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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
S.Sujatha, Sachin Shankar Magadum, JJ.
Smt.Jaywanthi. K. Kapadia W/o K. Kapadia – Appellant
Versus
Mr. Dhansukhlal Venilal S/o Late A. Venilal And Ors. – Respondents
RFA.NO.1539 OF 2011 (PAR)
Decided On : 16-02-2021
Share - Seeking partition and separate possession - Decree - Plaintiff namely and defendant Nos.1 to 8 are legal heirs of one - Plaintiff has specifically contended that she along with defendants constituted a undivided Hindu Joint Family - It is contended that plaintiff''s father namely died on leaving behind plaintiff and defendants as legal heirs - It is specific case of plaintiff that her father was one of son of propositus, who died intestate - It is contended that plaintiff''s father namely along with his brothers entered into a deed of settlement and in said settlement, schedule ''A'' properties were allotted to plaintiff''s father share - It is also stated at para 7 of plaint that plaintiff''s paternal aunt namely relinquished her share by receiving a sum and in above said suit, father of plaintiff namely and his three brothers were jointly allotted 5/28th share in the properties which were subject matter of suit - Whether finding of Court below that plaintiff is not entitled for 1/4th share in suit schedule properties is perverse, palpably erroneous and contrary to pleadings and evidence on record? - Whether the Court below was justified in holding that defendant Nos.1 to 3 have proved that schedule ‘C’ properties are self acquired properties of and his wife? –
Finding of the Court:
Court is called upon to decide solemn question and by reason of suspicious circumstances, Court has to be satisfied fully that Will has been validly executed by testator - Above said circumstances narrated by this Court would raise a grave suspicion as regards making of Will - In Court opinion, circumstances narrated above are sufficient to discard Wills set up by defendant Nos.1 and 3 as per Exs.D-4 and D-7 - In COurt opinion, defendant Nos.1 and 3 have miserably failed to discharge heavy onus which lay on them of explaining the suspicious circumstances surrounding execution of the Wills – Court would also not hesitate to hold that Wills as per Exs.D-4 and D-7 are unnatural and unfair - Present plaintiff who was arrayed as defendant No.1(vii) in O.S.No. has filed written statement and has stoutly denied alleged Wills in favour of defendant Nos.1 and 3 - To counter these allegations, defendant Nos.1 and 3 have not at all pleaded and set up Will in earlier suit - If Will is not set up at earliest point of time, it is trite law that this would be one of suspicious circumstances –
Result: Appeal is allowed.
JUDGMENT :
SACHIN SHANKAR MAGADUM, J.
The captioned appeal is filed by the plaintiff challenging the judgment and decree passed in O.S.No.7122/2006 on the file of the XXXVIII Additional City Civil Judge, Bengaluru, wherein the suit filed by the plaintiff seeking partition and separate possession of her legitimate share is dismissed.
2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.
3. The facts leading to the case are as under:
The plaintiff namely Smt. Jaywanthi K.Kapadia and defendant Nos.1 to 8 are legal heirs of one A.Venilal. The plaintiff has specifically contended that she along with defendants constituted a undivided Hindu Joint Family. It is contended that plaintiff's father namely A.Venilal died on 23.04.1999 leaving behind plaintiff and defendants as legal heirs. It is the specific case of the plaintiff that her father Venilal was one of the son of propositus Ambaram Fakir Bhai, who died intestate on 04.12.1959. It is contended that plaintiff's father namely A.Venilal along with his brothers entered into a deed of settlement on 14.02.1951 and in the said settlement, the schedule 'A' properties were allotted to plaintiff's father share. At para 7 of the plaint, it is also contended that one Smt. Vichkore Ben, who is none other than sister of Venilal filed a suit for partition and separate possession in O.S.No.6/1960 (renumbered as O.S.No.22/1960) which ended in compromise. It is also stated at para 7 of the plaint that plaintiff's paternal aunt namely Smt.Vichkore Ben relinquished her share by receiving a sum of Rs.70,000/-and in the above said suit, the father of the plaintiff namely Venilal and his three brothers were jointly allotted 5/28th share in the properties which were the subject matter of the suit in O.S.No.6/1960 (renumbered as O.S.No.22/1960). On these set of pleadings, the plaintiff specifically contended that schedule 'B' properties which were the subject matter of O.S.No.6/1960 are also joint family ancestral properties.
At para 8, the plaintiff specifically averred that the schedule 'C' properties were purchased by her father and mother out of joint family funds and as such, claimed that schedule 'C' properties are also joint family ancestral properties. The plaintiff has also specifically pleaded at para 9 of the plaint that her father's brother namely A.Thakurdas initiated final decree proceedings in FDP.No.10042/1981 arising out of the preliminary decree passed in O.S.No.6/1960 (renumbered as O.S.No.22/1960). In the said final decree proceedings, a dispute arose in regard to mode and manner of auction of shop premises bearing No.15/16, Commercial Street and premises bearing No.27(H), (E) and (F) situated at Hospital Road, Civil Station, Bengaluru. It is further stated at para 9 of the plaint that in the said proceedings, the plaintiff's father namely Venilal acquired 1/4th share in the above properties which are referred as schedule 'D' properties.
The plaintiff has also further pleaded that her father's brother namely A.Krishna filed a suit for partition and separate possession in O.S.No.5783/1991 seeking 1/4th share in the suit schedule properties. During the pendency of the said suit, the father of the plaintiff died and accordingly, the plaintiff and defendants were brought on record as legal heirs. The suit filed by the uncle of the present plaintiff herein was decreed allotting 1/4th share jointly to the present plaintiff and the defendants. The said preliminary decree was questioned by Krishna and A.Narayan (brothers of Venilal) in RFA.Nos.563/2004 and 332/2004. At para 13 of the plaint , the plaintiff has specifically pleaded that the matter ended in compromise and accordingly, the parties to the appeal filed a compromise petition and in the said compromise petition, the legal representatives of late Venilal were allotted jointly 1/4th share.
On these set of pleadings, the plaintiff specifically contended that all the suit schedule properties are
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