Smt. Vimala Upadhya and Sri. Umesh. K. Upadhya vs Sri. Manju Nath. K. Upadhya and Others <BR> Smt. Saroja Holla Vs Sri. ManjuNath K. Upadhya and Others

B.V. Nagarathna J.

These two appeals are filed against the judgment and decree dated 2.4.2007 passed in O.S. No. 71/2000 by the Civil Judge (Sr. Dn.) at Kundapura. RFA. No. 1553/07 is filed by Defendant Nos. 1 and 3 while RFA. No. 1692/2007 is filed by Defendant No. 6 in the suit.

For the sake of convenience, the parties shall be referred to in terms of their status before the trial court.

The Plaintiff is the scn of one Krishna deva Upadhya, Defendant Nos. 2 and 3 are his brothers. Defendant Nos. 4 and 5 are his sisters, while Defendant No. 1 is his mother. Defendant No. 6 is the purchaser of certain items of the suit schedule property. The suit was filed for partition and separate possession of the suit schedule properties comprising of immovable properties as stated in schedule ''A'' and ''B'' and movables as stated in schedule ''C''.

According to the Plaintiff, Govinda and Vasudeva were the only sons of Srinivasa Upadhya and they constituted a Hindu Mitakshara family which owned certain immovable properties and the same were partitioned between Govinda and Vasudeva by registered Deed of partition 24/6/1920 and under the said deed of partition certain schedule properties were given to the share of the branch of the family of Vasudeva which included Item Nos. 1 to 3, 5, 6, 12 and 17 of the ''A'' schedule properties and ''B'' schedule land was enjoyed by the family of Srinivasa Upadhya as mulgeni right and under the said partition, schedule ''B'' herein was allotted to the share of Sri Vasudeva. That Vasudeva was cultivating the lands which fell to his share and out of the surplus income from the said lands, he had purchased Item Nos. 8 to 11 of ''A'' schedule under two registered sale deeds dated 28/5/1962 and 12/8/1968 respectively, for and on behalf of his family by Vasudeva and that he died intestate in the year 1972 leaving behind two sons namely Ramachandra and Krishnadeva; that Ramachandra was working at Bangalore and Krishnadeva was in the management of the family properties; that Ramachandra had released his undivided half share over the properties in favour of Krishnadeva and his family as per release deed dated 22/8/1984. Thus, Krishnadeva''s family became the absolute owners of the suit schedule lands; that after coming into force of Karnataka Land Reforms Act, 1961 (hereinafter, referred to as the ''Act''). Krishnadeva manager of the family had filed an application for grant of occupancy right over ''B'' schedule land and the Land Tribunal by order dated 28/10/1930 had granted occupancy rights of schedule ''B'' land in the name of Krishnadeva on behalf of the entire family, that Krishnadeva purchased Item Nos. 13, 14 and 16 in ''A'' schedule in the name of the first Defendant by registered sale deed dated 16/6/1980 and that the first Defendant was not the real owner but only a benamidar for Krishnadeva and joint family as the first Defendant did not have any independent source of income to pay the sale consideration; that Krishnadeva entered into an agreement of sale on 5/2/1988 with one Sri Ratnakar Aithal by which Krishandeva derived right, title and interest over Item No. 7 of schedule ''A'' land in lieu of two ether items of land; that Krishnadeva has made deposits in the names of Defendants 1 and 3 in joint stock companies and in bank deposits. That Krishnadeva was suffering from liver cancer for a period of one year prior to his death and the Plaintiff used to take Krishnadeva to KMC Hospital at. Manipal for chemotherapy but Krishnadeva died on 25/7/2004. He died intestate leaving behind the Plaintiff and Defendants 1 to 5 as his only legal heirs; that ten days prior to his death, Krishnadeva on the instigation of Defendants 1, 3 and 4 had transferred Item No. 8 to 11 in favour Defendant No. 6 and Item Nos. 13, 14 and 16 were also transferred by first Defendant in favour of Defendant No. 6 and the same are collusive transactions and Krishnadeva and the first Defendant had no right to alienate the said lands; that the Plaintiff is entitled to his share in the ''A'' schedule lands free of the alienations made in favour of Defendant No. 6 as he is in joint possession in schedule ''A'' and ''B'' lands with Defendants 1 to 5. Schedule ''C'' are moveables in the family house in which the Plaintiff is entitled to his share that after the death of Krishnadeva, Defendants 1 and 3 have been mis appropriating the income of schedule ''A'' and ''B'' lands and have been cutting down trees in the suit lands which have been sold for a sum of Rs. 35,000/-and the same has been misappropriated; that prior to his death, Krishnadeva had executed will dated 16/7/2004 bequeathing schedule ''A'' and ''B'' lands in favour of Defendants 1 and 3 and that the said will was not executed by Krishnadeva out of his free will and therefore is not a genuine one; since the SSP are ancestral properties on the death of Krishnadeva, Plaintiff and Defendants 1 to 5 are each entitled to a share in the schedule properties and on 14/10/2004 the Plaintiff demanded his share from Defendants No. 1 and 3 but the same was turned down and hence, the suit was filed for partition and separation possession of 7/30th share in the suit properties.

On receipt of summons from the trial Court, Defendant No. 1 appeared and filed her written statement disputing the plaint averments and contending that Item Nos. 12 and 17 of ''A'' schedule properties were purchased by Krishnadeva from one Sri Vasudeva Upadhya s/o. Ananthayya Upadhya; that there were no funds and income in the hands of Vasudeva and Krishnadeva himself had invested money to purchase the lands from his own pocket in the name of his father Vasudeva: Vasudeva never cultivated the lands and Krishnadeva was looking after the properties with his own funds and man power; that Vasudeva died in August, 1973; that Ramachnadra in the year 1984 had released his share in the joint family properties in favour of Krishnadeva personally and not as head of the branch of the family and that Krishnadeva was the absolute owner of the property; that Krishadeva had submitted an application for grant of occupancy rights in his personal capacity and not as manager of the family: that Item Nos. 13, 14 and 16 were not purchased out of the income of the joint family properties but out of the personal income of Krishnadeva earned from tax service in Gadag and other business including money lending; that the exchange of lands by a registered deed of exchange entered into by Krishnadeva with Ratnakar Aithal was not as manager of the family but in his personal capacity wherein, he delivered right, title and interest in Item 7 of ''A'' schedule; that Krishnadeva had spent moneys for building a house and for plantation and garden lands and for installation of irrigation pump and for digging a well.

It was admitted that Krishnadeva was suffering from liver cancer for a period of one year prior to his death but he died testate; that the Plaintiff never used to visit the village and that he was away at the time of Krishnadeva''s death and was present only at his funeral function; that Krishnadeva had executed a Will at his own discretion and while he was in a sound disposing state of mind in favour of the Defendant on 16/7/2004, it is stated that transfer of Item No. 8 to 11 in schedule ''A'' in favour of the 6th Defendant was for the betterment of other properties and for the treatment charges and for renovation of the house; Item Nos. 13, 14 and 16 were purchased by the first Defendant out of her own funds by selling gold ornaments of 10 tolas which were given at the time of her marriage and which were also pledged for buying the said properties; that the alienations were made on account of necessities and therefore, the Plaintiff cannot challenge the said alienations. It is admitted that after the death of Krishnadeva, Defendants 1 and 3 are in the management of the affairs but they have not misappropriated any properties; that a sum of Rs. 83,000/- was spent for the funeral and other work of Krishnadeva by Defendants 1 and 3; that the Plaintiff has never contributed for any of these things; that the Will of Krishnadeva is not fabricated but it is a genuine one; that the Plaintiff has no right to claim any share in the alienated properties and that the Plaintiffs claim for partition is barred by estoppel and acquiescence and Defendant No. 1 has protected his right by ouster and by adverse possession. She therefore sought dismissal of the suit.

Defendant No. 2 supported the Plaintiff and sought for partition and separate possession of his 7/30th share in the suit properties. Defendants 3 and 4 adopted the written statement filed by Defendant No. 1. Defendant No. 5 was placed ex-parte.

Defendant No. 6 in her written statement, while not admitting the contents of the plaint, supported the sale of Item Nos. 13, 14 and 16 of ''A'' schedule properties made by Defendant No. 1 in her favour and also stated that Item 8 to 11 of ''A'' schedule were purchased by Krishnadeva by registered sale deed dated 18/1/2004 for a lawful consideration for Rs. 92,700/- which was fully paid that the said alienations were binding on the Plaintiff; that first Defendant had sold Item Nos. 13, 14 and 16 of schedule ''A'' lands to Defendant No. 6 on 14/11/2004 for lawful consideration of Rs. 1,33,750/- which was fully paid; that the Defendant No. 6 was enjoying the said lands and the Plaintiff had no right to seek partition of the said Sands; that in the event of there being a decree of partition, the vendors share in the properties was liable to be allotted to Defendant No. 6 as per the sale deeds which were valid and binding. It was also contended that the Court Fee paid was insufficient.

On the basis of the rival pleadings, the trial Court framed the following points for its consideration

On the basis of the rival pleadings of both the parties, the following issues have been framed:

Whether the Plaintiff proves that he himself and Defendants constitute Hindu Joint Family governed by Hindu Mithakshara Family and "A" to "C" schedule properties are joint family properties?

Whether Plaintiff further proves that item Nos. 8 to 11 of "A" schedule properties were purchased under two registered Deed on behalf of the family ?

Whether the Plaintiff further proves that the lands granted under TRI 28/99/79-80, dated 20-10-1980 were granted in favour of Krishnadeva Upadhya on behalf of entire family?

Whether the Plaintiff further proves that the properties purchased under Registered Sale deed dated 16-06-1980 were purchased on behalf of the joint family and Smt. Vimala Upadhya is only bona midar?

Whether Plaintiff further proves that he has got 7/30th share in "A" to "C" schedule properties and he is entitled for 7''/30th share therein?

Whether Plaintiff further proves that he is entitled for future profits in "A" and "B" schedule properties? If so, to what extent?

Whether Defendant No. 1 proves that Krishnadeva Upadhya had executed Will in favour of Defendant No. 3 on 16-07-2004 and it is genuine and last Will?

Whether Defendant No. 6 proves that he has purchased item Nos. 13, 14 and 16 of "A" schedule properties under Registered Sale deed dated 14-07-2004 and she is bona fide purchaser for valuable consideration?

Whether Defendant No. 6 proves that the suit is bad for mis-joinder of necessary parties?

Whether Defendant No. 6 further proves that the Court Fee paid is insufficient?

To what reliefs the parties are entitled to?

Whai order or decree?

In support of his case, the Plaintiff examined himself as P. W. 1 and produced 28 documents which were marked Exs. P. 1 to P. 28 while the third Defendant was examined as D. W. 1 and other three witness were examined D. Ws. 2 and 3 and the husband of Defendant No. 6 was examined as D. W. 4 and 82 documents were produced which were marked as Ex. D. 1 to D. 82.

On the basis of the evidence on record, the trial Court answered Issue Nos. 1-6 in the affirmative and that the Plaintiff is entitled to 7/30th share in the Plaintiff ''A'' and ''B'' schedule properties and that the mesne profits was to be decided in final decree proceedings. The trial Court answered Issue Nos. 7 to 10 in the negative and decreed the suit of the Plaintiff.

Being aggrieved by the said judgment and decree Defendant Nos. 1, 3 and 6 have preferred these appeals.

We have heard the learned Counsel for the Appellants and the learned Counsel for the Respondents in both the appeals.

It is contended on behalf of the Appellants (Defendant Nos. 1 and 3) that the Plaintiff and Defendants 1 to 5 are Class-1 heirs and that in the year 1920 there was a partition between Srinivasa Upadhya, Govinda and Vasudeva and that Vasudeva died in the year 1973 leaving behind Ramachandra and Krishnadeva who succeeded to the joint family properties as tenants in common and not as joint tenants since they were the only heirs to the joint family properties and that Section 8 r/w Section 19 of the Hindu Succession Act 1956 are applicable, that when Krishnadeva took his share of the properties, the same became his self acquisition and subsequently, his brother Ramachandra released his share of the properties in favour of Krishnadeva by a Registered Release deed executed in the year 1984 and therefore, Krishnadeva had the right to alienate the suit schedule lands as well as make a Will in respect of the said lands; that occupancy right in respect of the ''B'' schedule property was also granted by the Land Tribunal in favour of Krishnadeva; that since Vasudeva died leaving only male heirs. Section 6 of the Hindu Succession Act was not applicable and under the circumstances, Section 19 was applicable: that the Will made by Krishnadeva was genuine and he had the competency to make the Will. The Plaintiff has not pleaded about any suspicious circumstances with regard to the execution of the Will, the only pleading is with regard to the capacity of Krishnadeva to make a Will which he indeed had; that Vasudeva had purchased Item Nos. 8 to 11 and that Item Nos. 1 to 3, 5, 6, 12 and 17 were inherited by Vasudeva under the Registered Partition Deed of the year 1920; that Item Nos. 13, 14 and 16 were purchased by Defendant No. 1; that the sale made by Krishnadeva and Defendant No. 1 with regard to Item Nos. 8 to 11 and Item Nos. 13, 14 and 16 to Defendant No. 6 were valid. Alternatively, it was also contended that Item Nos. 13, 14 and 16 were the properties of Defendant No. 1 and all other items were joint family properties; that Krishnadeva had the right to alienate his share of the properties and also make a Will in respect of the said properties; that the trial Court was not right in decreeing the suit and granting 7/30th share in the entire ''A'' and ''B'' schedule properties in favour of the Plaintiff by ignoring the sale made by Krishnadeva and also the contents of the Will. He therefore submitted that that judgment and decree of the trial Court has to be set aside and the suit of the Plaintiff has to be dismissed.

Counsel for Defendant No. 6 the alienee of some of the suit hinds who has preferred an independent appeal contended that Item Nos. 8 to 11 and 13, 14 and 16 were purchased by her by valid sale transactions and for valuable sale consideration; that she is a bonafide purchaser for value and therefore, the trial Court ought to have deleted Item Nos. 8 to 11 and 13, 14 and 16 of the ''A'' schedule while passing a decree for partition. It is therefore submitted that the judgment and decree of the trial Court calls for modification and that in the event of this Court holding that the aforesaid suit items are joint family properties, then they may be allotted to the share of deceased Krishnadeva and the Defendants, so that the alieantions made in her favour are maintained intact as she has been enjoying the said properties and has invested for the development of the suit: lands.

Per contra, learned Counsel for Respondent No. 1 (Plaintiff) contended that in the instant case, the properties succeeded to by Krishnadeva on the death of his father Vasudeva as well as the properties released in favour of Krishnadeva by his brother Ramachandra are the joint family ancestral properties and that certain suit items were purchased by Krishnadeva out of the income of the joint family properties in the name of Vasudeva as well as in the name of the Defendant No. I that Krishnadeva was not a sole surviving coparcener and he died leaving behind his two sons, two daughters and his widow, who are all class-1 heirs and they had a right to the properties inherited by Krishnadeva and also properties purchased by him out of the joint family income in the name of Vasudeva; that Krishnadeva could not have alienated the said properties in favour of Defendant No. 6 and further, three items of properties purchased in the name of first Defendant were also joint family properties; that Krishnadeva had no right or competency to execute a Will in respect of the entire joint family properties; that the execution of the Will is shrouded in suspicious circumstances; that the Will was executed on 16/7/2004 and Krishnadeva died on 25/7/2004 that though it''s a registered document, the contents of the Will do not disclose the intention of the testator; that no reasons have been assigned in the Will for excluding the other heirs and therefore, the trial Court was justified in decreeing the suit of the Plaintiff which does not call for any interference in this appeal and that the appeal may be dismissed.

Counsel on both sides have relied upon certain decisions in support of their contentions, which shall be adverted to.

Having heard the counsel on both sides the following points arise for our consideration;-

1) Whether the Plaintiff and Defendants 1 to 5 have no right, title and interest in the suit schedule properties on the premise that the said properties are the separate properties of Krishnadeva?

2) Whether the Will dated 16/7/2004 executed by the testator Krishnadeva is valid and in accordance with law?

3) Whether the judgment and decree of the trial calls for any modification in this appeal?

The undisputed facts of the case are that Srinivasa Upadhya and his two sons Govinda and Vasudeva had entered into a deed of partition on 24/6/1920 and Vasudeva had been allotted certain properties in the said partition namely item Nos. 1. 2, 3, 5, 6, 12 and 17 of plaint ''A'' Schedule and item Nos. 8-11 were purchased in his name. Vasudeva died in the year 1973 leaving behind two sons, namely Ramachandra and Krishnadeva, there was no partition between these three coparceners and therefore, Ramachandra and Krishnadeva succeeded to the properties of Vasudeva by survivorship. Thus the properties inherited by Ramachandra and Krishnadeva were joint family ancestral properties. When Vasudeva died in the year 1973, there were no female heirs and only the male heirs succeeded to the joint family ancestral properties. At this stage, it is relevant to note that when Vasudeva died, Krishnadeva took his share in the ancestral properties as the head of his branch of the family comprising of his three sons, two daughters and his wife. Therefore, by birth the sons and daughters of Krishnadeva had acquired a right in the properties inherited by Krishnadeva after the death of his father -Vasudeva by surviorship Krishnadeva was not a soic surviving coparcener and nor were any of the properties allotted to his share at a partition between Vasudeva Ramachandra and Krishnadeva. Therefore, whatever properties Krishnadeva succeeded to on the death of his father Vasudeva, were joint family properties in his hands and as Krishnadeva had acquired the right in the said properties by birth, his children also had acquired right in the said properties by birth. Also, there was no partition of the Suit Schedule Property between Ramachandra and Krishnadeva by metes and bounds only their half share in the joint family property was determined. It is also to be noted that when Krishnadeva died on 25/7/2004, he had left behind both male and female heirs and therefore, Section 6 of the Hindu Succession Act is applicable, when succession opened on the said date. It is in the background of these undisputed facts that the rival contention of the parties have to be examined in the light of the oral and documentary evidence on record.

Ex. P. 1 is the certified copy of the partition deed dated 24/6/1920 by which a partition was effected between Vasudeva and Govinda Krishnadeva is the son of Vasudeva and the father of the Plaintiffs and Defendants 2 to 5.RT Cs of plaint ''A'' schedule properties are marked Exs. P.2 to P. 18. Exs. P. 19 and P. 20 are certified copies of two sale deeds dated 28/5/1962 and 12/8/1.968 the originals of which are at Ex. D. 79 and Ex. D. 80 which show that Vasudeva had purchased the said suit items through one Lakshminarayan Hande and Vasudeva had paid the consideration amount. There is no document produced to show that Krishadeva had financed for purchasing of the said properties under Ex. P. 19 and P.20. Neither is there any evidence to show that Krishnadeva had any independent source of income from which the sale consideration was paid for purchasing Item Nos. 8 to 11 in the ''A'' schedule in the name of his father -Vasudeva.

On the other hand, as per partition deed dated 24/6/1920, item Nos. 1 to 7 and 12 and 17 fell to the share of Vasudeva and therefore, there was sufficient nucleus to acquire Item Nos. 8 to 11 of plaint ''A'' schedule properties by Vasudeva. Therefore the contention that the said items belonged to Krishnadeva is rejected

As far as Item Nos. 13, 14 and 16 of plaint ''A'' schedule are concerned, it is the contention of Defendant No. 1 and 3, that Defendant No. 1 acquired the same by sale deed dated 16/6/1980, which is produced at Ex. P. 23, the original of which is produced as Ex. D. 78. It is the case of Defendants 1 and 3 that though Defendant No. 1 was doing household work and was not having any agricultural lands, she had purchased Item Nos. 13, 14 and 16 under Ex. D. 23 by pledging her gold ornaments. When her husband Krishnadeva was earning income from agriculture and also from doing business as contended by the Defendants 1, 3 and 4, it is wholly unlikely that Defendant No. I had pledged her gold ornaments to purchase suit item Nos. 13 to 16 under Ex. P. 23. Judicial notice of the fact that gold ornaments are pledged as a last resort, when a family is in financial crisis has to be taken note of and therefore, the plea set up by Defendant Nos. 1, 3 and 4 that gold ornaments were pledged by Defendant No. 1 for purchase of properties under Ex. P. 23 is unbelievable. Except this oral version there is nothing to show that Defendant No. 1 had any independent income. Infact, Defendant No. 1 has not at all stepped into the box to show any source of funds for the purchase of the said properties. Therefore, the contention of the Plaintiff that Krishandeva had purchased item 13, 14 and 16 for purchase of the ''A'' schedule properties in the name of Defendant No. 1 is a probability. Therefore, the said properties have to be held to be joint family properties and not the self acquired properties of Defendant No. 1.

As far as the share of the properties released by Ramachandra to Krishnadeva are concerned, it is clear that under Ex. P. 24 dated 22/8/1984 Ramachandra released his undivided half- share in plaint Nos. I to 7 and 8 to 12 in favour of Krishnadeva and the said document states that Krishnadeva and his successors should enjoy the said properties as per their wish and will. D. W. 1 who is Defendant No. 3 has stated in his evidence that since there was no income from the said properties Ramachandra released his right in favour of Krishnadeva his father and that Krishnadeva was cultivating and enjoying his property as well as the property released in his favour by his brother Ramachandra jointly. Therefore, the properties released in favour of Krishnadeva which are the joint family properties were blended and enjoyed together by Krishnadeva. Therefore, the share of properties released as per Ex. P. 24 by Ramachandra, cannot be considered to be self-acquired properties of Krishnadeva.

As far as Item No. 7 of plaint ''A'' schedule property is concerned, it is the contention of Defendant Nos. 1, 3 and 4 that by exchange deed dated 5/3/1988 (Ex. P. 25), two items of property namely Sy. No. 24/4-B and 17/4 were exchanged in lieu of acquiring Item No. 7 and the said two items are ancestral properties acquired by Vasudeva in the partition deed dated 24/6/1920 and therefore, the said suit Item No. 7 acquires the status of a joint family property and therefore, it cannot be a self-acquired property of Krishnadeva. There is no argument raised with regard to item No. 4 and 15 of plaint ''A'' Schedule Property and therefore the case of ancestral the Plaintiff that they are also joint family properties of the fly.

As far as ''B'' schedule properties are concerned, Ex. P. 21 is the form No. 7 filed by Krishnadeva on 24/12/1974 and it is stated that the said property is being enjoyed since 1902. Ex. D. 22 is the order of the Land Tribunal. The fact that. ''B'' schedule was granted by the Land Tribunal in the name of Krishnadeva would not make it his self acquired property as the said property has been enjoyed right from the year 1902 by the ancestors of Krishnadeva and therefore, the occupancy right was granted to Krishnadeva as the head of the family. Infact, this is admitted by D. W. 1 in his evidence.

It is however the contention of the counsel for the Appellants/Defendants 1 and 3, that properties which were succeeded to by Krishnadeva and Ramachandra on the death of their father Vasudeva became the separate property of Krishnadeva and therefore, the Plaintiff has no right in the said property and that Krishnadeva had the competency to make a Will in respect of the said properties. In this context, it is relevant to note that separate property or self-acquired property can be acquired through various ways and property obtained as a share in a partition by a coparcener who has no male issue is also considered to be separate property of the said coparcener. Similarly, property held by a sole surviving coparcener can also be categorized as separate property. However, when property is allotted at a partition to a coparcener who has male issues or who would subsequently have male issues then the said property cannot be categorized as separate property of the coparcener but it becomes ancestral or joint family property. Therefore, the share which a coparcener obtains on partition of ancestral property is his ancestral property as regards his male issue. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently and such share of property passes on to his heirs by succession when the coparcener dies. It is also relevant to note that when a coparcener dies before partition of a coparenery property, his undivided interest in the property devolves not by succession upon his heirs but by a survivorship upon the coparceners. Therefore, when Vasudeva died his two sons namely Ramachandra and Krishnadeva jointly succeeded to the ancestral property to an extent of half share each by survivorship. There was no division of the properties between them by metes and bounds on the death of Vasudeva. Ramachandra succeeded to half-share as the head of his branch and similarly Krishnadeva succeeded to the other half-share as the head of his branch. Therefore, as regards the properties which fell to Krishnadeva by virtue of survivorship is ancestral and joint family property vis-avis the other coparceners in the branch represented by Krishnadeva. Therefore, the contention of the counsel for the Appellants that when Krishnadeva and Ramachnadra succeeded to the ancestral properties on the death of their father Vasudeva, the said property became the separate property of Krishnadeva is not correct. The coparceners in Krishnadeva''s family on their birth acquired interest in the property inherited by Krishnadeva and hence, are entitled to a share in those items of the property which were inherited by Krishnadeva on the death of his father Vasudeva. Moreover, Krishnadeva was neither a sole surviving coparcener and nor was there any partition by metes and bounds between Ramachandra and Krishnadeva.

As far as the properties which were released by Ramachandra in favour of Krishnadeva by a release deed made in the year 1984 are concerned, as per Ex. P. 24 dated 22/8/1984 the brother of Krishnadeva namely, Ramachandra released his half share in the ancestral properties which he had succeeded by survivorship in favour of Krishnadeva. Infact there was no division of properties between Ramachandra and Krishnadeva by metes and bounds on the death of their father Vasudeva. Only the shares were determined. Though Ramachandra had succeeded to half-share in the ancestral properties, on the death of his father Vasudeva he nevertheless released the entire hail" share in favour of Krishnadeva on the ground that he was working in Bangalore and other places. Therefore, the share of properties released by Ramachandra in favour of Krishnadeva continued to remain as ancestral properties and release of the share would imply a pre-existing right in the said ancestral properties. This would mean that Krishnadeva had the benefit of half-share of Ramachandra not in his individual capacity but the said property was released in favour of Krishnadeva as head of the branch of this family and therefore, the said properties also continued to maintain their character as ancestral properties. Hence the contention of the counsel for the Appellants that half-share of the properties of Ramachandra released in favour Krishnadeva were the separate properties of Krishnadeva is also not correct.

At this stage, it would be relevant to consider the various decisions cited by the learned Counsel on both sides.

The decisions relied upon by the learned Counsel for the Appellants are as follows:

a) In the case of Mrs. Mallika and Ors. v. Mr. Chandrappa and Ors. ILR 2007 Kar. 3216, it has been held that if a son inherits property of his father, the said property has to be treated as the individual property of the son and the heirs of the son will have no right in the said property as copareerners. Though under traditional Hindu Law, a son by his birth in the family gets a share in his father''s ancestral property and becomes a co-parcener that position is affected and modified by Section 8 of the Hindu Succession Act, consequently, the property of the father, on his death will be inherited by his sons in their individual capacity and son''s sons/sons will have no right therein as coparceners.

The aforesaid decision is not applicable to the facts of the case, as it is not the separate property of Vasudeva Upadhya, which was being divided between Ramachandra and Krishnadeva. On the other hand, the property which Vasudeva had was property which had fallen to his share at a partition held in the year 1920 which was succeeded to by his sons Ramachandra and Krishnadeva and therefore, on the birth of the children of Krishnadeva, they became entitled and have coparcenery rights in the said property. Hence the property inherited by Krishnadeva and Ramachandra was not the separate property of Vasudeva as they had a right by birth in the property of Vasudeva. Consequently the children of Krishnadeva also had coparcenary rights in the said property.

b) In the case of Bhanwar Singh Vs. Puran and Others, where the owner of the property had died leaving behind his son and three daughters, it was held that the succession to the property was in terms of Section 8 of the Act, as the owner of the property was the sole surviving coparcener, and as the owner of the property had left behind not only a sole surviving coparcener but also three daughters who were entitled equally in the said property of their father. The said decision is also not applicable to the facts of the case as what was inherited by Krishnadeva from his father was not separate property but ancestral property.

c) In the case of Sheela Devi and Others Vs. Lal Chand and Another, it has been held that so long as property remains in the hands of a single person though it be inherited as coparcenery property, it would be treated as separate property but once a son is born, the concept of property being coparcenery in Mitakshara is revived. The said decision is also not applicable having regard to the facts of the present case.

d) Another decision which has been strongly relied by the learned Counsel for the Appellants is Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, . In the said case, there was a partition between the father and his son and thereafter, they continued the business by forming a firm. When the father died the question arose as to how the amount standing to the credit of the deceased father in the account of the firm had to be treated and as to whether the same would devolve on his son as his individual income. In that context, it was held that in terms of Section 8 of the Hindu Succession Act, it would be difficult to hold that the property on a Hindu Succession Act among the heirs mentioned in class-1 of the schedule, the male heirs in whose hands it would be joint family property and in relation to son and female heirs with respect to whom no such concept could be applied and contemplated, therefore, they held that the said property namely the amount standing in the credit of the deceased father was had to be inherited by his son as his individual property and not as ''Kartha'' of his own family. Hence, it could not be computed in the Assessees wealth. The said decision is on a different factual matrix as after the partition between the father and the son, the son had inherited or succeeded to the separate property of his father in his individual capacity however, in the present case, the succession by Ramachandra and Krishnadeva to the property of their father was not by succession but on the basis of survivorship the property of Vasudeva was ancestral property and moreover Krishnadeva did not inherit the property from his father Vasudeva as a sole surviving coparcener. Therefore, the said decision relied upon by the learned Counsel for the Appellants is not applicable to the facts of the present case.

Learned Counsel for the Respondents has submitted that the decisions relied upon by the Appellants are not applicable to the present case.

Therefore, Point No. 1 is answered against the Appellants (Defendant No. 1 and 3) and it is held that Plaintiff and Defendant No. 1-5 have right, title and interest in the Suit Schedule Property.

This takes us to the second point for consideration. As far as the validity of the Will dated 16/7/2004 is concerned the contention of the Appellants is that there is no pleading whatsoever with regard to any suspicious circumstances in the execution of the Will made by the Plaintiff and that the only contention is that Krishnadeva did not have the competency to make the Will in respect of the suit schedule properties which are ancestral and joint family properties. In this context it is relevant to advert to Section 30 of the Hindu Succession Act which states that any Hindu may dispose of by Will or other testamentary disposition any property, which is capable of being so disposed of by him or by her, in accordance with the provisions of the Indian Succession Act. 1925 or any other law for the time being in force and applicable to Hindus. It has been specifically stated that the interest of a male Hindu in a Mitakshara coparcenary property shall be deemed to be property capable of being disposed of by him or by her within the meaning of the section. Since it has already been held that the suit schedule property is not the self acquired property of Krishnadeva but is ancestral property and is also Mitakshara property, the right of Krishnadeva to dispose of his share in the said property by a Will is recognized. Under the circumstances, the Will in question if held to be valid would have to be restricted to the share which Krishnadeva had in the coparcenary property. However, it is the duty of the Court irrespective of whether any contention being raised with regard to the validity of the Will to ensure that the Will is valid in the eye of law and that there are no suspicious circumstances in the execution of the Will.

29 In this context Section 67 and 68 of the Evidence Act r/w Section 45 and 47 of the said Act are relevant which deal with the proof of documents. With regard to proof of a Will Section 59 and 63 of the Indian Succession Act, 1925 are relevant and the question as to whether the Will set up by a propounder is proved to be the last Will of the testator has to be decided in the light: of these provisions. There is however, an important feature which distinguishes a Will from other documents. The Apex Court in the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, has sounded a note of caution with regard to proof of a Will by stating as follow:

Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator''s mind and his signature as required by law. Courts would be justified in making a finding in favour of the propounder. In other words the onus on the propounder can be taken to be discharged on proof of the essential focis just indicated.

There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder''s case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator''s mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances, or, the will may otherwise indicate that the said dispositions may not he the result of the testator''s free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.

Apart from the suspicious circumstances above referred to in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent pari in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it that itself is generally treated as a suspicious circumstances attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decision of English Courts often mention the test of the satisfaction of the judicial conscience. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.

The Apex Court also held that in deciding material questions of fact which arise in actions on Wills or while deciding a validity of a Will no hard and fast rules can be laid down for the appreciation of the evidence. Generally, a propounder of the Will has to prove the due and valid execution of the Will and that if there are any suspicious circumstances surrounding the execution of the Will the propounder must: remove the said suspicion from the mind of the Court by cogent and satisfactory evidence. Thus the nature and quality of the evidence adduced by the parties is crucial for determining the validity of the Will.

The aforesaid decision of the Apex Court has been consistently relied upon by the Apex Court in subsequent decisions. Having enunciated the principles necessary for the proof of a Will, the evidence on record has to be considered in order to adjudicate on the validity of the will in question.

Ex. D. 1 is the Will dated 16/7/2004. No doubt, it is a registered document and it has been attested by two persons one of whom has been examined as D. W. 2. The said document is typed on computer and signed by Krishnadeva as K.V. Upadhya in English though the name has been written as Krishnadeva Upadhya in Kannada. Comparison of the schedule of the Will with the plaint schedule reveals that only Item Nos. 1 to 7, 9, 12 and 17 i.e., ten items are mentioned in the Will. In the ''A'' schedule there are however 17 items. It is the case of the Defendants that Item Nos. 8 to 11 of "A" schedule were purchased by Krishnadeva and sold to Defendant No. 6 on 16/11/2004. If that is so, then Item No 9 in ''A'' schedule namely Sy. No. 138/7-B-1 could not have found a place in the Will. Further, it is the case of Defendant No. 1 and 3 that the occupancy right of plaint ''B'' schedule property is granted by the Land Tribunal in the individual name of Krishnadeva and is therefore, his separate property but the said property does not find a place in the Will. There is also no mention of the moveables as mentioned in plaint ''C'' schedule in the Will. It is also relevant to note that Krishnadeva has stated that the properties mentioned in the Will should be enjoyed absolutely by his wife Defendant No. 1 and should any properties remain after her death, they should be bequeathed to Umesh - Defendant No. 3 and that no other family member has been bequeathed any property and no reason is assigned as to why two other sons and two daughters have not been bequeathed with any properties. It is relevant to note that on 14/7/2004 Item Nos. 8 to 11 in plaint ''A'' schedule was sold by Krishnadeva in favour of Defendant No. 6 two days later on 16/7/2004 the Will came into existence and two days thereafter, i.e., on 18/7/2004 Krishnadeva was hospitalised and seven days thereafter on 25/7/2004 he died. Ample medical evidence has been produced by the Defendants to prove that Krishnadeva was suffering from liver cancer and was on constant treatment and had also undergone chemotherapy.

Exs. D. 81 and D.82 (Ex. P. 26 and P. 27 respectively) are sale deeds executed on 14/7/2004 i.e., two days prior to the death. Ex. D. 81 is sale deed in respect of Item Nos. 8 to 11 of ''A schedule which are said to be the separate properties of Krishnadeva which have been sold to D. 6. While Ex. D. 82 is another sale deed of even date which are supposed to be the separate properties of Defendant No. 1 and which are plaint item Nos. 13, 14 and 16. The said items were also sold by Defendant No. 1 to Defendant No. 6. It is to be noted that two days after the execution of the said sale deeds, Will dated 16/7/2004 was executed. Ex. D. 81 is a sale deed wherein, in respect of Item Nos. 8 to 11 in ''A'' schedule not only Krishnadeva but also his wife Defendant No. 1 has executed the sale deed though Defendant No. 1 had no right, title or interest in the said properties as according to the Defendants, the same were the self acquired properties of Krishnadeva. There is no evidence as to why oh 14/7/2004 the alienations were made by Krishnadeva and his wife Defendant No. 1 and two days thereafter, the Will was executed and registered. The preponderance of probabilities point to the fact that Krishnadeva who was terminally ill as he was suffering from liver cancer in the guise of signing the documents for the purpose of sale of Item Nos. 8 to 11 was also asked to sign Ex. D. 1 and Krishnadeva being under an impression that he was making certain alienations has signed Ex. D. 1 which is dated 16/7/2004 only two days after the alienation made on 14/7/2004 as the said documents are contemporaneous. The aforesaid facts raise a question about the competency of Krishnadeva to make the Will vis-a-vis the nature of the properties and also having regard to the fact that he was suffering from liver cancer and was not in a sound disposing state of mind while executing the Will in question a suspicion is created in the mind out of the court as to whether Krishnadeva was aware of the fact that he was executing a will. In this background of facts it is to be noted that except Defendant No. 1 and 3 all other natural heirs of Krishnadeva have been excluded from succeeding to his properties which also raises a suspicion against the said Defendants who are the propounders of the Will. Hence, the only conclusion that can be drawn is that the Will dated 16/7/2004 does not inspire confidence and cannot be accepted to be a testament of Krsihnadeva and therefore, has no validity in the eye of law. Since. Item Nos. 8 to 11 of plaint ''A'' schedule purchased by Vasndeva Upadhya under registered sale deed dated 23/5/1962 and 12/8/1968 are held to be joint family properties as there is no evidence to show that Krishnadeva had acquired the said properties in the name of Vasudeva, his father, they could not have been subject matter of the Will.

The medical evidence produced by the Plaintiff at Ex. P. 28 and also Exs. D. 2 to D.66 would also clearly prove the fact that the Krishnadeva was suffering from liver cancer and that he was taking chemotherapy treatment at KMC hospital at Manipal and the Will was executed a few days prior to his death and two days before being admitted in the hospital. Therefore Plaint No. 2 is answered against the Appellants.

As far as the legality of the alienations made by Krishnadeva and Defendant No. 1 to Defendant No. 6 are concerned, it is the contention of Defendant No. 6 that the said alienations were made out of legal necessity and that the alienations are valid in the eye of law and the same should not be disturbed. Alternatively it is contended that since Defendant No. 6 is a bonafide purchaser and in the event of this Court partitioning the suit properties, the items sold to Defendant No. 6 may not be disturbed by allotting the said items in favour of Defendant Nos. 1 to 5 and thereby adjusting the equities between the parties, sc that Defendant No. 6 can continue to enjoy the said properties. We find considerable force m the submission made by the counsel for Defendant No. 6 who is the Appellant in Appeal No. 1692/2007 and hence, observe that in final decree proceedings, the equities between the parties be so adjusted between the parties while allotting the suit schedule properties by metes and bounds in terms of the shares determined in this appeal, so that the Defendant No. 6''s right, title and interest in Item Nos. 8 to 11 and 13, 14 and 16 of plaint ''A'' schedule properties are protected. Having regard to the fact that share of the Plaintiff is 7/36 in the entire suit schedule properties, we are confident that the properties purchased by Defendant No. 6 would not be disturbed while dividing the suit schedule properties by metes and bounds between the Plaintiffs and Defendants 1 to 5 herein.

With the aforesaid observations. RFA. No. 1692/2007 is disposed of.

Since it has been held that the suit schedule properties are the ancestral/joint family properties and the Will has been held to be invalid, partition of the suit schedule properties will have to take place. In view of the recent amendment to the Hindu Succession Act, 1956, Defendant No. 4 and 5 who are the daughters of Krishnadeva would take a share equal to Defendants 2 and 3 and the Plaintiff. Since there are female heirs, a notional partition would have to be made between Krishnadeva and his three sons and two daughters and their share would be 1/6th in the suit schedule properties. As far as the 1/6th share of Krishnadeva is concerned, the same would have to be divided between his widow and five children and therefore, the Plaintiff and Defendants 2 to 5 are entitled to 7/36th share and Defendant No. 1 is entitled to 1/36th share. The said shares have been determined in accordance with the recent amendment to Section 6 of the Hindu Succession Act 1956 which has been interpreted by a Division Bench of this Court in case of Pushpalatha N.V. v. V. Padma and Ors. reported in /ILK 2010 KAR. 1484J. Subject to the modification of the shares, the judgment and decree impugned in R.F.A. No. 1553/07 is affirmed. The appeal is accordingly, dismissed. As already stated RFA. No. 1692/07 is disposed of.

Having regard to the relationship between the parties, they are to bear their own costs.