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Karnataka High Court
V.K.Thimmaiah - Appellant
Versus
V.K.Parvathi - Respondent
Decided On : 01-20-03
R.F.A. : 319 of 1998
CIVIL PROCEDURE CODE, 1908 - Section 96, Order 20, Rule 12 Partition suit - properties in question - proved to be self acquired - will set up by one of the defendants - also proved - 1/10th share claimed - some ancestral property sold - bought some other property with that money - no other self acquired property - all the suit schedule property proved to be ancestral property by oral and documentary evidence - signature on the will not disputed - execution of will - proved - property partitioned between the defendants under the so called will - held, ancestral property cannot be bequeathed - defendants 1 to 4 - entitled for 11/50th share each - plaintiff and defendants 5 to 9 - entitled for 1/50th share each.
[Chandrashekaraiah, J.] - 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 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 reason 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, 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.
Certainly. Based on the provided legal document, here are the key points:
The properties in question were initially purchased in the name of late Kunnaiah when he was a minor, with his mother Ningamma acting as guardian. There is no evidence to suggest that Kunnaiah possessed any separate income or assets at that time, indicating that these properties are likely ancestral rather than self-acquired (!) (!) .
Various sale deeds and documents show that properties purchased in the name of Kunnaiah, including lands in Athur and Kaikeri, were acquired from income generated through the family’s ancestral lands, further supporting their characterization as joint family or ancestral properties (!) (!) (!) .
The evidence indicates that Kunnaiah’s properties, including those sold and re-purchased over the years, were part of a joint family nucleus, and there is no clear proof that any property was acquired solely through his individual efforts or income, thus classifying them as joint family assets (!) .
The will executed by Kunnaiah, which purportedly bequeaths certain properties, was scrutinized for mental capacity and authenticity. The evidence suggests that Kunnaiah was of sound mind when executing the will, and the signature was not disputed. However, the will’s contents described the properties as his self-acquired assets, which conflicts with the earlier evidence indicating they are joint family properties (!) (!) (!) .
The court found that the properties were in fact joint family assets and that Kunnaiah, as a co-parcener, did not have the authority to dispose of or bequeath these properties without the consent of all other co-parceners. The will was deemed not binding on the other family members (!) (!) .
The court held that the properties in question belonged equally to all the co-parceners, including Kunnaiah and his children, with each entitled to an equal share. Specifically, the defendants (sons) were entitled to a combined share of 11/50 each, and the plaintiff and other heirs (daughters and their children) each received 1/50th share (!) (!) .
The appeal resulted in setting aside the trial court’s judgment, leading to a decree that recognized the shares as above, with the defendants entitled to a larger proportion based on their claim of inheritance from the joint family assets, and the plaintiff and other heirs each receiving smaller, equal shares (!) .
Parties are to bear their own costs, and the appeal was allowed, confirming the division of the properties as per the court’s findings (!) .
Please let me know if you need further analysis or specific legal advice.
( 1 ) THIS appeal is by defendants 1, 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 case 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 case 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. Defendant No. 3 in his additional written statement has stated that the suit
( 4 ) 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 f
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