RADHAMMA Vs. H.N. MUDDUKRISHNA

JUDGEMENT

(1.) The instant appeal is directed against the judgment of the High Court of Karnataka dismissing RFA No. 347/1998 holding that the appellants are not entitled to claim any share in the joint family properties. The appellants/plaintiffs filed a suit on 16.1.1976 for 1/10 th share in the suit properties described in the schedule to the plaint as 'A' to 'H'. The learned trial Court decreed the suit declaring that the second plaintiff (since first plaintiff died on 7.7.1978 leaving behind daughter) Smt. Nagamma is entitled for 1/10 th share of joint family properties in the plaint which are scheduled Signature Not Verified properties 'A' to 'E' and the properties in the plaint scheduled. Reason: 'F' & 'G' were held to be the self ­acquired properties of the 1 testator, and property 'H' was declared as the exclusive property of the Smt. K.C. Saroja. The judgment and decree of the trial Court came to be challenged in the regular first appeal before the High Court by the present appellants in RFA No. 347/1998 and RFA No. 922/2001 was filed by the defendants ­respondents against the self ­same impugned judgment. The High Court after hearing the parties and on reappraisal of the evidence while affirming the finding of fact in reference to the registered Will Exhibit ­D2 dated 16.6.1962 of the testator held that the respondents have established the due execution of the Will as required under Section 68 of the Evidence Act. But while answering the question in reference to the 1/10th share of the plaintiff no.2 in the undivided share of the testator in the joint family properties schedule 'A' to 'E', took note of Section 30 read with explanation of the Hindu Succession Act , 1956 and held that a coparcener derives a right to dispose of his undivided share in Mitakshara joint family property by "Will" or any testamentary disposition i.e. by virtue of law and accordingly reversed the finding recorded by the learned trial Court holding 1/10th share of the in 'A' to 'E'.

(2.) Mr. Girish Ananthamurthy, learned counsel for the appellants has tried to persuade this Court that the finding which has been recorded in reference to execution of the Will of the testator Exhibit ­D2 dated 16.6.1962 appears to be suspicious for the reasons that the testator Patel Hanume Gowda died on 6.2.1965 and the registered Will Exhibit ­D2 dated 16.6.1962 has not seen the light of the day until filing of the suit by the present appellants/plaintiffs on 16.1.1976 and the testator was unwell during the period the Exhibit ­D2 was scribed and further submitted that there appears no reason/justification for the testator to have a complete exclusion of one branch of the family i.e. the daughter from his second marriage from the schedule of properties of the testator falling in schedule 'A' to 'H' which indisputedly was either the joint family property or the self ­acquired property of the testator.

(3.) Learned counsel for the appellants further submits that even if the testator could have bequeathed his share in the undivided joint family properties through a registered Will appellants/plaintiffs as a member of the family in the joint family properties could not have been divested and that is an apparent error which has been committed by the High Court and needs interference of this Court.