IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE H.P.SANDESH REGULAR FIRST APPEAL No.198 OF 2013 (Partition & Possession) BETWEEN:
1. Smt.SUNANDAMMA, W/O MUNIVENKATAPPA, AGED ABOUT 58 YEARS.
2. Smt.ANUSUYAMMA, W/O VENKATESHAPPA, AGED ABOUT 52 YEARS.
BOTH ARE RESIDING AT THERUBEEDI, MELINAPETE, NEAR POORNA CHICKEN CENTRE, HOSKOTE TOWN, HOSKOTE, BENGALURU RURAL DISTRICT PIN CODE – 562 114. ...APPELLANTS (BY SRI Y.R.SADASHIVA REDDY, Sr.COUNSEL FOR SRI M.RAMA MOHAN, ADVOCATE) AND:
1. Smt.LAKSHMAMMA @ DODDALAKSHMAMMA, D/O GARE NARAYANAPPA, W/O LATE CHIKKA ANJANAPPA, AGED ABOUT 63 YEARS, RESIDENT OF VARADAPURA VILLAGE, KASABA HOBLI, HOSKOTE TALUK, BENGALURU RURAL DISTRICT – 562 114.
2. Smt.NAGARATHNAMMA, W/O UPENDRA, AGED ABOUT 53 YEARS, RESIDING AT THERUBEEDI, MELINA PETE, NEAR POORNA CHICKEN CENTRE, HOSKOTE TOWN, HOSKOTE, BENGALURU RURAL DISTRICT – 562 114.
3. Smt.ANURADHA.N., W/O LATE A.SRINIVASA NAIDU, AGED ABOUT 44 YEARS, RESIDING AT NO.72, MUDDALAPPA STREET, LALBAGH MAIN GATE, DODDAMAVALLI, BENGALURU – 560 004.
4. SRI SANTHOSH KUMAR.S.
S/O LATE A.SRINIVASA NAIDU, AGED ABOUT 20 YEARS, RESIDING AT NO.72, MUDDALAPPA STREET, LALBAGH MAIN GATE, DODDAMAVALLI, BENGALURU – 560 004.
5. SRI JANARDHAN.S., S/O LATE A.SRINIVASA NAIDU, MINOR, AGED ABOUT 17 YEARS, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN, Smt.ANURADHA.N., W/O LATE A.SRINIVASA NAIDU, AGED ABOUT 44 YEARS, RESIDING AT NO.72, MUDDALAPPA STREET, LALBAGH MAIN GATE, DODDAMAVALLI, BENGALURU – 560 004.
6. SRI NARAYANA MURTHY.A., S/O LATE M.ANANTHA PADMANABHA NAIDU, AGED ABOUT 47 YEARS, RESIDING AT NO.52, 2ND FLOOR, YELLAPPA STREET, LALBAGH WEST GATE, CHIKKAMAVALLI, BASAVANAGUDI, BENGALURU – 560 004.
7. SRI A.SATHISH KUMAR, S/O LATE M.ANANTHA PADMANABHA NAIDU, AGED ABOUT 41 YEARS, RESIDING AT NO.12/2, KRUMBIGAL ROAD, R.V.PUBLIC SCHOOL, UPPARAHALLI, BASAVANAGUDI, BENGALURU – 560 004. ...RESPONDENTS (BY SRI DAYANANDA.K.G., & SRI K.RAJENDRA PRASAD, ADVOCATES FOR R1;
SRI P.M.SIDDAMALLAPPA, ADVOCATE FOR R2-R7) THIS REGULAR FIRST APPEAL FILED U/S 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 15.12.2012 PASSED IN O.S.NO.424/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-IV, BENGALURU RURAL DISTRICT, BENGALURU, PARTLY DECREEING THE SUIT FOR PARTITION.
THIS REGULAR FIRST APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed challenging the judgment and decree passed in O.S.No.424 of 2010 dated 15th day of December, 2012 on the file of the Fast Track Court – IV, Bengaluru Rural District, Bengaluru decreeing the suit with costs and granting 1/4th share in the suit schedule property.
2. The parties herein are referred to as per their rank before the Trial Court in the original suit.
3. The brief facts of the case are as under:
The plaintiff filed a suit against the defendants in O.S.No.424/2010 before the Fast Track Court – IV, Bengaluru Rural District, Bengaluru seeking for the relief of partition to allot half share in respect of the suit schedule property. It is contended that one Gare Narayanappa was the absolute owner in physical possession and enjoyment of the suit schedule property. The said Gare Narayanappa had two wives, namely, first wife–Smt.Thimmakka and second wife-Smt.Adi lakshmamma. The plaintiff is the only daughter born to the first wife Smt.Thimmakka. The first defendant is the second wife of the said Gare Narayanappa and defendant Nos.2 to 4 are the children born to his second wife. It is the case of the plaintiff that the suit schedule property is self-acquired property of the said Gare Narayanappa. The said Gare Narayanappa died intestate on 24.01.1996 leaving behind the plaintiff and defendant Nos.2 to 4 to succeed to his estate. The mother of the plaintiff also died 30 years back leaving behind the plaintiff as her only legal heir to succeed to her estate. After the death of Gare Narayanappa, plaintiff and defendant Nos.2 to 4 are in joint possession and enjoyment of the suit schedule property and the plaintiff and defendant Nos.2 to 4 are jointly and commonly enjoying the schedule property as tenants in common as they became co-owners in respect of their undivided share in the suit schedule property.
4. It is the case of the plaintiff that first defendant by colluding with the other defendants and on the strength of concocted, created and fabricated documents has got mutated the property in her name in the revenue records. The said mutation was effected behind the back and without the knowledge and consent of the plaintiff. The first defendant by joining hands with the other defendants have got frivolous entries in the revenue records and the first defendant has no manner of right, title and interest over the suit schedule property since her marriage itself is void and illegal. As such, she has no manner of right, title and interest over the schedule property. The plaintiff being the legal heir of Gare Narayanappa born to his first wife is entitled to half share. Hence, the plaintiff filed a suit.
5. In pursuance of the suit, notices were issued to the defendants. Defendant Nos.1 to 3 appeared through their counsel and filed their written statement. The fourth defendant remained absent and was placed ex-parte.
6. Defendant Nos.1 to 3 in their written statement contended that the suit is barred by limitation and also it is frivolous and vexatious. It is the contention of the defendants that the suit schedule property is the self-acquired property of Gare Narayanappa and when he was alive, he had bequeathed a Will in the name of his two daughters, i.e., defendant Nos.2 and 3 and in the said testament, it is very clearly stated that until the demise of the first defendant, defendants Nos.2 and 3 cannot claim any right and title over the suit schedule property. The plaintiff is a stranger and the genealogical tree produced by her before the Court is a fake document and she had filed a frivolous suit before the Court claiming that she is the daughter of the first wife of Gare Narayanappa and in support of her contention, she has not produced any relevant documents before this Court to substantiate her relationship with Gare Naryanappa. Hence, defendant Nos.1 to 3 prayed the Court to dismiss the suit.
7. On the basis of the pleadings of the plaintiff and contentions of the defendant Nos.1 to 3, the Trial Court framed the following issues:
i) Whether the plaintiff proves that she is the daughter of Gare Narayanappa through his first wife Thimmakka?
ii) Whether the plaintiff proves that she and defendant Nos.2 to 4 are in joint possession and enjoyment of the suit schedule properties?
iii) Whether the plaintiff prove that she is entitled for half share in the suit schedule properties?
iv) Whether the defendant Nos.2 and 3 prove that Gare Narayannappa has executed the Will in their favour in respect of the suit schedule properties?
v) Whether the defendant Nos.2 and 3 prove that they have become the absolute owners of the suit schedule properties on the basis of the Will executed by their father Gare Narayannappa?
vi) Whether the suit is properly valued and the Court fee paid is sufficient?
vii) What order or decree?
8. The plaintiff, in order to prove her case examined herself as PW-1 and also got examined another witness PW-2 and got marked Exs.P1 to P17. On the other hand, in order to prove their contentions, defendants got examined two witnesses as DWs-1 and 2 and got marked Exs.D1 to D9.
9. The Court below after hearing arguments on both the sides and after considering both the oral and documentary evidence had decreed the suit granting 1/4th share, accepting the case of the plaintiff.
10. Being aggrieved by the said judgment and decree, the present appeal is filed by defendant Nos.2 and 3 contending that the Court below has committed an error in coming to a conclusion that the plaintiff is the daughter of first wife of Gare Narayanappa. The plaintiff has not produced any documentary proof to substantiate her claim that she is the daughter of Gare Narayanappa through his first wife Smt.Thimmakka. The Court below also failed to accept their contention that Gare Narayanappa has executed a Will in their favour but dis- believed their case and erroneously proceeded to pass the impugned judgment and decree. Defendant Nos.2 and 3 are the absolute owners of the suit schedule properties on the basis of the Will executed by Gare Narayanappa. In support of their contention, they also got examined one witness as DW-2 and the evidence of DW-2 has not been believed by the Trial Court and committed an error in answering Issue Nos.4 and 5 as ‘negative’. Hence, the impugned judgment requires interference by this Court.
11. Sri.Y.R.Sadashiva Reddy, learned counsel appearing for defendant Nos.2 and 3/appellants herein in his arguments has vehemently contended that defendant Nos.2 and 3 have categorically denied that the plaintiff is the daughter of the first wife of Gare Narayanappa and she is a stranger. The plaintiff, in order to prove the same has not produced any document to substantiate her contention that she is the daughter of the first wife of Gare Narayanappa except relying upon the genealogical tree. The Counsel, in support of his contention has also relied upon the judgment of the Apex Court reported in LAWS(SC) 1983 43 (State of Bihar Vs. Radha Krishna Singh) and brought to my notice Paragraph Nos.8 and 9 of the judgment and contended that in order to prove the genealogical tree, the plaintiff has to prove:
(a) Source of genealogy and its dependability.
(b) Admissibility of the genealogy under the Evidence Act.
(c) A proper use of the said genealogies in decision or judgments on which reliance is placed.
(d) Age f genealogies.
(e) Litigations where such genealogies have been accepted or rejected.
(2) On the question of admissibility the following tests must be adopted:
(a) the genealogies of the families concerned must fall within the four corner of Section 32(5) or Section 13 of the Evidence Act.
(b) They must not be hit by the doctrine of post litem motam.
(c) The genealogies or the claims cannot be proved by recitals, depositions or facts narrated in the judgment which have been held by a long course of decisions to be inadmissible.
(d) Where genealogy is proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved.
12. The learned counsel contends that unless these tests are complied with, the genealogical tree cannot be accepted. He further contended that the Court below has committed an error in accepting the genealogical tree. The counsel also contends that PW-1 in the cross-examination has categorically admitted that the property is a self-acquired property of Gare Narayanappa. The said Gare Naryanappa has executed his last Will in terms of Ex.D9 on 14.12.1987. The defendants have also examined a witness DW-2 who is the son of the attesting witness of the said Will and inspite of the witness being examined, the Trial Court held that the same is not proved giving a reason that the custody of the Will has not been proved and hence, he contends that the judgment and decree of the Trial Court is erroneous.
13. Per contra, Sri.Dayananda.K.G., learned counsel appearing for Respondent No.1/plaintiff in his arguments vehemently contended that defendant Nos.2 and 3 have filed the suit seeking for the relief of declaration based on the second Will, which is marked as Ex.D9 dated 14.12.1987 in O.S.No.161/1996. In the said suit, other two sisters of the defendants have admitted in the Written Statement that the plaintiff is the daughter of the first wife of Gare Naryanappa and hence, the very contention of the defendants’ counsel that the plaintiff has not proved that she is the daughter of the first wife of Gare Naryanappa cannot be accepted. It is contended that the said Written Statement is marked as Ex.P15 and the said suit is also dismissed and the same is evident in terms of Ex.P12. The Counsel further contended that the defendants have not pleaded anything about the said Will in their Written Statement and also contended that when the witness was examined as DW-2, in his evidence, he has not deposed anything about the said Will and hence, the evidence of DW-2 cannot be accepted. Further, he contended that the said Will has not been proved and the evidence of DWs-1 and 2 also cannot be accepted with regard to proving of the said Will and hence, the very contention of the defendants cannot be accepted.
14. Sri.P.M.Siddamallappa, learned counsel appearing for Respondent Nos.2 and 3 to 7 who have been impleaded in this appeal claims that they are the legal heirs of another daughter of Adilakshmamma and they have not been made as parties in the original suit before the Trial Court. The Counsel appearing for the impleaded respondents would contend that if this Court comes to the conclusion that there was a Will in favour of defendant Nos.2 and 3, then the matter has to be remanded to the Court below and should give an opportunity to the impleaded respondents since they were not made as parties to proceedings before the Trial Court in the original suit, they have to contest the matter on merits and if the Court comes to a conclusion that defendant Nos.2 and 3 have failed to prove that the Will was executed in their favour who are the legal heirs of the daughter of Adilakshmamma, then the impleaded respondents are also entitled for a share in the property belonging to Gare Naryanappa.
15. Having considered the arguments of both the counsel appearing for the appellants and respondents and also the rival contentions urged before this Court and also considering both oral and documentary evidence available on record, the points that arise for consideration of this Court are:
i) Whether the Court below has committed an error in answering Issue No.1 as ‘affirmative’ and granting 1/4th share in the suit schedule property in favour of the plaintiff, which requires interference by this Court?
ii) Whether the Court below has committed an error in coming to a conclusion that defendant Nos.2 and 3 have not proved the Will, which is marked as Ex.D9 and committed an error that defendant Nos.2 and 3 are not the absolute owners of the suit schedule property and answered Issue Nos.4 and 5 as ‘negative’.
iii) Whether the matter requires remand as contended by the impleaded respondents and if not, whether they are entitled for a share?
iv) What order?
16. Point No.1: The main contention of the defendants in this appeal is that the plaintiff has not proved that she is the daughter of the first wife of Gare Naryanappa. The plaintiff is a stranger and no material is placed before the Court to come to a conclusion that the plaintiff is the daughter of Smt.Thimmakka who is the first wife of Gare Naryanappa. The counsel appearing for Respondent No.1 brought to my notice, Ex.P15 which is the certified copy of the Written Statement filed by other sisters and defendant Nos.2 to 4. On perusal of para No.2 of the Written Statement filed by defendant Nos.1 and 3 in O.S.No.161/1996, it is stated that defendant Nos.1 and 3 are none other than the sisters of the plaintiff and defendant Nos.1 and 3 have categorically admitted that the plaintiff is the daughter of the first wife of Gare Naryanappa. Defendant No.3, Smt.Naga- rathnamma in O.S.No.161/1996 is defendant No.4 in O.S.No.424/2010 and other sisters who have not been made as parties in the original suit have filed the Written Statement admitting the same. On perusal of the cross- examination of the witness PW-2, the Counsel appearing for the defendants have suggested that the plaintiff’s mother immediately after her marriage stayed back in her parental house and the said suggestion was denied by the witness. But the witness however stated that he found that the mother of the plaintiff used to stay in the house of Gare Naryanappa. It is further stated that only after the marriage of Adilakshmamma with Gare Naryanappa, she came to know about the said fact. The other suggestion also supports the contention of the plaintiff that there was a marriage with Gare Naryanappa and Smt.Thimmakka and thereafter, after the marriage of Adilakshmamma, the said fact came to the knowledge of PW-2. This suggestion itself made by the defendants’ counsel in the suit shows that Gare Naryanappa has married Smt.Thimmakka and out of the said wedlock, the plaintiff was born to Gare Naryanappa and Smt.Thimmakka and hence, the very contention of the appellants counsel that the plaintiff is the stranger and not the daughter of Gare Naryanappa through his first wife cannot be accepted. The defendants cannot blow hot and cold in one breath saying that plaintiff’s father married Smt.Thimmakka and she did not join Gare Naryanappa and in another breath cannot contend that she is a stranger and hence, the very contention of the defendants that the plaintiff is not the daughter of the said Smt.Thimmakka through Gare Naryanappa cannot be accepted and hence, I do not find any error committed by the Court below in coming to a conclusion that the plaintiff is the daughter of Smt.Thimmakka through Gare Naryanappa. The very contention of the defendants that the plaintiff has not produced any document except the genealogical tree and the said contention cannot be accepted and the judgment quoted by the appellants’ counsel is not applicable to the case on hand since there is an admission on the part of the other sisters of these defendants that the plaintiff is the daughter of Smt.Thimmakka and Gare Naryanappa and the very Counsel who represents defendant Nos.2 and 3 who are the appellants herein have suggested with regard to the said marriage. In the circumstances, I do not find any force in the contention of the appellants’ counsel that plaintiff is not the daughter of the first wife of Gare Naryanappa and she is a stranger and hence, the contention of the appellants counsel that the plaintiff has not produced any document to prove the same cannot be accepted. The admitted facts need not be proved by placing any material before the Court as indicated under Section 58 of the Evidence Act. If there is any dispute, then, it is the bounden duty and burden cast on the plaintiff to prove that she is the daughter of the first wife of Gare Narayappa. There is no such situation in view of the admission and suggestioon and hence, the conclusion of the Trial Court that the plaintiff has proved that she is the daughter of the first wife of Gare Narayanappa does not require any interference by this Court.
17. Point No.2: The other contention of the defendants is that Gare Naryanappa has executed Will in favour of defendant Nos.2 and 3 on 14.12.1987 and also got marked Ex.D9 before the Trial Court and got examined a witness DW-2 who is the son of the attesting witness.
The counsel appearing for the defendants would contend that both the contesting witnesses are no more and hence, DW-2 is examined to prove the execution of the Will. DW-2 claims to be the son of one of the attesting witness. Before considering the other material on record, it is appropriate to consider the evidence of the parties with regard to the very execution of the Will.
PW-1 who has reiterated the averments of the plaint in the affidavit got marked Exs.P1 to P8. She was subjected to cross-examination. In the cross- examination of PW-1, nothing was suggested in respect of the Will. However, she was further cross-examined on 06.11.2011 and the documents, Exs.P12 to P17, i.e., the earlier Will and also subsequent cancellation of the Will, Exs.P16 and Ex.P17 are marked. PW-1 was further cross-examined in lieu of further examination-in-chief. In the further examination of PW-1 dated 19.11.2012, an admission is made with regard to obtaining of the documents, Ex.P12 to P17. In the cross-examination, in respect of O.S.No.161/1996, nothing was suggested with regard to the existence of the Will in terms of Ex.D9 executed in favour of defendant Nos.2 and 3.
The plaintiff examined one witness as PW-2 and in his evidence, PW-2 had spoken with regard to the plaintiff is the daughter of Gare Narayanappa through the first wife and further, he says that the first defendant is the second wife of Gare Narayanappa and defendant Nos.2 to 4 are the children of Gare Narayanappa through his second wife. It is also the evidence of PW-2 that plaintiff and defendants were jointly and severally appearing in all the functions of their family. Further, plaintiff and defendants were also inviting their family members to their family functions and the suit schedule property is the joint family property.
PW-2 was subjected to cross-examination. In the cross-examination of PW-2, an answer is elicited that he is the close relative of the family and there was an ill-will against defendant Nos.2 and 3 since the second defendant’s daughter was given to his brother and hence, his mother was not visiting the house of the first defendant. Hence, it is clear that PW-2 was not in cordial terms with defendant Nos.2 and 3.
Defendants have examined one witness as DW-1 who is the second defendant. DW-1 in the affidavit has nowhere stated with regard to the Will and documents Exs.D2 and D6 were marked. It is elicited in the cross- examination of DW-1 that she cannot tell that who obtained the signature in respect of Ex.D9 and also she cannot tell that who are the attesting witnesses to Ex.D9 and also does not know the reason that why Ex.D9 is written and the attesting witnesses have also not given any information with regard to Ex.D9. It is suggested that before executing Ex.D9, one more Will was executed on 29.12.1986 and the same was denied that she is not aware of the same. She claims after the death of their father only, she came to know about the Will and also she cannot tell that for what reason her father cancelled the Will dated 29.12.1986. It is suggested that the Will dated 14.12.1987 was created on the date of the cancellation of the earlier Will and the same was denied.
The defendants have examined one more witness DW-2 and in his evidence, he states that when his father was alive, one late Gare Narayanappa who was their family friend had come to their residence in the year 1987 and requested to come to the Office of the Sub- Registrar, Hoskote to act as a witness to the Will since he is intending to execute the Will in favour of his family members. It is also in his evidence that after the registration, his father had informed him that he had attested his signature as a witness to the Will in the year 1987. He also identifies the signature of his father and the same was marked as Ex.D9(a).
DW-2, in his cross-examination admitted that in the year 1986-87, he was studying 9th standard. A question was put to him that how his father was having acquaintance with Gare Narayanappa and he claims that Gare Narayanappa was visiting his house and he cannot tell how both of them have become friends. But he claims that Gare Narayanappa was discussing all the matters with his father. He however admits that except attesting his signature on the Will, his father has not revealed anything about Gare Narayanappa with him. He admits that in Ex.D9, his father’s address has not been mentioned. He further states that he has got documents to show that his father used to affix his signature as per Ex.D9(a). He admits that he does not know anything about the children of Gare Narayanappa. He further admits that before coming to the Court to give evidence, he has not seen the signature of his father and again, he volunteers that he has seen the signature of his father on the other documents. He further admits that except his father informing about signing of the document, he has not informed anything to him. It is suggested that he is not having any acquaintance with the family of the defendants and he is falsely deposing before this Court and the same is denied by the witness. He also denied that the signature as per Ex.D9(a) does not belong to his father. But he cannot say for what reason, his father has signed Ex.D9. It is suggested that at the request of the defendants, he is deposing before the Court and the same was denied.
It is the contention of the defendants’ counsel that the attesting witnesses are no more and the son of one of the attesting witness has been examined as DW-2. His evidence is consistent and the same inspires confidence of the Court that the father of DW-2 has attested the signature. It has to be noted that in the absence of the attesting witness, under Section 69 of the Evidence Act, if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. In this case, defendant Nos.2 and 3 contend that one of the son of the attesting witness is examined. The question before the Court is whether Ex.D9 has been executed by Gare Narayanappa and the document, no doubt is a registered document. It has to be noted that in terms of the earlier Will Ex.P16, the first Will dated 29.12.1986, the said Gare Narayanappa executed Will in favour of all the four children, i.e., his four daughters through the second wife. But subsequently, the Will was cancelled on 14.12.1987 in terms of Ex.P17. But the fact is that the defendants are claiming the Will in terms of Ex.D9 and in terms of Ex.D9, Will is executed in favour of only defendant Nos.2 and 3.
On perusal of Ex.D9, the executant has assigned the reasons that his two daughters are not residing in the matrimonial home and they are depending on the executant and hence, he has executed the Will in favour of these two daughters. Having considered the evidence of DW-2, he admits that when the Will was executed, he was studying 9th standard and further, he says that his father had informed him about attesting of the document, Ex.D9. Except attesting of the document, Ex.D9, his father had not informed anything to him. He also admits that he does not know whether Gare Narayanappa was informing all his transactions with his father or not. He has only stated that he has got acquaintance with the said Gare Narayanappa since he was visiting his house, but he does not know the reason how his father and the said Gare Narayanappa having acquaintance with each other. It is also important to note that he does not know anything about the family of Gare Narayanappa and he admits that he does not know the name of the third daughter of Gare Narayanappa and also he does not know anything about the children of the said Gare Narayanappa. It is also important to note that he further admits that before coming to the Court, he has not seen the signature of his father, but again, he volunteers that he has seen the document. It is not his case that he has seen any other document of his father and also not stated which document he has seen before identifying the signature on Exhibit D9(a). No doubt, the scope under Section 69 of the Act is clear that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. The witness has stated that he has not seen any of the signatures of his father, again, he volunteers that he has seen the signature of his father. It is also important to note that the evidence of DW-2 does not inspire the confidence of the Court since he has stated that his father had not informed him about the other affairs of Gare Narayanappa and only says about this document. It is clear that first of all, he is not having any acquaintance with the signature of his father and while considering the evidence of the witness, it is important to note that on which document, he has seen the signature of his father before coming to the Court also not stated but he volunteers that he has seen the signature of his father, on which document, he has seen the signature of his father is not stated. After considering the materials available on record, I do not find any reason to accept the evidence of DW-2 that his father told him about the attestation. The DW-1 also not spoken anything about the Will in the chief-evidence. The evidence of DW-1 also does not inspire the Court since he categorically admits that he does not know the reason for execution of the Will and only come to know about the death. In the circumstances, I do not find any reasons to come to a conclusion that the defendants have proved the very execution of Ex.D9. Apart from that, in the cross- examination of PWs-1 and 2, the defendants have not put any question with regard to Ex.D9. The Court below having considered the oral and documentary evidence had rightly come to a conclusion that the defendants have not proved Ex.D9. Coming to such a conclusion, the Court below granted 1/4th share in favour of the plaintiff.
18. In view of coming to such conclusion that the defendants have not proved Ex.D9 and on account of impleading of one of the daughter legal heir as respondents before this Court, the parties have not disputed with regard to impleadment of Respondent Nos.3 to 7 as legal heirs of another daughter of Gare Narayanappa and hence, the share granted by the Trial Court requires to be modified. Instead of 1/4th share, it has to be modified as 1/5th share. In the said 1/5th share, the legal heirs of another daughter, i.e., respondent Nos.3 to 7 are entitled for a share subject to payment of Court-fee and hence, it requires modification of the judgment and decree passed by the Trial Court.
19. In view of the discussion made above, I pass the following:
ORDER i) The appeal is dismissed.
ii) In view of impleadment of Respondent Nos.3 to 7, 1/4th share in the suit schedule properties is modified as 1/5th share. The Respondent Nos.3 to 7 have to pay the Court- fee for their share.
(iii) Send the lower court records forthwith.
Sd/- JUDGE DH