IN THE HIGH COURT OF KARNATAKA AT

BANGALORE

DATED THIS THE 24TH DAY OF JULY, 2014

PRESENT

THE HON’BLE MR JUSTICE K L MANJUNATH

AND

THE HON’BLE MR JUSTICE RAVI MALIMATH

Regular First Appeal No. 1439 of 2012 (PAR/RES-DB)

BETWEEN:

1. SMT G LEELAVATHI D/O LATE D S GOVINDARAJA IYENGAR AGED ABOUT 76 YEARS NO.1296, 3RD MAIN KRISHNAMURTHY PURAM MYSORE – 570 004

2. SMT G PRABHA D/O LATE D S GOVINDARAJA IYENGAR AGED ABOUT 65 YEARS NO.488, 75TH D CROSS, 10TH F MAIN, 6TH BLOCK, RAJAJINAGAR BANGALORE – 560 010

3. SRI BHASHYAM IYENGAR S/O LATE D S GOVINDARAJA IYENGAR AGED ABOUT 59 YEARS NO.96, 2ND MAIN ROAD JAYANAGAR, MYSORE – 570 004

4. SMT S PADMA D/O LATE S SESHA IYENGAR AGED ABOUT 59 YEARS NO.96, 2ND MAIN ROAD

2

JAYANAGAR, MYSORE – 570 004

5. SRI S KRISHNA IYENGAR S/O LATE S SESHA IYENGAR AGED ABOUT 67 YEARS NO.1457, 6TH CROSS KRISHNAMURTY PURAM MYSORE – 560 004

6. SRI R PRAKASH D/O LATE M R DORESWAMY AGED ABOUT 51 YEARS NO.11, 4TH CROSS PAPAIAH GARDEN, BANASHANKARI 3RD STAGE, BANGALORE – 560 085 … APPELLANTS

[By Sri S Sunil Dutt Yadav, Adv. for M/s Siddappa, Sunil & Nitin, Advs.]

AND:

1. SRI M S KRISHNA IYENGAR

S/O LATE M V SRINIVASA IYENGAR AGED ABOUT 76 YEARS NO.1296, 3RD MAIN ROAD KRISHNAMURTHY PURAM MYSORE – 570 004

2. SMT SAROJA D/O LATE D S GOVINDARAJA IYENGAR AGED ABOUT 74 YEARS NO.1296, 3RD MAIN ROAD KRISHNAMURTHY PURAM MYSORE – 570 004

3. SMT VATSALA CASUBA D/O LATE D S GOVINDARAJA IYENGAR AGED ABOUT 63 YEARS NO.50, N S IYENGAR ROAD SESHADRIPURAM, BANGALORE – 560 020

3

4. SRI D S SAMPATH S/O LATE D S GOVINDARAJA IYENGAR AGED ABOUT 70 YEARS NO.1, MANDARA, SWEET WATER WELL ROAD RMV 2ND STAGE, NAGASHETTY HALLI BANGALORE – 560 094

5. SRI G VENKATESH IYENGAR S/O LATE D S GOVINDARAJA IYENGAR AGED ABOUT 68 YEARS HOYSALA LANDMARK FLAT NO.101, FIRST FLOOR, 30/1 KALPANA CHAWLA ROAD BOPPASANDRA BANGALORE – 560 094

6. SRI G NARASIMHAN S/O LATE D S GOVINDARAJA IYENGAR AGED ABOUT 61 YEARS NO.46, 3RD PHASE, 3RD STAGE 3RD MAIN, BANASHANKARI, BANGALORE – 560 083

7. SMT VASANTHA D/O LATE S SESHA IYENGAR AGED ABOUT 71 YEARS NO.34, 18TH CROSS, 2ND MAIN JAYANAGAR, MYSORE – 570 004

8. SMT SHASHIKALA D/O LATE S SESHA IYENGAR AGED ABOUT 55 YEARS NO.43, BLOCK NO.2 MADHUVANA LAYOUT SRIRAMPURA 2ND STAGE MYSORE – 570 023

9. SMT NALINI D/O LATE S SESHA IYENGAR AGED ABOUT 51 YEARS NO.498, BSK I STAGE,

4

II BLOCK, III CROSS, BANGALORE – 560 050

10. SRI S VEERARAGHAVAN S/O LATE S SESHA IYENGAR AGED ABOUT 51 YEARS CG 11, CASSIA BLOCK BRIGADE MILLENIUM J P NAGAR 7TH PHASE OPPOSITE WATER TANK (RBI LAYOUT) BANGALORE – 560 078

11. SRI S RAMASWAMY IYENGAR S/O LATE S SESHA IYENGAR AGED ABOUT 67 YEARS NO.228, 4TH MAIN, NGEF LAYOUT NRUPATUNGA NAGAR, NAGARBHAVI BANGALORE – 560 072

12. SRI S BHASHYAM S/O LATE S SESHA IYENGAR AGED ABOUT 57 YEARS NO.18, BLOCK NO.2, MADHUVANA LAYOUT SRIRAMPURA II STAGE MYSORE – 570 023

13. SRI S PRASAD S/O LATE S SESHA IYENGAR AGED ABOUT 47 YEARS BESIDES GANAPATHI TEMPLE NGO COLONY, CHAMALAPURA HUNDI

14. SRI D RAMASWAMY S/O LATE M R DORESWAMY AGED ABOUT 74 YEARS NO.11, 4TH CROSS, PAPAIAH GARDEN BANASHANKARI III STAGE BANGALORE – 560 085

5

15. SRI SRINIDHI S/O LATE LAKSHMINARASIMHACHAR AGED ABOUT 49 YEARS NO.28, NANDANA, S P AVENUE ROAD MALLESHWARAM BANGALORE – 560 003

16. SMT RAMAMANI D/O LATE LAKSHMINARASIMHACHAR AGED ABOUT 65 YEARS NO.28, NANDANA S P AVENUE ROAD MALLESHWARAM BANGALORE – 560 003

17. SRI SRIDHAR S/O LATE LAXMINARASIMHACHAR AGED ABOUT 59 YEARS NO.1089, 9TH CROSS, GOKULAM 3RD STAGE MYSORE – 570 092

18. SMT SUDHA S/O LATE LAXMINARASIMHACHAR AGED ABOUT 56 YEARS NO.1089, 9TH CROSS GOKULAM, 3RD STAGE MYSORE – 570 092

19. SRI B R SHESHADRI S/O RANGA BHATTA AGED ABOUT 67 YEARS NO.1242, 1ST CROSS KRISHNAMURTHYPURAM MYSORE – 570 004

20. SMT MANASA D/O B R SHESHADRI AGED ABOUT 31 YEARS NO.1242, 1ST CROSS KRISHNAMURTHYPURAM MYSORE – 570 004

6

21. SMT PADMA W/O LATE SHESHADRI AGED ABOUT 63 YEARS NO.28, NANDANA S P AVENUE ROAD MALLESWARAM BANGALORE – 570 003

22. SRI ANANDA S/O LATE SHESHADRI AGED ABOUT 35 YEARS NO.28, NANDANA S P AVENUE ROAD MALLESWARAM BANGALORE – 570 003

23. SMT ARUNA D/O LATE SHESHADRI AGED ABOUT 25 YEARS NO.28, NANDANA S P AVENUE ROAD MALLESWARAM BANGALORE – 570 003

24. SMT LATHA W/O LATE SRINATH AGED ABOUT 43 YEARS NO.28, NANDANA S P AVENUE ROAD, MALLESWARAM BANGALORE – 570 003

25. SMT SUSHMA D/O LATE SRINATH AGED ABOUT 25 YEARS NO.28, NANDANA S P AVENUE ROAD, MALLESWARAMA BANGALORE – 570 003

26. SRI SURAJ S/O LATE SRINATH AGED ABOUT 17 YEARS NO.28, NANDANA

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S P AVENUE ROAD MALLESWARAM BANGALORE – 570 003 (MINOR REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN THE 24TH DEFENDANT)

27. SMT T S CHAMPAKA W/O LATE M D GOPAL NO.11, 4TH CROSS PAPAIAH GARDEN BANASHANKARI 3RD STAGE BANGALORE – 570 085

28. SMT ASHWINI GOPAL D/O LATE M D GOPAL AGED ABOUT 32 YEARS NO.11, 4TH CROSS PAPAIAH GARDEN BANASHANKARI 3RD STAGE BANGALORE – 570 085

29. SRI HARSHA GOPAL S/O LATE M D GOPAL AGED ABOUT 30 YEARS NO.11, 4TH CROSS PAPAIAH GARDEN BANASHANKARI 3RD STAGE BANGALORE – 570 085

30. SRI ANANTHASHYANA IYENGAR S/O LATE D S GOVINDARAJA IYENGAR AGED ABOUT 57 YEARS NO.1958, C BLOCK RAGAMALIKA SAHAKARA NAGAR BANGALORE – 560 092

31. SMT ALAMELAMMA D/O LATE S SESHA IYENGAR AGED ABOUT 69 YEARS NO.333/10, 16TH MAIN ROAD M C LAYOUT, VIJAYANAGAR BANGALORE – 560 040

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32. SRI B MURALI S/O LATE M R DORESWAMY AGED ABOUT 52 YEARS NO.11, 4TH CROSS PAPAIAH GARDEN, BANASHANKARI 3RD STAGE, BANGALORE – 560 085

33. SRI D KANNAN D/O LATE M R DORESWAMY AGED ABOUT 48 YEARS NO.3991, 10TH CROSS 9TH MAIN, PADMANABHANAGAR BANGALORE – 560 070 … RESPONDENTS

[R1, R2, R4, R7, R9, R10, R12, R14 to R17, R19 to R33 are served & unrepresented;

Notice to R3, R5, R6, R8, R11, R13 to R18 are dispensed with v/c/o dated 07.01.2014]

THIS APPEAL IS FILED UNDER SECTION 96 R/W ORDER 41

RULE 1 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT PASSED IN O.S. NO. 53/2009 DATED 20.04.2012 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM, MYSORE, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION AND ETC.,

THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,

MANJUNATH, J., DELIVERED THE FOLLOWING:

J U D G M E N T

The unsuccessful plaintiff Nos 1, 2, 4, 6, 7 and 10 are

challenging the legality and correctness of the judgment

and decree dated 20-4-2012 passed by the Principal Senior

Civil Judge & CJM, Mysore in OS No 53 of 2009 in this

appeal.

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2. For the sake of convenience, the parties would be

referred to as per their status in the trial court.

3. The facts leading to this appeal are that: The suit

was instituted by the plaintiffs, claiming partition and

separate possession of 4/45th share to plaintiffs 1 to 4,

3/35th share to plaintiffs 5 to 7 and 4/25th share to

plaintiffs 8 to 11 in the suit schedule property, which is a

residential house bearing D No 1296, situated at 3rd Main

Road, Krishnamurthy Puram, Mysore, measuring east to

west 32 feet and north to south 112 feet. According to

plaint averments, one Anand Alvar was the full and

absolute owner of the suit schedule property. He had only

one daughter by name Srirangamma. One M V Srinivas

Iyengar was the husband of Srirangamma. Srirangamma

and M V Srinivas Iyengar had four daughters by names

Kamalamma, Rajamma, Susheelamma and Rathnamma

and only one son by name M S Krishna Iyengar, who is the

first defendant in the suit. The remaining plaintiffs and

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defendants are granddaughters and great granddaughters

of Srirangamma and Srinivas Iyengar.

4. Plaintiffs instituted the suit for partition and separate

possession on the premise that after the death of Anand

Alvar, his only daughter Srirangamma succeeded to the

suit schedule property and Srirangamma died intestate in

the year 1961 and her husband Srinivas Iyengar died in the

year 1980.

5. Plaintiffs 1 to 4 and defendants 2 to 6 are the children

of late Kamalamma. Kamalamma had also a daughter by

name Jayalakshmi, who died issueless. Plaintiffs 5 to 7

and defendants 7 to 13 are the children of late

Susheelamma and Susheelamma had also a daughter by

name S Nagamani, who died leaving behind her the

defendants 19 and 20 as her legal heirs. Plaintiffs 8 to 11

and defendant No 14 are the children of late Rajamma.

Rajamma had also one son by name Venkatesh, who died

unmarried. Rathnamma also died, leaving behind her

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defendants 15 to 18 as her legal heirs. Rathnamma had

also a son by name Seshadri, who died leaving behind him

the defendants 21 to 23 as his legal heirs. Another son of

late Rathnamma by name Srinath also died, leaving behind

him defendants 24 to 26 as his legal heirs. According to

plaint averments, the plaintiffs and the defendants are the

surviving legal heirs of Srirangamma and Srinivas Iyengar,

who constitute a Hindu undivided family. Contending that

there is no partition in the family, the suit came to be filed.

6. First defendant M S Krishna Iyengar contested the

suit. According to the first defendant, there is no Hindu

undivided family consisting of parties to the suit. He

admitted that the suit schedule property was earlier owned

by his maternal grandfather Anand Alvar and after his

death, his mother Rangamma, being the only daughter of

Anand Alvar, succeeded to the estate of his grandfather.

In the year 1964, his father Srinivas Iyengar, out of his

savings and income, made alterations and improvements to

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the main house and also constructed an additional

building. It is the further case of the first defendant that

when Srirangamma was in sound mind and body, on her

own, had executed a will dated 2-10-1959, bequeathing the

entire suit schedule property to her only son – the first

defendant. Srirangamma died two years thereafter i.e. on

23-12-1961. Since then, first defendant is enjoying the

property as absolute owner. According to him, as per the

recital of the will, his father Srinivas Iyengar had given a

life interest to reside in the house till his death and after

the death of his father, the first defendant has become the

absolute owner of the same.

7. It is also the case of first defendant that the mother of

first plaintiff late Kamalamma i.e. the eldest daughter of

Srirangamma, at the behest of some other persons, had got

issued a legal notice dated 8-9-1969 to the father of first

defendant, claiming right over the suit schedule property

and the same was properly and suitably replied by the first

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defendant’s father Srinivas Iyengar, bringing to the notice

of the mother of first plaintiff that his wife Srirangamma

had executed a will dated 2-10-1959, bequeathing the suit

schedule property in favour of the first defendant. He

further contended that the execution of the will by his

mother Srirangamma was made known to all, including the

mothers of plaintiffs and the defendants. Srinivas Iyengar

died on 7-4-1980. Before his death, when he was in sound

mind and body, he also executed a will dated 27-1-1967.

Since the father of the first plaintiff retired in the year

1965, on the request of the parents of the first plaintiff, the

father of first defendant allowed his daughter and son-in-

law to reside in a small portion of the outhouse of the suit

schedule property. Therefore, she has been residing under

permissive possession. According to first defendant, a

false and frivolous suit has been filed, since the fifth

defendant is residing in a portion of the suit schedule

property as a tenant under the first defendant. In the

circumstances, he requested the court to dismiss the suit.

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8. The other defendants did not contest the suit.

9. Based on the above pleadings of the parties, the trial

court framed the following issues for its consideration:

1. Whether the Plaintiffs prove that Late Sri. Anand Alwar was the original owner of the suit schedule property and the same

was inherited by way of intestate succession by his only child Smt. Srirangamma?

2. Whether the Plaintiffs further prove that

the Plaintiffs and the Defendants are the

surviving legal heirs of Late Smt. Srirangamma and M.V. Srinivas Iyengar?

3. Whether the Plaintiffs are entitled for

petition and separate possession of 4/45th share to the Plaintiffs 1 to 4,

3/55th share to the Plaintiffs No.5 to 7 and 4/25th share to Plaintiffs No.8 to 11 in the suit schedule property?

4. Whether the 1st Defendant proves that

Smt. Srirangamma had executed a Will

dated 2/10/1959? 5. Whether the 1st Defendant proves that he

has perfected his title with respect to the suit schedule property by way of adverse possession?

6. Whether the suit is bared by time?

Whether the suit is properly valued for

15

the purpose of court fee and jurisdiction of this court?

7. What order or decree?

10. In order to prove their respective contentions, on

behalf of the plaintiffs, sixth plaintiff S Padma got herself

examined as PW1 and she relied on ExP1 to 5. On behalf

of the defendants, two witnesses have been examined.

DW1 C B Subba Rao is the attester to the will and DW2 is

the first defendant. He relied on ExD1 to 17. The trial

court, after considering the entire evidence let in by the

parties, answered the issues 1 and 4 to 6 in the affirmative

and issues 2 and 3 in the negative and ultimately the suit

of the plaintiffs came to be dismissed. Challenging the

legality and correctness of the judgment and decree passed

by the trial court, the present appeal is filed only by the

plaintiff Nos 1, 2, 4, 6, 7 and 10.

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11. We have heard Sri S Sunil Dutt Yadav, learned

counsel for the appellants-plaintiffs. His contentions are

as under:

12. According to learned counsel for the appellants,

Srirangamma had no right to execute the will on the death

of Anand Alvar, who died in the year 1932. He contends

that in view of the provisions of the Hindu Law of

Inheritance (Amendment) Act, 1929 [for short, the Amended

Act] daughter’s daughter had also a share in the property

owned by Anand Alvar, and Srirangamma had no right to

execute a will, bequeathing the property in favour of first

defendant. According to him, the will has come into

existence under suspicious circumstances, as the will of

the year 1959 had not seen the light of the day till it was

produced before the corporation authorities in the year

1988 only for the purpose of change of khata to the name of

the first defendant. The appreciation of the evidence of

DW1 by the court below is not in proper perspective. DW1

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was aged about 99 years and his evidence has not been

considered properly by the court below. The trial court

has also committed an error in relying upon the legal notice

said to have been issued by late Kamalamma on 8-9-1969.

According to him, the findings of the trial court on all the

issues are required to be reconsidered by this court.

13. Having heard the learned counsel for the appellants,

we have to consider the following points in this appeal:

i) Whether Srirangamma had a right to execute the will in question?

ii) Whether the daughters of Srirangamma

had a right to succeed to the suit

schedule property under the provisions of the Amended Act?

iii) Whether the judgment and decree passed

by the trial court is required to be set aside?

14. The facts in this case to the following effect are not in

dispute: Even according to the plaint averments and the

written statement of the first defendant, the suit schedule

property was the absolute property of Anand Alvar, who

18

died leaving behind him his only daughter Srirangamma –

mother of first defendant. It is also not in dispute that late

Srirangamma and Srinivas Iyengar had four daughters by

names Kamalamma, Rajamma, Susheelamma and

Rathnamma and only son M S Krishna Iyengar, the first

defendant. It is also not in dispute that Srirangamma died

in the year 1961 and Anand Alvar died in the year 1932, as

could be seen from the recital of the will. Srinivas Iyengar

died in the year 1980.

15. The only dispute in this case is as to whether on the

death of Anand Alvar, his only daughter Srirangamma had

become the absolute owner of the suit schedule property in

order to execute a will and whether the granddaughters of

Anand Alvar had right to succeed to the property, in view of

the Amended Act? If Sirangamma was the absolute owner

of the suit schedule property, whether the plaintiffs can file

a suit claiming share, in view of the will executed by her in

19

the year 1959, bequeathing the suit schedule property in

favour of the first defendant?

16. To show that the suit schedule property is a joint

family property of Anand Alvar, no document is produced

before the court. In order to consider the suit schedule

property as an ancestral property of Anand Alvar, the

parties were required to plead and prove that the suit

schedule property was an ancestral property of Anand

Alvar. On a perusal of the averments made in the plaint,

what is stated is only that Anand Alvar was the absolute

owner of the property and after his death his only daughter

Srirangamma has succeeded to the same and

Srirangamma died intestate and therefore the plaintiffs and

the defendants are entitled to equal share in the suit

schedule property. But, no material is placed before the

court to show that the suit schedule property was owned by

Anand Alvar as an ancestral property. In order to treat the

suit schedule property as an ancestral property, one has to

20

inherit the same from three generations – male or female –

in assent from the same person. But, unfortunately, in

the instant case, no such pleading is there and no

supporting evidence is also let in by the parties. In the

absence of the same, and more particularly in the light of

the plaint averments, it is difficult for us to accept the

argument advanced by Sri Sunil Dutt Yadav that the suit

schedule property was an ancestral property of Anand

Alvar. If Anand Alvar had got the property in a partition

effected among him and other family members, it would not

be difficult for us to hold that the suit schedule property

has to be considered as an ancestral property. In fact, for

the first time, learned counsel for the appellants is

canvassing the argument to the effect that the daughters of

Srirangamma had a right to inherit the suit schedule

property under the Amended Act, since Anand Alvar died in

the year 1932.

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17. Even if it is not pleaded or argued or canvassed, since

it is a question of law, this court can always consider such

contentions. In order to appreciate the said contention,

there must be some material placed by the parties to show

as to how such right had been accrued to the daughters of

Srirangamma on the date of death of Anand Alvar? In

order to appreciate the contention of the learned counsel

for the appellants on this aspect, we would like to refer to

the Amended Act, and since it is a one page Act, the same

is reproduced hereunder:

ACT No. II OF 1929

[Passed by the Indian Legislature]

(Received the assent of the Governor General on the 21st February, 1929)

An Act to alter the order in which certain

heirs of a Hindu male dying intestate are entitled to succeed to his estate.

WHEREAS it is expedient to alter the

order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate; It is hereby enacted as follows:-

1. (1) This Act may be called the Hindu Law of Inheritance (Amendment) Act, 1929.

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(2) It extends to the whole of British

India, including British Baluchistan and the Sonthal Parganas, but it applies only to persons who, but for the passing of

this Act, would have been subject to the law of Mitakshara in respect of the provisions herein enacted, and it applies to such persons in respect only of the property of males not held in coparcenary and not disposed of by will.

2. A son’s daughter, daughter’s daughter,

sister, and sister’s son shall, in the order so specified, be entitled to rank in the order of

succession next after a father’s father and before a father’s brother:

Provided that a sister’s son shall not include a son adopted after the sister’s death.

3. Nothing in this Act shall–

(a) affect any special family or local custom having the force of law, or

(b) vest in a son’s daughter, daughter’s daughter or sister an estate larger

than, or different in kind from, that possessed by a female in property inherited by her from a male according to the School of Mitakshara law by which the male was governed, or

(c) enable more than one person to

succeed by inheritance to the estate of a deceased Hindu male which by a customary or other rule of

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succession descends to a single heir.

Considering the preamble portion of Section 2 of the

Amended Act, if we accept the contention of the learned

counsel for the appellants that the daughters’ daughters

are also entitled for a share in the property if a Hindu male

died intestate, then the question would whether

Srirangamma being the only daughter of Anand Alvar, was

not entitled to any share in the suit schedule property.

According to us, even if we consider the case of the

appellants, holding that provisions of the Amended Act are

applicable, the daughters of Srirangamma would not get a right

over the property, because, the Amended Act applies to ‘certain

heirs of a Hindu male dying intestate’. In the instant case, as

stated supra, there is nothing on record to show that the suit

schedule property was an ancestral property of Anand Alvar and

on the contrary, as per the pleadings of the plaintiffs-appellants,

it was the absolute property of Anand Alvar, and Srirangamma,

after the death of her father had succeeded to the suit schedule

property, since her father died intestate. If Srirangamma

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succeeded to the estate of her father, who died intestate,

Srirangamma had every right to execute the will in question.

18. Having held so, whether Srirangamma had executed

the will or not would be the next question for our

consideration. Admittedly, ExD1 is the will relied upon by

the first defendant. The scribe of the will is none other

than the husband of first defendant i.e. father of first

defendant. He is not only a scribe, but also signed the

document as a consenting witness. On a perusal of the

will, it is clear that Anand Alvar had purchased the suit

schedule property under a registered sale deed dated 12-

12-1905 from Advocate M L Narasimha Iyengar. If the

property was purchased by Anand Alvar from said

Narasimha Iyengar, the same cannot be considered as an

ancestral property of Anand Alvar. On the contrary, it has

to be construed as a self-acquired property of Anand Alvar.

19. Admittedly, Anand Anvar died intestate. When

Anand Alvar died leaving behind his self-acquired property,

25

it has to be succeeded only by his only daughter

Srirangamma. The plaintiffs are not disputing the

handwriting of ExD1, which is in the handwriting of

Srinivas Iyengar, husband of Srirangamma and father of

first defendant. In the will, a right of residence is also

given to Srinivas Iyengar till his death and thereafter as per

ExD2, Srinivas Iyengar had also executed a will.

20. To prove the execution of the will of the year 1959,

the only attester available is DW1. He has been examined

and his evidence in regard to the handwriting of Srinivas

Iyengar is not questioned or challenged by the appellants-

plaintiffs. The first defendant has also produced ExD5,

which is the legal notice got issued by late Kamalamma,

mother of first plaintiff. The said notice was got issued by

the mother of first plaintiff Kamalamma to her father M V

Srinivas Iyengar, stating that Anand Alvar was the owner of

the suit schedule property and after his death, his only

daughter Srirangamma inherited the same and she died

26

seven years prior to issuing of the legal notice, leaving

behind her Srinivas Iyengar and five daughters and a son

and she being the eldest daughter living in a portion of the

suit schedule property and that her father was

unnecessarily giving pinpricks to her in the matter of user

of the entire property. To this legal notice, Srinivas

Iyengar sent a reply as per ExD6, wherein it is clearly

mentioned about the execution of the will dated 2-10-1959,

bequeathing the suit schedule property in favour of first

defendant. First defendant has also produced the

acknowledgement for having served the reply on the

advocate for late Kamalamma, which is marked as ExD7.

These facts are not all challenged by the plaintiffs.

21. The only contention of the plaintiffs-appellants is that

till 1988, the khata of the suit schedule property was not

transferred to the name of first defendant. Learned counsel

for the appellants does not dispute that no law of limitation

applies for change of khata. Merely because the khata of

27

the suit schedule property was not changed, it cannot be

held that the first defendant was not enjoying the property

as an absolute owner. On the contrary, tax paid receipts

are produced by the first defendant to indicate that he was

paying taxes and enjoying the property as absolute owner.

22. The trial court has rightly appreciated the evidence of

DW1 to hold that the first defendant has proved the will of

his mother, which was executed in the year 1959. When

the mother of first plaintiff late Kamalamma had made an

attempt to claim a share in the suit schedule property in

the year 1969 and when the right of the mother of first

plaintiff was denied in the year 1969 by issue of reply

notice as per ExD6 dated 13-9-1969 and when

Kamalamma has not taken any action to claim any share in

the suit schedule property, we are of the view that in order

to overcome the HRC proceedings initiated by the first

defendant to evict some of the plaintiffs and the defendants

from the suit schedule property, the plaintiffs have thought

28

of filing the present suit in the year 2009 i.e. 48 years after

the death of Srirangamma, to claim partition and separate

possession in respect of the suit schedule property.

Therefore, we are of the view that there is no merit in this

appeal and the appeal is accordingly dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

*pjk