Sri Madhukar Ananth Raikar Vs Smt Sharadabai W/O Ananth Raikar

SRI MADHUKAR ANANTH RAIKAR, AGE. 47 YEARS, R/O. TENKANAKERI, TALUKA. ANKOLA, DISTRICT. UTTARA KANNADA, PRESENTLY AT AMBARKODLA, ANKOLA TALUK, DISTRICT. UTTARA KANNADA.

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…APPELLANT

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(BY SRI J.S. SHETTY, ADVOCATE)

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AND:

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA

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SMT. SHARADABAI W/O. ANANTH RAIKAR, AGE. 66 YEARS, R/O. TENKANAKERI, ANKOLA TALUK, DISTRICT. UTTARA KANNADA.

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SRI PRABHAKAR ANANTH RAIKAR, AGE. 45 YEARS, R/O. TENKANAKERI, ANKOLA TALUK, DISTRICT. UTTARA KANNADA.

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SRI RAVINDRA ANATH RAIKAR, AGE. 40 YEARS, R/O. TENKANAKERI, ANKOLA TALUK, DISTRICT. UTTARA KANNADA.

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SRI RAJENDRA ANANTH RAIKAR, AGE. 36 YEARS, R/O. TENKANAKERI, ANKOLA TALUK, DISTRICT. UTTARA KANNADA.

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SRI BHASKAR ANATH RAIKAR AGE. 32 YEARS, R/O. TENKANAKERI, ANKOLA TALUK, DISTRICT. UTTARA KANNADA.

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SRI SADASHIVA ANATH RAIKAR, AGE. 28 YEARS, R/O. TENKANAKERI, ANKOLA TALUK, DISTRICT. UTTARA KANNADA.

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…RESPONDENTS

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(NOTICE TO R1, R2, R3, R5 AND R6 ARE SERVED; R4-SERVICE OF NOTICE DISPENSED WITH; (R1-DECEASED LR’S ARE ALREADY ON RECORD)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT & DECREE DATED 09/04/2008 PASSED BY THE CIVIL JUDGE (SENIOR DIVISION) KUMTA, IN O.S.NO.1/2006, MAY KINDLY BE SET ASIDE AND SUIT O.S. NO.1/2006, FILED BY THE PLAINTIFF-APPELLANT BEFORE THE CIVIL JUDGE (SENIOR DIVISION), KUMTA, MAY KINDLY BE DECREED, BY ALLOWING THIS APPEAL WITH COST THROUGHOUT IN THE ENDS OF JUSTICE AND EQUITY.

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THIS REGULAR FIRST APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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This Regular First Appeal is filed by the plaintiff challenging the judgment and decree dated 09.04.2008 passed in O.S.No.01/2006 on the file of Civil Judge (Senior Division), Kumta (hereinafter referred to as ‘the Trial Court’ for short) thereby, the suit filed by the plaintiff for partition and separate possession is dismissed.

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For the sake of convenience and easy reference,

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the parties are referred to as per their rankings before the Trial Court.

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It is stated that one Rayappa is the original propositus and he has eight children. The following is the genealogy of Rayappa’s family .

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Rayappa

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Vittal, Vishwanth, Govind, Ramanatha, Vinayaka, Balakrishna, Dattatrey, Ananth

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It is the case of plaintiff that the suit properties

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are ancestral and joint family properties and he being one of

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the coparcener of the family, is entitled 1/7^th share in the

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suit schedule ‘A’ to ‘D’ properties and for future mesne profits, the suit is filed. In the year 1960, there was partition in the joint family and in the said partition Dattatraya and

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Anant, who are brothers have given their shares in the business of M/s. Popular stores and also ½ share each in the suit schedule ‘A’ property.

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It is further pleaded that Anant is the father of plaintiff and defendant Nos.2 to 6 and husband of defendant No.1. The family of Anant is as below as per the genealogy:

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Ananth

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			09.01.1	997 Sharadabai (D1)
Madhukar	Prabhakar	Ravindra	Rajendra	Bhaskar Sadashiv
(Plaintiff)	D2	D3	D4	D5 D6

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It is pleaded that in the year 1979, Anant and Dattatraya partitioned the properties, in which the M/s. Popular General Stores came to the share of Anant and Popular Cloth Store was allotted to the share of Dattatraya. The suit schedule ‘A’ property was allotted to the share of Anant. After the partition, Anant and his family continued to

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live as a joint family. It is pleaded that when the plaintiff has claimed 1/7^th share in the suit schedule properties, defendant Nos.1 to 6 have stated that Anant executed the Will dated 26.07.1994 that bequeathing the suit schedule properties in favour of defendant No.1 (wife of Anant) for her lifetime and after her death the suit schedule properties shall go to defendant Nos.2 to 6, excluding the plaintiff without giving a share by virtue of the said Will. Therefore, it is pleaded that the said Will is created and concocted one. Hence, the plaintiff has filed suit for claiming 1/7^th share in the suit schedule ‘A’ to ‘D’ properties.

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The defendants have appeared through their counsel and filed written statement stating that the plaintiffs do not have any right or share in the suit schedule properties, which exclusively belonged to Anant and he has executed the Will in favour of Sharadabai, who is wife of Anant and mother of plaintiff and defendant Nos.2 to 6, for lifetime interest. After her demise the properties shall go to defendant Nos.2 to 6. Therefore, the Will has been executed and the plaintiff does not have any right or interest in the

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suit schedule properties. Further, it is pleaded that he has relinquished his share therefore, he does not have any right or claim in the suit schedule properties. Hence, pray to dismiss the suit.

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Upon hearing pleadings of the parties, the Trial

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Court has framed the following issues:

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1) Whether plaintiff proves that business net was joint family business?

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2) Whether said joint family business was run at Ankola and Hubli?

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3) Whether plaintiff proves that business run in the name of M/S Popular Stores, Ankola and partnership business if so who were all the partners?

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4) Whether plaintiff proves that father of plaintiff inherited ½ share in Sl.No.1 of schedule property and of ‘A’ schedule property?

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5) Whether plaintiff proves inducting of partners as contended in para 6 of plaint?

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6) Whether plaintiff proves that suit schedule ‘A’ Sl.No.2 house inherited by his father in partition?

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7) Whether plaintiff proves his claim on ornaments and further that they are from joint family friends, so also of F.Ds.?

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8) Whether plaintiff proves that he was harassed as contended in para 10 of the plaint?

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9) Whether plaintiff proves that he signed under duress and threat deed/document disassociating from partnership business and that he has not received Rs.50,000/- as stated in the said deed?

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10) Whether plaintiff proves that he has not relinquished his right in the family property as contended?

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11) Whether plaintiff proves that partnership deed is illegal, bogus, as contended in para 11 of the plaint?

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12) Whether plaintiff proves that Will dated 26-7-1994 is bogus and illegal as contended in para 14 of plaint?

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13) Whether plaintiff proves that he has share in business run by defendant as contended in para 15 of plaint?

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14) Whether plaintiff proves that the Court fees paid are proper?

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15) Whether plaintiff proves that valuation made is correct and proper?

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16) Whether plaintiff has right to claim share in the schedule properties?

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17) Whether suit filed for declaration to declare Will dated 26-7-1994 as illegal and null and void is maintainable in the present form?

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18) Whether plaintiff proves that he has any right title or interest in suit schedule property?

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19) Whether defendant proves that there was partition as contended in para 5 of W.S.?

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20) Whether business run in M/S Popular General Stores and M/S Popular Stores are separate business run as contended in para 6 of W.S.?

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21) Whether relinquish/release deed regd., was dropped as stated to by plaintiff?

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22) What order/decree?

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In order to prove the case, the plaintiff is examined as PW-1 and two other witnesses as PW-2 and PW3 and got marked documentary evidence as Exs.P-1 to P- 22(a). Defendant No.2 is examined as DW-1 and two other witnesses as DW-2 and DW-3 and got marked documentary evidence as Exs.D-1 to D-16.

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The Trial Court has dismissed the suit of the plaintiff on the reason that the suit schedule properties are exclusive properties of Anant and he has executed the Will dated 26.07.1994 in favour of defendant No.1 (wife of Anant) and the said Will is proved. Therefore, by virtue of the said Will, defendant No.1 has got life interest and after her death the properties shall go to the share of defendant Nos.2 to 6. Therefore, the plaintiff is not entitled any right or interest of share in the suit schedule properties. Therefore, the Trial

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Court finding that the Will is proved and the properties are self acquired properties of Anant and Anant has executed the Will bequeathing the properties in favour of defendant Nos.1 to 6. Therefore, the plaintiff does not have any right or claim in the suit schedule properties. Hence, dismissed the suit.

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Being aggrieved by it, the appellant/plaintiff has preferred this instant appeal. Learned counsel for the appellant/plaintiff in support of the grounds raised in the appeal has submitted that the Will stated to have been executed by Anant is created and concocted one, just to defeat the right of the plaintiff. Further, submitted that the said Will is proved, but is not binding on the share of plaintiff since the properties are ancestral properties and the plaintiff has inherent right to receive rightful share from his grandfather-Rayappa.

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In this regard, he places reliance on the judgment of this Court in the Division Bench case of PUSHPALATHA N. V., VS. V. PADMA dated 25.10.2018 passed in RFA

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NO.326/2004. Therefore, prays to allow the appeal and to

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grant decree in the suit as prayed for.

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Though the respondents/defendants have been

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served notice in this appeal, they have not been represented in this appeal.

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Upon hearing arguments and perused materials available on record, the point that would arise for consideration as under:

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“Whether, under the facts and circumstances involved in the case, the plaintiff proves that he has 1/7^th share in the suit schedule properties, though execution of Will is proved, is not binding on him, thus entitled share in the suit schedule properties?”

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The Trial Court has dismissed the suit on the

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grounds that the defendants have proved the execution of Will (Ex.D-11) dated 26.07.1994. Further, assigned reason that after partition in the family, Dattatraya and Anant have received their respective shares. After the partition between

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the Dattatraya and Anant, whatever the properties came to the share of Anant are to be considered as exclusive share.

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Therefore, Anantha is competent to execute the Will and has accordingly bequeathed the properties to his wife. Thus, the plaintiff is not entitled share in the suit schedule properties. Therefore, dismissed the suit.

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The original propositus is one Rayappa, who has eight sons. In the year 1960, there was partition in the family of Rayappa and in the said partition Dattatraya and Anant received shares in the joint family business, M/S Popular Stores as well as half share each in the suit schedule ‘A’ properties. Anant is the husband of defendant No.1 and father of plaintiff and defendant Nos.2 to 6. In the year 1979, Anant and Dattatraya have got partitioned in the said partition M/S Popular stores, which came to the share of Anant and Popular Cloth Stores was given to the share of Dattatraya and the suit schedule ‘A’ properties was allotted to the share of Anant. Thus, the suit schedule properties were inherited through original propositus Rayappa.

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The plaintiff, being son of Anant, has an inherent right to a share in the ancestral properties. Just because there was partition in the family of Rayappa as above stated

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and whatever share was given to Anant in those properties,

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the plaintiff is also having inherent right of share as a coparcener in the joint family status. The joint family status is not in dispute. Anant might have executed the Will in favour of defendant No.1, but that is not binding on the plaintiff. Though the Will is proved to have been executed as attesting witness deposed that Anant had intended to bequeath the properties in favour of his wife (defendant No.1) and children of Anant (defendant Nos.2 to 6), but the very nature of properties inherited by Anant does not become exclusive properties of Anant, as the plaintiff is also one of the coparcener. Therefore, though the Will is proved

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to have been executed, as the attesting witness had deposed and intention of execution of Will is proved, that is not binding on the share of plaintiff. Since, the plaintiff being coparcener, Anant could not make Will in respect of the ancestral properties bequeathing in favour of defendants No.1 to 6 exclusively, excluding the plaintiff. Hence, in this regard, I place reliance on the judgment of

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Hon’ble Division Bench of this Court in the case of

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PUSHPALATHA N. V., VS. V. PADMA (supra) .

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In similar circumstances, in the Division Bench judgment of this Court at paragraph 21 it is held as under:

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21. Therefore from the above referred decisions, it becomes quite clear that whatever a partition of ancestral property takes place, the share that a coparcener gets continues to be ancestral if on the date of partition he has a son. He holds such property as his absolute property if no son exists on the date of partition, but if a son is born subsequently, the ancestral character revives. After commencement of Hindu Succession (Amendment) Act of 2005, the presence of a daughter or birth of a daughter subsequently has the same effect, but her entitlement to a share being a coparcener is subject to the riders found in the amended Section 6 and the ratio laid down by the Supreme Court in Prakash and Others vs Phulavati and Others [(2016) 2 SCC 36].

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If succession to self acquired property of a male Hindu takes place among his heirs in

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accordance with Section 8 of the Hindu Succession Act, the share that every member takes will be held by each of them as his or her separate property.”

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The above said ratio is applicable whenever a

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partition of ancestral property takes place, whatever the

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share that a coparcener gets, continues to be ancestral property if on the date of the said partition, the said coparcener has a son. Here in this case, when Anant has received property in the partition of family of Rayappa, that does not seems to be characteristic of the ancestral property. Then, whatever the share between Dattatraya and Anant and upon the partition made in the year 1979, the plaintiff being coparcener is also entitled to get share in the ancestral properties. Therefore, the characteristic of ancestral property does not extinguish just because there is partition between Dattatraya and Anant. Therefore, plaintiff is having a share in the suit schedule properties.

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When this being the fact, the plaintiff is having inherent right of share in the suit property, then, whatever Will

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executed by Anant excluding the plaintiff, the said Will is not binding on the share of the plaintiff. Though, in the present case, the Will is proved as it has been executed by Anant, but it does not defeat the right of share of plaintiff since the suit schedule properties are continued to be in the characteristic as ancestral property as per the principle of law laid down as above stated. Also as per the Will, bequeathing the property for defendant No.1-Sharadabai is for her lifetime and after her demise, the property goes to defendants No.2 to 6, but in this way just because the

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plaintiff excluded, that does not defeat the right of share of plaintiff. Also when defendant No.1 died, her share also devolves into plaintiff and defendants No.2 to 6 equally. Therefore, in this way the plaintiff is entitled to 1/7^th share in the suit schedule properties. This has lost sight by the trial Court while dismissing the suit. Accordingly, I answer point No.1 in the ‘affirmative’. Therefore, judgment and decree passed by the trial Court is set aside. Thus, the suit of the plaintiff is liable to be decreed as plaintiff is entitled to 1/6^th share in the suit schedule properties along with

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defendants No.2 to 6. Therefore, after demise of Sharadabai, plaintiff and defendants No.2 to 6 are entitled to 1/6^th share each in the suit schedule ‘A’ and ‘B’ properties. There is no order so far as other movable properties are concerned. Therefore, the suit is partly decreed so far as declaring that the plaintiff is entitled to 1/6^th share each along with defendants No.2 to 6 in the suit schedule ‘A’ and ‘B’ properties. Therefore, the appeal is liable to be allowed in part.

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