Procedural fairness requires that all parties must be given an opportunity to present evidence in a partition case, particularly when claims on a disputed Will influence the outcomes.

ORAL JUDGMENT

This appeal is filed by defendant Nos.3 to 7 under Section 96 of CPC , challenging the judgment and decree dated 18.12.2010, passed by the V Additional City Civil Judge, Bengaluru in O.S.No.3478/1994, decreeing the suit and holding that the plaintiffs are entitled for partition and separate possession of 1/3^rd share in the suit schedule properties.

2. For the sake of convenience, the parties are referred to as per their ranking before the trial court.

3. The plaintiffs filed a suit against the defendants for partition and separate possession of 1/3^rd share in the suit schedule properties. There is no dispute in respect of the relationship of the parties. The plaintiffs and defendant Nos. 1 to 3 constitute a joint family. One S.Ramanuja Rao is the predecessor, Kuppamma is his first wife and Anasuya Bai is the second wife. The original plaintiff – Tukaram is the son of Kuppamma and S.Ramanuja Rao . One Narayana Rao – defendant No.2 is the son of Anasuya Bai and Lakshmibai is the daughter of Anasuyabai. Since she died, her husband Sathyanarayana Rao, shown as defendant No.3. Defendant Nos. 4 to 7 are the children of defendant No.3. The plaintiffs and defendants are Hindu joint family members. Hence, they sought for partition and separate possession.

4. On service of summons, defendant Nos. 1, 3, 4, 5 and 7 have filed written statement, denying the averments made in the plaint and they claimed that defendant Nos. 1, 2 , Lakshmibai, wife of defendant No.3 and defendant No.8, have got the suit schedule property under the registered Will dated 29.12.1965 executed by S.Ramanuja Rao in their favour. Since they are in the possession of the said property, bequeathed to them under the Will. Therefore, they contended that the plaintiffs are not entitled to any share in the suit schedule item No.1, the property which has been bequeathed under the Will, dated 29.12.1965. On the basis of the pleadings of the parties, the trial court framed the following issues: “1. Whether the plaintiff proves that the suit schedule properties are the joint family properties?

2. Whether the plaintiff proves that the plaintiff and the defendants, 1, 2 and 3 constitute a joint Hindu family?

3. Whether the plaintiff is entitled for partition and separate possession of 1/3^rd share in the suit schedule properties?

4. Whether the plaintiff is entitled for permanent injunction?

5. Whether the first defendant proves that the suit schedule properties are her own properties in view of the Will dated 20.12.1965?

6. Whether the first defendant proves that the Will dated 20.12.1965 was executed by Ramanuja Rao of his free will?

7. Whether the defendants prove that the Will dated 20.12.1965 is obtained by fraud and undue influence?

8. Whether the defendants prove that the suit is not maintainable?

9. What order or decree?”

5. On appreciation of oral and documentary evidence, the trial court answered issue Nos. 1 to 3 in the affirmative and 4 to 8 in the negative and decreed the suit holding that the plaintiffs are entitled to 1/3^rd share in the suit schedule properties. Being aggrieved by the same, defendant Nos. 3 to 7 are before this Court.

6. The learned counsel appearing for the appellants filed a memo stating that they are confining this appeal only in respect of suit item No.1. In respect of the other suit schedule properties are concerned, they are not disputing the judgment and decree. Therefore, this appeal is only confined to suit item No.1.

7. The learned counsel appearing for the appellant raised the following contentions:

(i) Firstly, the