A coparcener cannot treat the ancestral property as his separate property and bequeath the same as per his own wish.

Headnote:
WILL - ANCESTRAL PROPERTY - SHARE - Plaintiff filed a suit seeking for a partition in respect of a residential house property which was situate in Basaveshwara Street of Tarikere Town. The Trial Court dismissed the suit. On appeal, the High Court held that the suit property was the ancestral property of the plaintiff and that it had been allotted to his father in a partition. The High Court also held that the father of the plaintiff, also being a coparcener, would not, therefore, be entitled to treat the property as his separate property and bequeath the same as per his own wish. The High Court further held that the Will though executed bequeathing his property in favour of the second wife, could only be operative to the extent of his share and could not bind the plaintiff. The High Court also held that the 1st defendant who set up a Will did not prove the Will in the manner required by law. The High Court accordingly allowed the appeal and decreed the suit holding that the plaintiff/appellant would be entitled to 5/16th share (i.e., 1/4th + 1/16th) and defendants 2 and 3 would each be entitled to 11/32nd share (i.e., 1/4th + 1/32nd + 1/16th) in the suit property.
Fact of the Case:

Plaintiff filed a suit seeking for a partition in respect of a residential house property which was situate in Basaveshwara Street of Tarikere Town. It was the case of the plaintiff that the suit property had been allotted to his father Mahadevappa under a partition and it was thus an ancestral property over which he had ½ share. He submitted that his father had two wives and he was the son through the first wife. He stated that Kathyayanamma – defendant No.1 was the second wife and defendants 2 and 3 were her children. He contended that Mahadeveappa had only 1/3rd share in the suit property and he had died without effecting partition and since the suit property was an ancestral property, he was entitled to a legitimate share in the suit property. This suit was contested by his step mother – defendant No.1 and her defence was adopted by her daughter – defendant No.3. Her son, defendant No.2, did not, however, choose to file a written statement. Defendant No.1 contended that Mahadevappa had bequeathed the suit property to her under a registered Will dated 18.03.1957 and under the Will, a house property was given to the plaintiff, which was suppressed in the suit and the suit property had been given to her. She contended that by virtue of the Will, she had become the absolute owner. She stated that the original Will had been destroyed and hence, she produced the certified copy.
Finding of the Court:

The Trial Court, on considering the evidence, recorded a finding that the suit property was the ancestral property of the plaintiff and that it had been allotted to his father in a partition. The Trial Court recorded a finding that the plaintiff had not proved that he was entitled to ½ share in the suit property and the defendants had proved that they were in possession of the suit property under the registered Will dated 18.03.1957 executed in their favour by Mahadevappa. The Trial Court accordingly dismissed the suit. On appeal, the High Court held that the suit property was the ancestral property of the plaintiff and that it had been allotted to his father in a partition. The High Court also held that the father of the plaintiff, also being a coparcener, would not, therefore, be entitled to treat the property as his separate property and bequeath the same as per his own wish. The High Court further held that the Will though executed bequeathing his property in favour of the second wife, could only be operative to the extent of his share and could not bind the plaintiff. The High Court also held that the 1st defendant who set up a Will did not prove the Will in the manner required by law. The High Court accordingly allowed the appeal and decreed the suit holding that the plaintiff/appellant would be entitled to 5/16th share (i.e., 1/4th + 1/16th) and defendants 2 and 3 would each be entitled to 11/32nd share (i.e., 1/4th + 1/32nd + 1/16th) in the suit property.
Issues: Whether the suit property was the ancestral property of the plaintiff?
Ratio Decidendi: The High Court held that the suit property was the ancestral property of the plaintiff and that it had been allotted to his father in a partition. The High Court also held that the father of the plaintiff, also being a coparcener, would not, therefore, be entitled to treat the property as his separate property and bequeath the same as per his own wish. The High Court further held that the Will though executed bequeathing his property in favour of the second wife, could only be operative to the extent of his share and could not bind the plaintiff. The High Court also held that the 1st defendant who set up a Will did not prove the Will in the manner required by law.
Final Decision: The High Court accordingly allowed the appeal and decreed the suit holding that the plaintiff/appellant would be entitled to 5/16th share (i.e., 1/4th + 1/16th) and defendants 2 and 3 would each be entitled to 11/32nd share (i.e., 1/4th + 1/32nd + 1/16th) in the suit property.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9^TH DAY OF JANUARY, 2023 BEFORE THE HON’BLE MR JUSTICE N S SANJAY GOWDA REGULAR FIRST APPEAL NO. 1724 OF 2005 (PAR)

BETWEEN:

1 T.M.MALLAPPA S/O MAHADEVAPPA AGED ABOUT 68 YEARS, SINCE DEAD BY HIS LR’S

1(a) SMT.PARVATHAMMA W/O LATE T.M.MALLAPPA AGED ABOUT 82 YEARS 1(b) SMT.RAJESHWARI D/O LATE T.M.MALLAPPA AGED ABOUT 65 YEARS Digitally signed by 1(c) RATHNAMMA PANKAJA S D/O.LATE T.M.MALLAPPA Location: AGED ABOUT 62 YEARS HIGH COURT OF

1(d) SRI.NAGARAJU KARNATAKA S/O.LATE T.M.MALLAPPA AGED ABOUT 60 YEARS

1(e) T.M.SURESH BABU S/O.LATE T.M.MALLAPPA AGED ABOUT 58 YEARS ALL ARE R/AT GUNDENAHALLI VILLAGE LAKKAVALLI HOBLI, TARIKERE-TALUK CHIKKAMAGALURU-DT- 577 128 …APPELLANTS (BY SRI. RAMACHANDRA R.NAIK FOR SRI.DAYANAND S. PATIL, ADVOCATE)

AND:

1. SMT.KATHYAYANAMMA W/O LATE MAHADEVAPPA AGED AOBUT 83 YEARS, R/AT BASAVESHWRA STREET AT /TQ. TARIKERE, CHIKAMAGALUR DISTRICT

2. SRI.BASAVARAJAPPA T.M.

S/O LATE MAHADEVAPPA AGED ABOUT 60 YEARS, R/AT NO.28, VIII MAIN ROAD, YADAVAGIRI, MYSORE-20

3. SMT.DRAKASHAYANAMMA W/O REVANAPPA AGED ABOUT 58 YEARS, JAGGERY MERCHANT, C/O KATHYAYANAMMA, BASAVESHWRA STREET, AT/TQ:TARIKERE, CHIKMAGALUR DISTRICT …RESPONDENTS (R1- DEAD & R2 & R3 ARE TREATED AS LR’S OF R1 V/O/D 4/1/2023, NOTICE TO R3 IS HELD SUFFICIENT)

THIS RFA FILED U/S 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 25.07.05 PASSED IN O.S. NO.59/02 ON THE FILE OF CIVIL JUDGE (SR.DN) TARIKERE DISMISSING THE SUIT FOR PARTITION, SEPERATE POSSESSION AND MESNE PROFITS AND ETC.

THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

1. This is an appeal by the plaintiff, Mallappa.

2. Mallappa filed a suit seeking for a partition in respect of a residential house property bearing assessment No.3004:2895 totally measuring 15’ X 85’ which was situate in Basaveshwara Street of Tarikere Town.

3. It was the case of Mallappa that the suit property had been allotted to his father Mahadevappa under a partition and it was thus an ancestral property over which he had ½ share. He submitted that his father had two wives and he was the son through the first wife. He stated that Kathyayanamma – defendant No.1 was the second wife and defendants 2 and 3 were her children. He contended that Mahadeveappa had only 1/3^rd share in the suit property and he had died without effecting partition and since the suit property was an ancestral property, he was entitled to a legitimate share in the suit property.

4. This suit was contested by his step mother – defendant No.1 and her defence was adopted by her daughter – defendant No.3. Her son, defendant No.2, did not, however, choose to file a written statement.

5. Defendant No.1 contended that Mahadevappa had bequeathed the suit property to her under a registered Will dated 18.03.1957 and under the Will, a house property was given to Mallappa, which was suppressed in the suit and the suit property had been given to her. She contended that by virtue of the Will, she had become the absolute owner. She stated that the original Will had been destroyed and hence, she produced the certified copy.

6. The Trial Court, on considering the evidence, recorded a finding that the suit property was the ancestral property of the plaintiff and that it had been allotted to his father in a partition. The Trial Court recorded a finding that the plaintiff had not proved that he was entitled to ½ share in the suit property and the defendants had proved that they were in possession of the suit property under the registered Will dated 18.03.1957 executed in their favour by Mahadevappa. The Trial Court accordingly dismissed the suit.

7. Learned counsel for the appellant contends that it was admitted by defendant No.1 that the suit property had fallen to the share of appellant’s father in a partition and thereby it was the admitted case of all the parties that the suit property was the ancestral property. He submitted that in the light of these admitted facts, there was no question of

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2023 Supreme(Online)(KAR) 23181

A coparcener cannot treat the ancestral property as his separate property and bequeath the same as per his own wish.

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