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Neelappa S/O Mallappa Vs. Gowramma W/O Ningappa, - Court Judgment

SooperKanoon Citation

Subject

Family

Court

Karnataka High Court

Decided On

Case Number

R.S.A. No. 2413/2006

Judge

Appellant

Neelappa S/O Mallappa

Respondent

Gowramma W/O Ningappa, ;kenchappa S/O Mallappa and ;siddappa S/O Mallappa

Advocates:

B.K. Narendra Babu, Adv.

Disposition

Appeal dismissed

Excerpt:


..... merely because the 5th defendant (great grant son) has successfully established the execution and attestation of the will, it does not ipso-facto establish that he was succeeded to all the properties. the testatrix should have right over the properties bequeathed so that the beneficiary under the will succeeds to the properties. having regard to the fact that the original defendant no.1was not the absolute owner of the properties mentioned under the will, she could not have bequeathed the entire extent of the properties in favour of the 5th defendant under the will. there is no dispute that upon the death of s, defendant no.1 being the widow was entitled to succeed to the properties of her husband along with her sons and daughter. therefore, she succeeded to 1/6th share in the properties left behind by her husband. the question is as to whether she could bequeath her undivided 1/6th share in the plaint schedule properties under a will? section 30 of the hindu succession act, no doubt, empowers an hindu to dispose of the properties by will or other testamentary disposition of any property, which is capable of being so disposed of by him or by her in accordance..........of their contentions. the trial court, on assessment of the oral and documentary evidence held that tire third defendant has not proved by satisfactory evidence that the properties described in the schedule to ms written statement are also joint family properties, therefore, the trial court decreed the suit, and held that the plaintiff is entitled for 1/4th share in the suit schedule properties.5. on appeal by the third defendant, the lower appellate court affirmed the judgement of the trial court. as against these concurrent judgments, the third defendant is before this court in this appeal.6. having heard the learned counsel for the appellant and having perused the records of the courts below, i am of the opinion that the appeal does not involve any question of law much less substantial question of law. the relationship between the parties is not in dispute. it is also not in dispute that the properties described in the schedule to the plaint are all ancestral joint family properties. even the appellant admits that the plaintiff as well as the defendants are entitled for 1/4th share each in the suit schedule properties. he also admits that there was no partition of the.....

Judgment:


K.N. Keshavanarayana, J.

1. This appeal by the third defendant in O.S. No. 85/2002 on the file of the Civil Judge (Jr.Dn.), Holalkere is directed against the concurrent judgments of the courts below decreeing the suit filed by the respondent-1/plaintiff for partition and separate possession of the suit schedule properties.

2. The subject matter of the suit are four items of agricultural lands and two items of house properties situated in Chikkayemmiganur Village of Holalkere Taluk. The first defendant Kenchappa, second defendant Siddappa, third defendant Neelappa and one Ningappa husband of the plaintiff are brothers being the sons of one Mallappa who was the propositus of the family. The said Mallappa died leaving behind his four sons. Subsequently, the husband of the plaintiff also died leaving behind only his wife viz., Gowramma. The plaintiff filed the suit inter alia contending that all the suit schedule properties are the ancestral joint family properties of Mallappa and his sons and upon the death of Mallappa, his sons continued in the joint family and on death of her husband Ningappa, the plaintiff became entitled to the share to which her husband was entitled to. Therefore, she is entitled to 1/4th share in all the suit schedule properties and her request made to the defendants to effect partition and deliver separate possession of her share has yielded no result In these circumstances, the plaintiff sought for relief of partition and separate possession of her 1/4th share in the suit schedule properties.

3. Defendants 1 and 2 in their written statement admitted the case of the plaintiff except stating that they have not refused to effect partition of the suit schedule properties. They admitted that the plaintiff is entitled for 1/4th share and similarly each of the defendants are entitled for 1/4th share in the suit schedule properties as such they have no objection for effecting partition. However, the third defendant in his separate written statement though admitted the relationship of the parties interse and also the nature of the suit schedule properties, he contended that three more items of properties which are described in the schedule to his written statement are also ancestral joint family properties and the plaintiff deliberately has not included them in the suit schedule at the behest of defendants 1 and 2, therefore, he is entitled for a share not only in the suit schedule properties, but also in the properties mentioned in the schedule to his written statement.

4. The parties led evidence in support of their contentions. The Trial Court, on assessment of the oral and documentary evidence held that tire third defendant has not proved by satisfactory evidence that the properties described in the schedule to Ms written statement are also joint family properties, therefore, the Trial Court decreed the suit, and held that the plaintiff is entitled for 1/4th share in the suit schedule properties.

5. On appeal by the third defendant, the Lower Appellate Court affirmed the judgement of the Trial Court. As against these concurrent judgments, the third defendant is before this Court in this appeal.

6. Having heard the learned Counsel for the appellant and having perused the records of the courts below, I am of the opinion that the appeal does not involve any question of law much less substantial question of law. The relationship between the parties is not in dispute. It is also not in dispute that the properties described in the schedule to the plaint are all ancestral joint family properties. Even the appellant admits that the plaintiff as well as the defendants are entitled for 1/4th share each in the suit schedule properties. He also admits that there was no partition of the properties mentioned in the schedule to the plaint. His only grievance before the Trial Court was that three more properties which are also ancestral properties have not been included in the suit schedule and that the parties are entitled for share even in those properties. Both the courts below have concurrently held that the appellant has not established that the said three properties are also ancestral properties belonging to the family. As such the courts below have held that the parties are not entitled for any share in the said properties. The appellant defendant examined as DW. 1 in his cross examination has made crucial admission as under:

Thus from the admission made by the appellant, it is clear that three properties mentioned in the schedule are neither ancestral properties nor joint family properties. It is not the contention of the appellant that those properties were acquired by any one of the members of the family from out of the income derived from the joint family properties. In that view of the matter, the courts below have rightly held that the appellant/third defendant has not proved the case set up by him. Therefore, the judgments of the courts below does not suffer from any illegality or irregularity. In this view of the matter, I am of the opinion that the appeal lacks merit.

7. Hence, the appeal is rejected.


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