Point of Law: Section 68 of Indian Evidence Act reads as proof of execution of document required by law to be attested.

JUDGMENT :

V. SRISHANANDA, J.

1. These two appeals are directed against the same judgment and decree passed in O.S. No. 3578/1987 dated 03.01.2008 on the file of I Additional City Civil and Sessions Judge, Bangalore City, filed by first defendant against plaintiff in R.F.A. No. 488/2008 and defendant Nos. 2 and 3 in R.F.A. No. 489/2008 respectively.

2. Parties are referred to as plaintiff and defendants for the sake of convenience as per their original rankings in the Trial Court.

PLEADINGS

3. The facts narrated in the pleadings before the Trial Court which are utmost necessary for disposal of these appeals are as under:

A suit came to be filed by the plaintiff seeking the relief of partition and separate possession of his 1/4th share in the properties left behind by his father Sri S.S. Murthy Rao and his mother Smt. Rangamma, which is described in ‘A’ or ‘B’ and ‘C’ schedule properties to the plaint. Schedule ‘A’ is a residential house consisting of ground and first floor and an outhouse with a grass in the premises measuring 80’x120’ bearing No. 5, (old No. 341), upper palace Orchards, Sadashivanagar, Bangalore, bounded on East by site No. 340, west by Site No. 342, south by site No. 203 and north by road. ‘B’ schedule property consists of movable properties namely; singer sewing machine, portable typewriter imported, jewels, books and other house hold articles. ‘C’ schedule properties consist of workshop equipments namely; lathe, drilling machine and vice.

4. It is contended by the plaintiff that himself defendant Nos. 1, 4 and 5 are the children of Sri S.S. Murthy Rao and Smt. Rangamma. Defendant Nos. 2 and 3 are the sons of the defendant No. 1 and defendant Nos. 6 and 7 are the daughter and son of the plaintiff. It is further contended that S.S. Murthy Rao constituted a Hindu undivided family, governed by Mitakshara school of Hindu Law and all the children of S.S. Murthy Rao were married during his life time. It is further contended by the plaintiff that she was residing with her husband after her marriage and the fourth defendant having acquired the citizenship of New Zealand is the resident of New Zealand from the year 1968 with his wife and children. Fifth defendant is residing with her husband in Kumbakonam.

5. S.S. Murthy Rao hailed from Tamil Nadu and inherited some of the properties from his father and he retired as a Deputy Director General of Posts and Telegraphs in the year 1956 and he was in Geneva for about nine years. During January-February 1981, S.S. Murthy Rao and Smt. Rangamma visited fourth defendant Dr. S. Narayana Rao in New Zealand and stayed with him for some time happily.

6. After the death of Sri S.S. Murthy Rao on 05.05.1983 and after the death of Rangamma on 18.01.1984, plaintiff and defendant Nos. 1, 4 and 5 succeeded to the estate of S.S. Murthy Rao and Rangamma as both of them died intestate.

7. During his life time S.S. Murthy Rao had taken up an assignment on contract basis with Bharath Electronics Limited, with a sizable salary and other perquisites during the years 1962 to 1964. It is also contended that S.S. Murthy Rao invested his savings in stocks and shares in his name and also in the name of his daughters and owned an imported car. Post retirement Sri Murthy Rao was receiving handsome pension and in the year 1960-61, he purchased a site in Sadashivanagar and built a substantial construction thereon (‘A’ schedule property). It is further contended that movable properties owned and possessed by Murthy Rao at the time of his death, is described in ‘B’ schedule properties and the movable properties mentioned in ‘C’ schedule properties are the self acquired properties of Smt. Rangamma as the same was donated by father of Rangamma to her and Murthy Rao during their marriage.

8. It is the further contention of the plaintiff that first defendant exercised dominant power over his father S.S. Murthy Rao. It is also contended that Smt. Rangamma continued to reside in ‘A’ schedule property even after death