The High Court
Case Details
- 1 - NC: 2025:KHC:1708 RFA No. 515 of 2009 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE C M JOSHI REGULAR FIRST APPEAL NO.515 OF 2009 (PAR) BETWEEN: 1. 2. SMT. A.N.LEELANAGARAJA, W/O A S NAGARAJA, AGED ABOUT 59 YEARS, R/AT BEHIND KEB, OPP. HOUSE OF MINERVA NAGANNA, NR. EXTENSION, CHINTAMANI-563 125. SRI A N SHARATHRAJ @ [WRONGLY DESCRIBED AS A N SHANTARAJ @ SHARATHBABU] S/O A S NAGARAJA, AGED ABOUT 34 YEARS, R/AT BEHIND KEB, OPP. HOUSE OF MINERVA NAGANNA, NR. EXTENSION, CHINTAMANI-563 125. 3. SRI A S VENKATAKRISHNAIAH, S/O LATE AKULASRINIVASAIAH, AGED ABOUT 46 YEARS. R/AT N R. EXTENSION, CHINTAMANI-563 125. 4. SRI A NAGESHBABU, S/O LATE KODANDARAMAIAH, AGED ABOUT 49 YEARS. Digitally signed by NANDINI R Location: High Court of Karnataka - 2 - NC: 2025:KHC:1708 RFA No. 515 of 2009 SINCE DEAD BY HIS LRS., A4(a) SMT. M.V RADHA, W/O NAGESHBABU, AGED ABOUT 45 YEARS. A4(b) N NAGASHREE, D/O NAGESHBABU, AGED ABOUT 19 YEARS. BOTH ARE R/AT VENKATESHWARA NILAYA, N.R EXTENSION, CHINTAMANI, CHIKKABALLAPURA DIST.563 125. [AMENDMENT CARRIED AS PER COURT ORDER DATED 03.03.2016] (BY SRI G BALAKRISHNA SHASTRY, ADVOCATE FOR A1 TO A3 & A4 (a) & (b)) ...APPELLANTS AND: 1. SMT. NAGARATHNAMMA, D/O LATE AKULA VENKATARAYAPPA, W/O B N RAMAIAH, AGED ABOUT 71 YEARS, SINCE DEAD BY HER LRS. R1(a) SRI B.R. JAYAPRAKASH, S/O LATE B N RAMAIAH, AGED ABOUT 50 YEARS, R/AT OPP. KARNATAKA STATE SEEDS CORP. OFF. VINAYAKAM STREET, N.R. EXTENSION, CHINTAMANI-568 125. [AMENDED VIDE ORDER DATED 23.06.2023] 2. A.N KUSUMA, - 3 - NC: 2025:KHC:1708 RFA No. 515 of 2009 D/O A.S NAGARAJA, AGED ABOUT 34 YEARS, R/AT BEHIND KEB, OPP: HOUSE OF MINERVA, NAGANNA, N.R. EXTENSION, CHITAMANI-563 125. 3. SMT. A V NAGAVENAMMA, D/O AKULA VENKATARAYAPPA, W/O SRINIVASAIAH, AGED MAJOR. SINCE DEAD BY LRS. 3(a) K VENUGOPAL, S/O SMT. A.V NAGAVENAMMA, AGED ABOUT 53 YEARS, S/O KAIWARA VILLAGE, CHINTAMANI TQ, CHICKBALLAPUR DIST. (AMENDED AS PER ORDER OF COURT DATED 09.03.2023) 4. 5. SMT. ASWATHAMMA, W/O LATE AKULA NARAYANASWAMY, AGED MAJOR, R/AT C/O BAGGULA, KRISHNAPPA PROVISION STORES, OPP: HOUSE OF LAWYER, LAKSHMIKANTHAM, DODDA BHAJANE ROAD, CHICKBALLAPUR-563 115. (SINCE DEAD BY LRS APPELLANT NOS.2, 3 AND 4(B)) SMT. A.V VENKATANARASAMMA, W/O VENKATARAYAPPA, D/O AKULA VENKATARAYAPPA, AGED MAJOR, OCC: RETIRED KEB ENGINEER, NO.90, VAPASANDRA, CHICKBALLAPUR-563 115. - 4 - NC: 2025:KHC:1708 RFA No. 515 of 2009 6. 7. 8. 9. SMT. A.S KASTURAMMA, W/O K.T VENKATACHALAPATHI, D/O AKULASRINIVASAIAH, AGED MAJOR, OCC: RETIRED SBM MANAGER, R/AT AGARAM PALACE ROAD, N.R. EXTENSION, CHINTAMANI-563 125. SMT. A.S UMA, W/O SRINIVASA (KUKKULA FAMILY), D/O AKULASRINIVASAIAH, AGED MAJOR, R/AT ANDAWARAHALLI, CHICKBALLAPUR-563 115. SMT. A.S MANJULA, W/O S. RAMACHANDRAPPA (DEPOT), AGED MAJOR, R/AT VAPASANDRA, CHICKBALLAPURA-563 115. SMT. A.S GEETHA, W/O K.C KRISHNAMURTHY, [KUKKULA FAMILY], AGED MAJOR, R/AT OLD POST OFFICE ROAD, CHICKBALLAPUR-563 115. 10. 11. SMT. A.S PADMA, W/O K.T SUKUMAR, AGED MAJOR, R/AT: C/O H.B KRISHNAPPA, NO.552, NTM SCHOOL, HEBBAL, BANGALORE-560 024. SMT. A NIRMALA @ RANI, W/O T.ANAND, D/O AKULA KODANDARAMAIAH, AGED MAJOR, R/AT NEAR CHURCH, SIDLAGHATTA ROAD, - 5 - NC: 2025:KHC:1708 RFA No. 515 of 2009 CHINTAMANI-563 125. 12. A.SUKANYA (KUNNI), D/O AKULA KODANDARAMAIAH, AGED MAJOR, OCC: RETIRED TEACHER, R/AT C/O MANGANTI VENKATARAMAPPA, VAPASANDRA, CHICKBALLAPUR-563 115. …RESPONDENTS (BY SRI T. RAJARAM, ADVOCATE FOR R1(A); SMT. G.R. SUJATHA, ADVOCATE FOR R3; SRI K.N. NITISH, ADVOCATE FOR SRI K.V. NARASIMHAN, ADVOCATE FOR R4(A) & R5; SRI K.A. NAGESH, ADVOCATE FOR R7; NOTICE TO R2, R8 & R12 SERVED, BUT UNREPRESENTED; NOTICE TO R9 & R10 HELD SUFFICIENT V/O DATED 22.11.2011; NOTICE TO R11 DISPENSED WITH V/O DATED 22.11.2011) THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 31.01.2009 PASSED IN OS.NO.21/1993 ON THE FILE OF THE CIVIL JUDGE (SR. DN.) & JMFC, CHINTHAMANI, DECREEING THE SUIT FOR PARTITION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 22.10.2024 AND COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE C M JOSHI - 6 - NC: 2025:KHC:1708 RFA No. 515 of 2009 CAV JUDGMENT (PER: HON'BLE MR. JUSTICE C M JOSHI) Being aggrieved by the judgment and decree dated 31.01.2009 passed in OS No.21/1993 by the learned Civil Judge (Sr.Dn.) and JMFC, Chintamani, defendant Nos. 1(a),1(c), 2, 3 have filed this appeal. 2. The parties would be referred to as per their ranks before the trial Court for the sake of convenience. 3. Respondent Nos.1, 3 to 5 herein are the plaintiffs and respondent Nos.2, 6 to 12 herein are the defendants before the trial Court. 4. Brief facts of the case are as below: The propositus Nagappa had six sons and a daughter. The first son, who was also Nagappa, had separated from the family more than 50 years back. The rest of the sons of Propositus Nagappa constituted a joint Hindu family. The father of plaintiff Nos.1 to 3, namely, - 7 - NC: 2025:KHC:1708 RFA No. 515 of 2009 Venkatarayappa, was manager of the family. The family had ancestral and joint family properties, which are described in the suit schedule. The pedigree of the family of the plaintiffs and defendants is as below: GENEALOGICAL TREE NAGAPPA Nagappa Venkatakrishnappa Venkatarayappa Srinivasiah Kodandaramiah Narayanaswamy Narayanamma (Unmarried - died) (died) =Ashwathamma(P-4) Nagarathnamma Nagavunamma Venkatanarasamma Nagesh Babu A Nirmala A Sukanya (P1) (P2) (P3) (D-3) (D-10) (D-11) Kastwamma A.S.Nagaraj A.S.Venkatakrishniah A.S.Uma A.S.Manjula A.S.Geetha A.S.Padma (D-5) =Leela Nagaraj (D-2) (D-6) (D-7) (D-9) (D-9) [1(a)] Kusuma A.N.Sharatraj [1(b)] [1(c)] - 8 - NC: 2025:KHC:1708 RFA No. 515 of 2009 5. It was further contended that Venkatakrishnappa, who was the son of Nagappa died
Legal Reasoning
unmarried. Plaintiff Nos.3 and 4, who were arrayed as the defendants, were transposed as plaintiffs during the pendency of the suit. Plaintiff No.4 happens to be the wife of Narayanaswamy, who was another son of Nagappa. Defendant Nos.1, 2, 5 to 9 represent the branch of Srinivasaiah; defendant Nos.3, 10 and 11 represent the branch of Kodandaramaiah. During pendency of the suit, defendant No.1, A.S. Nagaraj died and his LRs are brought on record. Since the death of the father of plaintiff Nos. 1 to 3, Venkatarayappa about 20 years back, the plaintiffs
Legal Reasoning
were demanding their respective shares. It was contended that defendants on one or the other pretext, postponed the partition. Therefore, the plaintiffs were constrained to file this suit for partition. 6. On being served with summons, defendant Nos. 1 to 4 and 6 appeared through their counsel and defendant Nos. 5, 7 to 10 were placed exparte. - 9 - NC: 2025:KHC:1708 RFA No. 515 of 2009 7. The LRs of defendant No.1 and defendant No.2 filed their written statement. The same was adopted by defendant Nos.3 and 6. Later, defendant No.3 also filed his separate written statement, taking up exactly similar contentions as earlier. Defendant No.4 filed a separate written statement. 8. Defendant Nos.1 and 2 admitted the relationship of the parties but denied that they still constitute a Hindu undivided family. They further contended that during the life time of father of the plaintiffs i.e., Venkatarayappa, plaintiff Nos.1 to 3 were extracting more conveniences from their father and other family members by threatening that their father had no male issues. It was contended that in the year 1970, the joint family properties were divided orally among the then joint family members. The father of plaintiff Nos.1 to 3 i.e., Venkatarayappa, refused to take any share in the joint family properties as he had no male issues and consented other joint family members to partition the joint - 10 - NC: 2025:KHC:1708 RFA No. 515 of 2009 family properties by excluding him and accordingly, a Palupatti was also prepared. They further contended that plaintiff Nos.1 to 3 having learnt about the oral partition and the stand taken by their father Venkatarayappa, demanded for their respective shares even though Venkatarayappa had refused to take any share in the joint family property. During 1972, after death of Venkatarayappa, plaintiff Nos.1 to 3 again claimed their share, which was refused by the defendants. Thereafter, these plaintiffs lost all their connection with the family of the defendants until the filing of the suit. Therefore, they contended that plaintiff Nos.1 to 3 had been ousted from the joint family and the joint family property on account of the wish of their father. Thereafter, defendant Nos.1 and 2, father of defendant Nos.3, 10 and 11 i.e., Kodandaramaiah and the husband of plaintiff No.4 Narayanaswamy entered into a registered Partition Deed dated 23-06-1983 on the same lines as per the Palupatti dated 31-03-1970. By way of amendment to the Written Statement, it was also contended that the after oral - 11 - NC: 2025:KHC:1708 RFA No. 515 of 2009 partition of the year 1970, it was also reduced in the form of an agreement dated 31-03-1976. It was alleged that plaintiff No.4, who was earlier arrayed as defendant No.4 colluded with plaintiff Nos.1 to 3 on account of the enmity with defendant Nos.1 and 2 and joined the plaintiffs in claiming share. The husband of plaintiff No.4 was also a party to the partition deed dated 23-06-1983. Therefore, it was contended that the suit is not maintainable unless the registered partition deed dated 23-06-1983 is declared to be void. On these grounds, they sought dismissal of the suit. 9. Defendant No.4, though admitted the relationship, contended that after death of Venkatarayappa, the shop which was run by him in rented premises, was closed and defendant Nos.1 to 3 vacated the shop by receiving sum of Rs.3,00,000/- from the owner of the shop. Therefore, she contended that defendant Nos.1 to 3 are not giving proper accounts and she supported the claim of the plaintiffs seeking partition - 12 - NC: 2025:KHC:1708 RFA No. 515 of 2009 of the property. She contends that she has no worldly knowledge, and she is illiterate and therefore, she being unaware of any partition deeds, her 1/4th share may be divided and given to her. 10. On the basis of the above pleadings, the trial Court framed the issues as below: Issues 1. Whether the 4th defendant proves that Venaktarayappa refused to take any share in oral partition dt.13.1.70 as such the plaintiffs are not entitle to any share in suit property? 2. Whether the 3rd defendant proves that Venkatarayappa was ousted from share in joint family property as alleged in paras 6 and 7 of written statement? 3. If not, whether the plaintiff proves that they are entitled to 1/4th share jointly with Venkatanarasamma being the legal heirs of deceased Venaktarayappa? 4. Whether the suit is bad for non-joinder of necessary parties? 5. What decree or order? - 13 - NC: 2025:KHC:1708 RFA No. 515 of 2009 Additional Issues (Dated: 28.8.2000) 1) Whether the defendants prove that the suit is not maintainable unless the registered partition deed, dt.23.6.1983 is set aside? 2) Whether the defendants prove that the valuation made by the plaintiffs is incorrect and court fee paid is insufficient? Additional Issue (Dated: 26.6.2001) 1) Is suit not maintainable for partial partition for not including the properties of propositus Akula Nagappa fell to his share under the partition deed, Dt.13.8.1921? 11. The second plaintiff was examined as PW1 and Exhibits P1 to P12 were marked. The second defendant was examined as DW1, third defendant as DW2 and Exhibits D1 to 9 were marked. Since the settlement efforts did not fructify, the sides were closed and the arguments were heard. The trial Court felt that the issues need to be recasted and therefore, the following recasted issues were framed: 1) Whether the plaintiffs prove that the plaintiffs and the defendants are still the members of joint - 14 - NC: 2025:KHC:1708 RFA No. 515 of 2009 family and the suit properties are in joint possession and enjoyment of the plaintiffs and the defendants? 2) Whether the defendants prove that they have ousted the plaintiffs from the joint family and hence, the plaintiffs are not entitled for any share? 3) Whether the suit is bad for non-joinder of necessary parties? 4) Whether the defendants prove that suit is not maintainable without seeking the relief of cancellation of partition deed, dt.23.6.1983 as null and void and not binding on the plaintiffs? 5) Whether the plaintiffs are entitled for the relief claimed? 6) What order or decree? 12. After hearing both sides, the trial Court held issue Nos.1 and 5 in the affirmative; issue Nos. 2 to 4 in the negative and proceeded to decree the suit awarding 1/4th share together to plaintiff Nos.1 to 3 and 1/4th share to plaintiff No.4. 13. The said judgment and decree is challenged in this appeal by the defendant Nos. 1(a), (c), 2 and 3. - 15 - NC: 2025:KHC:1708 RFA No. 515 of 2009 14. On issuance of notice, respondents/defendants appeared before this Court through their counsel. 15. On admitting the appeal, the trial Court records have been secured. 16. During pendency of this appeal, respondent No.1 (plaintiff No.1) Nagarathnamma, died and her LRs are brought on record. When respondent No.4 (plaintiff No.4) Aswathamma died, one V.V. Vijayaprasad (who is the son of plaintiff No.3 Venkatanarasamma) filed applications in IA Nos. 2,3 and 4 of 2017 seeking to come on record claiming to have inherited rights under the Will dated 28-06-2014 by Aswathamma. Appellant Nos.2, 3 and 4(b) (who are the defendant No.1(a), defendant No.2 and daughter of defendant No.3) also filed IA No.1/2017 under order 22 Rule 10 CPC contending that by virtue of the Will dated 15-03-2016, they have inherited rights from Aswathamma. 17. Since there was a rival claim to succeed to the estate of Aswathamma, this Court by order dated - 16 - NC: 2025:KHC:1708 RFA No. 515 of 2009 17-7-2018, referred the matter to trial Court to hold an enquiry for the purpose of determining as to who could be declared to be the legal representatives in terms of Order 22 Rule 5 CPC and to give a report to this Court. Accordingly, the trial Court, after holding an enquiry, has given its report holding that the second Will dated 15-03-2016 is established and Appellant Nos.2, 3 and 4(b) (who are the defendant No.1(a), defendant No.2 and daughter of defendant No.3) are the legal representatives of Aswathamma. 18. After receipt of the Report from the trial Court, IA No.1/2023 was filed by respondent No.3- K. Venugopal who was the LR of Smt. A.V. Nagavenamma on 13.1.2023 under Section 151 of CPC seeking orders as the appellants have violated the stay order by erecting constructions over some portion of the schedule property. Thereafter, by order dated 09-03-2023, this Court ordered that IA No.1/2017 to 4/2017 and IA No.1/2023 be heard along with the main matter. - 17 - NC: 2025:KHC:1708 RFA No. 515 of 2009 19. The arguments by learned counsel Sri G. Balakrishna Shastry for appellants; Sri T. Rajaram for Respodnent No.1(a) and Sri Nitish for Sri K.V. Narasimhan, for respondent No. 4(a) and 5 were heard. 20. The learned counsel Sri G. Balakrishna Shastry for appellants would urge that the defendants contend ouster of the plaintiffs prior to the partition and that there was an oral partition which later was reduced into writing. In view of the father of plaintiff Nos. 1 to 3 having refused to receive the share, they were not entitled for any share. It is contended that the claim of the plaintiffs is hit by the prior ouster and the prior partition. Apart from this, the first son of propositus Nagappa is not made a party to the suit and that there is no evidence to show that he had separated from the joint family. Lastly, he contends that the trial Court erred in holding that plaintiff No.4 is also entitled for share in view of the registered Partition Deed, for which plaintiff No.4 was a party and he has not sought declaration of Partition Deed as void. - 18 - NC: 2025:KHC:1708 RFA No. 515 of 2009 21. He also submits that during the pendency of the suit, plaintiff No.4 died leaving behind her the two Wills dated 28-06-2014 in favour of Vijaya Prasad; and dated 15-03-2016 in favour of appellant Nos.2, 3 and 4(b). He submits that the opinion of the trial Court on this aspect need not be interfered with. In conclusion, he submits that plaintiff No.4 is not entitled for any relief and there being a prior partition, the suit deserves to be dismissed. 22. Regarding scope of Order 22 Rule 5 of CPC, he has relied on the following decisions: 1. Mary Joyce Poonacha Vs. K.T Plantations Private Limited, Bangalore1 2. Jaladi Suguna (Deceased) Through LRS. Vs. Satya Sai Central Trust and Others2 3. Dashrath Rao Kate Vs. Brij Mohan Srivastava3 4. Varadarajan Vs. Kanakavalli4 5. Daya Ram and Others Vs. Shyam Sundari and Others5 6. P.S Sairam Vs. P.S Rama Rao Pisey6
Decision
In favour of defendant No. 1(c), defendant No.2 and legal representative of defendant No.3 (Nagashree) As per the final order 50. While coming to such conclusions, in para 45 it was observed as below: "45. In the background of these principles and dictum laid down in the above decisions it is to - 42 - NC: 2025:KHC:1708 RFA No. 515 of 2009 be seen in the instant case whether Ex.B.2/will is duly executed. In the case on hand defendant No.1(c), defendant No.2 and legal representative of defendant No.3(Nagashree) examined attesting witness to Ex.B.2 as Bw.2 and also scribe as Bw.4 and also examined Sub-registrar as Bw.3. They deposed about the due execution of will by testator Aswathamma and about testator putting her Signature in their presence. Therefore, it is quite natural for the Smt. Aswathamma to execute will in favour of Defendant No.2 and others by canceling the earlier registered will/ExA.1 executed in favour of applicant Vijayaprasad, who has not at all taken care of Smt. Aswathamma. As Defendant No.2 admitted Said Aswathamma to the Depashree old age rehabilitation center and who is looking after all the affair of deceased Aswathamma so it is quite natural to execute Ex.B.2 in favour of defendant No.2 and others. Furthermore, it is significant to note the ExB2 was executed on 15.03.2016 and Smt.Ashwathamma is died on 27.08.2016 at Depashree old age and rehabilitation Center at Bangalore, that means to say after execution of ExB2 said Ashwathamma lived almost five months, during the said period apart from defendant no.2, neither the applicant nor plaintiff no.2 or others have taken care of the deceased Smt.Ashwathamma and said Ashwathamma also - 43 - NC: 2025:KHC:1708 RFA No. 515 of 2009 not made any attempt to cancel the ExB2. If, really said Ashwathamma has not executed will in favour of defendant no.2 and others as per ExB2 as per her own will and wish and if she is having any love and affection towards defendant no.2 and if she is not happy with defendant no.2, certainly she would have canceled the said Will. But, she has not made any such efforts. Hence, this also makes it clear that deceased Ashwathamma executed ExB2 as per her own wish and will. Wherefore, there are no suspicious Circumstances surrounding Ex.B.2/will. All the mandatory requirements in proof of the Ex.B.2 were complied with by the defendant No.1(c), defendant No.2 and legal representative of defendant No.3(Nagashree). The applicant and plaintiff No.2 have failed to prove before this court that deceased Aswathamma was not in sound disposing state of mind when Ex.B.2 came into existence. The attestation of Will and even execution of the will is also proved by the defendant No.2 in accordance with law. As such, the applicant Vijayaprasad utterly failed to establish that he is the legal representatives of deceased Aswathamma under the registered Will dated 28- 06-2014 and defendant No.1(c), defendant No.2 and legal representative of defendant No.3(Nagashree) established that they are the legal representatives of deceased Aswathamma under - 44 - NC: 2025:KHC:1708 RFA No. 515 of 2009 the Will dated 15-03-2016 executed by her in their favor." 51. So far as the Will executed by Aswathamma in favour of Vijaya Prasad dated 28-06-2014 is concerned, his Will being the first Will and it having been superseded by the last Will dated 15-03-2016, was held to be ineffective. 52. This Court also has gone through the evidence recorded during the enquiry. It is pertinent to note that if the Will dated 15-03-2016 is proved, then the question of considering the Will dated 28-06-2014 would not arise inasmuch as the said Will was cancelled by the Cancellation Deed dated 09-03-2016 and the Will dated 15-03-2016 being the last Will of the Testatrix. Therefore, the evidence in respect of the second Will gains importance. 53. It is in the light of the above propositions of law that the evidence recorded by the trial Court during enquiry and its opinion is to be considered. - 45 - NC: 2025:KHC:1708 RFA No. 515 of 2009 54. The records show that Aswathamma had executed the cancellation deed dated 9-3-2016 as per Ex.B1 and then on 15-3-2016, she executed the last Will and Testament as per Ex.B2. It is categorically mentioned in Ex.B2 that it is the said Sharathraj, Venkatakrishnaiah and Nagashree, who are looking after her in a proper way and therefore, she is bequeathing the properties in their favour. Ex.B2 is signed by Aswathamma and is also signed by the witnesses D.V.Prabhakar Murthy, G.T. Venugopal S/o G.Thippanna and Bharath Kumar and is registered. 55. On a bare perusal of Ex.B2, there is no reason to hold that Aswathamma was not capable of signing the same. She has signed the Will clearly. Similarly, the signatures are tallying with the Cancellation Deed which is at Ex.B1. A comparison of the signature has been made by the trial Court and found that they slightly differ with the Ex.A1. In fact, comparing the signatures of Aswathamma - 46 - NC: 2025:KHC:1708 RFA No. 515 of 2009 to Ex.B1, B2 and Ex.A1 was unwarranted in view of the deposition of the attesting witnesses. 56. The perusal of testimony of CW.1- Dr K.C Shridhar who is a Medical Officer of the said Deepashri Nursing and Re-habiltation Center with Old age Home managed by CAD MS (Care At Door Medical Service) Trust at Ex.C1 would disclose that Aswathamma was admitted to Deepashri Hospital on 15.03.2016. The case sheet discloses that the said Aswathamma is hypertensive suffering from ischemic heart disease, epilepsy and she is conscious, oriented but drowsy and is admitted in the center for a rehabilitation care. It was found that there was a poor prognosis and possible risk of cardiac and respiratory failure. It is pertinent to note that after her admission to the hospital on 15.03.2016, she survived till 26.08.2016. In other words, she survived for about 05 months after her admission to the said hospital and rehabilitation center. - 47 - NC: 2025:KHC:1708 RFA No. 515 of 2009 57. The testimony of CW.1-Dr.Shridhar K.C., would show that the deceased Aswathamma was aged 77 years when she was admitted to the rehabilitation centre and two days prior to death, she was unconscious. In para No.6 of the cross-examination he admits that on 15.06.2016 she was unconscious and she was so unconscious for about 06 days and thereafter, she regained the consciousness. He later states that on 15.03.2016 when Aswathamma was admitted, she was drowsy but not unconscious. He denies that it was not drowsiness but it was unconsciousness. It is pertinent to note that the alleged admission of CW.1 in para No.6 that she was unconscious for about 06 days from the date of her admission do not get any support from the case sheet which is at Ex.C1. Evidently, Ex.C1 bears not only the notes of the Medical Officer but also the notes by the other officials of the hospital. However, the notes at Ex.C1 which were recorded at about 06.00 pm would show that there was poor prognosis, but she had complained only about the general illness. Thereafter, she was shifted to other - 48 - NC: 2025:KHC:1708 RFA No. 515 of 2009 hospital for higher care. Under these circumstances, the testimony of the CW.1 coupled with the case sheet at Ex.C1 would show that she was capable of understanding what she is doing. 58. The testimony of BW.3-H.B.Prabhakar Naik who was the Sub-Registrar discloses that Aswathamma had signed the registered Will at Ex.B2 in his presence. He denies in the cross-examination that the contents of the Will was not read over to the testatrix. 59. The attesting witness to the said Will is examined as BW.2. He states that on 15.03.2016, the testatrix Aswathamma was conscious, and she had executed the said Will. He states that Aswathamma had brought certain orders and records of the High Court where the litigation was pending. He states that one Lakshmipathy was also present. 60. On a careful perusal of the above evidence on record, it is clear that Aswathamma became unconscious only after about 09.30 pm on 15.03.2016. It is important - 49 - NC: 2025:KHC:1708 RFA No. 515 of 2009 to note that prior to executing the Will on 15.3.2016 she had executed the cancellation of the earlier Will on 9.3.2016. There is no such allegation that on 9.3.2016 she was suffering any ill-health. The very fact that she survived for about 5 months after the Will, is indicative of the fact that she was conscious. Under these circumstances, the trial Court having come to the opinion that she had executed the Will on 15.3.2016 has to be upheld. It is pertinent note that though Vijaya Prasad states that she was unconscious, such a contention is not supported by any medical records. Under these circumstances, the conclusions reached by the trial Court while furnishing its opinion as to who is to be treated as the legal representative of the estate of deceased Ashwathamma has to be accepted. The decision relied by the learned Counsel for the appellant in Pentakota Satyanarayana Vs Pentakota Seetharatnam supra, is not applicable since it pertains to a suit where the proof of Will was involved, but not an enquiry under Order XXII. As noted supra, the finding does not amount to res-judicata and it is - 50 - NC: 2025:KHC:1708 RFA No. 515 of 2009 squarely covered by judgment of the Apex Court in the case of Swami Vedavyasa Nandaji Maharaj supra. Thus, the appellant Nos. 2,3, and 4(b), who are applicants in IA Nos. 2,3,4 of 2017 are the legal representatives of deceased Aswathamma. Consequently, I.A.Nos.2, 3, 4 of 2017 deserve to be allowed. I.A.No.1/2017 filed by Vijaya Prasad deserves to be dismissed. Point No.1 is answered accordingly. Reg. Point Nos.2 & 3: 61. Learned counsel appearing for the appellants has contended that the plaintiffs were ousted from the suit schedule property. A perusal of the evidence on record would disclose that the DW.1 in his testimony has stated that there was a partition in the year 1970 and it was an oral partition. Thereafter, there was a demand made by the plaintiffs in the year 1972. He states that the plaintiffs were driven out holding their neck and therefore, it is contended that there is an ouster. It is pertinent to note that by driving the plaintiffs out of the house when they - 51 - NC: 2025:KHC:1708 RFA No. 515 of 2009 demanded share cannot be equated to an ouster from the suit schedule property, for which, they were in joint possession. The defendants have denied the rights of the plaintiffs stating that they are not entitled for the share in the suit schedule properties and it cannot be an ouster. A denial of rights and title in the joint family property at no stretch of imagination can be held to be an ouster from the property. 62. It is pertinent to note that all along it is the case of the plaintiffs that they were demanding share and such share was being denied. The defendants contend that the father of the plaintiffs had refused to accept the share. It is not the case of the defendants that the father of the plaintiff Nos.1 to 3 has relinquished his share in the suit schedule property. If at all there was a relinquishment of his share, he should have executed a registered Relinquishment Deed. Furthermore, the father of plaintiff Nos.1 to 3 is not a party to the Partition Deed also. Even though there was an agreement regarding the partition in - 52 - NC: 2025:KHC:1708 RFA No. 515 of 2009 the year 1976, it was not subscribed by the father of plaintiff Nos.1 to 3. Therefore, except the oral testimony of the defendants that the father of plaintiff Nos.1 to 3 had refused his share, it cannot be said that he had relinquished his share. There is no other evidence to show that the father of plaintiff Nos.1 to 3 had refused his share in the property. Anyhow, the plaintiffs have denied the same. Therefore, it was incumbent upon the defendants to establish that the father of plaintiff Nos.1 to 3 had relinquished his share in the suit schedule property and such relinquishment can happen only by way of a registered document. Therefore, at no stretch of imagination it can be said that the plaintiffs were ousted from the suit schedule property. 63. The second point that is urged by the learned counsel for the plaintiffs is that the registered Partition Deed dated 23.06.1983 was not challenged by the plaintiffs. Plaintiff Nos.1 to 3 are not parties to the Ex.D1. It is relevant to note that when the plaintiff Nos.1 to 3 or - 53 - NC: 2025:KHC:1708 RFA No. 515 of 2009 their father were not parties to the Exs.D1 and D2 or any other document, it cannot be said that they should seek a declaration that such document has to be declared null and void. It would suffice to put forth their claim by ignoring the document which was entered into between the defendants alone. Therefore, this argument of the learned counsel appearing for the plaintiffs cannot be accepted. 64. It is pertinent to note that plaintiff No.4- Aswathamma was a party to the Partition Deed at Ex.D2. It is worth to note that Aswathamma was the defendant earlier and later she was transposed. She has contended in her written statement that she being an illiterate lady, she did not know the effect of the deed of partition. Moreover, she states that her husband Narayanaswamy entered into the Partition Deed at Ex.D2 in the year 1983 without knowing the contents. It is pertinent to note that though the Partition Deed was executed in the year 1983, the mutation entries have not been changed. This aspect - 54 - NC: 2025:KHC:1708 RFA No. 515 of 2009 has been specifically observed by the trial Court in its judgment. It is also pertinent to note that a shop which was owned by father of plaintiff Nos.1 to 3 was closed after his death in the year 1982 and thereafter, the shop was vacated by the defendants after receiving a sum of Rs.3,00,000/-. It is the case of defendant No.4- Aswathamma that the said amount was not distributed to her husband. Therefore, it is contended that the Partition Deed was not acted upon. 65. Be that as it may, it is pertinent to note that the plaintiff Nos.1 to 3 were not parties to the Partition Deed of 1983 or the agreement in the year 1976. When the plaintiff No.4, who was a defendant earlier is transposed, she subscribes to the claim of the plaintiffs. She has not filed separate pleadings in this regard. It may be true that the Partition Deed binds her since her husband had signed it. But when the said partition itself is non-est for not giving a share to the father of plaintiff Nos.1 to 3, it would not be in the mouth of defendants to contend that the - 55 - NC: 2025:KHC:1708 RFA No. 515 of 2009 transposition of the plaintiff No.4 would come to their aid in contending that there should be a declaration in respect of cancellation of the Partition Deed. 66. So far as Sy.No.135 which was allegedly purchased by father of plaintiff Nos.1 to 3 in the name of the plaintiff No.2 is concerned, it is relevant to note that there is no such contention in the written statement of the defendants that such property was purchased out of the joint family funds and Venkatarayappa had no independent income. It is relevant to note that as per the contention of the plaintiff No.4-Ashwathamma, Venkatarayappa had a shop. The said shop was closed after his death. That itself would indicate that Venkatarayappa had certain income. It is not the case of the defendants that the shop which was run by Venkatarayappa was the joint family business. Therefore, in the absence of any clear pleadings on behalf of the defendants in this regard, it is not possible to hold that - 56 - NC: 2025:KHC:1708 RFA No. 515 of 2009 Sy.No.135 was purchased by Venkatarayappa out of the joint family nucleus. 67. In the light of the above discussions, there is no necessity of interference in the judgment of the trial Court. The plaintiffs are entitled for the share as determined by the trial Court. Hence, the Point Nos.2 and 3 are answered in the negative. Under these circumstances, the main appeal deserves to be dismissed. The share of the plaintiff No.4 Aswathamma will now be represented by appellant No. 2,3 and 4(b) herein. 68. Hence, the following: ORDER I.A.No.1/2017 is dismissed. I.A.Nos.2, 3 and 4 of 2017 filed under Order XXII Rule 4, XXII Rule 9 of CPC and Section 5 of Limitation Act seeking condonation of delay are allowed and the appellant Nos.2, 3 and 4(b) are treated as Legal Representatives of Plaintiff No.4-Aswathamma and accordingly shown in the cause title. - 57 - NC: 2025:KHC:1708 RFA No. 515 of 2009 The appeal being devoid of merits, is ordered to be dismissed. Judgment of the trial Court in O.S.No.21/1993 is hereby confirmed. Costs made easy. In view of the dismissal of the appeal, IA No.1/2023 does not survive for consideration. Hence, it is dismissed. Sd/- (C M JOSHI) JUDGE tsn*/NR List No.: 19 Sl No.: 1