V.K. Thimmaiah and ors. Vs. Smt. V.K. Parvathi and ors. - Court Judgment

1. This appeal is by defendants I. 2 and 4 challenging the judgment and decree passed by the Court of the Civil Judge (senior Division) at Virajpet in O. S. 22/1995.

2. The parties in this appeal are referred to as they are arrayed in the trial Court.

3. The plaintiff who is respondent-1 in this appeal has filed a suit for partition and separate possession of 1/10th share of the suit schedule properties by metes and bounds and also sought for an enquiry under Order 20, Rule 12 CPC to ascertain the mesne profits. Plaintiff is the 2nd daughter of late Sri Kunnaiah. Defendants 1, 2, 3 and 4 are the sons and defendants 5, 6, 7 and 8 are the daughters of late Kunnaiah. Defendant 9 is the son of the first daughter of late Sri Kunnaiah. From the plaint averments it is seen that Kunnaiah died on 9-1-1993. According to the plaintiff the suit schedule properties are the self acquired properties of her father late Sri Kunnaiah and therefore, she is entitled for 1/10th share in the suit schedule properties. The defendants 1, 2 and 4 have jointly filed a written statement claiming their share in the suit schedule properties by paying necessary Court fee. According to them the suit schedule properties are the ancestral properties of their father late Sri Kunnaiah and therefore, they are entitled for 1/5th share in the suit schedule properties. The ease of defendant No. 3 is that the suit schedule properties are the self acquired properties of late Sri Kunnaiah and he bequeathed the same in his favour under a will dated 14-6-1991, the further ease of defendant No. 3, is as per the will he is entitled for a total extent of 32 acres 55 cents in respect of which the plaintiff and other defendants have no right whatsoever. The other defendants (other than defendants 1, 2 and 4) have not filed any written statement. The trial Court on the basis of the pleading has framed the following issues ;--

1. Whether the suit schedule properties are the self acquired properties of late Kunnaiah as contended by plaintiff or they are joint family properties as contended by defendants 1, 2 and 4?

2. Whether the plaintiff is entitled to 1/10th share as contended by her or she is entitled to 1/50th share as contended by defendants 1, 2 and 4?

3. Whether the plaintiff is entitled to the reliefs prayed for?

4. Whether defendants 1, 2 and 4 are entitled to the reliefs prayed for in the counter claim?

5. What decree or order?

On issue No. 1 the trial Court has held that the suit schedule properties are the self acquired properties of late Kunnaiah. On issue No. 2 it is held that the will set up by defendant No. 3 has been proved and therefore, the plaintiff is not entitled for a share in the suit schedule properties. Issue Nos. 3 and 4 are answered in the negative. The trial Court has also framed two additional issues which reads as follows :--

1. Whether the 3rd defendant, proves that late Kunnaiah executed a WILL dated 14-6-1991 under which the properties mentioned in para 9 of his written statement have been bequeathed in his favour?

2. Whether in the event of the Court holding that the properties were not the self acquisitions of late Kunnaiah the properties in the possession of 3rd defendant could be allotted to him, as prayed for by him in para 2 of the additional written statement filed on 26-5-1997 ?

The trial Court answered additional issue No. 1 in the affirmative consequently additional issue No. 2 was held to be unnecessary for consideration.

4. Defendant No. 3 in his additional written statement has stated that the suit schedule properties are the self acquired properties of late Sri Kunnaiah. Alternatively, in the event defendants 1, 2 and 4 were to prove that the properties in Sri Kunnaiah, he had sought for allotment of the properties bequeathed to him under the will to his share.

5. After hearing the parties concerned, the points that arise for consideration are:--

(i) whether the suit schedule properties are the joint family properties of late Sri Kunnaiah and if so what share is to be allotted to each of the parties in the suit?

(ii) Whether the defendant No. 3 proves the execution of the will dated 14-6-1991 said to have been executed by late Sri Kunnaiah ?

(iii) In the event if the will dated 14-6-1991 is proved to be valid in law what is the effect of the said will on the suit schedule properties in the event if the said properties arc held to be joint family properties?

6. Sri Subrarnanya, learned counsel appearing for defendants 1, 2 and 4 submits that all the suit schedule properties are the joint family properties and therefore, late Sri Kunnaiah who is the father of defendants 1 to 4 has no right to bequeath the said properties under a will without the consent of all the co- parceners of thejoint family. It is further submitted that the will executed by late Sri Kunnaiah produced as Ex. D-17 is not a valid will and therefore, no right has been created in favour of the beneficiaries of the will. It is further submitted that the will Ex. D-17 though styled as the will is virtually in the nature of partition among the members of the family of late Sri Kunnaiah and therefore, since the properties allotted under the said will are unequal, it is open, for defendants 1, 2 and 4 to challenge the same on the ground that it is not binding on them.

7. In reply to this submission Sri Raghupathy, learned counsel appearing for defendant. No. 3 submits that in the written statement filed by defendants 1, 2 and 4 there is no plea that the suit schedule properties are the ancestral properties and therefore, all the suit schedule properties are the self acquired properties of late Sri Kunnaiah. It is nextly submitted that in the absence of any evidence to show that the will Ex. D-17 is not the genuine one, the Court below is justified in dismissing the suit filed by the plaintiff.

8. The plaintiff who filed the suit no doubt has not preferred any appeal challenging the correctness of the impugned judgment and decree. Even though no appeal has been filed by the plaintiff, in a suit for partition since all of the sharers are to be considered as plaintiffs, it is open for this Court to consider what is the share of each of the shares in the suit schedule properties. As stated above, Defendants 5 to 9 have not. filed any written statement and have not claimed any share in the suit schedule properties. Even though the above said defendants have not made any claim in their statement it is just and necessary to consider the share of each of the party.

9. In order to consider whether the suit schedule properties are thejoint family properties or self acquired properties of late Sri Kunnaiah, it is just and necessary to refer to certain documents which are marked as exhibits and also the oral evidence adduced by the parties. If the properties arc held to be ancestral properties of late Sri Kunnaiah, necessarily, all the co-parceners are entitled to an equal share in the properties. In such an event no co -parcener is entitled to dispose of the said properties either by will or gift or in any other manner without the consent of the other eo parceners. Under the Hindu Law every Hindu by birth acquires right in the joint family properties. Keeping this in view it is necessary to consider the evidence adduced before the Court below.

10. Ex. D-1 is the sale deed dated 7-5-1918 under which the properties situated in Athur village, Virajpet Taluk. South Kodagu Dist. such as the land in Sy. No. 211 measuring 5 acres 28 cents; Sy. No. 208 measuring 19 acres 83 cents; Sy. No. 209 measuring 4 acres 89 cents; Sy. No. 209/A measuring 27 cents 210 measuring 9 acres 28 cents and Sy. No. 205/2 measuring 5 acres 33 cents were purchased in the name of late Kunnaiah who was then a minor and his mother late Smt. Ningamina. Kunriaiah was the only son of late Sri Thimmaiah. As on the date of purchase as stated above, Kunnaiah was a minor, There is no evidence adduced by defendant No. 3 to show that Kunnaiah who was a minor as on the date of purchase of the above said lands, possessed of any immovable property or properties yielding any income so as to purchase the lands under Ex. D-1. Further, there is no evidence adduced by defendant-3 to show that late Smt, Ningamma mother of Kunnaiah had any income from movable or immovable properties so as to purchase the said properties.

11. DW-1. defendant No. 2 in the suit, in his evidence deposed that, his grandfather thimmaiah owned 1000 batti boomi and 24 acres i.e. to say that he owned in all 54 acres of land including a house in Hoskote. This statement made in the examination in chief has not been questioned in the cross examination by any of the parties before the trial Court. He further deposed that his grandmother Ningamma was only a house wife and she did not own any properties in her name. He further stated that from out of the income derived from the lands situated at Hoskote the lands in Athur were purchased by his father late Kunnaiah. This statement made in the examination in chief has also not been questioned in the cross examination. If that is so, necessarily the lands purchased under Ex.D-1 were out of the income derived from out of the lands owned by the grand father Thimmaiah in Hoskote.

12. Sri Raghupathy, learned counsel appearing for defendant-3, submits that as the other defendants have not adduced any evidence to show that what is the source of income for the minor Kunnaiah and Smt. Ningamma to purchase the properties referred to in Ex. D-1, it should be taken as the self acquired properties of Kunnaiah and Ningamma. According to DW-1 his grandfather Thimmaiah owned about 54 acres of lands in Hoskote. It is also in his evidence that from out of the income of these lands, the lands in Attur were purchased in the year 1918. After the death of Thimmaiah, Smt. Ningamma mother of Kunnaiah was managing the affairs of the family as there were no other male member living with her except Kunnaiah who was a minor. If that is so, if the properties were purchased in the name of the minor Kunnaiah and Smt. Ningamma, who was looking after the affairs of the family, from out of the income from the lands in Hoskote, the said lands are said to be the ancestral properties.

13. Late Kunnaiah has sold some properties at Hoskote under the registered sale deed dated 16-7-1942 in favour of Kariyappa which is marked as Ex. D-7. The reason for sale of the said lands under Ex. D-7 is to discharge the loan borrowed by him for the purpose of purchasing the lands at Kaikeri and also to improve the lands. It is not the case of defendant-3 that Kunnaiah had acquired any land in his own name in Hoskote. On the other hand as per the evidence of DW-1 the properties at Hoskote are the properties belonging to his grand father Thimmaiah. If that is so, the properties purchased by Kunnaiah at Kaikeri is from out of the money received by him by sale of the lands under Ex. D-7. Therefore, (he lands at Kaikeri purchased by Kunnaiah are the ancestral properties.

14. Late Sri Kunnaiah has sold the lands 1 acre 6 guntas of land in Sy. No. 208/3: 4 acres 77 cents in Sy. No. 208/1 and 2 acres in Sy. No. 210 of Athur Village under Ex. D-3. The recital in EX. D-3 discloses the above said lands are the ancestral properties of late Kunnaiah, in addition, before selling the said lands under Ex. D-3 in favour of one Somaiah, all the sons of Kunnaiah had given their consent. This consent certificate is produced and marked as Ex. D-4. If that is so the recitals in Ex. D-3 and the contents of Ex. D-4 are binding on the persons who arc parties to the said documents. If that is so. when Kunnaiah himself admits in Ex. D-3 that the lands sold under Ex. D-3, which were the lands purchased under Ex. D-1, are the ancestral properties, it is not open for defendant-3 to say that the said lands are self acquired properties of late Kunnaiah. The properties which were sold under Ex. D-3 by Kunnaiah have been subsequently re-purchased from Somiah under registered sale deed which is marked as Ex. D-5. Therefore, these properties and the properties referred to at Ex. D-1 cannot be said to be self acquired properties of late Sri Kunnaiah.

15. Late Sri Kunnaiah had also sold the lands in Sy. No. 205/2 measuring 5 acres 33 cents to one Venkataramaiah under Ex. D-11 dated 19-3-1953. Further, Kunnaiah had sold the lands measuring 3 acres in Sy. No. 208/2 and 4 acres in Sy. No. 208/1 of Athur Village to Orange Growers Co operative Society under registered sale deed dated 4-11-1963 marked as Ex. D-6. No doubt in this sale deed he described the properties as self acquired properties. These two lands are also the lands purchased under Ex. D-1. As stated above since Kunnaiah himself has described the lands in Athur Village as ancestral properties which were purchased under Ex. D-1 in the sale deed dated 23-7-1976 marked as Ex. D-3, it cannot be said that the properties sold under Ex. D-6 dated 4-11-1963 are to be considered as self acquired properties only because they had been described as self acquired properties.

16. Defendant-3 who has been examined as EW-4 has not produced either documentary or oral evidence to show item Nos. 2, 3 and 5 which are situated at Kaikeri are the self acquired properties of Kunnaiah. It is an admitted fact that there is no division in the family of Kunnaiah and his sons. If that is so, the family continued to be that joint family. Any properties acquired by the kartha of the joint family is presumed to be the joint family properties. If any one of the co parcener asserts and claims that the property is his self acquired property the burden is on him to prove that the said property is his self acquired property. As stated earlier the properties of Athur and Kaikeri were purchased from out of the income derived from out of the properties situated at Hoskote which were the properties inherited by Kunnaiah from his father Thimmaiah. If that is so, the father i.e. Kunnaiah has no right to change the character of the joint family properties by transferring the same either under a will or under a gift without the consent of the other co parceners, treating the ancestral properties as his absolute properties. Further, no evidence has been adduced by defendant-3 to show that the acquisition of suit schedule properties are the self acquired properties of late Kunnaiah without the aid of the joint family nucleus. It is in evidence, as stated earlier, that the properties situated at Athur and Kaikeri were purchased by Kunnaiah from out of the income derived from the lands situated at Hoskote and by sale of the lands situated at Hoskote. If that is so, the properties acquired with the aid of the joint family nucleus are to be treated as joint family properties and in that event every co parcener is entitled for an equal share. Further, it is in evidence that Kunnaiah after the death of his father Thimmaiah possessed of sufficient joint family assets. Therefore, the burden is on defendant 3 to prove the property or properties are the self acquired properties of Kunnaiah. This burden has not been discharged by defendant-3 by adducing any evidence either documentary or oral.

17. DW-1 has denied the suggestions put to him to the effect that the suit schedule properties are the self acquired properties of Kunnaiah. He also stated that in the year 1976 when Kunnaiah was alive, the names of all his sons were entered in the Jamabandhi in column No. 6. He has fur ther stated that since their names were in the Jamabandhi extracts their consent was asked for the purpose of advancement of loan. DW-2 (Krishna, resident of Hoskote) deposed in his evidence that the suit schedule properties are the ancestral properties of Kunnaiah. DW-3 (Raja, resident of Bilagunda) in his evidence has deposed that his father and Kunnaiah's father belong to the same family. He has further stated that the father of Kunnaiah possessed of about 30 acres of wet land and 24 acres of garden land in Hoskote. Further, he has stated that Kunnaiah has purchased the lands in Kaikeri after the sale of lands at Hoskote. Defendant-3 is examined as DW-4. No doubt in his examination in Chief he states that the lands in question are the self acquired properties of late Kunnaiah. Further, he has stated that he has been given more extent of land by his father under the will Ex.D-17. In his cross examination he states that his father told him that he has sold the lands at Hoskote. He also admits that his father sold the lands at Hoskote to the grand father of PW-2. He has further stated that when the lands were purchased under Ex. D-1, Kunnaiah was a minor and his grandmother purchased the said properties as a guardian of minor Kummaiah. He further admits that he and his father and brother are all the members of the joint family. He also admits that the consent letter given by him along with his brothers under Ex. D-4 is for the purpose of sale, of lands under Ex. D-3. He further admits that the lands sold under Ex.D-5 are the lands purchased under Ex. D-1 which are the joint family properties. In his evidence he has further deposed that his father had sold about 25 acres of land and if the above said lands were not sold he and his brothers are entitled for a share in the said properties. From this it is seen that DW-4 (defendants-3) who asserts that the lands in question are the self acquired properties, admits that the lands sold under Ex. D-5 are the joint family properties and the said properties if not sold he and his brothers would have been entitled for a share. When DW-4 admits that the properties sold under Ex. D-5 were the ancestral properties, it is not open for him to contend that the lands which were purchased under Ex. D-1 and other properties which were standing in the name of Kunnaiah are the self acquired properties of late Sri Kunnaiah. In view of the documentary evidence and the oral evidence referred to above. I hold that the suit schedule properties are the joint family properties of Kunnaiah and his children.

18. Defendants 1, 2 and 4 pleads that the will is not genuine and even assuming that the said will is a genuine will, Kunnaiah being one of the co parcener of the joint family has no right to bequeath the properties belonging to the joint family according to his whims and fancies without the consent of other co parceners. It is further contended that though Ex-D-17 is described as a will virtually it is in the nature of dividing the properties of the joint family among the children by the father in exercise of his power as manager of the family. In the reply to this submission Sri Raghupathy, learned counsel appearing for defendant No. 3 submits that in the absence of any plea denying or disputing the signature of Kunnaiah on the will by the defendants in their written statement and also in the absence of any evidence to show that the signature found on Ex. D-17 is not the signature of Kunnaiah, the trial Court is right in holding that the execution of the will D-17 has been proved,

19. As contended by Sri Raghupathy, the defendants in their written statement have not disputed or denied the signature of Kunnaiah found on EX. D-17. One of the contentions raised by the learned counsel for the defendants 1, 2 and 4 is; in the absence of mentioning the mental status of the executant in the will gives room for suspicion regarding the very execution of Ex. D-17. Further, he submits that as there is inconsistency in the evidence regarding the execution of the will such as the place of execution of the will and the registration of the will, the Court below is not right in holding that the execution of the will has been proved.

20. In order to prove the execution of the will what is required is that the person who executed the will was in a sound state of mind. In addition the signature of the executant must be subscribed in the presence of two witnesses. In the instant case one of the attesting witness has been examined who spoke to the effect that Kunnaiah has affixed his signature in his presence. The will Ex. D-17 was drafted by an advocate who is examined as DW-7 in his evidence has stated that he has prepared as draft of the will as directed by late Kunnaiah and also has spoken to the effect that whom Kunnaiah has subscribed his signature on the will Ex. D-17 he was present. As stated earlier it is not the case of defendants that the signature on the will dated 14-6-1991 Ex. D-17 is not the signature of Kunnaiah. In order to show that the executant was not of sound mind on the date when he executed the will, defendants 1, 2 and 4 examined two doctors as DW's 8 and 9. No doubt, they spoke to the fact that they have treated the deceased Kunnaiah when he was alive. But, in their evidence they have not stated anything regarding the mental condition of Kunnaiah. If that is so, necessarily Kunnaiah when he executed the will Ex. D-17 was in a sound state of mind and has executed the will. Ex. D-17 although styled as as will, from its contents it could be said that Kunnaiah has described the properties in Ex. D-17 as his self acquired properties and partitioned among his children in order to avoid any future quarrel among them. In the year 1984, he had executed a will dated 20-1-1984 which has been marked as Ex. D-39. This will has been cancelled by him subsequently under Ex. D-38, both the will and the cancellation deed are registered 'documents. The reasons given by Kunnaiah for cancelling the will, is to the effect that he has not properly allotted the properties to his children. If that is so, as stated earlier, the division of properties among his children under the will appears to be dividing the family properties among his children. Hence, I hold that late Sri Kunnaiah has no right whatsoever to bequeath the said properties under a will or partition the said properties without the consent of the other co parceners. Therefore. Ex. D-17 is not binding on the other co parceners.

21. In view of the finding recorded by me, the only question that remains to be considered is what is the share or shares to be allotted to each of the parties in the proceedings.

22. Defendants 1, 2, 3 and 4 arc the sons of Kunnaiah. If that is so, all these four and late Sri Kunnaiah are entitled for 1/5th share each in the suit schedule properties. In so far as 1/5th share of Kunnaiah, the sons and daughters are entitled to equal shares i.e. to say that the sons and daughters of Kummaiah are entitled for 1/50th share. 9th defendant is the son of the first daughter. Since he is the only heir to succeed to the estate of first daughter, he is also entitled for 1/50th share.

23. Hence, the following order :--

(i) Appeal is allowed;

(ii) The judgment and decree of the trial Court are set aside:

(iii) The suit is decreed declaring defendants 1. 2, 3 and 4 are entitled for 11/50th share each and plaintiff, defendants 5, 6. 7, 8 and 9 are entitled for 1/50th share each.

(iv) Parties to bear their own cost.