her claim on the

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1 2025 INSC 879 (Civil Appeal No.5921 of 2015 dated 21.07.2025)

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registered Will (Ext.-A1) dated 24th July, 1974 and the oral family settlement.

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9. The Will is a registered document. The defendant-Muthaiah in his evidence, admitted the signatures as appearing on the said Will (Ext.-A1) to be that of his father, i.e., M. Rajanna. The Will distributed the properties in defined proportions between the plaintiff-Lasum Bai, defendantMuthaiah and Rajamma (widowed daughter of M. Rajanna). There is ample material on record to establish that M. Rajanna anticipated that the relations between plaintiff-Lasum Bai and defendantMuthaiah were not congenial and that is why, in order to avoid future conflicts, he divided his properties by way of a family settlement and bequeathed a share thereof to plaintiff-Lasum Bai, while leaving the major share to his son i.e., the defendantMuthaiah. The distribution of the properties, as per the family settlement (regarding which oral evidence was led), and the registered Will is almost in the same proportions. The Will, is a registered document and thus there is a presumption regarding genuineness thereof. The trial Court accepted the execution of the Will based on the evidence led before it. As the Will is a registered document, the burden would lie on the party who disputed its existence thereof, who would be defendantMuthaiah in this case, to establish that it was not executed in the manner as alleged or that there were suspicious circumstances which made the same doubtful. However, the defendant-Muthaiah in his

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evidence, admitted the signatures as appearing on the registered Will to be those of his father, M. Rajanna. He also admitted the fact that the plaintiffLasum Bai was in possession of 6 acres and 16 guntas of land, which fell into her share as per the Will. In this background, the trial Court was right in holding that M. Rajanna made a fair distribution of his tangible assets amongst his legal heirs by executing the Will dated 24th July, 1974 and so also the oral family settlement. We are of the view that the evidence available on record fortifies the existence and persuasive nature of the oral family settlement which is countenanced by the factum of the possession of the suit schedule properties including the disputed property, which was admittedly with the plaintiff-Lasum Bai and subsequently the purchaser i.e., Janardhan Reddy.

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10. The genuineness of the Will is also beyond doubt because it not only confers the right and title over a part of the land owned by the Testator, M. Rajanna to the plaintiff-Lasum Bai, but it also grants a lion’s share of the property to the defendant Muthaiah. Had it been the intention of M. Rajanna to deprive the defendantMuthaiah of the land or if the Will had been manipulated, then the defendant Muthaiah could have been left out completely from gaining any benefits under the Will.”

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(emphasis supplied)

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In the instant case, a perusal of the original ‘Will’ produced at Ex.P.38 will indicate that it has been duly registered after following the prescribed procedure for registration as contemplated under the Indian Registration Act, 1908. In addition thereto, the Trial Court failed to consider and appreciate that the reasons for bequeathing his entire undivided share in the suit schedule properties solely in favour of the plaintiff and not bequeathing anything to his two other children i.e., defendant No.1 (Ramesh – son) and defendant No.2 (Prema @ Shaila) has been specifically spelt out by the testator Panduranga in the ‘Will’ itself as can be seen from the contents of the aforesaid ‘Will’. In this context, a perusal of the aforesaid ‘Will’ at Ex.P.38 dated 10.02.2005 will clearly indicate that the testator Panduranga has specifically stated that the plaintiff being his son, despite having completed B.Sc., stayed back along with the testator for the purpose of assisting him in his business and was residing along with the testator and carrying on business along with him. The testator also specifically states that defendant No.2-Prema @ Shaila, the daughter had already been married and the testator had provided sufficient properties to the said daughter at the time of her marriage and later. Similarly, while

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referring to the defendant No.1 (Ramesh), the second son, the testator also categorically states that, he had completed his education in B.Com., in a College at Belgaum and had joined Canara Bank as an officer and had retired as the Deputy General Manager from the said bank. The testator, further, states that the defendant No.1 is well-settled in life and had constructed a house in Bangalore and also owned and possessed agricultural lands and other properties, in addition to being comfortably placed in life on account of getting his retrial benefits. The testator further goes on to say that the defendant No.1 has two children i.e., a son and a daughter, who was a dentist and had got married to a dentist and they were also well settled in life at Bangalore; the son of the defendant No.1 was an Electronic Engineer and married, whose wife was also working in Bangalore and they were also well settled in life in Bangalore.

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The aforesaid recitals contained in the aforesaid ‘Will’ dated 10.02.2005 will be sufficient to come to the conclusion that the details and material particulars of all the children of the testator including the reasons as to why the testator was not bequeathing his undivided share in the suit schedule properties

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in favour of defendants No.1 and 2 have been specifically narrated in detail and spelt out by the testator himself, who also gives reasons and details as to why the plaintiff was being bequeathed with the testator's undivided share in the suit schedule properties, which is on account of the plaintiff residing with him, carrying on business jointly with him and taking care of him and as well as attending to his medical treatment.

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Under these circumstances, in view of the clear, unambiguous, definite and certain recitals in the ‘Will’ dated 10.02.2005, we are of the considered opinion that the Trial Court clearly fell in error in coming to the conclusion that there were suspicious circumstances surrounding the execution of the ‘Will’, which are, in fact, not forthcoming from the material on record and as such the finding recorded by the Trial Court to the effect that the ‘Will’ had not been proved deserves to be set aside.

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The Trial Court also makes much of certain minor

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discrepancies in the evidence of P.W.2 in order to reject the claim of the plaintiff on the basis of the will. In this context, it is pertinent to note that the evidence of both P.W.1 and P.W.2 as regards the vital ingredients required for proof of ‘Will’, as

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contemplated under Section 68 of the Indian Evidence Act, 1872 read with Section 63 of the Indian Succession Act, 1925, had not been discredited or impeached in their cross-examination. As stated supra, the ‘Will’ at Ex.P.38, dated 10.02.2005 is a duly registered document which carries with it a presumption as regards execution, attestation, genuineness, authenticity, validity, etc. In addition thereto, in his testimony as P.W.2, the attesting witness categorically states that he was present at the office of the Sub-Registrar along with the testator who had executed the ‘Will’ in the presence of P.W.2, as well as the fact that he and other attesting witness had attested the ‘Will’ in the presence of the testator and that the said ‘Will’ was duly registered. The said testimony of P.W.2 regarding valid and due execution and registration of the ‘Will’ at Ex.P.38 has remained unimpeached and uncontroverted in the cross-examination of P.W.2.

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Under these circumstances, we are of the considered opinion that the Trial Court erred in picking out stray sentences in the cross-examination of P.W.2 and placing undue emphasis on certain minor discrepancies in his cross-examination, without

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appreciating the entire testimony in its proper perspective and this has resulted in erroneous conclusion.

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A perusal of the finding recorded by the Trial Court on issue No.1 will clearly indicate that the factum of due execution, attestation, testamentary capacity of the testator coupled with registration as well as the fact that there were no suspicious circumstances surrounding execution of the ‘Will’, have not been considered or appreciated by the Trial Court thereby resulting in answering the said issue against the plaintiff and as such, the finding recorded by the Trial Court on issue No.1 deserves to be set aside.

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Accordingly, Point No.(i) formulated above is answered in favour of the appellant in RFA No. 100089 of 2016

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Regarding Point No.(ii)

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A perusal of the material on record will indicate that, after having held that the plaintiff had failed to prove the ‘Will’ dated 10.02.2005, the next question that arose for consideration before the Trial Court was regarding quantification of the shares among the heirs of the branch of Vasanth. In this context, the

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Trial Court placed reliance upon the judgment of the Apex Court in the case of Prakash Vs. Phulvati² , in order to grant a lesser share to the daughters of Vasanth and granting a larger share to the sons of Vasanth by holding as under:

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“29. Admittedly, Vithoba Ramachandra Prabhu died prior to 1956 before coming into force of Hindu Succession Act, 1956, his son Ramachandra died issueless. When the father died earlier to 1956, his daughter i.e., Shanthi W/o. Gopal Pai who is the mother of defendant no. 9 was not entitled for any share in the ancestral properties. Therefore, only the branch of Panduranga and Vasanth are entitled for ½ share each in the suit properties. The plaintiff has failed to prove the Will. Further, there is no evidence to show that defendant no.2 – Prema has been given money and gold during her marriage as her share. Admittedly, Panduranga Vithoba Prabhu died in the year 2011 which is after 9-9-2005 on which date the amendment to Section 6 of Hindu Succession Act came into force. Therefore, as per the recent decision of the Hon’ble Supreme Court of India reported in 2015 (4) KCCR 3265 (S.C.)( Prakash and others Vs. Phulavathi and others) the defendant no.2 being the daughter is entitled for equal share with sons. Therefore, she is entitled for 1/3rd share each in the ½ share of Panduranga Vithoba Prabhu. Therefore, the plaintiff - Vithoba Panduranga Prabhu is entitled for 1/6th

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2 2015 4 KCCR 3265

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share, defendant no.1 – Ramesh is entitled for 1/6th share and defendant no.2 – Prema @ Shaila is entitled for 1/6th share in the suit properties.

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30. As far as ½ share of Vasanth Vithoba Prabhu is concerned, PW-1 has stated that Vasanth Ramachandra Prabhu died in the year 1986. Even in Ex.P37 Partition Deed it is stated that Vasanth Vithoba Prabhu died in the year 1986. As per the above cited decision, the daughters are not entitled for equal share with that of the sons of Vasanth Vithoba Prabhu, if father died earlier to 9-92005. In a notional partition, Vasanth Vithoba Prabhu and his two sons defendant nos. 3 and 4 are entitled for 1/6th share each. After the death of Vasanth Vithoba Prabhu, his 1/6th share has to be divided between all his children i.e., defendant nos. 3 to 8. Therefore, the share of the defendant nos. 3 and 4 enlarges to 7/36th each and defendant nos. 5 to 8 being the daughters are entitled for 1/36th share each in the suit properties. Accordingly, I answer issue nos. 7 to 10 partly in the affirmative.”

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There is no gainsaying the fact that the aforesaid judgment of the Apex Court in Prakash versus Phulvati has been overruled by the subsequent judgment of the Apex Court in the

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case of Vineeta Sharma Vs. Rakesh Sharma and Others³ wherein it is held as under:

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3 (2020) 9 SCC 1

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“137. Resultantly, we answer the reference as

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under:

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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.

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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.

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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.

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

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In view of the judgment of the Apex Court in Vineeta Sharma’s case supra, we are of the considered opinion that all the defendants 3 to 8 each including defendants 5 to 8 being the daughters of late Vasanth would be entitled to equal shares in the half share of their father Vasanth in the suit schedule properties.

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A perusal of the impugned judgment and decree will indicate that though the parties contend that there was a partition deed dated 05.03.2005 prior to filing of the suit which is marked as Ex.P.37, since the same was not acted upon and issue No.2 to 4 were answered by the Trial Court which came to the

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conclusion that the said partition deed would not come in the way of Trial Court effecting share of parties in the suit schedule properties. The said finding having not been challenged has attained finality and become conclusive and binding upon the plaintiffs.

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Accordingly the findings recorded by the Trial Court, and the impugned judgment and decree passed by the Trial Court granting lesser share to defendants No.5 to 8 and larger share to defendants No.3 and 4 deserves to be set aside by granting all the defendants 3 to 8 each equal share in the half share of Vasanth in the suit schedule properties. Point No.(ii) is also answered accordingly.

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Regarding Point No.(iii)

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As stated herein above, while answering Point No.(i), we have come to the conclusion that the undivided share of Panduranga, son of Vithoba Ramachandra Prabhu, stood bequeath in favour of the plaintiff vide his last ‘Will’ and testament dated 10.02.2005. So also, we have come to the conclusion that the daughters of Panduranga and Vasanth, would

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be entitled to equal share in all the suit schedule properties in the half share of Panduranga and Vasanth respectively, in the light of the judgment of the Apex Court in Vineeta Sharma’s case.

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It is an undisputed fact that Panduranga, the eldest son of Vithoba Ramachandra Prabhu was entitled to half share in

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the suit schedule properties and his half share, being ancestral joint family properties, would have to be divided in the light of the findings recorded by us herein before. Accordingly, the quantification of the shares of the suit schedule properties in Panduranga's half share during his lifetime, would be as under:

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1.	Panduranga	: 1/8^thshare
2.	Vithoba (Plaintiff No.1)	: 1/8^thshare
3.	Ramesh (Defendant No.1)	: 1/8^thshare
4.	Prema (Defendant No.1)	: 1/8^thshare

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In view of our finding on Point No.(i) that Panduranga

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had bequeath his undivided 1/8^th share in the suit schedule property in favour of his son Vithoba i.e., the plaintiff, the plaintiff-Vithoba would get an additional 1/8^th share in the suit

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schedule properties. Accordingly, the shares of the parties

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representing the branch of Panduranga would be as under:

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1.	Vithoba (Plaintiff No.1)	: 1/8^th+ 1/8^th= 1/4^thshare
2.	Ramesh (Defendant No.1)	: 1/8^thshare
3.	Prema (Defendant No.1)	: 1/8^thshare

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In view of the undisputed fact that the other son Vasanth died intestate and his wife Sushila also having expired, the share of Vasanth in the suit schedule properties would have to be quantified by granting equal share in ½ share of Vasanth in favour of all his children including the daughters i.e., defendant Nos.5 to 8 and defendant Nos.3 and 4 equally. Accordingly, respective shares of the defendants No.3 to 8 representing the branch of Vasanth who is entitled to ½ share in the suit schedule

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properties is as under:

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1.	Pramod (Defendant No.3)	: 1/12^thshare
2.	Anant (Defendant No.4)	: 1/12^thshare
3.	Smita (Defendant No.5)	: 1/12^thshare
4.	Geeta (Defendant No.6)	: 1/12^thshare
5.	Vijaya (Defendant No.7)	: 1/12^thshare
6.	Swetha (Defendant No.8)	: 1/12^thshare

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As stated supra, the second son of the Vithoba Ramachandra Prabhu i.e., Ramachandra died issueless and his share would also revert back to the remaining members of the family comprising of the plaintiffs and defendant nos. 1 to 8 herein.

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Insofar as the defendant No.9 -Rathnakar being the son of Shanthi, daughter of Vithoba Ramachandra Prabhu, and since she expired in the year 1953, the Trial Court has come to the correct conclusion that she would not be entitled to any share in the suit schedule properties. It is a matter of record and an undisputed fact that the impugned judgment and decree not granting any share to defendant No.9 has not been challenged by him by way of cross-objection or by way of a separate appeal.

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A perusal of the impugned judgment and decree and the material on record will indicate that prior to institution of the suit itself, defendant No.4 had sold certain property in favour of the third parties vide sale deed Exs.P.42 and 43, both dated 23.01.1988. It is needless to state that in view of the sale of certain properties vide Ex.P.42 and Ex.P.43 in favour of third parties by defendant No.4 prior to the institution of the suit, the

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final decree court shall take into consideration the said pre-suit alienations during the course of final decree proceedings. Point No.(iii) is accordingly answered.

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In the result, we pass the following:

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ORDER

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(i) Both appeals are hereby allowed.

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(ii) The impugned judgment and decree, dated 28.01.2016, passed in O.S. No.9/2014 by the Senior Civil Judge, Honnavar, is hereby modified.

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(iii) The plaintiff is declared to be entitled to partition and separate possession of 1/4^th share in the entire suit schedule properties. The defendants No.1 and 2 are declared to be entitled to partition and separate possession of 1/8^th share each in all the suit schedule properties. The defendants No.3 to 8 are declared to be entitled to partition and separate possession of 1/12^th share each in the suit schedule properties.

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