Sudhakara Manolithaya v. Premalatha — 1990 DIGILAW 561 (KER)

Judgment :- A.S.No. 336 of 1984 is by defendants 1. 2 and 4 and AS.No.389 of 1984 is by 3rd defendant against the preliminary decree and judgment. 2. The facts in brief are as follows: The suit property belongs to the. joint family of the plaintiff and defendants. Sitarama Manolithaya had two sons Krishna Manolithaya and Subraya Manolithaya. As per Ext.A-1 partition deed of 1933 Krishna Manolithaya's branch obtained the 'B' Schedule in the said partition. Second defendant is the widow of Krishna Manolithaya. Plaintiff and defendants 1 to 4 are his children. The 5th defendant is the daughter of a deceased daughter of Krishna Manolithaya. Plaintiff alleged that the plaint 'A' schedule properties belong to the family and the 'B' schedule properties forms kumki and lagthi to the 'A' schedule properties that they were obtained on dharkhast in the names of the members of the family and hence they are partible properties. Plaintiff also alleged that the plaint' C schedule immovables also belong to the family. According to the plaintiff on the coming into force of the Kerala Joint Hindu Family System (Abolition) Act 1975 (Act 30 of 1976) all members of the joint family became tenants-in-common. each one of them is entitled to 1/6th share. At the commencement of the said Act there were six members in the joint family. The plaintiff contended that after her marriage her relationship with the other members of the family became strained. She issued a notice demanding partition to which a reply was received from the first defendant to the effect that Krishna Manolithaya had executed Ext.B-3 will. The plaintiff contended that the will is a fabricated document brought into existence by the first defendant in collusion with the scribe and attestors.. Plaintiff alleged in the amended plaint that the contention of defendants 1.2 and 4 that the plaint 'B' schedule properties are not partible and that the contention of defendants 1 to 4 that the 'Y' schedule in the written statement of defendants 1,2 and 4 belongs to 3rd defendant is not true and correct. According to the plaintiff the purchase certificate Ext.B8 obtained by the 3rd defendant is vitiated by fraud and collusion and the alleged lease is hit byS.74 of Act 1/64. Alternatively it was contended that. the assignment of-the leases were taken utilising the joint family fund and hence the same too are partible properties. 3. Defendants 1. According to the plaintiff the purchase certificate Ext.B8 obtained by the 3rd defendant is vitiated by fraud and collusion and the alleged lease is hit byS.74 of Act 1/64. Alternatively it was contended that. the assignment of-the leases were taken utilising the joint family fund and hence the same too are partible properties. 3. Defendants 1. 2 and 4 in their written statement and additional written statement contended that Krishna Manolithaya executed ExtB3 will validly. he had disposing capacity. The 'X' schedule items 2 and 3 were got assigned on dharkhast utiling 1st defendant's funds and therefore the same is not partible. They also contended that the 'X' schedule item No.1 in the written statement was obtained on dharkhast by the 3rd defendant and therefore the same exclusively belongs to her and that the properties comprised in'Y' schedule in the written statement were outstanding in lease; the 3rd defendant obtained Exts.B4 to B7 assignments and later she obtained Ext.B8 purchase certificate. Therefore. according to them those items also are not partible. It is further contended by them that. the 'Z' and 'ZZ' schedules in their written statement are outstanding on lease and applications by tenants for assignment are pending before the Tribunal. 4. The 3rd defendant contended that she obtained purchase certificate on the 1 basis of Ext.B4 to B7; those properties are not liable for partition. The 5th defendant too contended that Ext.B3 will is not genuine and that her 1/6th share in the property has to be partitioned and allotted. 5. The lower court did not accept the claim made by the first defendant and third defendant that the property scheduled to the written statement of defendants 1.2 and 4 as 'X' schedule and 'Y' schedule are not partible properties. Lower court holding that Ext.B3 is not genuine passed a preliminary decree directing to divide the A. B. and C schedule properties into 12 equal shares subject to the right of the tenants with respect to properties mentioned in the 'Z' and 'ZZ' schedules in the written statement of defendants 1.2 and 4 and to allot one share each to the plaintiff and defendants 3 and 5. 6. Appellants in A.S.336 of 1984 challenging the finding of the lower court as to the genuineness of Ext.B3 and the finding that items 1 to 3 in 'X' schedule to their written statement are partible. 6. Appellants in A.S.336 of 1984 challenging the finding of the lower court as to the genuineness of Ext.B3 and the finding that items 1 to 3 in 'X' schedule to their written statement are partible. Appellant in A.S.339 of 1984 challenges the finding of the lower court that item No.l in the 'X' schedule and the properties described in the 'Y' schedule are partible properties. 7. Learned counsel for the appellant contended that the finding of the lower court that Ext.B3 is not genuine cannot be supported with due regard to the evidence on record. According to the learned counsel the evidence of DWs. 2 to 4 being unimpeachable. the lower court erred in finding that the first defendant was not successful in proving the genuineness of the will. It was also contended. inasmuch as the first defendant was only a co-owner who obtained the assignment it could not have been found that such assignment was for the benefit of the family and the finding that Exts. B4 to B7 are benami for Krishna Manolithaya's family cannot be supported as both under law and also on evidence such a finding cannot be supported. 8. With due regard to the contentions raised by the learned counsel for the first point to be considered is as to the genuineness of Ext.63. Before going into the evidence it will be necessary to advert to the terms of Ext.B3. At the time of execution of Ext.B3 Krishna Manolithaya was 70 years old. It states that after his death his wife would be entitled to 1/3 out of his 1/2 share and the remaining 2/3 is to be enjoyed by his son and that the other heirs are not entitled to any share. It proceeds to state that if during his life he is unable to give in marriage his two daughters first defendant should give them in marriage at the appropriate time. The testator then makes a monetary legacy of Rs.4,000/- each to his daughters including the plaintiff. and first defendant is directed to pay the same without interest to the 3rd defendant within six years from the date of his death. to the plaintiff and 4th defendant within five years from the date of their marriage. The first defendant is also directed to pay an amount of Rs.3,000/- to the 5th defendant within six years from the date of her attaining majority. to the plaintiff and 4th defendant within five years from the date of their marriage. The first defendant is also directed to pay an amount of Rs.3,000/- to the 5th defendant within six years from the date of her attaining majority. 9. Plaintiff examined DWs. 2 to 4 to prove execution of Ext.B3. DW-2 an attestor is the son of Subraya Manolithaya. DW-3 is a retired teacher. DW-4 is the scribe. Ext.B3 is an un-registered will. These witnesses would swear that. Ext.B3 was executed at the residence of the testator. According to DW-2 the scribe made a draft as per the instruction of the. testator. after that DW-4 read over the same to him and the testator admitted. the contents of the draft are correct. According to him thereafter he directed DW-4 to prepare the original. the testator went through the contents of Ext.B-3. and admitted the contents to be correct. Then. according to him DW-4, the scribe asked the testator to sign Ext.B-3. he affixed the signature followed by the attestors signing the same. that he saw the testator affixing signature and the testator saw attestors sign Ext.B3 and that the testator had sound disposing capacity. In the cross examination he said that he is a neighbour of the testator and the sub registry office is five miles away from the house of the testator. Though he does not know whether the testator belonged to a particular political party; he knew that he used to address public meetings. According to him it was the testator who asked him to bring the scribe. He says that he was not invited for the marriage of PW-1 the plaintiff and that they all felt sorry of the marriage. He does not know whether the testator wanted to discriminate between his son and daughters or whether he had any caste prejudice. According to him the execution of Ext.B3 was completed by 9-9.15 P.M. DW-3 in the chief examination has sworn in the same manner as DW-2 except that he said that the original was also read over by the scribe to the testator. DW-3 also said that execution of Ext.B3 was completed by 9-9.15 P.M. 10. In the cross-examination DW-3 said that he is residing 15 miles away from the 'house of testator. DW-3 also said that execution of Ext.B3 was completed by 9-9.15 P.M. 10. In the cross-examination DW-3 said that he is residing 15 miles away from the 'house of testator. and that a week prior to the execution of Ext.B-3 the testator came to his house and asked him to go over to the testator's house. It took two hours to finish the preparation of the will. It started at about 7.00 P.M. and was finished by about 9-9.15 P.M. He said that. he does not know whether there was any special reason to invite him to attest the document. 11. DW-4 the scribe has sworn in the chief examination in the same manner as DW-2. He would state that. Ext.B-3 was read over to the testator and he also went through the same and he admitted the same. In the cross examination he said he took 11/2 hours to reach the house of the testator from the bus stop. He would state that. he maintained a registry in which the particulars of the documents written by him on each day is noted. But according to him. in that Ext.B-3 is not noted because the same was not registered. According to him particulars of documents to be registered alone would be entered in the register. He admits that usually wills are registered. and that there is a Sub Registrar's Office at Kasaragod. He said that his office is about 15 miles away from the house of the testator. He admits that he has. acquaintance with DW-2. According to him he wanted the testator to write the will because it was not intended to be registered. The testator then said that he could register the will later. He said that it may be that the first attestor signed with the pen used by the testator. According to him the testator used his own pen. He said that he wrote the description of the first attestor with his pen. He also stated that the execution was completed by 9 -9.15 P.M. 12. With respect to the burden of proof regarding the execution of the will the Privy Council in Harmes v. Hinkson (AIR 1946 PC 156) held that the burden is on the propounder of a will to satisfy the conscience of the court that the instrument propounded by him is the last will of-a free and capable testator. With respect to the burden of proof regarding the execution of the will the Privy Council in Harmes v. Hinkson (AIR 1946 PC 156) held that the burden is on the propounder of a will to satisfy the conscience of the court that the instrument propounded by him is the last will of-a free and capable testator. The Supreme Court in the decision in H. Venkatachala lyengar v. B.N. Thimmajamma & Others (1959 (1) SCR 426) held that the mode of proving a will does not ordinarily differ from that or proving any other document except" as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. and that in the absence of suspicious circumstances surrounding the execution; proof of execution is just like any other document. It is held: "The onus must be on the propounder and in absence of suspicious circumstances surrounding the execution of the will. proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. Where. however. there are suspicious circumstances. the onus would be on the propouner to explain them to the satisfaction of the court before the will can be accepted as genuine. If the caveator alleges undue influence. fraud or coercion the onus will be on him to prove the same. Where there are no such pleas but the circumstances give rise to such doubts. it is for the propounder to satisfy the conscience of the court". As regards suspicious circumstances at page 444 it is observed: "There may. however. be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounders case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural. improbable or unfair in the light of relevant circumstances; or. the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. improbable or unfair in the light of relevant circumstances; or. the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally except that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and. unless it is satisfactorily discharged. courts would be reluctant to treat the document as the last will of the testator. It is true that. if a caveat is filed .alleging the exercise of undue influence. fraud or coercion in respect of-the execution ofthe will propounded. such pleas may have to be proved by the caveators; but. even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will. and in such circumstances. it would be a part of initial onus to remove any such legitimate doubts in the matter". 13. Then referring to the decision in Harmes's case (AIR 1946 P.C.156) referred to early at page 446 it is stated: "It is quite true that. as observed by Lord Du Parcq in Hames v. Hinkson "where a will is charged with suspicion. the rules enjoin a reasonable scepticism. not an obdurate persistence in disbelief. They do not demand from the judge. even in circumstances of grave suspicion. a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so. but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant. cautious and circumspect". This decision is followed in the decision in Shashi Kumar v. Subodh Kumar (AIR 1964 SC 529). The decision in Jaswant Kaur v. Amrit Kaur (1977 (1) SCR 925 brings out the degree and nature of proof to be adduced by the propounder for removing the suspicious circumstance; it is stated: "In cases where the execution of a will is shrouded in suspicion. its proof ceases to be a simple lis between the plaintiff and the defendant. What. generally. its proof ceases to be a simple lis between the plaintiff and the defendant. What. generally. is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making the will". In the decision in Kamaleswaran v. Ponnamma (1986 KLT SN 5 - Case NO.8) it is observed: "A circumstance would be' suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person". In the decision in Kalyan Singh v. Chhoti (AIR 1990 SC 396) it is pointed out that a will is one of the most solemn documents since the executant of the will cannot be called to deny the execution or to explain the circumstances. It is stated: "It is. therefore. essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the Will A must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appears from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party" The whole spectrum of court's jurisdiction in considering the evidence is thus laid down in clear terms by the Supreme Court in the said decision. All attending circumstances which would have nexus with the execution. and the testamentary capacity of the testator have to be taken into consideration in evaluating the trustworthiness of .the evidence tendered on behalf of the propounder. All attending circumstances which would have nexus with the execution. and the testamentary capacity of the testator have to be taken into consideration in evaluating the trustworthiness of .the evidence tendered on behalf of the propounder. It should not be a mechanical assessment of the evidence of the witnesses. The same should be evaluated in the context of the circum¬stances that are thought out in evidence as well as the dispositions made in the testament. Learned counsel for the appellant contended that even if a foolish allotment is made. that cannot be a reason for suspecting the due execution of the will. 14. The learned counsel relied on the decision in Motibaiy. Jamsetjee (AIR 1924P.C.28). At page is stated: "A man may act foolishly and even heartlessly if he acts with full comprehension of what he is doing the Court will not interfere with the exercise of his violation. The evidence which consists of the testimony of respectable and wholly disinterested witnesses. excludes hypothesis of its having been obtained by influence". When unimpeachable evidence as to the testamentary capacity and execution is tendered simply because the disposition were foolishly or heartlessly made need not affect the genuineness of the will. The nature of dispositions made in the will has to be taken along with other circumstances in seeing as to whether the will in question is the last will of the testator. The probabilities 'that find expression from the circumstances attending the execution of the will are important factors that should be kept in view. The court should have a realistic approach with due regard to human conduct and attending circumstances. It need not be that. one circumstance alone should create suspicion. The cumulative effect of the circumstances brought out in evidence should be tested against probabilities in a realistic manner. 15. It is in evidence that Krishna Manolithaya was a man of progressive ideas. Ordinarily. therefore as a father he need not have had any discrimination between his son and daughters. In the disposition made in Ext.B3 all that is given to the daughters is a monetary legacy of Rs.4,000/- each. and that too to be given after some period; in the case of the plaintiff within five years of her marriage. Ordinarily. therefore as a father he need not have had any discrimination between his son and daughters. In the disposition made in Ext.B3 all that is given to the daughters is a monetary legacy of Rs.4,000/- each. and that too to be given after some period; in the case of the plaintiff within five years of her marriage. There is no convincing explanation as to why they were not preferred with a share in the property except that the first defendant was charged with the duty of giving the plaintiff and the 4th defendant in marriage. Simply because such a direction was made to none else than the only brother who is entitled to a half. in the joint family property need not justify a conclusion that because he was directed to give his two sisters in marriage this discrimination was made in allotting the share. Thus the disposition itself in this regard is unfair. 16. According to DW-4 the testator said that he would register the Will. A person who had made so much arrangements for bringing the scribe from a distance of 15 miles for preparing the will ordinarily would not have left the will unregistered. Ext.X-1 suit was instituted by defendants 1 and 2 in 1980 against a stranger for injunction. Ext.B3 is dated 22-7-1975. No mention is. made as to Ext.B3 will in that suit. In the decision in Kalyan Singh's case (AIR 1990 SC 396) referred to early the fact that "the will has not been produced for very many years before the court or public authorities even though there were occasions to produce it for asserting plaintiff s title to the property" is taken as relevant in considering the genuineness of will. 17. As has already noted DW-4 said that the address of one of the testators was written by him with his pen and that the testator signed with his own pen. What would be noticed on a perusal of the last. page of the will is address and the signature are with the same pen. It is not a case where the testator was illiterate. If as a matter of fact the will was not intended to be registered. there is no acceptable reason as to why the testator himself did not write the will. DW-4 stated. page of the will is address and the signature are with the same pen. It is not a case where the testator was illiterate. If as a matter of fact the will was not intended to be registered. there is no acceptable reason as to why the testator himself did not write the will. DW-4 stated. he wanted the testator to write the will as it was not intended to be registered. 18. Coming to the evidence of attestors and the scribe it will be noted that all the three witnesses were unanimous that finalisation of the will was between 9 - 9.15 P.M. A reading of the evidence of these witnesses gives the impression that they are tutored witnesses. It remains. a riddle as to why a scribe residing 15 miles away from the house of the testator should have been preferred for drafting the will. DW-3 one of the attestors said that he does nor know whether there was any special reason to invite him to attest the document. DW-2 is sorry that plaintiff married outside the caste. The plaintiff s case is just to penalise her for marrying' a person outside the caste prompted the fabrication of the Will. Only the plaintiff and the 5th defendant challenge the genuineness of the will. 19. Learned counsel for the appellants relying on the decision in Kristo Gopal v. Baidya Nath (AIR 1939 Calcutta 87) contended that suspicion should be a suspicion inherent in the transaction itself and not a suspicion arising out of a mere conflict of testimony. Inconsistency between the evidence of witnesses may make them unreliable. If the attestors' evidence becomes unacceptable. propounders would fail to remove suspicious circumstances attending the execution of the will. At any rate the decision in Kalyan Singh's case (AIR 1990 SC 396) has held that all the attending circumstances brought out in evidence or which appear from the nature and contents of the testament should be taken into account. Of course it may not be necessary to search for the motive of the testator when there is clear evidence as to the execution of the Will. 20. When the evidence as regards execution of the will is scrutinised with due regard to status of the testator and the attending circumstances it is clear that there are suspicious circumstances surrounding the execution of the Will. 20. When the evidence as regards execution of the will is scrutinised with due regard to status of the testator and the attending circumstances it is clear that there are suspicious circumstances surrounding the execution of the Will. The evidence tendered is quite incapable to dispel the suspicious circumstances attending the execution of the will. So long as that is the position it cannot be said that the defendants are successful in satisfying the conscience of the court that Ext.B-3 is the last testament of deceased Krishna Manolithaya. Consequently the finding of the lower court that the will is not genuine has to be confirmed. 21. The next aspect to be considered is as to claim that certain items are not partible. The first claim is that Ext.X-1 items 1 to 3 in the written statement of defendants 1.2 and 4 are not partible. According to them they are kumki land obtained by dharkhast. According to defendants 1.2 and 4 items 2 and 3 in 'X' schedule were obtained by first defendant and item No.l was obtained by the 3rd defendant. The case of the plaintiff is that the income from the family property was utilised for acquiring the same. According to the plaintiff they are kumki and lagthi obtained on dharkhast either in the name of junior members or in the name of dependants of Krishna Manolithaya and therefore they are acquisitions of the family. As regards item No.l in'X' schedule to the written statement though defendants 1. 2 and 4 contended that the same was got on dharkhast by the 3rd defendant the 3rd defendant does not make a claim in her written statement with respect to item No.1 in'X' schedule. Defendants 1.2 and 4 are incompetent to make a claim on behalf of the 3rd defendant. It must be taken that item No.l is available for partition. None of the documents relating to the assignment is produced. As regards items 2 and 3. in paragraph 6 of the plaint it is alleged that they were acquired by Krishna Manolithaya in the name of the family members of the dependants. 22. Learned counsel for the plaintiff relying on the decision in Parameswara Bhat v. The Tahsildar, Kasaragod (1967 KLJ 308) contended that. As regards items 2 and 3. in paragraph 6 of the plaint it is alleged that they were acquired by Krishna Manolithaya in the name of the family members of the dependants. 22. Learned counsel for the plaintiff relying on the decision in Parameswara Bhat v. The Tahsildar, Kasaragod (1967 KLJ 308) contended that. in the matter of assignment since kumki right has preferential claim and since the assignment was secured taking advantage of the said character the benefit of such assignment should enure to the benefit of the family. But it was contended by the first defendant that when the Government assigns land in favour of any other person would be extinguished. Reliance was made on the decision in BappaniRai v. Thyampanna Rao (AIR 1965 Ker. 221). It was also contended by the first defendant that the parties became co-owners on the commencement of the Kerala Joint Hindu Family System (Abolition) Act 1975 and hence the assignment could enure only to the benefit of the assignees and that even if the first defendant got assignment utilising joint family income he is bound only to account for the co-ownership fund utilised by him. Reliance was made on the decisions in Kunjaiyyappan v. Unnaman (1955 KLT 440). K. Parvathi Amma v. V. ManiAmma (AIR 1975 Ker. 139) and M.N. Aryamurthi v. M.L. Subbaraya (AIR 1972 SC 1279). The decisions relied on by the learned counsel for the first defendant did not consider the right of a Kartha or Karanavan who obtains assignment of kumki land belonging to the family. Admittedly the property in question was kumki land belonging to the family. After the death of the father of the first defendant the first defendant became the Kartha of the family. No document concerning the assignments was produced by. either the first defendant or third defendant. In paragraph 4 of the written statement-of defendants 1. 2 and 4 it is contended that item No.l in'X' schedule property was obtained on dharkhast by the third defendant as per order passed in L.A.No.166/1967/Perumbala and that items 2 and 3 in'X' schedule property were obtained on dharkhast by the first defendant as per the assignment order passed in L.A.No.166/67/Perumbala. What could be seen from the said contention is that the assignment was made in the same proceeding. DW-1 the first defendant in the cross-examination said: "Both the Dharkhast applications were dealt inL.A.No.166/1967of Perumbala. What could be seen from the said contention is that the assignment was made in the same proceeding. DW-1 the first defendant in the cross-examination said: "Both the Dharkhast applications were dealt inL.A.No.166/1967of Perumbala. Though the applications were filed in 1967 orders were got only in 1980. My father applied for kumki in 1967. It was stayed in the High Court for 8 to 9 years. After the death of the father I applied for dharkhast of kumki land. The land was assigned in my name in the same L.A. numbers". 23. From the evidence of DW-1 it is clear that it was the father who applied for assignment and he was the Kartha of the family. and after his death if the assignment was obtained by the first defendant who was the successor Kartha. he cannot. in the circumstance. claim that the assignment would not enure to the benefit of the family. The Kerala Joint Hindu Family System (Abolition) Act 1975 came into force only in 1976. The application was made by the father. Admittedly the property in question is kumki belonging to the family. In such situation the decisions relied on by the first defendant cannot apply. The right on assignment of kumki land was considered in the decision. in Kunhunni v. Kesavan Namboodiri (1990 (2) KLT 854 F.B.). In paragraph 11 of the judgment it is stated: "When a Karanavan of a tharavad or illom or the Kartha of a joint family who by virtue of his position is either in possession of kumki land or is exercising kumki privileges applies to the government for assignment and obtains the assignment. without anything more'. the only inference which can be drawn is that he applied for assignment in his capacity as Karanavan and for the benefit of the family. If he seeks assignment in his individual capacity and not in representative capacity that certainly would be in derogation of rights of other members of the family who would be entitled to contend that the family has preferential right to obtain assignment. Either' way the position is that the assignment in favour of the Kartha enures to. the benefit of the family". With respect to the decision in Bappani Rai's case (AIR 1965 Ker. Either' way the position is that the assignment in favour of the Kartha enures to. the benefit of the family". With respect to the decision in Bappani Rai's case (AIR 1965 Ker. 221) in paragraph 10 of the judgment it is stated: "Learned Judge also referred the decision of the Madras High Court in KodiShankara Bhatta v. Moidin (AIR 1919 Mad. 121) and sought to distinguish the same. From the reported decision in Bappani Rai's case (AIR 1965 Ker. 221). we are unable to find whether the first respondent therein was the Kartha of the joint family or had a representative capacity vis-a-vis the other co-owners. This would make all the difference in considering the applicability of S.90 of the Trusts Act. The above decision cannot be regarded as an authority for the proposition that when a Kartha of a joint family in enjoyment of kumki land obtains. as assignment of kumki land from the government. it will be his self-acquisition and will not enure to the benefit of the family". Thus with respect to' 'X' schedule item Nos. 2 and 3 it is clear that the assignment would enure to the benefit of the family and therefore they are also available for partition. As regards 'X' schedule item No.l. as has already noted. the third defendant did not make a claim in her written statement for the said property. Further none of the documents relating to assignments was produced by the third defendant. In the context of the evidence of DW-1 referred to early production of such records was necessary to sustain a claim that item No.l is not partible. Therefore items 1 to 3 in the 'X' schedule of the written statement of defendants 1. 2 and 4 also are available for partition. 24. The next question that arise for consideration is the items in'Y' schedule in the written statement of defendants 1.2 and 4. Learned counsel for the appellant in AS. 389 of 1984 contended that. portions of plaint 'A' schedule items 4.6.7 and 12 shown in 'Y' schedule to the written statement of defendants 1.2 and 4 of which claim is made . in the written statement of the 3rd defendant exclusively belong to her as per Ext.B8 purchase certificate. Specific allegation of collusion and fraud is made against the said purchase certificate in paragraph 13-A of the plaint. 25. in the written statement of the 3rd defendant exclusively belong to her as per Ext.B8 purchase certificate. Specific allegation of collusion and fraud is made against the said purchase certificate in paragraph 13-A of the plaint. 25. Learned counsel for the plaintiff in support of the said contention relied on Ext.A-2. Ext.A-2 is the order in SM proceedings in which Ext.B8certificate was issued. In that though defendants land 4 were impleaded as respondents. the plaintiff was not impleaded as a party. The point urged by the learned counsel is that this would show that the proceedings is vitiated by fraud and consequently according to the learned counsel trie same is not binding on- the plaintiff. The argument is sustainable. 26. Learned counsel for the 3rd defendant contended that even if Ext.B8 is not binding on the plaintiff the lease right of the 3rd defendant under Exts.B4 to B7 cannot be disputed. With respect to the said lease right the case of the plaintiff is that the same is benami for Krishna Manolithaya. According to the learned counsel for the 3rd defendant as per S.4 of Benami Transactions (Prohibition) Act. 1988 the plaintiff cannot claim any right on the basis that apparent owner is not the real owner. Learned counsel relied on the decision in Mithilesh Kumari v. Prem Behari Khare (AIR 1989 SC 1247) and contended that the subsequent legislation like Central Act 45/1988 has to be taken note of by the appellate court also and hence. according to the learned counsel. the plaintiff is not entitled to claim a share over the said items on the ground that the. assignments of lease was benami for deceased Krishna Manolithaya. 27. Learned counsel for the plaintiff maintained that his case as regards benami is only alternative and that in paragraph 13-A of the plaint itself he maintained that the leases are hit by S.74 of Act 1/64. Even if the assignments are not benami for Krishna Manolithaya the plaintiff is entitled to show that the said leases are invalid as the same were executed subsequent to 'the commencement of S.74 of actl/64. The plaintiffs case was sustained by the lower court on the ground that Exts. B4 to B7 acquisitions are benami for the family. Now because of the subsequent legislation the plaintiff is' prohibited from making a claim on the basis that the assignments are benami for the family. The plaintiffs case was sustained by the lower court on the ground that Exts. B4 to B7 acquisitions are benami for the family. Now because of the subsequent legislation the plaintiff is' prohibited from making a claim on the basis that the assignments are benami for the family. In such circumstance. it becomes important as to when the lease was granted to the tenants. Exts.B4 to B7 were in 1965. S.74 of Act 1/1964 came into force on 1-4-1964. Therefore if only the leases were before 1-4-1964 can the assignments have validity. In such situation it is for the 3rd defendant to show that the said leases were valid leases. This aspect was not considered by the trial court. Consequently the said question. whether the leases which were assigned by Exts.B4 to B7 are hit by S.74 of Act 1/64 has to be adjudicated by the lower court. 28. Thus. the claim that 'X' schedule items 1 to 3 mentioned in the written statement of defendants 1. 2 and 4 are not partible cannot be sustained; they are also partible. Ext.B3 will is not genuine. The question as to whether the leases which were assigned under Exts.B4 to B7 are hit by S.74 of Act 1/64 has to be adjudicated by the trial court and for that purpose the case has to be remitted to that court. and AS. 389 of 1984 has to be allowed in part. In other respects the preliminary decree and judgment passed by the trial court have to be confirmed and are accordingly confirmed. A.S. 336/1984 is liable to be dismissed. In the result AS. 389 of 1984 is allowed in part as indicated above and the case is remitted back to the trial court for adjudicating the question regarding the validity of leases mentioned in Exts.B4 to B7 as stated in para. 28 of this judgment. A.S.336 of 1984 is dismissed. The parties will be given an opportunity to adduce evidence as regards the same. The suit will be disposed of giving top priority. at any rate. not later than three months from the date of receipt of the records. The parties are directed to suffer their respective costs. The parties will appear before the lower court on 6-2-1991.