Case Note & Summary
The present appeal arises from a judgment and decree dated 06-12-2013 passed by the XXVIII Additional City Civil Judge at Mayo Hall Unit, Bangalore, in O.S.No.26928/2009. The suit was filed by the respondent No.1 (plaintiff) against the appellants (defendant Nos.1 and 3) and respondent No.2 (defendant No.2) seeking partition and separate possession of her 1/3rd share in the suit schedule property, which is a house property bearing No.3408 measuring 20'X30' situated at Banashankari II Stage, Bengaluru. The plaintiff claimed that the property was the self-acquired property of her father, Sri. Revanna, who died intestate. The defendants, who are the plaintiff's brothers, contended that the property was bequeathed to them under a Will dated 27-05-1985 executed by Revanna. The trial court decreed the suit in favor of the plaintiff, holding that the Will was not proved to be the last will of Revanna and that the plaintiff was entitled to a 1/3rd share. The defendants appealed under Section 96 of the Code of Civil Procedure, 1908. The High Court, after hearing the parties, dismissed the appeal, affirming the trial court's findings. The court held that the defendants failed to discharge the burden of proving the Will, as they did not examine any attesting witness or produce credible evidence. The court also noted that the plaintiff's claim was based on the intestate succession of her father's self-acquired property, which was not disputed. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Appeal against decree - Section 96 Code of Civil Procedure, 1908 - The appellants challenged the judgment and decree passed in a suit for partition and separate possession. The High Court dismissed the appeal, confirming the trial court's decree. Held that the appellants failed to prove the Will dated 27-05-1985 as the last will of the testator (Paras 2-10). B) Hindu Law - Partition - Self-acquired property - The suit schedule property was the self-acquired property of the father, Sri. Revanna. Upon his death, his children (plaintiff and defendants) inherited equal shares. The plaintiff sought 1/3rd share. Held that the plaintiff is entitled to partition and separate possession of her share (Paras 3-8). C) Evidence - Will - Burden of proof - The defendants relied on a Will dated 27-05-1985 to defeat the plaintiff's claim. The trial court found that the Will was not proved to be the last will of Revanna. The High Court upheld this finding, noting that the defendants did not examine any attesting witness or produce satisfactory evidence. Held that the Will is not binding on the plaintiff (Paras 5-9).
Issue of Consideration
Whether the Will dated 27-05-1985 was valid and binding on the plaintiff, and whether the plaintiff is entitled to 1/3rd share in the suit schedule property.
Final Decision
The High Court dismissed the appeal, confirming the judgment and decree of the Trial Court dated 06-12-2013. No order as to costs.
Law Points
- Partition
- Will
- Burden of proof
- Section 96 CPC
- Self-acquired property
- Hindu Succession Act
