Execution of partition deed is legally binding and not rendered void by claims of inequity, with established limitations for challenging such deeds. Family settlements must not be reopened unless fraud is substantiated.

JUDGMENT :

R.DEVDAS, J.

These two Regular First appeals arise out of common judgments passed by the learned Senior Civil Judge, Sirsi in O.S.Nos.2/2013, 18/2013 and 59/2016, therefore, these appeals were clubbed, heard together and are being disposed of by this common judgment.

2. For the sake of convenience, the parties are referred to in terms of their ranking before the trial court. Since O.S.No.2/2013 is the leading suit, the plaintiff Sri.Suhas, shall be referred to as ‘plaintiff’.

3. Sri.Suresh Marathe and his wife Susheela have three children, Suhas, Sudheer and Sucheta. During the lifetime of Sri.Suresh Marathe, being the Kartha of the joint family, Sri.Suresh Marathe got executed a partition deed dated 30.08.2000, duly registered, allocating four items of immovable properties to his first son Suhas, three immovable properties to his second son Sudheer, while the eldest daughter Sucheta was allotted the second floor for the purpose of residence, in property bearing CTS No.1165/A1, to take effect after demise of her parents. Sri.Suresh Marathe along with his wife retained three items of immovable properties, including CTS No.1165/A1. The joint family was eking out their livelihood from a printing press in property bearing CTS No.1142. Sri.Suresh Marathe along with his wife Smt.Susheela executed a Will dated 18.11.2010, which is the last testament of Sri.Suresh Marathe. Since no part of the properties which were retained by Sri.Suresh Marathe and his wife Smt.Susheela were bequeathed to their first son Suhas, Sri.Suhas filed O.S.No.2/2013 seeking cancellation of the registered Will dated 18.11.2010, with a further prayer to treat the suit schedule properties as joint family properties and to give equal share to the plaintiff in the suit schedule properties. The suit schedule properties include all the immovable properties belonging to the joint family, including those that were allotted to the parties under the partition deed. Subsequently, by order dated 18.12.2019, the prayer is amended to declare that the ‘settlement’ dated 30.08.2000 is inequitable, unjust and consequently to cancel the settlement deed. Smt.Susheela, Sri.Sudheer and Smt.Sucheta filed O.S.No.18/2013 seeking a declaration that in terms of the registered Will dated 18.11.2010, plaintiff Nos.2 and 3, along with plaintiff No.1 are entitled for joint possession of the suit schedule properties; grant permanent injunction restraining the defendant Suhas from interference with the suit schedule properties.

4. O.S.No.59/2016 is filed by the wife and children of Sri.Suhas against Smt.Susheela, Sri.Sudheer, Smt.Sucheta and Sri.Suhas seeking partition and separate possession of the suit schedule properties.

5. Insofar as the Will dated 18.11.2010 is concerned, the trial court is of the opinion that the testators of the Will namely, Sri.Suresh Marathe and Smt.Susheela have executed Wills, earlier too, but the Will dated 18.11.2010 is the last testament. The trial court has come to the conclusion that the execution of the Will has been proved by examining the two attesting witnesses. However, since the Will in question is a joint Will, executed by Sri.Suresh Marathe and Smt.Susheela expressing common intention, nevertheless, since Smt.Susheela is still alive, the Will cannot be enforced. The trial court has therefore held that the declaration sought by Smt.Susheela, Sudheer and Sucheta in O.S.No.18/2013 to declare joint ownership in respect of the suit schedule properties cannot be granted as the prayer is premature. Similarly, the trial court has held that since the prayer made by Sri.Suhas in O.S.No.2/2013 is allowed and partition of all the suit schedule properties is decreed, the ‘Will’ becomes a ‘void’ document.

6. As regards the partition deed and the prayer made in O.S.No.2/2013 by Sri.Suhas, the trial court has noticed from the material available on record, after execution of the partition deed, the parties have been living separately and the plaintiff and his fam