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Judgment
Plaintiffs in OS. No. 33/1992 on the file of Civil Judge, Bangalore Rural District are challenging the judgment and decree dated 31.3.1997. wherein the suit of Plaintiffs for partition of the suit schedule properties and granting 1/5th share to each of them as claimed in the suit is dismissed. The parties to this appeal are referred to by their rank in the court below.
Brief facts leading to this appeal are as under:
Plaintiffs 1 to 3 are sisters. 1st Defendant is their brother and 2nd Defendant is their sister. They contend that Plaintiffs and Defendants being the children of late K.C. Govindappa constitute themselves a joint Hindu Undivided Family. The suit schedule properties originally belong to their father late K.C. Govindappa, who died intestate leaving him surviving Plaintiffs and Defendants 1st Defendant being the only male member, he is managing the properties left behind by their father. One of the suit schedule properties is in occupation of 1st Plaintiff for over 20 years prior to filing of the suit. It is their case that the joint family properties left behind by their father is not divided and the same remained as joint family properties, each of them have share in the said properties. 1st Defendant Is acting detriment to their interest and Is refusing to give them their legitimate share in suit schedule properties inspite of repeated requests. It is their case that whenever there was demand for partition of suit schedule properties, 1st Defendant went on postponing the same. He did not decline share to Plaintiffs at any point of time. However, when they made an attempt to seek partition in January 2002, 1st Defendant declined to give any share to Plaintiffs in the suit schedule properties. Hence, they filed present suit for partition of suit schedule properties by metes and bounds and for grant of their respective share in the said properties.
In the said suit initially along with plaint two application were filed. In one application they had sought for an order of permanent injunction restraining 1st Defendant from alienating any of the suit schedule properties. In another application filed under Order 39 Rules 1 and 2 they sought for permanent injunction restraining 1st Defendant from interfering with peaceful possession and occupation of one of the suit schedule properties by 1st Plaintiff. To the said applications 1st Defendant filed objections personally on 2.7.1992. Thereafter. 1st Defendant died on 14.8.1992. On an application by Plaintiffs the legal representatives of 1st Defendant i.e., his widow, Anandamma and his married daughter, K.G. Nirmala came on record as Defendants 1(a) and 1(b). They filed their written statement on 18.6.1993 contending that all the properties mentioned in suit schedule are not the properties of late K.C. Govindappa, Plaintiffs did not succeed to any of the properties left behind by late K.C. Govindappa as averred in the plaint. 1st Defendant is the only brother of Plaintiffs, but he was not managing the properties left behind by Govindappa for and on behalf of Plaintiffs. 1st Defendant was enjoying the properties in his own right and after his death they are in enjoyment of said properties in their own right. On humanitarian grounds 1st Plaintiff was allowed to continue in occupation of one of the properties by 1st Defendant out of love and affection towards his sisters and not with an intention to create any right. After the death of Govindappa question of division did not arise for consideration, as they were not the joint family properties. Neither Plaintiffs nor 2nd Defendant have any right or title to the suit schedule properties.
Defendants 1(a) and 1(b) also took-up a stand to the effect that late Govindappa was not keeping good company, he had developed intimacy with another women. Hence, he was sent out of his father''s family by giving him some paltry properties after he executed a release deed in favour of his father. Thereafter, Govindappa was driven out of the family by his father, his fattier kept his daughter-in-law and all the children of Govindappa with himself. Subsequently, 1st Defendant joined his father, both father and son together earned properties. Though Govindappa belongs to Devanga community he had abandoned the family trade long ago and both of them were doing their own trade and there was no mixing of earning of each of them, they were carrying on their own trade independently. After some time, Govindappa entered politics and became Town Municipal Council President of Doddaballapur Town. After joining politics he abandoned all his trade. There was no trade capital with which he was carrying on business and there was no good will and no assets that were passed on to his son. 1st Defendant continued business on his own, which his father was doing earlier. In addition to that, he also had independent businesses.
Subsequently. Govindappa passed away in 1956. At the time of his death, properties that were possessed by him were only item Nos. 1, to 3, 11 and 12 of suit A schedule. Out of them, suit schedule item Nos. 1 to 3, were useless properties, which were not practically of any use to anybody. It is only in 1989 1st Defendant out of his own earning constructed a complex on one of those properties, which is exclusive property of 1st Defendant. It is their case that other properties are self acquired properties of 1st Defendant. One of the properties shown in suit A schedule is the property that was acquired by 1st Defendant personally in the name of his wife Anandamma i.e., Defendant 1(a) as he had utilised the jewels belonging to his wife for his trade. 1st Defendant gave the said property to his wife in the year 1970. It is their case that in suit schedule item Nos. 1 to 3, 11 and 12 which were joint family properties of late Govindappa, 1st Defendant had half share in that. The remaining half share in the said properties were given away by Govindappa in favour of 1st Defendant under a Will. Therefore, he has become the absolute owner of said joint family properties.
It is also their case that late Govindappa left lot of debts which exceeded the value of assets bequeathed to 1st Defendant under Will. It is their further case that the buses which are referred to in suit B schedule were belonging to 1st Defendant, which were his self acquired property. The said buses by themselves are not assets unless they are coupled with permits. Permits are standing in the name of 1st Defendant, as such they are the absolute properties of 1st Defendant and the Plaintiffs did not have any share in that Further the buses, which were possessed by their father were sold by him long ago as they have become old and scrap. It is also contended that power looms mentioned in suit schedule properties belong to Defendant 1(a), as she is from weaving family she was doing that business by herself. She was running the same on her own and out of her self-exertion she was managing the said business. Since the said looms became old, she sold the same in the year 1975 and all other properties which are shown in suit C schedule are her absolute properties and are her Sthree Dhana properties.
7, It is also their case that tenants are unnecessarily made as parties and suit against them should be dismissed. In effect, they denied status of joint family and suit schedule properties as joint family properties. They set up a claim that only half portion of some of the suit properties were jointly held by 1st Defendant and his father Govindappa. After the death of Govindappa, by virtue of the Will executed by him, 1st Defendant became absolute owner of Govindappa''s share also.
With these pleadings, the court below proceeded to frame the following issues;
1) Whether the Plaintiffs prove that the plaint schedule properties are the joint family properties of Plaintiffs and Defendants?
2) Whether the Plaintiff''s prove that they have gut 1/6th share each in the plaint schedule properties?
3) Whether the L. Rs of 1st Defendant proves that deceased Govindappa bequeathed item Nos. 1, 2, 3, 11 and 12 by Will in favour of his son Jagannathappa?
4) Whether the suit is barred by limitation?
5) What decree or order?
Thereafter, matter went into trial, wherein Plaintiff No. 3 got herself examined as PW.1 and her husband K.N. Rudramuniyappa was examined as PW.2. In support of their case Plaintiffs produced and marked in ail 34 documents as Exs.P1 to P34. On behalf of Defendants, Defendant 1(a) Anandamma was examined as DW.1 and they produced in all Exs.D1 to D9. In addition to the aforesaid witnesses and documents marked, Defendants have relied upon Exs.C1 to C6, the documents which were produced and marked as exhibits in Miscellaneous Case No. 94/1957 filed in the year 1957 by 1st Defendant after the death of his father Govindappa for the purpose of securing succession certificate. In addition, the Defendants have also examined 4 witnesses i.e., one DW.2 Swarnavarnachar who is said to be one of the witnesses to the Will said to have been executed by K.C. Govindappa during his lifetime. One D.M. Adinarayana, a document writer who is said to be the scribe of alleged Will was examined as DW.3. One Lakshminarayan who is said to be a signatory to the alleged Will of Govindappa is examined as DW4. One K.G. Dayananda, who is none other than the son-in-law of 1st Defendant and Defendant 1(a). Jagannathappa and Anandamma and husband of K.G. Nirmala, Defendant 1(b) was examined as DW.5.
The sum and substance of the evidence of Plaintiffs is more of less reiteration of the averments made in the plaint. K.C. Govindappa constituted a joint hindu family along with his son. 1st Defendant and daughter i.e., Plaintiffs and 2nd Defendant. All the properties in the suit schedule are the properties, which were acquired by father of Plaintiffs and Defendants out of (he business that he was carrying on during his lifetime. Said business was commenced by their father from out of the nucleus of joint family funds which fell to his share when he got released himself from the joint family of himself and his father, Chowdappa and his other brothers by executing a release deed on 5.5.1930 wherein he received a sum of Rs. 500/- and jewels to his share. He commenced his business in Jawali with the said amount in 1930. Thereafter, he also did other business in selling petroleum products, running transportation business, running looms and various other businesses with which he acquired suit schedule properties, which were available with him at the time of his death. It is also the case of Plaintiffs that since their father had taken another women in marriage he was living separately and themselves and Defendants 1 and 2 along with their mother continued to live with their grand father. Their brother 1st Defendant was not doing any independent business, he was assisting his father in petrol bunk business, in running the buses and other business that was carried on by their father. At the time when their father died, 1st Defendant was already married and after the death of their father 1st Defendant continued all the businesses for and on behalf of the children of Govindappa. Govindappa died intestate. He had not executed any Will during his lifetime.
It is also their case that immediately after the death of their father, 1st Defendant filed petition in Misc. No. 94/1957 for the purpose of securing succession certificate. In the said proceedings, no notice was issued to Plaintiffs. In the said proceedings along with 1st Defendant, Plaintiffs grand father Chowdappa was also a party to the said proceedings and both of them stated that Govindappa died intestate. The succession certificate was sought in respect of money due to the estate of Govindappa from State Bank of Mysore. According to them, this dearly discloses that there was no Will in existence as could be seen that both 1st Defendant and their grand father together stated so in the said miscellaneous petition. At the time of death of their father petrol bunk was running well and there was huge income of about Rs. 10.000/- per day from the said business and their father had left more than Rs. 5,00,000/-cash and had left all the buses and suit schedule item Nos. 1 to 3 was already standing in the name of their father. According o them, suit schedule item Nos. 1 to 3, 11 and 12 were the properties acquired by their father during his lifetime. Item Nos. 4 and 5 were acquired by 1st Defendant from out of the income derived from the aforesaid properties. Item Nos. 6 and 7 are also acquired by 1st Defendant from out of the joint family income and given to his wife. Item No. 8 was purchased by 1st Defendant in the name of his daughter Defendant 1(b) and item No. 9 was purchased by Plaintiffs father during his lifetime in the name of his second wife Lakshminarasamma. Item No. 10 being petrol bunk, initially it was in the name of their father, after his death, it is transferred to the name of 1st Defendant. Item Nos. 11 and 12 were in the name of their father. None of these properties are acquired by 1st Defendant from out of his own income and all these properties which are acquired by him in his name and in the name of his wife and daughter are the joint family properties in which they have a share.
Against this, legal representatives of 1st Defendant have given evidence admitting relationship between Plaintiffs and Defendants. They denied existence of joint hindu family between Plaintiffs and Defendants. According to DW. 1, she got married to 1st Defendant in the year V959 when she was aged about 13 years. By that time, Plaintiffs and 2nd Defendant were already married. They were residing in the house of their respective spouses. From (he day of her marriage Govindappa was in politics. Govindappa was president of the Town Municipality. He was not doing any business. Since Govindappa was In politics the employees were looking after the petrol bunk. It is her case that after her marriage her husband was managing the affairs. He was also doing business in petrol and kerosene. At that time there were no buses in the family. She is not aware whether there were buses in the family or not prior to her marriage. That her husband was doing business by himself by borrowing money and Govindappa had left only three properties when he died. He had also left a loan of Rs. 50.000/- and the licence of petrol bunk business which he was running v/as cancelled after his death and the place in which petrol bunk was running was belonging to municipality.
After the death of Govindappa her husband started business in his name by taking a separate licence. Therefore, the business of petrol, kerosene which was run by her husband was their independent property and it is not the property of her father in law Govindappa. The said business was run by her husband from out of the money he had borrowed. Herself and 1st Defendant had two children. Out of them one was son and another was daughter. Son died due to heart problem and it is only daughter who survived and continued to live with them. After the death of Govindappa 1st Defendant was managing the business by himself and out of the income that he has earned from the said business he acquired suit schedule item Nos. 4 to 10 which are their exclusive and independent properties. Neither the Plaintiffs nor 2nd Defendant have any share in that. The looms in The family were given to by her parents, with that she was running the business in looms and the income derived from that was invested in acquiring the properties, in her name by her husband. All the jewels that is stated in suit c schedule and silver articles were given to her by her parents and the buses which were run during the days of Govindappa having become old and not being roadworthy were disposed of as scrap. There is nothing available to Plaintiffs for partition. When 1st Defendant attained 30 years his maternal aunt Anasuyamma in the presence of all the relatives announced that Govindappa during his life time had executed a Will and had kept the said Will with Anasuyamma with instruction that it should be given to 1st Defendant after he completes 30 years. On the said day It was given to Mm by said Anasuyamma in the presence of her father Chowdappa which was given by her to her nephew in the presence of her father who is also father of Govindappa and grand father of 1st Defendant. It is her case that when said Will was given Plaintiffs and 2nd Defendant were also present at that time. In support of the said Will, they have examined the so-called witnesses to the said Will i.e., Swarnavarnachar and another Lakshminarayana, D.M. Adinarayana said to be the scribe of the Said Will and K.G. Dayananda who is husband of Defendant 1(b) and son in law of 1st Defendant and Defendant 1(a).
The evidence of DW.5 K.G. Dayananda is that, he was friend of Govindaraju s/o 1st Defendant and Defendant 1(a) and brother of Defendant 1(b). He knows about the family of Govindappa from his younger days being close friend of Govindaraju and as husband of his sister Defendant 1(b). According to him, entire business of transportation i.e. running and managing 12 route buses and 12 local buses, business of petrol bunk and complex was acquired by 1st Defendant from out of the income he derived by doing business in his individual name. The only properties which were available in the family at the time of death of Govindappa were: three sites i.e. item Nos. 1 to 3 and two properties in Bangalore i.e., item Nos. 11 and 12 in suit A schedule. Said properties were the properties of joint family of Govindappa and rest of all properties are acquired by his father in-law from out of his business. According to him, the buses, which were run by 1st Defendant were his self acquired properties. Power looms were belonging to his mother-in-law and gold and silver articles were given to his mother-in-law by her parents in her wedding, it is also his case that since entire suit A schedule item Nos. 1 to 3, 11 and 12 being the joint family properties Govindappa had 50% share in that and his son. 1st Defendant had 50% share as members of the joint family. In view of the Will executed by Govindappa during his life time 1st Defendant has become absolute owner of all the properties and therefore, Plaintiffs and 2nd Defendant does not have any share.
So far as issue Nos. 1, 2 and 5 are concerned they deal with whether the suit schedule properties are the joint family properties, whether Plaintiffs have 1/6th share in the joint family properties and whether the suit is barred by limitation. Issue Nos. 1 and 2 are concerned the court below based on the pleading, oral and documentary evidence available on record by answering them in the negative has held that suit schedule properties are not joint family properties of Plaintiffs and Defendants, hence, the Plaintiff''s do not have 1/6th share in the said properties. So far as limitation is concerned, the court below held said issue in favour of Plaintiffs i.e., the suit is within the period of limitation. Coming to issue Nos. 3 and 4 which were framed against 1st Defendant so far as item Nos. 1 to 3, 11 and 12 of suit A schedule, the court below held that they are the only properties of joint, family and in view of execution of Will by Govindappa bequeathing the same in favour of 1st Defendant, 1st Defendant is the absolute owner of the said properties, accordingly, said issues were held in the affirmative, Consequently, the suit of the Plaintiffs v/as dismissed.
Being aggrieved by the same, the present appeal is filed on the ground that the judgment and decree passed by the court below is erroneous and unsustainable on facts, there was no proper appreciation of evidence i.e., 1st Defendant being not employed anywhere and having no independent source of income acquired properties other joint family properties i.e., suit schedule item Nos. 4 to 8 and 10. Similarly, his wife and daughter also had no independent income. Therefore, they could not have purchased any of the suit schedule properties in their name as their personal properties, which the court below has not looked into. There is error on the part of the court below in not taking into consideration the admission made by 1st Defendant in the miscellaneous proceedings initiated by himself and their grand father u/s 372(1) of the Indian Succession Act, wherein both himself and his grand father have stated that Govindappa had died intestate. Court below has not looked into the fact that all the properties which are acquired from out of the joint family funds are being enjoyed by third parties. The Plaintiffs and 2nd Defendant being the children of K.C. Govindappa having legitimate share in the suit schedule properties are denied of the same. There is also an error on the part of the court below in appreciating the evidence and answering issues 1 and 2 against Plaintiffs and 3 and 4 in favour of Defendants, which has resulted in miscarriage of justice.
This Court on securing the entire records of the trial Court on going through the findings of the court below on all the issues and also the grounds urged in this appeal is of the opinion that the following points arise for consideration in this appeal.
1) Whether the court below was justified in holding that suit schedule item Nos. 4 to 10 are the self acquired properties of Defendants 1, 1(a) and 1(b)?
2) Whether the court below was justified in accepting the alleged Will dated 3.11.1956 as the Will executed by Govindappa during Ms life time and in the said Will the undivided share of K.C. Govindappa in suit ''A'' schedule item Nos. 1, 2, 3, 11 and 12 of suit were bequeathed in favour of 1st Defendant?
Heard the Counsel for Appellants and Respondents, perused the pleadings, oral and documentary evidence available on record and the grounds of appeal with reference to the findings of the court below while dismissing the suit. On reappreciation of the pleadings, oral and documentary evidence in the light of the grounds urged in the appeal and as well as the findings of the court below this Court answer the aforesaid points for consideration in the negative for the following reasons.
The fact that Govindappa is one of the sons of Chowdappa is not in dispute. It is also not in dispute that said Govindappa was separated from the joint family of his father in the year 1930 by executing a release deed in favour of his father giving up all his right, title and interest he had in the Joint family of his father by accepting a sum of Rs. 500/- and some jewels under the said release deed. As on the date when he executed the release deed on 5.5.1930 Plaintiffs 1 o 3 and Defendants 1 and 2 were born to said Govindappa with his marriage to his wife Puttachowdamma. It is also an undisputed fact that said Govindappa had taken 2nd wife by name Lakshminarasamma from a different community and as such, after taking his share he was living separately along with second wife. It has come in the evidence that though he was living separately with second wife the relationship of father and children that is between Govindappa and Plaintiffs, Defendants 1 and 2 was cordial and was continuing as they were interacting together. It is also not in dispute that Govindappa initially started jawali (cloth) business.
Thereafter started business in sale of petroleum products. He was running bus service and carrying on business in weaving. Over a period of time he stepped into politics and became President of Doddaballapur Town Municipality. It is also not in dispute that his son 1st Defendant joined him and both of them were carrying on said business. It is admitted that during his life from out of the income generated from his business Govindappa purchased item Nos. 1 to 3, 11 and 12 of suit A schedule properties in his name. However, the disputed facts are that in the suit Plaintiffs haw taken a specific contention that 1st Defendant did not have any avocation of his own, he was not doing any independent business, he was assisting his father in the business which was started by his father and continued by him after his father entered politics. As Govindappa became busy in politics all his business activities were carried on by 1st Defendant even during the lifetime of Govindappa. It is the case of Plaintiffs that business of weaving and running petrol bunk which were commenced by Govindappa was continued by 1st Defendant after the death of Govindappa in the year 1956. It is also their case that their father had left huge sums of money at the time of his death, from out of which 1st Defendant purchased properties in his name, in the name of his wife and daughter, i.e., Defendants 1(a) and 1(b). It is their case that neither 1st Defendant nor Defendants 1(a) or 1(b) had any independent income of their own or any independent business. All the properties that are standing in their name fire purchased from out of the income generated by business run by their fattier Govindappa during his lifetime Therefore they have equal share in all the suit schedule properties. In support of their case they relied upon the following decisions;
1) Shamarao V. Parulekar Vs. The District Magistrate, Thana, Bombay and Others,
2) Kalyan Singh Vs. Smt. Chhoti and Others,
3) Sri. S.B. Ittigi and Smt. Leelavathi Mahale Vs. Smt. S.V. Sulochana, Mahantappa Karibasappa Kalligud, Whannamallappa Sharanappa Kalligud and Sharanappa Karibasappa Kalligud,
Per contra, Defendants contend that Govindappa during his lifetime had borrowed huge sums of money as loan for running business, there were no buses as on the date when he died, the petrol bunk that lie was running was on a land taken on lease from municipality and the licence given to run the petrol bunk was cancelled after his death, 1st Defendant secured fresh licence in his name and started business, he purchased buses from out of his own funds and started running the same, the buses which were become old were sold as scrap, the business of running looms was started by Defendant 1 (a) as the said looms were given to her by her parents, she was running that business, she earned substantial income, from out of the income derived from running looms she purchased some of the properties of suit A schedule Item Nos. 4 to 10 in her name and also in her daughter''s name. However, Defendants have agreed that deceased Govindappa and 1st Defendant constituted joint Hindu Undivided Family and suite schedule item Nos. 1 to 3, 11 and 12 are the properties of joint family. They also contended that in the said properties 1st Defendant had 50% share and Govindappa had 50% share as members of joint family. But the fact that Govindappa during his lifetime had executed a Will on 3.11.1956 bequeathing his share in the joint family properties in favour of 1st Defendant as such after his death 1st Defendant has become absolute owner of the said properties. Therefore the Plaintiffs have no manner of right to seek share in suit properties. In support of their case they relied upon the following decisions:
1) Ramappa Basappa Palled Vs. Smt. Basava,
2) Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others,
Rammi @ Rameshwar etc. Vs. State of Madhya Pradesh,
Now coming to the evidence available on record it clearly discloses that from 5.5.1930 i.e., the day when Govindappa got separated from joint family of his lather Chowdappa till his death on 10.11.1956 he was independently doing various business right from cloth business in 1930 which later developed into running of private buses, petrol bunk and also running of looms. Admittedly the business was commenced with the nucleus of fund provided by his father when he executed release deed in favour of his father by accepting Rs. 500/- and gold jewelry-It is also admitted that 1st Defendant was assisting his father in doing business in petrol bunk and other business there is nothing on record to establish that he was doing any business independently other than the business which his father started. In some places Defendant 1(a), Anandamma says that after the death of her father-in-law 1st Defendant continued to do his business and as well as business of his father and earned some of the properties from out of his own earning In another place she says that business was started by her husband independently. To show that 1st Defendant had independent business there is nothing on record. On the contrary, all the evidence that is available on record shows that after the death of Govindappa 1st Defendant continued his business. Similarly, though Defendant 1(a) has stated that the power looms were belonging to her that the same was given to her by her parents there is nothing on record to support the same. On the contrary, it has came in the evidence of Plaintiffs and also cross examination of Defendants'' witness that Defendants 1(a) is not from affluent family. Her parents were not well to do to provide with power looms and large quantity of jewelry and gold as stated by her. Therefore, there is no truth in the pleadings and evidence of Defendants 1(a) and 1(b) that Defendants 1(a) was given power looms and gold jewelry by her parents. That she was independently running power looms and earned income from out of that and helped her husband with the said funds, are not established with reasonable and acceptable evidence.
It Is seen that immediately after the death of Govindappa in the year 1956 miscellaneous case is filed by 1st Defendant for securing succession certificate. In the said proceedings he had arrayed his grand-father Chowdappa and his uncles Chikkabasavaiah and Puttaiah and other members of the family including Plaintiffs as Respondents to the said proceedings. He has initiated said proceedings stating that his father died intestate. The order sheet of said proceedings is produced in this proceedings as exhibits. Certified copy of notices, surety affidavits and surety bonds are also produced and marked in this proceedings which clearly disclose that as on 1957 when the proceedings were initiated by 1st Defendant there is no reference to Will. Incidentally 1st Defendant''s aunt Anasuyamma who is said to be the custodian of Will is one of the Respondent in said miscellaneous proceedings Though said Anasuyamma participated in said proceedings she did not say anything about the Will being executed by her brother, Govindappa during his lifetime and giving it to her for safe custody. She silently participated in the said proceedings which culminated in issuing of succession certificate in favour of 1st Defendant to receive a sum of Rs. 14,000/- which was lying with State Bank of Mysore.
It is interesting to notice that as on the date when suit was filed by 1st Defendant, 1st Defendant was alive, summons was duly served on him. He entered appearance through counsel in the said proceedings. Infact 1st Defendant filed statement of objections to two of the applications which were filed by the Plaintiffs under Order 39 Rules 1 and 2. In the said objections there is not a whisper about the execution of Will by Govindappa during his lifetime in his favour with reference to his 50% share in the joint family properties. The said objections are filed immediately after the summons was served. In view of the undertaking given by 1st Defendant that he has no intention of selling any of the properties no order was passed on the said applications. However, it is seen that subsequently before the written statement could be filed 1st Defendant died. The wife and daughter of 1st Defendant came on record as Defendants 1(a) and 1(b) and filed written statement. Interestingly for the first time they took up contention that during the lifetime of Govindappa he had executed a Will on 3.11.1956 i.e., 7 days prior to his death bequeathing his share in suit A schedule item Nos. 1 to 3, 11 and 12 in favour of 1st Defendant.
Incidentally, 1st Defendant was represented in the suit by different counsel. After his death Defendants l(a) and 1(b) were represented by different counsel. Though in the evidence DW.1 says that her husband during his life time had instructed the Counsel who was representing him regarding the Will that was executed by his father in his favour neither it was mentioned in the statement of objections prepared by said counsel nor the said counsel is examined in this proceedings to say that 1st Defendant during his life time had instructed him to file statement stating that there was a Will executed in his favour. Interestingly, after the death of 1st Defendant for the first time his wife and daughter who entered appearance in the said proceedings through a different counsel have come up with this defence that there was a Will in existence being executed by Govindappa on 3.11.1956 and given to the custody of his sister Anasuyamma with instruction that she should give it to 1st Defendant after he attains the age of 30 years and till such time it should be maintained secretly. The entire pleadings and evidence in support of the said aspect appears to be more cinematic in nature. There appears to be no truth in it. The fact that Anasuyamma is one of the Respondents, to miscellaneous proceedings and though she appeared in the said proceedings, she did not choose to say anything about the Will being executed by her brother during his lifetime. In the said proceedings she accepts the contention of 1st Defendant to the effect that Govindappa died intestate. It is only after the death of 1st Defendant said Anasuyamma along with wife and daughter of 1st Defendant has come up with the theory of Will being executed by Govindappa during his lifetime and which she handed over to 1st Defendant on his 30th birthday. All these clearly go to show that theory of Will being executed, given to Anasuyamma for safe custody with instruction to her to disclose the same after 1st Defendant attains toe age of 30 years are nothing but a figment of lies created by Defendants 1(a) and 1(b) to deny toe legitimate right of Plaintiffs and 2nd Defendant to claim share in toe suit schedule properties. Though Anasuyamma is said to be the person in custody of alleged Will from 3.11.1956 till the date of 1st Defendant attaining majority, Defendants have not chosen to examine her as witness to support the theory of said Will. Though Defendants 1(a) and 1(b) has set up a theory that the Will was executed by Govindappa in favour of 1st Defendant and the same was in the custody of Anasuyamma, said Anasuyamma who was alive as on the date of recording of evidence is not summoned to enter the witness box and support the case of Defendant 1(a) and 1(b).
Coming to the evidence of D Ws.2 to 4, witnesses and scribe which clearly discloses that they are set up for the sake of giving credence to the false document which is created and concocted by Defendants 1(a) and 1(b). The evidence of DW.3 clearly discloses that he was not a very close friend of Govindappa. He was not in touch with Govindappa on day to day basis and was not aware of Govindappa''s business transaction and also the family matters. He is not a person who has any acquaintance to Govindappa and had never visited Govindappa''s house at any time earlier to the day of alleged execution of will. He says that on the date of execution of alleged Will he stayed for the whole night and next day morning in Govindappa''s house and waited for the Will to be prepared. After the Will is prepared he attested the same as a witness. Interestingly at the time of preparing the Will he would not be staying in the house, he will go out to attend his work, later came back and affix his signature as witness. Similarly DW.4 is also not a close associate of deceased Govindappa. His evidence also does not support the case of 1st Defendant. Though both D Ws.3 and 4 who are witnesses to the alleged Will state that they have signed Will in the presence of Govindappa they do not state that they have witnessed the other witnesses signing in their presence and so far as Anasuyamma signing it, it is stated that she was inside the house, her signature was obtained by Govindappa in the house and the same was not executed in their presence. The evidence clearly discloses that there is no truth in the evidence of D Ws.2 to 4 so far as their evidence in respect of Ex.D9, the Will said to have been executed by Govindappa. Therefore, the court below has committed an error in believing the same and accepting that said Will was executed by Govindappa during his lifetime.
Admittedly, Govindappa and 1st Defendant constituted joint family. They had equal share in all the properties of joint family. The suit A schedule item Nos. 1 to 3, 11 and 12 admittedly they are the properties purchased by Govindappa during his lifetime. So far as other items of properties are concerned, m the absence of evidence to show that Defendants 1, 1(a) and 1(b) had any independent business and source of income of their own, the contention that suit schedule item Nos. 4 to 10 are the independent properties of Defendants 1, 1 (a) and 1 (b) cannot be accepted. They are the properties which are acquired from out of the joint family nucleus, i.e., the income derived from the business which was commenced by Govindappa from out of the funds that was given to him by his father, Chowdappa under the release deed dated 5.5.1930.
Therefore, in the suit schedule properties both Govindappa and 1st Defendant had 50% share. In the share which was available to Govindappa, on his death which forms his estate, his children i.e., Plaintiffs 1 to 3, Defendants 1 and 2 have 1/5th share in the Suit A schedule item Nos. 1 to 12. So far as suit B and C schedule properties are concerned, there being no acceptable evidence regarding availability of the said properties and since the Plaintiffs have failed to establish that the said properties are available for partition they are not entitled to get any share in any of the said properties. So for as item Nos. 1 to 12 are concerned, they are the joint family properties. It has also come in the evidence that besides the regular income from petrol bunk, the buses that were run by 1st Defendant, from the power looms business, he was also getting rental income from suit A schedule item Nos. 11 and 12 which are in Bangalore. By utilsing the same 1st Defendant has constructed complex on suit schedule Item No. 1 i.e., Raju complex and income derived from that is also utilised by him for purchase of the other properties. Therefore, all the properties are joint family properties of Govindappa''s joint family consisting of himself and his son, 1st Defendant. In effect out of joint family properties i.e. item Nos. 1 to 12 of suit A Schedule 5/10th share is available to the estate of Late FCC. Govindappa and 1st Defendant has 5/10th share. After the death of Govindappa, from out of the assets available to his estate, Plaintiffs 1 to 3 and Defendants 1 and 2 have 1/10th share each.
Accordingly, Plaintiffs 1 to 3 and 2nd Defendant have 1/10th share, each in suit A schedule item Nos. 1 to 12 and 1st Defendant has 6 shares out of 10 share in suit schedule item Nos. 1 to 12 since 1st Defendant is also dead the same is available to his estate to which his legal heirs i.e., Defendants 1 (a) and 1(b) are entitled to receive the same
Accordingly, in the light of the aforesaid finding arrived at on points framed for consideration in this appeal, the judgment and decree passed by the court below in OS. No. 33/92 dated 31.7.1998 is set aside. Suit of the Plaintiffs is decreed partially holding that Plaintiffs 1 to 3 and 2nd Defendant have 1/10th share in suit A schedule item Nos. 1 to 12 and 1st Defendant represented by his legal representatives i.e., Defendants 1(a) and 1(b) have 6 out of 10 shares in the aforesaid properties. So tar as suit B and C schedule are concerned, Plaintiffs have failed to establish the same as joint family properties. Therefore, no order is passed in respect of the said properties.
Accordingly, the appeal filed by the Plaintiffs is allowed in part with costs