Leela Ramakrishna and Others vs Sujatha Narayan and Others

N. Kumar, J—This is a plaintiffs Regular First Appeal challenging the judgment and decree of the trial Court which has decreed the suit of the plaintiffs-appellants in part and dismissed the suit of the plaintiffs in respect of certain items of the suit properties.

The L.Rs of the first defendant have preferred Cross Appeal challenging the judgment and decree of the trial Court rejecting their counter claim where they have sought for possession of Item No. 2 of the plaint A schedule property.

For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

The plaintiff''s father, one S.B. Gowdaiah married Sakamma, the second plaintiff in the suit. They had a son by name Narayana, who is the first defendant in the suit. They had seven daughters, who are plaintiffs-1 to 6 and 3rd defendant. The case of the plaintiffs is that the father of plaintiffs and defendants-1 and 3 died intestate on 22.05.1987 leaving certain properties such as property bearing old No. 136 and new No. 103, situated at B.M. Road, Hassan, having 1950 sq.ft. built up around 985 sq.ft., vacant place and half undivided share in property bearing No. 103, situated at 8th Main, 9th Cross, RMV Extension, Bangalore, land movable properties such as dealership in Bharat Petroleum of Hassan Town, which are more fully described in schedule A and B to the plaint.

After the demise of late S.B. Gowdaiah, the plaintiffs and defendants succeeded to the estate of late S.B. Gowdaiah and are entitled for equal share in all the plaint A and B schedule properties. The plaintiffs contended that each plaintiff is entitled for 1/9th share in the entire plaint schedule properties. After the demise of late S.B. Gowdaiah, ill-will and differences have arisen between the plaintiffs and the defendants and as such, the plaintiffs demanded defendants 1 and 2 to effect an equitable partition in respect of schedule properties and put them into separate possession of their respective shares and also for 1/9th share each in the dealership right in Bharat Petroleum. The defendants had refused to do so. Therefore they filed a suit for partition and separate possession of their legitimate share in all the plaint schedule properties.

Subsequently, the plaint was amended by including agricultural lands as ''C'' schedule properties. Therefore, they added para 3(A) contending that properties bearing Sy. No. 8/1 measuring 1 acre 13 guntas, 87/2 measuring 2 acre 39 guntas, 88/1 measuring 24 guntas, 88/2 measuring 1 acre 12 guntas, situated at Kokkanagatte village, Kasaba Hobli, Hassan Taluk, Sy. No. 2/9 measuring 1 acre 5 guntas, Sy. No. 20/4 measuring 39 guntas, Sy. No. 22/2 measuring 10 guntas, which are situated at Sakalapura Village, Kasaba Hobli, Hassan Taluk, which are the properties left by Late S.B. Gowdaiah. The plaint schedule properties are joint family properties which are in joint possession and enjoyment of the plaintiffs and defendants. Subsequently, one more amendment was carried out on 16.01.2005, where they added para 5(a) and (b) and also added additional paragraph seeking relief of declaration in prayer column.

In para 5(a) they pleaded that with respect to second item of Schedule A, i.e., property bearing No. 103, situated at 9th Main, 8th Cross, RMV Extension, Bangalore, the mother of the plaintiffs by name Smt. Sakamma has executed five registered gift deeds dated 01.07.2001 gifting the said properties in favour of her five daughters and therefore the plaintiffs 1 to 5 are the absolute owners. They also submitted that their mother Smt. Sakamma has also executed a registered Will dated 01.07.2002 bequeathing Item No. 1 of Schedule ''C'' property bearing No. 87/1, measuring to an extent of 1 acre 13 guntas and Sy. No. 87/2 measuring to an extent of 1 acre 17 guntas and 7 other properties which are not included in the schedule and which the plaintiffs intend to include the same in the schedule. They submit that their mother Smt. Sakamma expired on 16.01.2004. In the prayer column they have sought for a declaration that plaintiffs are the absolute owners of the suit Item No. 2 of A schedule property, i.e., house property bearing No. 103, situated at 8th main, 8th cross, RMV Extension, Bangalore and also the properties under the registered Will executed by Smt. Sakamma dated 01.07.2002.

After service of summons, the first defendant filed a detailed written statement. He admitted the relationship between the parties. He also admitted that S.B. Gowdaiah died on 22.05.1987. It is his specific case that Item No. 1 of A schedule and B schedule properties are not available for partition and the allegation that plaintiffs and defendants are equally entitled to a share in the said properties is false. The first item of A schedule property does not belong to the plaintiffs and to these defendants. The plaintiffs are guilty of suppression of the facts from the Court. The suit brought for seeking declaration without impleading the real owner of the property is not maintainable. The B schedule property is incapable of partition and it was not a joint family property at all. It was a partnership asset. The dealership will be granted under a contract between the company and the contracting parties. It is open to the company either to continue the dealership with the surviving parties or not. Hence, neither plaintiffs nor the defendants can claim to have any share in the dealership. The suit is not properly valued. Plaintiffs and defendants-2 and 3 are not at all in joint possession of the properties as could be seen from the address furnished in the cause title. There is no averment that plaintiffs are in joint possession of the property along with the defendant. Therefore the valuation done is not proper. The plaintiffs are all married and are well placed in life. They are not entitled to any share in the properties nor they are entitled to claim joint possession of the properties and 1/9th share even in the second item of A schedule property. Hence, the suit is liable to be dismissed.

The partnership firm S.B. Gowdaiah & Sons, suffered a liability to the tune of Rs. 41,59,936/- towards income tax dues and the second item of A schedule property is already attached by the Income Tax Department as far back as 20.07.1992. The plaintiffs are bound to discharge the said liabilities and claim any share in the property, if they are really entitled to. Without discharging the liability attached to the property, it is not open to the plaintiffs to claim any share. The plaintiffs have deliberately suppressed the said facts from the Court. The plaintiffs have to include all the items of the property which are liable to be partitioned. Filing a suit for partial partition is impermissible and it is not open to the plaintiffs to reserve their right to include items which are not stated in the plaint. There is no cause of action for the suit.

After the plaint was amended, they have filed additional written statement.

The first defendant contended that first item of A schedule property was sold in public auction on 25.07.1988 for recovery of Excise duty arrears. The property stood in the name of S.B. Gowdaiah, the father of this defendant. Smt. Sujatha Narayan had offered the highest bid in the public auction and the bid was accepted and there was no objection in that behalf including the plaintiff and defendants-2 and 3. The katha of the property was made out in the name of Sujatha Narayan, as far back as 1989 itself. Smt. Sujatha Narayan was called upon to pay the stamp duty of Rs. 23,750/- for the purpose of executing a sale deed in her favour in pursuance of the confirmation of sale of the property in public auction. Smt. Sujatha Narayan has secured a sale deed from the Tehsildar, Hassan Taluk. The said sale in favour of Smt. Sujatha Narayan remains unchallenged and this fact was well within the knowledge of the plaintiffs and defendants-2 and 3, even before the institution of the suit. The plaintiffs deliberately have suppressed the facts and have approached this Court with allegations which are known to be false, which amounts to fraud. The plaintiffs cannot maintain the suit without seeking a declaration that the first item of the schedule property belong to them and they are entitled for a share in that property. The second item of A schedule property was purchased out of the partnership funds of firm M/s. Gowdaiah & Sons, as such, the said item of the property forms part of the assets of the firm and it was not open to S.B. Gowdaiah to purchase the property in his name and in the name of his wife who is the second defendant in this case. The said item of the property cannot be treated as a joint family property for the plaintiffs to maintain the suit for partition and separate possession of their share in the property. Plaintiffs should have sought for declaration of their rights, over the said property and that they are entitled for any share in the same.

The partnership was dissolved by deed of dissolution dated 1st May, 1987. By virtue of the said deed of dissolution, the defendants became the absolute owner of the petrol bunk and its dealership which was transferred to his name. Therefore the B schedule property is not liable for partition. All the plaintiffs are married prior to 1990, as such the plaintiffs are not entitled to claim any share in the properties detailed in C schedule. The plaintiffs are not at all in joint possession of the properties detailed in C schedule. Therefore the defendants sought for dismissal of the suit.

After the first defendant died, his L.Rs. were brought on record. They have also filed additional written statement. They contend that Item No. 1 of Schedule A is the absolute property of Smt. Sujatha Narayan, who is one of the L.Rs of first defendant. She purchased the same in public auction held on 25.07.1998. The said auction was confirmed. The sale was for recovery of excise duty as land revenue and the Government has executed the sale deed also. The said property is not available for partition as on the date of the suit. It was not the property of late S.B. Gowdaiah. Item No. 2 of suit schedule A was the property of S.B. Gowdaiah & Son, a registered partnership firm. Late S.B. Gowdaiah and first defendant were partners. The entire sale consideration was paid by the partnership firm. Since S.B. Gowdaiah was the managing partner, the firm purchased the same in the name of S.B. Gowdaiah. Adding the name of second defendant along with S.B. Gowdaiah does not make any difference and no right or title was created in her favour. The fact that the said property is the property of the partnership firm was admitted by the second defendant in W.P. No. 9039/1994 on the file of this Court. It is not open to the plaintiff to plead to the contrary. The partnership firm was dissolved on 1st May 1987. Under the said dissolution Item No. 2 of suit schedule A was allotted to the share of first defendant. The returns filed by the partnership firm before the Income Tax Authorities from 1978 to 1987 duly reflect the said property as the assets of the partnership firm. All the plaintiffs declared that they gave up any right in the properties of the firm and also do not accept any liability of the firm. The suit schedule B is not the property of late S.B. Gowdaiah. Bharat Petroleum Company has established the retail out let and on the date of the suit the first defendant one of the L.Rs was the licensee under Bharat Petroleum Company. It is not the property of either the joint family or of S.B. Gowdaiah. The plaintiffs have recognized that Item No. 2 of the suit schedule A was the property of partnership firm. They categorically state in para 6 of the written statement that when the third defendant was seriously ill and not in a sound disposition of mind, the plaintiffs have forcibly and by misrepresentation and by playing fraud have taken a registered deed dated 1st July 2002, purporting to be a gift deed. It has not created any legal right in favour of the plaintiffs and the second defendant had no manner right, title or interest in Item No. 2 of suit schedule A. Therefore they sought for dismissal of the suit for partition in respect of Schedule A and Schedule B properties. Taking advantage of pendency of the suit, plaintiffs have physically occupied Item No. 2 of suit schedule A and they have sought for decree of ejectment of plaintiffs-1 to 5 from the said property in favour of L.Rs of first defendant.

Thereafter the plaintiffs filed a rejoinder to the additional written statement filed by the deceased first defendant. They contend that L.Rs cannot take a different stand other than the one taken by the deceased defendant. The first defendant was alive for more than ten years after the institution of the suit and he has participated in the suit for the last ten years. Therefore on the death of the first defendant the L.Rs have to fight or defend themselves on the statement made by the deceased first defendant and cannot think of a different stand altogether. They reiterated what they have stated in the plaint. They denied that the entire sale consideration was paid by the partnership firm. The said property was the absolute property of Sakamma. S.B. Gowdaiah was a name lender and he has not contributed anything for the purchase of the schedule property as the said property was the absolute property of the second defendant who has executed the gift deed in favour of plaintiffs and the plaintiffs are in possession of the schedule property.

Subsequently, a counter claim was filed seeking possession of Item No. 2 of A schedule property, for which the plaintiffs have filed written statement. They also filed additional written statement reiterating what they have stated in the earlier written statement.

The second defendant filed separate statement contesting the claim. She contended that Item No. 2 of the schedule property was jointly purchased by the second defendant and her husband S.B. Gowdaiah under a registered sale deed dated 12.10.1978 which is a house property in which the second defendant is residing. During the life time of her husband there was an oral settlement in respect of Item No. 2 of the schedule property that the southern half portion was allotted to the second defendant and northern half to the husband of this defendant late S.B. Gowdaiah. But nevertheless, the entire property continues to be in her possession and enjoyment. The oral understanding between them was the second defendant has to succeed to the entire property and she is at liberty to enjoy the said property and to do and act according to her will and wish. She denied the right of the plaintiffs to the said property. She had no objection for passing a decree for partition in respect of properties of S.B. Gowdaiah.

On the aforesaid pleadings the trial Court framed the following issues on 30.01.1998:

Whether the plaint proves that the suit properties are joint family properties of the parties and are in joint possession enjoyment of the same?

Whether the 2nd defendant prove that suit item No. 2 is her separate property?

Whether the defendant No. 1 proves that all the properties are included in the suit?

Whether the suit is bad for non-joinder of necessary parties?

Whether the suit is properly valued and proper court fee is paid on the plaint?

Whether the plaintiffs are entitled for the reliefs sought for?

What order or decree?

Again on 04.01.2006 additional issues were framed:

In view of amended prayer for declaration of title in respect of item No. 2 of suit schedule ''A'', is the suit for partition without territorial jurisdiction of this court?

In view of addition of suit schedule item 6 to 12 of schedule ''C'' for the prayer or declaration of title, is the plaint liable to be returned for want of territorial jurisdiction?

Have the plaintiffs abused the process of the court by adding item 6 to 12 of suit schedule ''C'' in the amended plaint though they were not shown in the amendment application?

Is the amended prayer of declaration in respect of item 2 of schedule ''A'' liable to be rejected as the same takes away the rights of defendant 1(a) to 1(d) in view of the admission in para (3) of the plaint?

Do the plaintiffs prove the alleged Will of the deceased No. 2?

Are the gift deeds said to have been executed by defendant No. 2 is vitiated by fraud, undue influence and coercion as alleged by defendants 1(a) to 1(d)?

Do the defendants 1(a) to 1(d) prove the execution of the alleged later Will executed by defendant No. 2 dated 24.3.2003?

Do defendants 1(a) and 1(d) prove that item 2 of suit schedule ''A'' is acquired out of the funds of the partnership firm ''S.B. Gowdaiah & Sons''.

Is the court fee paid is insufficient?

The plaintiffs in order to substantiate their claim examined 4th plaintiff-Smt. Sukanya as P.W-1 and also examined Dr. B.Y.T. Arya, one of the attesting witnesses to the sale deed dated 01.07.2002. They produced 56 documents, which were marked as Ex. P-1 to Ex. P-56.

On behalf of the defendants, Chetan Narayan, LR 1(c) was examined as D.W-1 and D.S. Shamsundar, an attesting witness to the Will propounded by the defendant was examined as D.W-2. They produced 28 documents, which were marked as Ex. D-1 to D-28.

In this appeal, the appellants have filed an application under Order 41 Rule 27 CPC for production of additional evidence. Along with the application they have produced 21 documents. The respondents have filed statement of objections opposing the said application.

During the pendency of the proceedings, an application was filed for injunction restraining the appellants from leasing the property, i.e., Item No. 2 of the A schedule property and for a direction to the plaintiffs to deposit in Court the rental amount received by leasing the portion of Item No. 2 of the suit property. A commissioner was appointed, who has submitted a report. It is part of the record.

Sri. Yoganarasimha, learned Senior Counsel, appearing for the plaintiffs-appellants contended that the finding of the trial Court that as the second defendant has purchased Item No. 1 of the A schedule property in public auction, it is her self acquisition, in which the plaintiffs have no right, is contrary to the material on record. Similarly, the finding of the Court below that Item No. 2 of A schedule property is a partnership property and on dissolution of the partnership, the entire property has gone to the share of the deceased first defendant and therefore it is his exclusive property and the plaintiffs have no share in the said property, is also contrary to the legal evidence on record. Further, he contended that by way of additional evidence, they have produced 21 documents, which clearly demonstrate that Item No. 2 of the plaint schedule is not a partnership property but it is the property belonging to Gowdaiah & Sakamma and after the death of Gowdaiah, it exclusively belongs to Sakamma. The certified copies of the gift deeds were produced in the trial Court and they are marked. Therefore, if those documents are taken into consideration, it clearly establishes that Item No. 2 of the A schedule property is not a partnership property and therefore the trial Court was not justified in not granting any share to them. The finding of the Court below that Ex. D-1, the Will of Sakamma, the second defendant, which is propounded by the first defendant to claim share in the house properties which are situated in Hassan is proved, is a finding which is contrary to the legal evidence on record and is erroneous. Therefore it requires to be set aside giving a share to the plaintiffs in the said properties. He also contended that the finding of the trial Court that Will of Sakamma dated 01.07.2002 marked as Ex. P-7 and the 5 gift deeds executed by Sakamma in favour of the plaintiffs are not proved, is contrary to the evidence on record. Therefore he submits that on proper appreciation of the evidence on record, if the Will Ex. P-7 and the 5 gift deeds are held to have been proved, then the plaintiffs have to be declared as absolute owners of Item No. 2 of the A schedule property as well as the house property at Hassan. Even if the court were to hold that the Will is not proved and the gift deeds are not proved, the resultant position would be, the suit schedule property, except B schedule property and Item No. 1 of A schedule property as they stand in the name of Sakamma, Gowdaiah and also Nandini, all the parties to the proceedings are entitled to equal share, i.e., 1/9th share in all the plaint schedule properties. In either event, the plaintiffs have to succeed to the fullest extent.

Sri. B.R. Vishwanath, the learned Counsel appearing for the 4th appellant, adopted the arguments of Sri. Yoganarasimha, the learned Senior Counsel.

Countering the said argument, Sri. Sundaresh, the learned Counsel appearing for the first defendant and his L.Rs, contended that the property which was the subject matter of the public auction, i.e., Item No. 1 of A schedule property was allotted to the share of Gowdaiah under a registered partition deed, in which the plaintiffs have no right. That property was attached and brought to sale. In the public auction, defendant 1(a) - Smt. Sujatha Narayan, purchased the property paying the sale consideration. Therefore, the plaintiffs have no right over the same as rightly held by the trial Court.

In so far as Item No. 2 of A schedule property is concerned, the evidence on record shows that a sum of Rs. 3,60,000/- by way of DD was paid to the vendor which is duly acknowledged in the sale deed. The remaining amount was also paid by the firm. They also bore the registration charges as well as stamp duty. In the returns filed in the Income tax Department, in the schedule this property is shown as the property of the firm. In fact, this property was offered as security for obtaining loan from the Bank. That loan was cleared by the firm. The said property was also the subject matter of the attachment by the Income tax Department and the firm paid the said amount and got the property released. All this unimpeachable documentary evidence clearly establishes that Item No. 2 of the A schedule property is the partnership property of Gowdaiah and Sons, which become the absolute property of the first defendant after the firm was dissolved, in which, all the assets and liabilities were allotted to the share of the first defendant. Therefore the finding of the trial Court does not call for interference.

In so far as the property of Nandini and Sakamma is concerned, on the date of the suit, both were alive. They died subsequently. Therefore the property cannot be the subject matter of partition in this suit. Therefore the plaintiffs are not entitled to a share in the property. Lastly he contended that Ex. D-2 produced in this case shows that the Will of S.B. Gowdaiah was fabricated in respect of his properties bequeathing the same in favour of Sakamma and subsequently during the pendency of the suit, Sakkamma and these plaintiffs sold all those properties as those properties are not included in the suit and a suit for partial partition is not maintainable. Therefore he contends that the judgment and decree passed by the trial Court is flawless and do not call for any interference. It is his further case that during the pendency of the appeal, after the death of Sakkamma, these plaintiffs forcibly entered Item No. 2 of the schedule property. All of them are in actual physical possession of two portions and the remaining portions are let out. As Item No. 2 of the plaint schedule property is a partnership property, now it exclusively belongs to the first defendant, their counter claim is wrongly rejected without assigning any reasons. Therefore he submits that his counter claim for seeking delivery of possession requires to be allowed.

In the light of the aforesaid facts and rival contentions, the points that arise for consideration in this appeal are as under:

(1) Whether the finding of the Trial Court that plaintiffs have no right in Item No. 1 of ''A'' Schedule properties, calls for interference?

(2) Whether item No. 2 of the Schedule properties, is a property of partnership of Gowdaiah & Sons or is it a property of Gowdaiah and his wife Sakamma, in which the plaintiffs have any right?

(3) Whether the plaintiffs are entitled to a declaration that they are the absolute owners of Item 2 of A Schedule property on the basis of five gift deeds, Ex. P-52 to P-56?

(4) Whether the plaintiffs and defendants are entitled to absolute right in respect of the property which is the subject matter of Will Ex. P-7 as well as Ex. D-1 and finding of the Trial Court that Ex. P-7 is not proved and Ex. D-1 is proved, calls for any interference?

(5) Whether the plaintiffs are entitled to a share in the property of Sakamma and Nandini in this suit itself?

(6) Whether the LRs of defendants are entitled to possession of Item No. 2 of A Schedule property?

(7) Whether the application for additional evidence filed by the appellants requires to be allowed?

POINT No. 1:

The relationship between the parties is not in dispute. It is also not in dispute that Gowdaiah who was the Kartha of the joint family consisting of himself, his wife, his son H.G. Narayan. His grand children and unmarried daughters effected a partition of all the joint family properties under a registered partition deed dated 14.4.1978 which is marked in this case as Ex. P1. The recitals in the deed make it clear that they agreed and declared that except H.G. Nandini, the unmarried daughter, all others would be the separate owners of the properties described in the schedule A, B, C, D, E and G to the partition deed. Accordingly, properties which fell to their shares are clearly set out in the schedule. Item No. 1 of the plaint schedule in the said partition fell to the share of Sri Gowdaiah which is schedule ''A'' in the said partition deed i.e. Building No. 136, Bangalore-Mangalore Road, Hassan. Thus, Item No. 1 of ''A'' schedule property is the exclusive property of Gowdaiah. Gowdaiah was an Excise Contractor. Ex. D16 produced in the case shows Sri Gowdaiah was due in a sum of Rs. 2,05,646.95 for the period from 1984-85 to the Excise Department. However, he died without clearing the said debt. Therefore, notice was issued to his son H.G. Narayan to clear the said amount. When the said amount was not paid, Item No. 1 of ''A'' schedule was brought to sale in public auction conducted on 25.07.1988. In the said bid, the first defendant''s wife Smt.Sujatha Narayana purchased the said property for a consideration of Rs. 1,89,502/- and the amounts were credited to the Government Treasury. The sale was confirmed on 25.8.1988. Thereafter, as per Ex. D. 16, she was declared as the successful bidder of the schedule property. Thereafter, the authorities have executed a registered sale deed dated 6.4.1999 which is produced as Ex. D. 17. Acting on the said sale deed as per Ex. D18, the mutation entries were made in her name in respect of the said property. As per Ex. D. 19 Khatha was transferred in her name in the Hassan Town Municipal Corporation. Ex. D. 20 shows that she has paid taxes for the year 1989-90. None of these documents are disputed by the plaintiffs. In fact, the plaintiffs though were aware of these facts, have suppressed the said facts in the plaint and they were putting forth a false claim in respect of this property. The aforesaid documentary evidence clearly establishes that item No. 1 of ''A'' schedule property was the separate property of Smt.Sujatha Narayana in which no other plaintiffs or defendants had any manner of right, title or interest. When in the public auction, the property was brought to sale, Smt.Sujatha Narayana wife of first defendant bid and purchased the property, the sale deed is executed, khatha is made out in her name, she is paying taxes, she is in possession and enjoyment of the property in her own right, it is not the joint family property as sought to be made out by the plaintiffs.

On the date the suit was filed, she had become the absolute owner in possession and enjoyment over the property and no other party to the suit had any manner of right, title or interest over this property and the trial Court was justified in dismissing the suit of the plaintiffs in so far as said item is concerned. We hereby affirm the finding recorded by the trial Court in respect of Item No. 1 of ''A'' schedule property dismissing the suit.

POINT Nos. 2 to 4:

As stated earlier, the joint family of Gowdaiah and his son and others ceased to exist from the date the partition deed Ex. P1 dated 14.4.1978 came into existence. After the said partition, item No. 2 of ''A'' schedule property was purchased by Gowdaiah along with his wife Smt.Sakamma on 12.10.1978 which is marked as Ex. D8. On the day the suit was filed, Gowdaiah was not alive. However, Smt.Sakamma second defendant was very much alive. Initially, the plaintiffs claimed the said property as a joint family property. However, subsequently, by way of amendment, they claimed the said property under five registered gift deeds executed by their mother in their favour which are marked as Ex. P52 to P56. However, in the written statement filed by Smt.Sakamma, she categorically stated, the item No. 2 of ''A'' schedule property was jointly purchased by her along with her husband under a sale deed dated 12.10.1978. During the lifetime of her husband, there was an oral settlement in respect of item No. 2 of ''A'' schedule property. According to the settlement, Southern half portion was allotted to her and northern half portion was allotted to her husband. Nevertheless, the entire property continues to be in her possession and enjoyment. The understanding between them was, after the death of her husband, she has to succeed to the entire property and she is at liberty to enjoy the said property according to her will and wish for which the plaintiffs and other defendants have no right to claim. This written statement was filed by her on 7.3.1994. However, during her lifetime she executed five gift deeds in favour of her five daughters on 1.7.2002 and got them duly registered. They are Ex. P52 to P56. It is on the basis of those gift deeds, plaintiffs are seeking declaration that they are the absolute owners of Item No. 2 of ''A'' schedule property. As against this, the first defendant specifically pleaded in the written statement that this item No. 2 of ''A'' schedule property was purchased out of the partnership funds of Firm M/s. Gowdaiah and Sons. The said property forms part of the assets of the firm. The said item of the property cannot be treated as a joint family property and thus, plaintiffs cannot maintain suit for partition and separate possession of their share in the property.

In the additional written statement filed, it was reiterated that item No. 2 of schedule ''A'' property, is the property of the partnership firm of H.G. Gowdaiah and Sons. And late H.B. Gowdaih and defendant No. 1 were partners. The entire sale consideration was paid by the partnership firm. Since H.B. Gowdaiah was maintaining the partnership firm purchased the same in his name and the name of defendant No. 2, along with H.B. Gowdaiah does not make any difference and no right or title was created in her favour. The fact that said property is the property of the partnership firm was admitted in the document in case No. 9039/02 on the file of Hon''ble High Court, the partnership was dissolved on 1.5.1997. Under the said dissolution which is marked as Ex. D5, item No. 2 of ''A'' schedule property was allotted to the share of defendant No. 1. The returns filed by the partnership firm to the Income tax department for the period from 1978-87 duly shows the said property as assets of the partnership firm. What the plaintiffs have declared is that they given up their right in the firm and have not accepted any liability of the firm. They have also accepted that the said property belongs to the partnership firm that dissolved to the first defendant. The legal representatives of first defendant after the death of first defendant have also reiterated the said facts. In fact, according to the defendants, after the death of Smt.Sakamma, the plaintiffs have forcefully occupied the said property. The legal representatives of first defendant are not in possession of any portion of the said property. They have put forth counter claim seeking a decree for possession.

From the aforesaid case put-forth by the parties, it is clear in one breath, plaintiffs claim the said property as joint family property and another breath they claim title to the said property under five registered gift deeds. Defendants stand is that the schedule property is partnership property and after dissolution, the said property has fallen to the share of the first defendant exclusively. Therefore, no other party to the suit have any manner of right, title or interest.

At this juncture, it is to be noticed, the sale deeds stand in the name of Gowdaiah and his wife Smt.Sakamma. In the entire document, there is no whisper that this property was purchased ''by the'' Firm or ''for the'' Firm. On the day, the suit was filed, Sakamma was alive. If at all plaintiffs could have claimed a share in the share of their father in the said property though Sakamma contended after the death of her husband under an arrangement, she has become absolute owner. She denied the claim of the plaintiffs. But, during the pendency of the proceedings, asserting title to the entire property absolutely, she has executed five gift deeds in favour of her five daughters and subsequently, she has died. If the gift deeds are proved, then plaintiffs would be the absolute owners. If the gift deeds are not proved, then the property continues to be that of Sakamma and Gowdaiah and both are dead. Therefore, the plaintiffs along with the defendants would be entitled to equal share in the said property under Section 8 read with Section 15 of the Hindu Succession Act. However, if the defendants contention that it is a partnership property is established as held by the trial Court, plaintiffs have to be non-suited in respect of this property.

In order to establish their claim, plaintiffs have relied on the sale deed which is marked as Ex. D8. As stated earlier, the recitals in the document do not indicate that this property was purchased by the firm or for the firm. Now the defendants have set up this property as a partnership property. The burden of proving that it is a partnership property and the entire consideration has flown from the funds of partnership firm squarely rests on the defendants. In this regard, it is necessary to see the law on the point.

Section 14 of the Partnership Act deals with the property of the firm. It reads as under:

"The property of the firm - Subject to contract between the partners, the property of the firm includes all property and rights and interest in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of the business of the firm, and includes also the goodwill of the business.

Unless the contrary intention appears, property and rights and interests in property acquired with money belonging to the firm are deemed to have been acquired for the firm."

Relying on this provision, the defendants contend this property was acquired by purchase with the money belonging to the firm and therefore, it is deemed to have acquired for the firm. Therefore, in the light of the aforesaid statutory provision, if the defendants are able to establish that this property was acquired by purchase with the money belonging to the firm then, by deeming fiction it becomes the property of the firm. Therefore, the burden of showing that this property was acquired with the money belonging to the firm is on the defendants. In order to discharge this burden, defendants have placed reliance on the following facts:

1) In the sale deed Ex. D8, it is specifically stated Rs. 3,60,000/- is paid by DD No. DCB 489988 dated 1.12.1978 and the said DD is obtained by partnership firm from their bankers and is drawn in the name of the seller T.R. Doreswamy.

2) Ex. D9 is an order of attachment of immovable property issued by the Recovery Officer attaching the aforesaid property for the dues from Gowdaiah and Sons, Excise Contractors for the amount due for a sum of Rs. 41,59,986/-.

3) Ex. D10, is an endorsement issued by the Assistant Commissioner of Income Tax stating that entire tax pertaining to the firm H.B. Gowdaiah and Sons was cleared by partner H.G. Narayan.

4) Ex. D. 11 is the objections filed by Smt.Sakamma disowning any interest in the partnership firm and also contending that they are not liable to pay any liability of the firm.

5) Ex. D. 12 is the affidavit of the first plaintiff H.G. Leelavathi disowning their interest in the partnership firm and also their contention they are not liable to pay of the liability of the firm.

6) Ex. D. 13 is the affidavit filed by H.G. Sathyavathi, plaintiff No. 2 to the same effect.

7) Ex. D. 23 the statement of income of H.G. Gowdaiah and Sons for the assessment year 1983-84.

8) Ex. D. 24 is the Audit report under Section 44-B of the Income Tax Act in respect of the firm.

9) Ex. D. 26 is yet another statement of the firm showing the said item of the asset of the firm.

Relying on these documents, it is contended that the said property is the property of the partnership firm. After its dissolution, it has become exclusive property of first defendant and plaintiffs have no right, title or interest for the same.

As it is clear from the aforesaid statutory provision, if a property is to be claimed as partnership firm, if it is acquired after the inception of the partnership firm, the entire consideration of the purchase should have flown from that firm. The partnership firm came into existence in the year 1971. This property was acquired by purchase under a sale deed dated 12.10.1978. The total consideration paid for purchase of the said property is Rs. 4,30,000/-. The recitals in the sale deed show, out of Rs. 4,30,000/-, a sum of Rs. 5,000/- was paid by the purchasers to the vendors as advance in cash on 23.6.1978. A further sum of Rs. 65,000/- was the amount paid as advance in cash on 24.8.1978. The balance amount of Rs. 3,60,000/- was paid by way of a DD dated 1.12.1978 before the Sub-Registrar. None of the documents produced and relied upon by the defendants does show the payment of Rs. 70,000/- by way of cash. Therefore, the contention that the entire sale consideration for the purchase has flown from the partnership firm is not established. In so far as Rs. 3,60,000/- is concerned, the evidence on record as per Ex. D6 a letter addressed by Canara Bank to the first defendant on 25.9.1999 shows that they have debited current account G-78 of M/s. Gowdaiah and Sons on 1.12.1978 with Rs. 3,60,000/- issued DD No. DCB 489888 favouring T.R. Doreswamy for Rs. 3,60,000/- as on that day. In this context it is to be kept in mind that on the date of the sale deed, Gowdaiah was a partner along with his son. The payment of Rs. 3,60,000/- is made from the current account. A mere payment of money from the current account cannot establish that the consideration so paid from the current account of the firm is for purchase of the property for the firm or by the firm.

In fact, the deed of dissolution which is produced in this case and marked as Ex. D5 shows on the date of dissolution, the total asset of the firm was Rs. 78,46,531.16. Liability was Rs. 4,23,12,739.14. This clearly shows, the extent to which the partnership business was being carried on. Therefore, when one of the partners draws money from the firm and purchases the property in his name and in the name of his wife, the only probable inference that could be drawn is, for purchase of property, he has drawn funds with the firm on his account. If consideration was paid by the firm, the partnership accounts would have shown it as expenditure of the firm. If the partner is paid money from the current account, the said amount paid to him would be credited to his account. Merely because the partner draws money from the partnership firm, out of his share and purchases property in the joint names of himself and his wife and without any other corroborative evidence, it is not possible to hold that the said consideration was paid by the firm for the purpose of purchasing the property by the firm or for the firm.

The other document on which reliance is placed is, Ex. D-9 attachment order issued by the Recovery officer. The said document shows that Item No. 2 of ''A'' schedule property was attached. Merely because a property is attached by the Recovery Officer for recovery of a due from a person ipso facto that does not establish that the defaulter is the owner of the property. In the instant case, as is clear from the record, it is a partnership firm of a father and sons. The partnership firm was dissolved on 1.5.1987. Gowdaiah died on 22.5.1987. Though this attachment order is dated 20.7.1989 shown the said property as attached, it is Gowdaiah and Sons. Admittedly, the property stood in the name of Gowdaiah and his wife. Therefore, that by itself does not establish that schedule property is the partnership property of Gowdaiah and Sons. The statement on which second defendant and second plaintiff relied on shows that these ladies before the Recovery Officer contended that the amount claimed by the Bank against the firm are not liable to be repaid by them because, they are not the partners, they have no interest in partnership firm or any items of assets and liabilities and therefore, they disowned the liability. If the defendants are able to establish that those items belong to partnership firm then, those statements stating that they have no interest in the assets and liabilities would assume importance. No where in the statement it is stated by them that this property is of the partnership firm and they have no claim or interest in the same and therefore, the said statements cannot be read out of context to come to the conclusion that these daughters have given up their right in the item No. 2 of ''A'' schedule property.

Strong reliance was placed on statement of income and also Section 144-A statement said to have been filed. What is curious is, if the statements of income had been filed before the authorities concerned, they should bear seal of the Department. Secondly, the statement of account of a firm should be signed at least by one of the partners. K.V. Narasihman and Company, CA has signed the said statement and the same has been filed in Court. The said statement does not bear any official seal acknowledging the filing of the statement before the authorities. Similarly, even in form 3(b)(c) the audit report under Section 44-A and B of the Income Tax Act, 1961, all that we find is the signature of K.V. Narasimhan, CA. Neither the signature of Gowdaiah nor the signature of the fist defendant finds a place in the said document. Therefore, though the said documents are marked they do not in any way establish that Item No. 2 of schedule ''A'' property is a partnership asset.

In this regard, it is interesting to know the phraseology adopted in Section 14 of the Partnership Act.

The word ''firm'' has also been defined in the Partnership Act in Section 4. It provides that partnership is the relationship between the persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Persons who have entered into partnership with one another are called individually ''partners'' and collectively ''a firm'', and the name under which their business is carried on is called the ''firm name''.

Therefore, the property is acquired by or for the firm it has to be in the name of the partners. Even if it is in the name of any one of the partners of the firm, certainly, a third party totally stranger to the firm cannot be added as a party to such sale. Then, if such third party is included in the sale deed it cannot be said the acquisition by purchase was by or for the firm. It is not in dispute, the sale deed stands in the name of Gowdaiah and his wife Sakamma. There is no whisper in the entire document that said acquisition is for the firm or by the firm. Merely because payment of Rs. 3,60,000/- by way of DD paid under the sale deed emanates from the partnership firm is not sufficient to hold that the said purchase is by the firm or for the firm. More over, total consideration is Rs. 4,30,000/- out of which, Rs. 70,000/- is paid by cash on two occasions and balance amount of Rs. 3,60,000/- by way of DD in the absence of any evidence to show that Rs. 5,000/- on 23.6.1978 by cash and on 24.8.1978 another amount of Rs. 68,000/- as reflected in the documents, there is nothing to show that the entire consideration has flown from the partnership firm.

The best evidence to prove that it is a partnership asset is to produce the accounts of the firm i.e. ledger showing the payment and how the payment is accounted in the ledger. If the payment is accounted towards the share of the partner and then the said consideration cannot be construed as a consideration paid by the firm for acquisition. It is only if the said payment is shown in the accounts books as investment of the firm for acquisition by purchase by the firm or for the firm, the deeming provision in Section 14 is attracted.

In that view of the matter, we are of the view, the evidence on record do not establish that item No. 2 of ''A'' schedule property is a partnership asset. In fact, the trial Court proceeds on the assumption that this property was mortgaged and when the first defendant had discharged the entire loan, and no portion of the loan was discharged by Sakamma, they get no right in the schedule property. Similarly, it held that the said property was brought to sale for recovery of tax dues. It is first defendant who discharged the said debts and plaintiffs or their mother have not paid any amount and therefore, they cannot claim it to be their property. After dissolution, when the property has fallen to the share of the first defendant, it goes to show that it is exclusive one. What the trial Court has failed to notice in this context is, when the firm wanted to borrow money, the said property was mortgaged or offered as a security by Smt. Sakamma. The loan was not discharged. Therefore, the property was under the threat of being brought to sale. As the first defendant who had borrowed the money discharged the loan and the property is saved. There was no obligation on the part of Smt.Sakamma or her daughters to discharge the said loan because it was the loan taken by the firm in which they had no interest at all. Similarly, for the dues of the partnership firm, authorities have brought this property to sale as the property was standing in the joint names of Gowdaiah and his wife Sakamma. Therefore, the authorities attached this property which was standing in the name of Gowdaiah for the dues of the partnership firm and again the first defendant paid the money and saved the property. Again, neither Sakamma nor her daughters were expected to discharge the dues of the Excise Department which was due by the firm to them. This aspect has been completely missed by the trial Court and merely because Rs. 3,60,000/- is paid by the firm and the loan is discharged, dues of the partnership firm are discharged by the first defendant would not make this property of the firm.

Now the next question is, the plaintiffs are seeking a declaration that they are the absolute owners of item No. 2 of ''A'' schedule property on the basis of five gift deeds - Exs. P. 52 to P. 56. The trial Court held that the said property belongs to the partnership firm and Smt. Sakamma is not the owner of the property even though she has executed five gift deeds and got it duly registered. The plaintiffs did not acquire any title in the said property as Sakamma herself had no title. Further, it held execution of five gift deeds by Sakamma in respect of a property which does not belong to her is illegal. If the property did not belong to Sakamma and if the property is of the partnership firm, certainly the gift deeds would not convey any title to the plaintiffs. But we have already recorded a finding that this property is not the property of the firm. If that is so, Sakamma is entitled to 50% of the property, as remaining 50% belongs to her husband. Even if she could bequeath the property by way of gift deeds, she could bequeath only her half share and she has no right to give the property belonging to her husband. In so far as the property belonging to her husband is concerned, as he died intestate, his half share has to devolve on all his L.Rs., including Sakamma, first defendant as well as the plaintiffs. Now the question is, whether these gift deeds on which reliance is placed could be taken note of by the Court and had they conveyed title on the plaintiffs.

It is not in dispute, initially, certified copies of these gift deeds are produced. One of the attesting witnesses to the gift deed is P.W. 2. On the day he was examined, the original gift deeds were not before the Court. Therefore his speaking about attesting and identifying the signature of the executant and the other attesting witnesses does not arise. After the production of the original gift deeds which were marked as Exs. P. 52 to P. 56, he has identified his signature, he has also identified the signature of Sakamma. He has also spoken about witness Naganna attesting the document and scribe Subbaiah also affixing his signature. In the entire evidence, he has not deposed that Sakamma executed gift deeds in his presence and that after her execution he has affixed his signature and also that the other witness affixed his signature in his presence. All that has been said is, gift deeds are executed by Sakamma and he can identify her signature. That would not satisfy the proof regarding due execution as contemplated in law. In the cross examination, it has been elicited that he has not put the date after putting his signature in Exs. P. 52 to 56. He also does not know who wrote the contents in the manuscript in page No. 14 in Exs. P. 52 to 56. He also does not know who typed the documents. He also admits that he has not attested near the writings on page No. 4 of Exs. P. 52 to P. 56. The documents were prepared by the Advocate. He signed the documents when everything was prepared. He admits that the second defendant does not know the English language. She has signed in Kannada as she did not know the English language. He also states he cannot identify the signature of Sakamma, if individually shown to him. He can identify the signature only if the signature of Sakamma is found along with his signature. He can identify the signature of Sakamma only if he is allowed to see the whole document and his signature, but not individual pages. He is a family doctor. He has deposed that during 2002 Sakamma was suffering from arthritis and occasionally high blood pressure. In fact on the very same day he has also attested the will said to have been executed by Sakamma. In fact, the trial Court dealing with the aforesaid will - Ex. P. 7 has disbelieved his evidence and has recorded a categorical finding that the will is not duly executed and the evidence do not prove its due execution. As is clear from the aforesaid evidence, it is doubtful whether he saw the executant affixing his signature to the document. All that he could say is Sakamma has executed the will and he has identified her signature as well as his signature as well as the signature of the witnesses and the scribe. That apart, as Sakamma was not the absolute owner and she had only undivided half share, she could not have made a transfer of the entire property by gift deeds. When the property is undivided, when it is not certain what is the share to which she is entitled, she could not have executed a gift deed in respect of the said undivided half portion. The recital in the gift deeds make it clear, she was gifting the property as per the plan annexed to the deed to her other four daughters. The recitals further state that the donor has gifted the donees with exclusive possession of the property to have absolutely and unconditionally for ever. The donor also is accepting the gift with gratitude and satisfaction. As stated earlier, as she was not the absolute owner, she only had undivided half share and under the gift deeds, she has given full property, the recitals in the document do not carry any conviction and therefore the document is vitiated and on the basis of such a document, it is not possible to declare that plaintiffs are the absolute owners of the said property.

In view of the discussion above, item No. 2 of the ''A'' schedule is not the partnership property. Plaintiffs did not acquire any interest in the said property under the five gift deeds - Exs. P. 52 to P. 56. Therefore, the said property remains to be the property of Gowdaiah and Sakamma. Now both of them are dead. Therefore by virtue of Sec. 8 read with Sec. 15 of the Hindu Succession Act, all the Class-I heirs are entitled to equal share in the said property. In that view of the matter, the finding recorded by the trial Court is contrary to the legal evidence on record and cannot be sustained and accordingly it is hereby set aside. It is held, the plaintiffs and the first and the third defendants are all entitled to 1/7th share each in item No. 2 of ''A'' schedule property.

The plaintiffs have propounded the will of Sakamma which is dated 01-07-2002, which is marked as Ex. P. 7. It is also registered, under which they are claiming absolute title to item Nos. 6, 7 and 8 of the ''C'' schedule property. Item Nos. 6 and 7 of the ''C'' schedule property were allotted to the 6th plaintiff Miss Nandini, under the partition deed dt. 14-04-1978 - Ex. P. 1. In so far as item No. 8 is concerned, that was allotted to Smt. Sakamma under the said partition dt. 14-04-1978. Nandini died on 01-10-1995. She was a spinster. Therefore on her death, Sakamma, her mother, succeeded to the said estate. Thus, Sakamma was the absolute owner of item Nos. 6, 7 and 8. It is these properties which were bequeathed to the plaintiff and third defendant under the will - Ex. P. 7. The defendants have categorically disputed the said will. In fact their case is that will is cancelled by Sakamma by executing Ex. D. 1 dt. 24-03-2003, bequeathing the said properties absolutely in favour of the first defendant. Therefore, plaintiffs are claiming title to the properties under Ex. P. 7. First defendant is claiming property under Ex. D. 1. As under the will Smt. Sakamma has included properties - a house in Hosanagar and a petrol bunk which do not belong to her, she cannot bequeath the said property under the will to her daughters. Similarly, she has stated, she has bequeathed 1/2 share in several survey numbers. As there is no partition by metes and bounds, the bequest of half share is also void. Therefore, the said will - Ex. P. 7 was not taken into consideration. However, in respect of item Nos. 6, 7 and 8, there is yet another will executed by Sakamma in favour of first defendant as per Ex. D. 1. In the said will, it is recited that she has executed a will on 01-07-2002 and got it duly registered and by executing Ex. D. 1, she is cancelling the said will and Ex. D. 1 is her last will and testimony. In fact she has also stated therein that she had executed earlier will dated 09.08.1990 which is also duly registered, which also stood cancelled. From this recital it is clear, she had executed two wills earlier and by cancelling the said wills, she has executed Ex. D. 1. The will makes it clear that the property is bequeathed in favour of her only son, the first defendant. In order to prove this will, the defendants have examined D.W. 2.

He is one B.S. Shamsundar, a resident of Hassan. He has deposed that he is a family friend. Smt. Sakamma sent words to him that he has to witness her will. She told him that she has called a lawyer by name Vijaya to draft a will. The lawyer took instructions on paper. He also accompanied the lawyer to get it typed and she got it typed. Thereafter, they returned to the residence and contents of the will were read over and handed over to the testator - Smt. Sakamma. She also read over and signed the will in his presence and the presence of another witness by name Smt. Seema. After the signature of Smt. Sakamma, he signed the will as witness. He also signed in the presence of all the four persons who were all present in the whole process of execution of the will, which is in Kannada language containing four sheets. Under the will, Smt. Sakamma has given the properties to first defendant. She signed the will after satisfying by reading. Further in the examination-in-chief it was elicited that she was aged about 80 years at the time of executing the will. Her husband was thoroughly associated with him and he was frequently going to Sakamma''s house. He has identified the signature of Sakamma and also his signature and also the signature of another attesting witness. In the cross examination, he has given the particulars of the children of Sakamma, but he does not remember their names. He also does not remember the names of their husbands. He does not know where exactly the six daughters are residing at Bangalore. He does not remember in which place the marriages of the daughters took place and how many children they have. He has denied the suggestion that he is not a family friend. He does not know whether Smt. Vijaya, an Advocate who drafted the will was practicing. He also does not know where her Office is. He does not remember the name of the other attesting witness, his address and avocation. The other attesting witness was also a woman. After signing the will, he left that place. He denied the suggestion that due to old age, Sakamma was not in a position to affix her signature. He does not know whether the properties which were bequeathed, belongs to her or her husband. He admits, at the time of execution of the will, Sakamma was residing at Sadashivanagar in her house. She was residing in Bangalore for about 25 to 26 years. There was a separate rough draft instructions given to the Advocate by Sakamma. The will was typed in the house of Sakamma. After going through the contents of the typed will, Sakamma put her signature on the document. He has also gone through the contents of the typed matter and put his signature. He denied the suggestion that Sakamma was an illiterate lady and she did not know how to read and write in Kannada language. He was doing finance and real estate business at Hassan. At Hassan, the son of Sakamma, Narayana Gowda was residing. The stamp paper was brought by Sakamma. He does not know when it was purchased. He has denied that the signatures on the will are not that of Sakamma. He has denied the suggestion that he has assisted the first defendant in concocting the said document.

From the aforesaid evidence, it is clear Sakamma was aged 80 years. She was residing in Bangalore, whereas the witness was residing at Hassan. The first defendant Narayana, the son of Sakamma was also a resident of Hassan. The witness is in the business of finance and real estate. If Sakamma was residing at Bangalore for the last 25 to 26 years and if she is executing a will, in the normal course, she would have requested any one of the persons in Bangalore to be the attesting witness. It is not as if that D.W. 2 has any special acquaintance with Sakamma. He was acquainted with her husband and the husband having died nearly more than 15 years back, and he being a resident of Hassan, would be more acquainted with the first defendant than with Sakamma. In examination-in-chief, he has deposed, after taking instructions from Sakamma, he went along with the Advocate Smt. Vijaya to get it typed and brought the draft back. Whereas in cross examination he has deposed, the will was typed in Sakamma''s house. It is in this background, we have to appreciate whether Ex. D. 1, the will propounded by the defendants stood proved. Apart from proving execution of the will in accordance with law, the propounder of the will in order to succeed in his case has to also establish that the executant of the will was in a sound state of mind at the time of execution of the will. Secondly, if there are any suspicious circumstances surrounding the execution of the will, the propounder has to remove such suspicious circumstances. It is well established legal position that a will comes in the way of natural succession. If the legal heirs who would have succeeded to the estate are excluded from inheriting the property, such a circumstance would constitute a suspicious circumstance which the propounder has to remove.

Learned Senior Counsel for the appellants Sri. Yoga Narasimha contended, by way of an additional affidavit, they have produced the will of 1990. In the 1990 will, Sakamma had bequeathed her property in favour of all her children. Subsequently by a Codicil, first defendant was disinherited. As the first document was not produced before the trial Court, question of looking into the said document would not arise unless the application for additional evidence is allowed. But Ex. P. 7, the will dt. 01-07-2002 is before us. Under the said will she has bequeathed the property in favour of her daughters and she has not given any property to her only son. By executing Ex. D. 1, she cancelled the said will. Ex. D. 1 is dt. 24-03-2003 roughly a year after execution of Ex. P. 7. If under Ex. P. 7 son is excluded and daughters are given the property and after one year the daughters are excluded and son is given the property, it is for the propounder of that will to explain by acceptable evidence the reasons for such exclusion of the daughters. No evidence is forthcoming in this regard.

The plaintiffs while adducing evidence to prove Ex. P. 7, have deposed that Sakamma was in a sound state of mind when Ex. P. 7 and Exs. P. 52 to 56 were executed. The attesting witness to this document, the family doctor also has spoken about it. The L.Rs. of the first defendant who filed additional written statement attacking the said will have categorically stated in para 4 that the alleged will dt. 01-07-2002 was obtained by misrepresentation, fraud and undue influence when the deceased Sakamma was in a very weak health and entirely under the control of fifth defendant and was not in a sound state of mind. However, subsequently when she came to know of the will dt. 01-07-2002, she immediately took steps to rescind the said will and executed a fresh will in favour of her son, the deceased defendant No. 1. If these statements were to be true, that on 01-07-2002 Sakamma was in a very weak health and was not in a sound disposition of mind, when Ex. D. 1 was executed on 24-03-2003, after eight months, we cannot expect her health to improve and for her to acquire a sound disposition of mind. If there is such an improvement, the propounder has to prove by acceptable evidence, at least by examining a doctor regarding her health condition and sound state of mind. No such attempt is made. She was aged 80 years and the conduct of the lady throughout is clear that at any rate, she had no intention of disinheriting her daughters. The subsequent registered documents which have come into existence, clearly demonstrate, taking advantage of her old age, probably both the daughter and son have competed with each other in obtaining documents in their favour. Therefore the evidence on record does not establish due execution of Ex. D. 1. If the averments in the additional written statement of the L.Rs. of the first defendant is to be believed, she was not in a sound state of mind and she was not in good health on the date she executed Ex. D. 1, the suspicious circumstance of disinheriting of her property is not properly explained by the propounder. In the facts of the case, we are satisfied that the so called bequest is unnatural and it comes in the way of lawful inheritance of the property. These aspects have not been properly considered by the trial Judge. The trial Judge proceeded on the assumption because D.W. 2 was examined, his evidence proves the execution of the will. The Court below has not considered the inconsistencies in the answers which he has given on cross examination, on material aspects. If we look at the signature of Sakamma, probably she has learnt only to put her signature. Beyond that she is not able to read, write or understand what is written. The evidence of D.W. 2 is, she is illiterate, she does not know to read and write and without understanding the contents, she has affixed her signature, which evidence is contrary to the documentary evidence which is produced by way of a will. Because in the cross examination, DW 2 is unable to answer regarding the unsoundness of the mind of the testator and her health condition. The trial Court believed that she was in a sound state of mind. When the propounder is putting forth a will, that is for him to prove by acceptable evidence that the testator was in a sound state of mind as she was in good health. The testator has not discharged his burden and therefore the question of plaintiff''s Counsel eliciting answers is totally irrelevant. The trial Court has not properly appreciated the evidence on record and has erroneously come to the conclusion that the will - Ex. D. 1 is proved, which finding cannot be sustained in the light of the legal evidence on record. Accordingly, the said finding is hereby set aside.

POINT No. 5:

The learned Counsel for the plaintiffs - respondents submitted, on the day the suit was filed, Sakamma was alive. Nandini was the sixth plaintiff. Suit is one for partition. Only ''A'' and ''B'' schedule properties were included in the schedule. Therefore, all that the plaintiffs are entitled to would be a share in the properties which are mentioned in the original schedule. In so far as other properties which are included, in respect of which no decree is passed, are the properties which belong to the 6th plaintiff - Nandini and the 2nd defendant - Sakamma. As they were very much alive on the date of the suit, the plaintiffs were not entitled to a share. No doubt the plaintiffs could not have filed a suit against Nandini or Sakamma for partition of their respective properties during their life time. That is the reason why they were not included in the schedule, but they were made parties to the suit. When Nandini died during the pendency of the proceedings, by virtue of Sec. 16, Sakamma inherited the property of Nandini exclusively. When Sakamma died, the properties belonging to Nandini and Sakamma were included in the plaint and relief of partition is sought even in respect of the said property. Therefore, as all the persons who are entitled to a share in the property of Sakamma were already on record and on the death of Sakamma as her properties were included in the plaint, as the claim for the said property is purely by inheritance or on the basis of wills and gift deeds, it was permissible for the plaintiffs to seek relief even in respect of the said properties and the Court was also justified in granting the relief. Therefore, on that ground it cannot be said, the suit in respect of the said properties is not maintainable.

POINT No. 6:

Defendant No. 1 contended that item No. 2 of the plaint ''A'' schedule property is the partnership firm. On dissolution, he became the absolute owner. It is his case that during the pendency of this appeal, on the death of Sakamma, the plaintiffs have forcibly occupied the said property. Two of the plaintiffs are residing in two different portions and the remaining portions are all let out and they are collecting rents. Therefore, he sought for a counter claim, seeking relief of delivery of possession.

The plaintiffs have filed a written statement and contested the claim. In fact, no issues are framed in this regard. However, this appeal being a continuation of the suit, as both the parties have urged their respective contentions, the Court has to consider whether the first defendant is entitled to the relief of delivery of possession as put forth in the counter claim. If the property is a partnership property and the plaintiffs are in unauthorized occupation, then certainly, the first defendant being the owner of the property and is not in possession and the person in possession had no title, the first defendant was entitled to a decree for possession based on title. But in the instant case, we have already recorded a finding that item No. 2 of the ''A'' schedule property is not the property of partnership firm. Therefore, the properties belong to Gowdaiah and Sakamma, on the death of Gowdaiah and Sakamma and in view of our finding that the two wills and the five gift deeds on which reliance is placed are all not proved, the said properties devolve on the legal heirs of Sakamma and Gowdaiah under Section 8 read with Section 15 of the Hindu Succession Act. The Class I heirs of the plaintiffs are the daughters and son who is deceased and his wife and children are brought on record. They constituted Class I heirs who are entitled to succeed to the estate of both Sakamma as well as Gowdaiah in equal share. In other words, plaintiffs and third defendant would be entitled to 6/7th shares and the first defendant would be entitled to 1/7th share in the said property. In that view of the matter, the question of preferring a counter claim asking the plaintiffs to deliver possession of the schedule property to the first defendant would not arise and the counter claim stands dismissed.

The trial Court while decreeing the suit has granted 1/7th share in ''C'' schedule property in respect of item Nos. 1, 2 and 9 to 12. In respect of other properties, when it is admitted that all of them are entitled to a share, no decree is passed. That also requires to be corrected.

POINT No. 7:

The appellants have filed I.A.I/2012-an application under Order 41 Rule 27 CPC for permission to produce additional evidence. They wanted to produce 21 documents. Most of these documents were relied upon to demonstrate that item No. 2 of the ''A'' schedule property is a property which exclusively belongs to Sri. Gowdaiah and Sakamma and the same is not the partnership asset as claimed by the first defendant. The other documents relied upon was Wills executed and a Codicil to show that Sakkamma had disinherited first defendant. As discussed earlier, we have recorded a categorical finding on the basis of the documents which are marked in the case that item No. 2 of ''A'' schedule is not a partnership property. It is a property exclusively belonging to the plaintiff''s father and mother. Therefore, these additional documents on which reliance is placed by the appellant is not necessary. Even without those documents as we have recorded a finding in favour of the appellants, it is wholly unnecessary to allow this application for additional evidence and accordingly it is dismissed.

In that view of the matter, we pass the following order:

The appeal is partly allowed.

The suit in respect of item No. 1 of ''A'' schedule and ''B'' schedule property is dismissed and the decree of the trial Court is affirmed in that regard.

In item No. 2 of ''A'' schedule and in all ''C'' schedule properties, plaintiffs 1 to 5 are entitled to 1/7th share each. The first defendant as well as the third defendant are also entitled to 1/7th share each.

The counter claim filed by the first defendant is hereby dismissed. It is open to the defendant No. 1 as well as 3 to pay requisite Court fee on their written statement and seek for declaration of their 1/7th share. There would be no decree for mesne profits.

Parties to bear their own costs.