IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16 TH DAY OF NOVEMBER, 2016 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY REGULAR FIRST APPEAL NO.1259 OF 2016 BETWEEN: BHASKAR SHETTY S/O. LATE RUKMINI SHEDTHI, AGED ABOUT 61 YEARS, RESIDING AT MEL PANGALA, PANGALA VILLAGE, UDUPI TALUK AND DISTRICT – 576 101 ... APPELLANT (BY SRI. DEVI PRASAD SHETTY, ADV.) AND: 1. INDIRA SHETTY AGED ABOUT 85 YEARS, 2. SUCHITHA SHETTY AGED ABOUT 67 YEARS, 3. YASHODA SHETTY AGED ABOUT 60 YEARS, 4. SHEELA SHETTY AGED ABOUT 55 YEARS, 5. ASHOKA SHETTY AGED ABOUT 51 YEARS, 2 6. PRAMEELA SHETTY AGED ABOUT 47 YEARS, 7. ASHA SHETTY AGED ABOUT 45 YEARS NO.1 TO 7 ARE CHILDREN OF LATE VASU SHETTY, R/AT ULEPADI NADIMANE, MUNDKOOR POST, KARKALA TALUK – 574 104 UDUPI DISTRICT – 574 104 8. PRASADINI AGED ABOUT 48 YEARS, W/O. LATE JAGADISH SHETTY, 9. DISHA AGED ABOUT 24 YERAS, D/O. LATE JAGADISH SHETTY, 10. UMESH SHETTY AGED MAJOR, S/O. HONAYYA SHETTY, NO.8 TO 10 ARE R/AT DINDUMANE, PANJIMAR, SHIRVA VILLAGE, UDUPI TALUK AND DISTRICT - 576101 11. VARIJA SHEDTHI AGED ABOUT 68 YEARS, W/O. LATE RAMANNA SHETTY, 12. AMITHA AGED ABOUT 38 YEARS, 13. AJITH AGED ABOUT 44 YEARS, NO.12 AND 13 ARE CHILDREN OF VARIJA SHEDTHI, NO.11 TO 13 ARE R/AT 3 AMBIKA NIVAS, NEAR DURGA DISTILLERY, KAUP - 574106 UDUPI TALUK AND DISTRICT. 14. VANJA SHETTY AGED ABOUT 79 YEARS, W/O. LATE VITTALA SHETTY, KODU, SHIRVA VILLAGE, UDUPI TALUK AND DISTRICT – 576 101 15. SANJEEVA SHETTY AGED ABOUT 76 YEARS, 16. AMANI SHETTY AGED AB0UT 74 YEARS, 17. SAMPA SHETTY AGED ABOUT 72 YEARS, 18. VASANTHI SHETTY AGED ABOUT 70 YEARS, 19. INDIRA SHETTY AGED ABOUT 64 YEARS, 20. RAGHAVENDRA SHETTY AGED ABOUT 38 YEARS, 21. RAJESH SHETTY AGED ABOUT 34 YEARS, 22. RATHAN SHETTY AGED ABOUT 30 YEARS, RESPONDENT NO.19 IS THE WIDOW AND RESPONDENT NOS 20 TO 22 ARE THE CHILDREN OF LATE KRISHNA SHETTY, RESIDING AT BADA, 4 YERMAL VILLAGE AND POST, UDUPI TALUK AND DISTRICT – 576 101 23. SHARADA SHETTY AGED ABOUT 66 YEARS, D/O. LATE KAMALA SHEDTHI, MEL PANGALA, PANGALA VILLAGE, VILLAGE AND POST, UDUPI TALUK AND DISTRICT – 576 101 24. PRABHAKARA SHETTY AGED ABOUT 64 YEARS, S/O. LATE RUKMINI SHEDTHI, RESIDING AT MEL PANGALA, PANGALA VILLAGE, UDUPI TALUK AND DISTRICT – 576 101 25. BHAVANI SHETTY D/O. LATE RUKMINI SHETTY, R/AT HIG-8, ANANTHA NAGAR, MANIPAL, UDUPI TALUK AND DISTRICT – 576 101 ... RESPONDENTS (BY SRI.VYASA RAO K S, ADV. FOR C/R4) THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:23.04.2016 PASSED IN OS.NO.25/2009 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN.) UDUPI, DECREEING THE SUIT FOR PARTITION. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: 5 J U D G M E N T Respondents No.1. to 13 filed a suit for partition fully describing Schedule ‘A’ property and also certain other properties, which according to them, have been jointly purchased by one Doddakka Shedthi and her son Vittala Shetty under registered sale deed dated 26 th November, 1955 executed in their favour by one Pangala Ganesh Nayak in his individual capacity. It is the further case of the plaintiff that Vittala Shetty and his mother had equal right over the aforesaid property as they have jointly purchased the same. Vittala Shetty died intestate and his wife Vanaja Shedthi is defendant No.1. The said Vittala Shetty had no children. 2. Defendant No.1-Vanaja Shedthi the appellant No.14 herein, has one fourth share in the suit property; and the one fourth share over the remaining property devolved upon husband’s mother Doddakka Shedthi. The said Doddakka Shedthi also died leaving behind five children who succeeded to the three fourth share of the ‘A’ schedule property and as such her children have acquired two third share in the suit property. 6 Bhaskar Shetty-Defendant No.8 is the appellant herein, in whose favour also the right has been devolved in respect of ‘A’ schedule property. 3. As per genealogical tree produced by the appellant, it discloses that there are six branches, of which this appellant- defendant No.8 belongs to the sixth branch, i.e. Rukmini Shetty’s branch. Rukmini Shetty’s branch has two sons and a daughter. The suit came to be decreed by its order dated 23 rd April 2016 and the consequences of the order is that the schedule property is entitled to be divided into twenty equal shares and the plaintiffs are entitled for nine such shares i.e. plaintiffs 1 to 7 together are entitled for 3/20 share; plaintiffs 8 to 10 together are entitled for 3/20 share; plaintiffs No.11 to 13 together are entitled to 3/20 th share; and the defendant No.1 is entitled for 5/20 share; defendants No.2 to 7 together are entitled for 3/20 share; and the deceased Rukmini Shetty, who is the sixth branch, is also entitled for 3/20 share and allotment of this share to Rukmini Shetty’s branch is subject to the result 7 in OS No.249 of 2007 pending before the Principal Civil Judge and JMFC, Udupi. 4. The appellant herein, submits that Bhavani Shetty is the daughter of late Rukmini Shetty and this appellant is entitled for further share in respect of 3/20 share. However, contrary to the same, Bhavani Shedthi has created a fabricated Will said to have been executed by Rukmini Shetty and that is required to be held as illegal as the said Bhavani Shetdthi has not proved the Will; and at the time of execution of the said Will, the late Rukmini Shetty was not having sound mind to execute the Will and by playing fraud the same is brought to light which virtually denies equal share in the suit schedule property in respect of this appellant. 5. The learned counsel further submits that though the appellant herein has no grievance in respect of the shares in respect of partition, but his grievance is in respect of the Will propounded by Rukmini Shetty in favaour of Bhavani Shedthi. Hence, it is submitted that the final decree proceedings in the 8 suit in OS No.249 of 2007 filed by Bhaskar Shetty, who is the defendant No.8 in the suit under appeal, is to be stayed. 6. The learned counsel appearing for the plaintiff- respondents herein submits to dismiss the appeal for the reason that the eighth defendant the appellant herein, who belongs to the sixth branch of Rukmini Shetty, is also entitled for share out of the 3/20 share which was allotted to the said branch. What has been held by the Trial Court while disposing of the suit is that the said share of this branch is subject to the result in suit OS No.249 of 2007 which is instituted by Bhavani Shedthi. If it is to be decreed, naturally the appellant would not get any share in the property and if the case is rejected, both the brothers and sisters get equal share out of 3/20 share. 7. Heard the learned counsel appearing for the parties. It is the case of the appellant that the Will said to have been executed by Rukmini Shetty in favour of Bhavani Shedthi is a concocted and fabricated one which itself should not have been considered by the Trial Court. Though the issues have been framed by the Court below, but the same have not been 9 discussed nor finding is given. Hence, this order is liable to be set aside according to the appellant. In the light of pleadings of the respective parties, the Court below framed the following issues and additional issue: 1. Whether the plaintiffs proved that plaint ‘A’ schedule properties have been jointly purchased by one Doddakka Shedthi and her son Vittala Shetty under a registered sale deed dated 26.11.1955? 2. Whether the plaintiffs prove that they are entitled for share in the plaint ‘A’ schedule properties? 3. Whether the plaintiffs prove that, they are entitled to get excess share of income in respect of plaint ‘A’ schedule properties from the defendants No.2 to 7? 4. Whether the 2 nd defendant proves that the plaint ‘A’ schedule properties have already been divided between the parties as per the decision arrived at between parties in the meetings or panchayat held in the family? 10 5. Whether the 2 nd defendant proves that the defendants No.1 to 7 are not liable to pay income out of the plaint “A” schedule property? 6. Whether the 2 nd defendant proves that suit filed by the plaintiffs is clearly barred by estoppel by conduct and by acquiescence? 7. Whether the 2 nd defendant proves that there is no cause of action to file the suit? 8. Whether the 2 nd defendant proves that suit has been not properly valued for the purpose of court fees and jurisdiction? 9. What order or decree? 4(a) Does the defendants No.1 to 7 proved that in the 1 st panchayat held it was unanimously agreed that they are not liable to pay any income from out of the plaint ‘A’ Schedule property as conducted in the written statement at para 1(e) filed by the 2 nd defendant? 4(b) Does the defendants No.1 to 7 prove that it was all the parties present agreed that the divisible properties used to be divided into ‘A’ and ‘B’ Schedule properties and accordingly, the divisible properties were divided by conducting 11 survey measurement by competent surveyor Karunakar Shetty through shares whereby it was agreed that ‘B’ schedule property is to be allotted to the share of the plaintiffs No.1 to 14 and defendants No.8 and 9 the ‘A’ schedule property is allotted to the share of defendants No.1 to 7 as contended in para No.1 and 2 of the written statement filed by the 2 nd defendant? 4(c) Does the defendants No.1 to 7 prove that the list prepared by the surveyor dividing the divisible properties into ‘A’ and ‘B’ schedule properties and plan 1, plan No.2, plan No.3 and plan No.4 prepared by the surveyor Shri Karunakara Shetty to the share of the plaintiffs, Dr.