(Prayers: This RFA is filed under Section 96 of CPC, praying to call for the records and set aside the judgment and decree dated 29.08.2015 passed by the court of senior civil judge and jmfc., hirekerur in o.s.no.52/2014 and decree the suit as prayed by allowing this appeal and etc

This RFA CROB in rfa no.100258/2015 filed under order 41 rule 22(1) and (2) of cpc, praying to set aside the judgment and decree passed in o.s.no.52/2014 dated 29.08.2015 by the learned senior civil judge and jmfc., hirekerur and dismiss the suit in o.s.no.52/2014 with cost through out in the interest of justice and equity.)

Oral Judgment:

H.P. Sandesh, J.

1. Heard the respective counsel, both in the appeal as well as in the cross-objection.

2. The appeal and cross-objection arise out of the judgment and decree dated 29.08.2015 in O.S.No.52/2014 passed by the Senior Civil Judge and JMFC, Hirekerur (for short ‘the Trial Court’), whereby the Trial Court granted the relief only in favour of plaintiff Nos.3 to 5 that they are entitled for 1/3rd notional share in the share of their father i.e., Krishnappa, who passed away and suit of the plaintiff No.1 and 2 was dismissed.

3. Being aggrieved by the judgment and decree decreeing the suit in part in favour of plaintiff No.3 to 5 and dismissing the suit of the plaintiff No.1 and 2, the present appeal is filed by the plaintiffs questioning the grant of 1/3rd notional share in the share of the ancestor-Krishnappa in favour of plaintiff No.3 to 5. The cross-objection is filed by the defendants questioning the judgment and decree, granting share in favour of the plaintiff No.3 to 5 and disbelieving the Will, which is marked at Ex.D.1.

4. The factual matrix of the case of the plaintiffs before the trial Court, while seeking the relief of partition and separate possession in respect of the suit schedule properties by the plaintiffs, is that they are entitled for 1/6th share each in the suit schedule properties. There is no dispute with regard to the relationship between plaintiffs and defendant No.1. It is stated in the plaint that the said Krishnappa Gururayappa Arkachari died on 08.07.1991 and his wife Smt.Sushilamma predeceased him on 25.12.1986. The suit schedule properties are residential house, commercial complex and open space situated at Hirekerur. It is contended that the suit schedule Item Nos.1 to 13 are the self-acquired properties of Krishnappa Gururayappa Arkachari and suit schedule Item No.14 was purchased by the defendant No.1 from the income of the suit schedule Item No.1 to 13. Krishnappa Gururayappa Arkachari had a jewellery shop. Suit schedule properties are the properties acquired by Krishnappa Gururayappa Archakari and no partition had taken place during the lifetime of Krishnappa. The said Krishnappa Gururayappa Achakari has not executed any testamentary document during his lifetime. The plaintiffs are married and they are residing in their matrimonial houses. The defendant No.1, behind their back, got mutated his name to the suit schedule properties after the death of the father-Krishnappa Gururayappa Arkachari. On several occasions, the plaintiffs asked the defendant No.1 to effect a partition. However, the defendant No. 1, for one or the other reason, dragged the matter and hence, the plaintiffs filed suit for the relief of partition and separate possession.

5. In pursuance of the suit summons, defendant No.1 and 2 appeared before the trial Court through their counsel and filed the common written statement. The defendants have denied the contents of the plaint. Defendant No.1 contented that he had made savings and out of the said savings, he purchased the property bearing VPC No.421/1 on 20.08.1987 and the said property is his self-acquired property and subsequently, commercial complex has been constructed in the said property and the plaintiffs have no share in the self-acquired property of defendant No.1, and even suit Item No.14 is also not the joint family property and it is self-acquired property of the defendant No.2, who purchased it on 18.11.2010 out of self-earnings from its previous owner. These two properties are self-acquired properties of the defendant No.1 and 2. The plaintiffs have no right, interest or title over the suit schedule properties. The suit schedule Item Nos.2 to 13 are bequeathed by the father under Will dated 25.08.1989 and he executed said Will in the presence of witnesses, which is scribed by Ganapathrao Kulakarni. By virtue of the said Will, the defendant No.1 is the absolute owner of the suit schedule properties. The defendant No.1 had spent ₹15,00,000/- for construction of the building in suit schedule properties, the present value of which is more than ₹1,00,00,000/-. The defendant No.1, out of his own earnings, had spent huge amount towards marriage expenses of the plaintiffs. The defendant intended to file counter-claim against the plaintiffs. The plaintiffs have no share in the suit schedule properties and hence, prayed for dismissal of the suit.

6. In order to prove their case, plaintiff No.5 filed her affidavit in lieu of examination-in-chief, who is examined as PW1, and also examined PW2 and produced the documents marked at Ex.P.1 to P.40. On the other hand, defendant No.1 and 2 have filed their affidavit in lieu of their examination-in-chief and examined as DW1 and DW3 and led their evidence. They also got examined two witnesses on their behalf as DW2 and DW4 and got marked documents as Ex.D1 to D3. The trial Court, having considered both oral and documentary evidence available on record, answered the issue No.1 partly in affirmative and came to the conclusion that plaintiff No.3 to 5 are entitled for share over the property in the share of the father and answered the issue No.2 and 3 in the affirmative holding that all the properties belonged to the propositus- Krishnappa Gururayappa Arkachar and all of them are the joint family members, but not proved the joint possession as claimed and answered Issue No.5 in affirmative in coming to the conclusion that suit schedule property is standing in the name of defendant No.1 alone in the Pattan Panchayath records and not binding on the shares of the plaintiffs but also answered Issue No.7 that there is a cause of action and answered the Issue No.9 partly in affirmative that they are entitled for partition and separate possession and answered the additional Issue No. 1 as negative in coming to the conclusion that the Will is not proved and decreed the suit partly.

7. Being aggrieved by the judgment and decree of the dismissal of the suit in favour of the plaintiff No.1 and 2 and granting of share only in the share of the father in favour of the plaintiff No.3 to 5, the appeal in RFA No.100258/2015 is filed.

8. The counsel appearing for the appellants in his arguments would vehemently contend that the very approach of the trial Court is erroneous particularly with regard to the plaintiff No.1 and 2 is concerned that they born prior to 1956 and they are not entitled for share over the properties. The counsel would submit that the father died in the year 1991 and succession opened in the year 1991 and the mother pre-deceased him in the year 1986 and there were 14 properties. The counsel would submit that Item No.1 to 13 are the properties belonged to the father and though property was purchased in the year 2010 in the name of defendant No.2 by the defendant No.1, but they were purchased by utilising the funds of the family from Item No.1 to 13 and hence all the plaintiffs are entitled for 1/6th share each and the Trial Court ought not to have dismissed the suit of the plaintiff No.1 and 2. The very approach of the trial Court in only granting notional shares in the property of the father in favour of plaintiff No.3 to 5 is also erroneous and hence, it requires interference of this Court.

9. The counsel appearing for the appellants would vehemently contend that there is no dispute that the father had acquired the property in Item No.2 to 13 but he would vehemently contend that the Item No.1 was purchased out of the income of the defendant No.1. The defendant No.1 purchased the same in the year 1987 through his self- earnings and the same is not a property of the father.

10. The counsel would also submit that Item No.14 was also purchased in the year 2010 subsequent to the death of the father. The counsel would submit that even though father was alive in the year 1987 while purchasing the property, but he had no earnings and it was purchased out of self-earned money of the defendant No.1. The counsel would also submit that even though property Item No.2 to 13 are purchased by the father, the father had executed a Will in the year 1989 in terms of Ex.D1, wherein also specifically mentioned the reasoning as to why the Will is executed in favour of the defendant No.1 and already daughters were married. Even provision was also made to the last daughter, who was not married at the time of execution of the Will/Ex.D1. The counsel also submits that the very admission on the part of PW1 itself is very clear regarding father having an intention to Will away the property. PW2 has stated that their father was having an intention to execute the Will. The counsel also would submit that when there is a Will in favour of the defendant No.1, the plaintiffs are not entitled for any share and granting of share in favour of the plaintiff No.3 to 5 is also erroneous. The counsel also would submit that in order to prove the Will, DW2 and DW4, who are the attesting witnesses, were examined and proved the Will in compliance of Section 63 and Section 68 of the Indian Succession Act and when such being the case, the Trial Court ought not to have granted the relief in favour of the plaintiff No.3 to 5 and hence filed the cross-objection before this Court that the trial Court has committed an error and hence prayed the Court to allow the cross-objection and dismiss the appeal filed by the plaintiff No.1 to 5.

11. Having heard the counsel appearing for the appellants and also the counsel appearing for the respondents and on perusal of the oral and documentary evidence available on record, the points that would arise for the consideration of this Court are as under:

                  i) Whether the trial Court committed an error in dismissing the suit of the plaintiff No.1 and 2 in coming to the conclusion that they were born prior to 1956 and they are disentitled for the share?

                  ii) Whether the trial Court committed an error in granting only notional share in favour of the plaintiff No.3 to 5 in the share of the co- parcners i.e., the father?

                  iii) Whether the trial Court committed an error in granting the relief in favour of plaintiff No.3 to 5 also as contented by the cross-objector?

                  iv) Whether the trial Court committed an error in not disbelieving Ex.D1 that Will has not been proved?

Point Nos.(i) to (iv):

12. Having heard the respective counsel and on perusal of the material on record and the pleadings of the plaintiffs as well as the defendants, it is very clear that it is the case of the plaintiffs that Item No.1 to 13 are purchased by the father and Item No.14 is also purchased out of the income of Item No.1 to 13, and the father was doing the

business. The very same business was continued and the defendant No.1 and 2 were also taking care of the business of the family.

13. Per contra, it is the contention of the counsel appearing for the defendant No.1 and 2 that there is no dispute with regard to the father purchased the property Item No.2 to 13, but very specific contention is that Item No.1 and 14 are purchased out of the self earnings of the defendant No.1 and 2 and there is a Will in favour of defendant No.1 in respect of item Nos.2 to 13.

14. Having considered the pleadings of the plaintiffs as well as defendants, this Court has to consider the evidence of witnesses. The PW1, who is plaintiff No.5, deposed before the trial Court in terms of the pleadings of the plaintiffs and also got marked the documents on behalf of the plaintiffs. In the cross-examination of PW1, she categorically admitted that she is a graduate and the business of the family started by the father, he used to get the ornaments prepared and selling the same, and the father and defendant No.1 both were doing the business. She also admitted that when she was in her younger age, her father had taken treatment in Meggan Hospital and was not doing any work and she also cannot tell how much income her father was getting. It is also elicited in the evidence that Item No.1 to 13 are the self-acquired properties of the father and the admission was given that father was suffering from diabetes and not working more, but she claimed that her father used to sit in the jewellery shop and doing business. She admitted that her sisters were married to the well of families. However, stated that Item No. 1 was though purchased in the name of the defendant No.1, but it was purchased through the income of the family and even defendant No.2 also does the very same business.

15. This witness also admitted that their father used to sign both in Kannada and English and also she knows G.V.Angadi, who is working as a lecturer and Badiger, Engineer, who is no more and also the B.C.Megalkeri and C.S.Mathad, both of them are lecturers in her college and her father was having worldly knowledge and not having any mental illness and was not alive at the time of her marriage, but the gold and silver ornaments were kept in the bank locker and after her marriage, the ornaments and money, which were in the locker, came to her possession. The suggestion that Item No.1 to 5, 7 and 8 and the other items were given to defendant No.1 through the Will is not admitted. She admitted that defendant No.1 and she were having cordial relationship and he was not having any ill-will to cause her any harm and also not having any intention to commit any fraud against her. It is admitted that plaintiff No.1 to 3 are born prior to 1956.

16. The PW1 also examined one witness as PW2. PW2 deposed before the trial court that the property at item No.14 is purchased through the income of Item No.1 to 13. This witness was also subjected to cross- examination and admitted that the jewellery shop belongs to Krishnappa but they were not preparing gold ornaments and also admitted that the defendant No.1 was looking after the said business. This witness also admitted that Defendant No.1 was having the business at Hirekerur near Meti-Basavana Temple and also there was a treasury and the said business was shifted to chavadi circle.

17. The defendant No.1 was examined as DW1 and he reiterated the averments made in the written statement in his evidence and in his cross-examination he admitted that Item No. 2 to 13 are purchased by the father. It is suggested that Item No.1 was purchased by the father and got it changed in his name, but the same was denied. It is suggested that through the income of Item No.2 to 13, Item No. 14 property was purchased, but the said suggestion is also denied. However, he admitted that after the death of the father he got changed the property Item No.2 to 13 to his own name and while changing the same the consent of the plaintiffs was taken, but this witness denied the said suggestion and deposed that based on the Will, he got changed the name. He admitted that Item No.1 property was purchased in his name and khata got changed into his name. It is suggested that Item No.6, 9 and 13 properties are not included in the Will and the said suggestion was also denied. He admitted the recital of Will that the executor of the Will was not having good health, the father had not executed any Will and the same is created, but the said suggestions are also denied.

18. The defendants also examined DW2 to prove the Will and DW2 deposed that Will was executed on 25.08.1989 and he had information about the same and the father of the parties only given the instructions to prepare the Will and the same was written by one Ganapathirao Kulakarni and others have also signed the Will i.e., V.S. Badiger, B.C. Megalakeri, C.S. Mathad and in their presence only the executor had executed the Will.

19. This witness also identified the signature of Krishnappa on Ex. D1 as Ex.D1(a) and his signature as Ex.D1(b). This witness was subjected to cross-examination and in the cross-examination he stated that Ex.D1 came into existence in the year 1989 and at the time of writing the Will, the defendant No.1 was not present. There is an admission that Krishnappa, the father of the parties, was treating all the daughters and the son equally and also admitted that he was doing the jewellery business. The suggestion was made to this witness that at the instance of defendant No.1, forcefully created the document of Ex.D1/Will, but the same is denied.

20. The DW3 is another witness i.e. defendant No.2 and he also reiterated the evidence in line with the evidence of DW1 and this witness was also subjected to cross- examination and in the cross-examination he admitted that he was born in the year 1982.

21. DW4 is another attesting witness to the Will and in his evidence he also deposed about the execution of the Will on 25.08.1989 and stated that after the death of the executor of the Will, in order to avoid complications, the same was executed voluntarily. He also deposed that the witness V.S. Badiger and other witnesses have also signed the Will in his presence, the executant also signed the document in his presence and he was having good health at the time of execution of the Will. This witness was subjected to cross-examination. He identified his signature and also the signature of the executant of the Will as Ex.D1(a) and D1(c). This witness admitted that the Will was written on the white paper and no page numbers were mentioned and there was no signature in the first page and second page. He admits that Shivanand/ defendant No.1 and one Sri C.S. Mathad are his classmates and also admitted that in Ex.D.1, boundary descriptions of each of the properties is not mentioned. This witness admitted that the Will was shown in the year 1997 and he did not suggest him to get the probate.

22. Having reassessed both the evidence of PW1 and PW2 as well as the evidence of DW1 to DW4 and also the pleadings of the plaintiffs and defendants, there is no dispute with regard to the fact that Item No. 2 to 13 are purchased by the father. Both the parties admit the same and only dispute is in respect of Item No.1 and 14 properties. Defendant No.1 claims that Item No.1 and 14 are purchased by him out of his own earnings. On the other hand, it is the contention of the plaintiffs that, out of the income earned from Item No.2 to 13, and out of the family business, which was started by the father, these items were purchased.

23. The trial Court while appreciating the evidence available on record, took note of the admission on the part of PW1 and came to a conclusion that plaintiff Nos.1 and 2 were born prior to 1956. Thus, the very approach of the trial Court is erroneous, since the father died in the year 1991, the succession opens in the year 1991. The Court has to take note of devolution of the property on the death of the father and not that they were born prior to 1956 and succession opens only on the death of the father. It is also important to note that mother was predeceased to the father. Having considered the material available on record, it is not in dispute that Item No.1 was purchased in the year 1987 by the defendant No.1 in his name and no doubt, father was alive in the year 1987 at the time of purchasing of Item No.1. But the Court has to take note of admission on the part of PW1 in the cross-examination that father was suffering from diabetes and also taken the treatment at Mecgan Hospital and not helping the business of defendant No.1 and defendant No.2 and though business was started by the father, at the first instance, the admission is very clear that business was carried by defendant No.1 and his son. When such admission is also available, it is very clear that plaintiffs No.1 to 4 are married prior to the death of the father and only PW1 was married subsequent to the death of the father. It is also important to note that PW1 categorically admits in her evidence that at no point of time, defendant No.1 was having any intention to cheat and defraud PW1 and her relationship was very cordial with defendant No.1 and all these factors clearly disclose that there was a good cordial relationship between the parties. When such being the case and when the admission was given by PW1 that DW1 and DW2 were continued the business and the business is also only that they were getting the ornaments prepared from others and selling the same and there was no any huge investment for the said business by the family. When such being the case, it is a personal skill of the defendant No.1 and 2 and when such material was available before the Court and also the property i.e. Item No.14 was purchased in the year 2010 and the death of the father was in 1991, almost 19 years they continued the business and purchased the same. When such materials were available before the Court, the trial Court committed an error in appreciating the evidence available on the record and committed an error in granting the relief in respect of Item No.1 and 14 as against the admission of PW1.

24. With regard to the execution of the Will is concerned by the father in the year 1989, it has to be noted that this Will not see the light of the day for a period of 14 years and the said Will came into existence, according to defendant No.1, in the year 1989 and also they found the same after 14 years and also though PW1 claims that he got changed the property based on the Will, but the material is very clear that he got changed all the properties in his name based on Wardi and not on the Will. Based on the Will, if got changed all revenue records, then there would have been force in the contention of the counsel appearing for defendant No.1 and the very existence of the Will is doubtful and no doubt, PW1 categorically admits in her evidence with regard to the witnesses to the Will. But the fact is that disinheriting the daughters while executing the Will, except stating that already performed the marriage and made provision to perform the marriage of another daughter, that itself cannot disinherit the daughters. It is emerged during the course of evidence that the executant of the Will i.e. father was having equal love and affection in respect of the daughters as well as the son. When such being the case, for disinheriting the daughters by the father, no reasons are assigned. Apart from that, if the Will comes to the light immediately after the death of the father, then there would have been force in the submission of counsel appearing for the defendant No.1 and DW4 also says that he has seen the Will in 1997.

25. Having considered the said fact into consideration, the Will is also not a registered document and though the witnesses are also the educated witnesses, but the very proving of the Will does not inspire the confidence of the Court and hence, the Court has not accepted the Will. When such being the material available on record, the trial Court has given the reasoning for not accepting the Will. We do not find any error on the part of the trial Court in disbelieving the document Ex.D1, which comes to light after 19 years and when such material available on record, the very approach of the trial Court is erroneous that plaintiff No.1 and 2 are not entitled for share on the ground that they were born prior to 1956 and also the trial Court committed an error in granting the relief in respect of Item No.1 and 14. The evidence available on record is not pursued in a proper perspective and hence, the judgment and decree of the trial Court requires to be modified. Hence, we answer the points accordingly.

26. In view of discussions made above, we pass the following:

                  ORDER

                  (i) The appeal as well as the cross objections are allowed in part.

                  (ii) The judgment and decree of the trial Court in dismissing the suit of plaintiff No.1 and 2 is hereby set aside and decreed in favour of plaintiffs No.1 and 2 also.

                  (iii) The plaintiff Nos.1 to 5 and defendant No.1 are entitled for equal share i.e. 1/6th each in Item No.2 to 13. The suit filed by the plaintiffs in respect of Item Nos.1 and 14 is dismissed.

                  (iv) Draw the modified decree accordingly.