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2011 DIGILAW 159 (KAR)

Shivanna v. Rangappa

2011-02-08

A.S.PACHHAPURE

body2011
JUDGMENT A.S. PACHHAPURE, J.—The unsuccessful plaintiff has filed these appeals challenging the judgment and decree of the Trial Court and also the Lower Appellate Court, in RA Nos. 12/2001 and 13/2001, dismissing his suit for declaration partition and separate possession. 2. As both these matters arise out of the same suit and appeals before the Courts below, they are taken together for consideration. 3. The parties are referred as per their rank before the Trial Court for the sake of convenience. The appellant in both the appeals is the plaintiff in the suits instituted. The suit, properties are the house properties, agricultural lands, etc., described in the schedule to the plaint at S. Nos. l to 15. The plaintiff, defendant No. 1 and the 7th defendant are the sons and daughter of Thimmappa and Thimmavva. Defendants 2 to 6 are the sons of the first defendant. The father of the plaintiff, Defendant Nos. 1 and 7 died on 11.1.1988 leaving behind his wife Thimmavva, two sons and a daughter. They were the members of undivided Hindu joint family and were in joint possession of the properties mentioned in the schedule. The properties at item No. 1 (a), (b) and (c) were purchased by Thimmappa under a registered sale deed dated 16.8.1931 in his name and the name of his wife and the other properties at item Nos. 3, 7, 11 and 12 were acquired from the joint efforts and labour of the parties and so also, item Nos. 2, 4, 5, 9 and 10 were acquired by the joint efforts, labour and the income of the ancestral properties in the name of Defendant No. 1. who is the eldest member of the family. Item Nos. 8. 14 and 15 were the properties gifted to Thimmawa under gift, deed dated 3.10.1947. 4. The plaintiff claims that he is entitled to half share in all the suit, properties. The plaintiff had instituted OS No. 65/1985 a suit, for partition and separate possession of his share and it came to be dismissed for default on 6.1.1989. He filed Misc. 12/1989 to restore the suit dismissed, but the said application was also dismissed for default on 31.7.1989. Subsequently, the parties entered into some family arrangement agreeing for the division of the family properties in. He filed Misc. 12/1989 to restore the suit dismissed, but the said application was also dismissed for default on 31.7.1989. Subsequently, the parties entered into some family arrangement agreeing for the division of the family properties in. the presence of panchayathdars and on 27.10.1983, they divided the family properties under a document styled as ‘Palupatti’ and the shares were allotted to both, the brothers, in the presence of panehayatdars and they signed the documents. An application came to be filed to the revenue authorities and it was objected by the first defendant. 5. The plaintiff, the first defendant and their sons alongwith Thinimappa the father of plaintiff and first defendant had jointly mortgaged the suit schedule family properties to the PLD Bank, Chikkanayakanahalli, for loan in the year 1976 and also in the year 1978. The plaintiff is said to have discharged the debt in the year 1983 and redeemed the mortgage. The plaintiff contends that the first defendant taking disadvantage of the institution of the suit and in collusion with the other defendants got created a Will said to have been executed by his mother Thimmavva bequeathing major portions of the family properties to Defendants 2 to 6. It is his claim that his mother Thimmavva was totally incapable of exercising her independent Will and she was not healthy due to prolonged illness and was in the care of the first defendant and by exercising undue influence and being in dominant position, got created a Will in his favour and the plaintiff submits that the said Will is not a genuine document. He further states that his mother Thimmawa was entirely dependent on the first defendant for treatment and was totally unaware of her surroundings and was not in a position to speak and execute any document or any kind of instrument. So. he contends that the first defendant by way of fraud and misrepresentation obtained unfair advantage of this position as eldest member in. the family and got created a document dated 14.6.1984, the Will and claimed to have been executed by his mother. Therefore, he seeks for a declaration that the Will is null and void. 6. The plaintiff claims that he has half share in all the suit properties except item Nos. the family and got created a document dated 14.6.1984, the Will and claimed to have been executed by his mother. Therefore, he seeks for a declaration that the Will is null and void. 6. The plaintiff claims that he has half share in all the suit properties except item Nos. 8, 14 and 15 in which he is entitled to 1/3 share and he also claims the accounts till separate possession is delivered to him. He impleaded the 7th defendant on the ground that she is entitled to 1/3rd share in item Nos. 8, 14 and 15 in the schedule. As the defendants did not. give his share despite his request and the advise of panchayathdars in the month of January 1990, he instituted the suit for partition of his share, separate possession, to render the accounts and to declare that the Will does not bind his interest in the said properties. 7. Defendants 1 to 6 filed written statement denying the allegations made and it is their contention that the suit of the plaintiff is barred by principles of res judicata and further, they claim that their parents were not residing together and that after eight years of the marriage their father Thimmappa went to Kodalagere his father’s village and he was away from his wife all along. They contend that item Nos. 3 and 15 of the suit schedule is the separate property of Thimmavva, their mother and these properties were gifted to her by her father under the gift deed dated 24.2.1938. The properties at item Nos. 8 and 14 were also gifted to her by her father under registered gift deed dated 3.10.1941. Further, the properties at item Nos. 11 and 12 are the properties purchased by Thimmavva under registered sale deed dated 29.11.1967 from one Gangegowda. So also, they contend that, the suit, schedule Item Nos. l (a), (b) and (c) are the self acquired properties of Thimmavva by her own income. 8. Furthermore, the said defendants contend that Thimmavva out: of her free will and desire executed a registered Will dated 13.6.1984 in respect of 1 acre 7 guntas of land in S. No. 4, i.e., portion of item No. I, item Nos. 3, 7, 8, 11, 12, 14 and 15 in favour of defendants 2 to 6 and after the execution, of this Will, the plaintiff instituted O.S. No. 65/1985. 9. 3, 7, 8, 11, 12, 14 and 15 in favour of defendants 2 to 6 and after the execution, of this Will, the plaintiff instituted O.S. No. 65/1985. 9. So far as item No. 5 of the suit schedule property is concerned, it is the contention that, the 3rd defendant, was working as High School Teacher and purchased the same for a consideration of Rs. 6,500/- under sale deed dated 29.3.1984 and that it is his separate property. So also, it is contended that, item Nos. 2, 4, 9 and 10 are the self acquired properties of first defendant and that he purchased them under registered sale deeds and the plaintiff has no share. So far as item No. 7, the vacant site, they contend that it came to Thimmawa from her father and she constructed a house and they are residing in the said house. Thimmawa was residing in the said house till her death. In these circumstances, the defendants claim that the plaintiff is not entitled to any share in suit items 1 to 5, 7 to 12. 14 and 15. 10. Furthermore, it is their contention that the plaintiff filed an application before the Tahsildar requesting for change of khata and paharii in respect of some of the suit schedule properties stating that the plaintiff and Defendant Mo. 1 have partitioned the properties and, therefore, the defendants contend that the plaintiff is estopped from pleading and praying the relief of partition. On these grounds, they sought for the dismissal of the suit. 11. On the basis of these pleadings, the Trial Court framed the following issues : 1. Whether plaintiff proves that he and the defendants constituted Hindu undivided family? 2. Whether plaintiff proves that the plaint, schedule properties belong to the Hindu Joint family of the parties? 3. Whether plaintiff proves that he is entitled to 1/2 share in the plaint schedule properties except items-8. 14 and 15 and 1/3 share in items-8, 14 and 15? 4. Whether plaintiff proves that the will dated 14.6.1984 said to have been executed by Thirnniawa does not bind him in respect of plaint, schedule properties and the same was obtained by undue influence? 5. Whether plaintiff proves that the defendants are liable to account in respect of plaint schedule properties from the date of suit? 6. 4. Whether plaintiff proves that the will dated 14.6.1984 said to have been executed by Thirnniawa does not bind him in respect of plaint, schedule properties and the same was obtained by undue influence? 5. Whether plaintiff proves that the defendants are liable to account in respect of plaint schedule properties from the date of suit? 6. Whether defendants prove the due execution of the Will dated 14.6.1984 by Thimmavva in respect of items-1, (a), (b) and (c), 3, 7, 8, 11, 12, 14 and 15 of the plaint schedule properties? 7. Whether defendants prove that item No. 5 of plaint schedule is the self acquisition of third defendant? 8. Whether the defendants prove that items-2, 4, 9 and 10 of the plaint schedule are the self acquisitions of 1st defendant? 9. Whether defendants prove that the suit is barred by “Res judicata”? 10. To what reliefs are the parties entitled? 12. During the trial, the plaintiff was examined as P.W. 1 and the witnesses P.Ws. 2 to 8 were examined and in their evidence, the documents Exs. P1 to P57 were marked. The defendants examined D.Ws. 1 to 4 and Defendant No, 7 was examined as D.W. 5 and in their evidence, Exs. D1 to D35 were marked. The Trial Court, after hearing the counsel for the parties and on. appreciation of the material on record, dismissed the suit of the plaintiff for partition, and granted a decree that the Will Ex. D5 is null and void and does not bind the right, title and interest of the plaintiff over the suit properties. Aggrieved by the judgment and decree of dismissal, the plaintiff preferred RA No. 12/2001 whereas defendants 1 to 6 preferred RA No. 13/2001 before the District Judge, challenging the findings on. issue Nos. 2, 4, 6, 8 and 9 in the suit. The Lower Appellate Court heard the counsel for the parties and on appreciation of the material on record dismissed the appeal of the plaintiff and allowed the appeal of defendants 1 to 6 holding that the Will has been proved and set aside the decree declaring the Will as invalid and void document. Aggrieved by the judgment and decree of the Courts below, the plaintiff has preferred these appeals. 13. Aggrieved by the judgment and decree of the Courts below, the plaintiff has preferred these appeals. 13. At the time of admission, this Court has framed the following substantial question of law for consideration: “Whether finding of the first appellate Court holding that execution of the Will dated 14-6-1984 as per Ex. D5 has been proved by reversing the judgment and decree passed by the Trial Court is contrary to law and material on record?” 14. It is the contention of the counsel for the appellant that, the Courts below committed an error in not granting share in the suit properties, despite the fact that it has been proved that the properties are either ancestral or joint: family properties. Furthermore, when the Trial Court held that the principle of res judicata is not applicable, there was no reason for the Trial Court to refuse the share to the plaintiff and that if could have also taken into consideration the fact that inclusive of some properties mentioned in the Will, there was a palupatti and if could have considered the grant of share to the plaintiff/appellant as there was no partition and the Will having not been proved. It is his further submission that, the Trial Court was justified in granting a declaration that the Will has not been proved and the lower Appellate Court committed an error in reversing the finding without assigning appropriate reasons. Hence, the counsel requests to allow the appeals and to grant the reliefs as prayed for. 15. Per contra, the learned counsel for the respondents/defendants 1 to 6 submit that the Courts below have committed an error in holding that the said properties are the ancestral and joint family properties and that the Trial Court committed an illegality in rejecting the evidence with regard to the proof of Will. On these grounds, he has sought. for the dismissal of the suit of the plaintiff for partition, separate possession and declaration as well. 16. Now, adverting to the due execution of the Will dated 13.6.1984, the said Will has been produced by the defendants at Ex. On these grounds, he has sought. for the dismissal of the suit of the plaintiff for partition, separate possession and declaration as well. 16. Now, adverting to the due execution of the Will dated 13.6.1984, the said Will has been produced by the defendants at Ex. D5 and to consider the circumstances, in which the Will is said to have been executed, it is incumbent upon the propounder of the Will to establish that the Will has been duly executed by the person, who was in sound disposing state of mind and it is also necessary to offer explanation with, regard to the suspicious circumstances. 17. It is not in dispute that Thimmawa, the mother of the plaintiff and the first defendant was living with the first, defendant, at the time, when the Will is said to have been executed. There is no material placed on record to show that the relationship between Thimmawa, the plaintiff and defendant No. 7 were strained. Except that, the plaintiff was residing separately and instituted the suit for partition, there was no impediment of whatsoever type for the said Thimmawa to give some properties to the plaintiff which were field by her. So at the time when the said Will is said to have been executed, it is necessary for the first defendant to establish that she executed the same voluntarily and on her own will. So when the said Thimmawa was residing with the defendants, the possibility of influence on the executor of the Will cannot be over ruled. She was aged about 74 years at that time and admittedly, was not in a. position to move from place to place on her own. She required the assistance of the family members even for sitting, walking and to discharge her daily duties and in such circumstances, it could be inferred that. Thimmawa was completely dependent on the first defendant and the members of his family and the possibility of influence by the first defendant or the members of his family cannot be overruled. 18. The defendants to prove the execution of the Will have examined an attesting witness, who is none else than a close relative of the first, defendant. 19. Now, if we consider the evidence of D.W. 1 the second defendant, he states that the Will Ex. 18. The defendants to prove the execution of the Will have examined an attesting witness, who is none else than a close relative of the first, defendant. 19. Now, if we consider the evidence of D.W. 1 the second defendant, he states that the Will Ex. D5 was written by one Ramaiah as per the instructions of Thimmawa and after reading over the contents of the Will, Thimmawa accepted the contents as true and put her thumb impression on the Will at Exs. D5(a) to D5(e). It is relevant to note that D.W. 3 Gurubasavaiah, is a resident of Ballekere and Siddaramaiah, a resident of Dugudihalli were the attesting witnesses to the Will Ex. D5. D.W. 2 states that both these two witnesses were present at the time when the Will is said to have been executed and they signed the Will in token of their presence at the time of execution of the document. 20. The perusal of the evidence of D.W. 1 reveals that the Will was executed and registered on the same day and as stated by D.W. 1 his father and first defendant was not present when the Will was executed and it was executed in between 9.30 a.m. and 10.30 a.m. and was registered in the office of the Sub-Registrar on the same day. If the evidence of D.W. 1 is to be believed, then there is a material inconsistency in the evidence of D.W. 1 and the material placed on record and as could be seen from the Will, it was executed on 13.6.1984 at Tiptur and was submitted for registration on 14.6.1984 in the office of the Sub-Registrar Tiptur. So when D.W. 1 states that the Will was executed and registered on the same day, it goes contrary to the contents and the date mentioned in the Will Ex. D5. So the said document was not registered on 13.6.1984 on the date when the Will is said to have been executed, but it was registered on the subsequent day. 21. Another suspicious circumstance that arises from the evidence of the defendants is with regard to the registration of the Will at Tiptur. Admittedly, Tiptur is at a distance of 15 to 20 kms. from Malenahalli, the native place of the parties, whereas, Chikkanayakanahalli is at a distance of about 2 kms. from the said village. 21. Another suspicious circumstance that arises from the evidence of the defendants is with regard to the registration of the Will at Tiptur. Admittedly, Tiptur is at a distance of 15 to 20 kms. from Malenahalli, the native place of the parties, whereas, Chikkanayakanahalli is at a distance of about 2 kms. from the said village. The Will was registered at Tiptur and not at Chikkanayakanahalli, though the office of the Sub-Registrar is at Chikkanayakanahalli. When the executor of the Will was aged about 74 years and was not in a position to move, it is rather difficult to accept the version of the defendants about the registration of the Will at Tiptur, a distant place instead of registering the same at, Chikkanayakanahalli when the executor was not in a position to get up, walk or sit and when she needed the assistance of other person for doing anything. So what, made the testator to travel about. 15 kms, from the native place instead of going to Chikkanayakanahalli is a strong circumstance which also creates serious doubt with regard to the genuineness of the Will, This has not been property explained by the defendants and it remains as a suspicious circumstance. 22. Admittedly. Thtmrnavva had two sons and a daughter who is Defendant. No. 7, There was no reason for her to bequeath all the properties owned by her only to the children of the first defendant. Her relationship between the plaintiff and also Defendant No. 7 was cordial. Why she deviated from giving any share or at least some portion of the properties to the plaintiff and Defendant No. 7 is not forthcoming both from the evidence of the defendants and also the document Ex. D5. If she had any strained relationship with the plaintiff and Defendant No. 7, that fact could have been mentioned in the Will and when the evidence does not reveal any such strained relationship with the plaintiff and Defendant No. 7, there is no reason for Thimmavva to bequeath the properties only to the sons of the Defendant No. 1. So it: is another suspicious circumstance which has not been explained by the defendants. 23. Furthermore, so far as the attesting witnesses are concerned, they are the close relatives of Defendant Nos. 1 to 6. If really, Thimmavva had a desire to execute a Will and bequeath the properties in favour of Defendant Nos. So it: is another suspicious circumstance which has not been explained by the defendants. 23. Furthermore, so far as the attesting witnesses are concerned, they are the close relatives of Defendant Nos. 1 to 6. If really, Thimmavva had a desire to execute a Will and bequeath the properties in favour of Defendant Nos. 2 to 6, she could have naturally called some elderly persons of the village to be present at the time of the execution of the Will, instead of getting the close relatives of Defendant. No. 1 from a far of place. The reason as to why not a single elderly person of the village was present at the time of execution of the Will is also not explained. 24. Furthermore, Thimmavva died on 24.1.1987 and after about 3 years, the present suit, came to be instituted, in the year 1990. If the said Thimrnavva had to execute a Will or the Will Ex. D5 is a genuine document, the Defendant Nos. 2 to 6 could have taken steps to get their names entered in the Record of Rights on the death of Thirnmawa. On the other hand, D.W. 1 in his oral evidence states that the name of Thimmawa continued in the Record of Rights after her death till the suit came to be instituted and thereby, the suppression of the Will all along till the suit came to be instituted for partition and separate possession is also a serious suspicious circumstance with regard to the due execution of the Will. 25. D.W. 2 is the brother of D.W. 1. and also the beneficiary under the Will. He does not speak anything about his presence and participation when Thimmawa allegedly executed the Will. But. D.W. 1 states that all his brothers were present and in their. presence, the Will came to be executed. So, the evidence of D.Ws. 1 and 2 on this aspect is inconsistent and there is no reason to suppress the presence of D.W. 2 at the time of the execution of the document. 26. Now. to consider the evidence of D.W. 3, he is a close relative and the daughter of the first defendant is married to D.W. 3 and the marriage was performed in the year 1980-81. 26. Now. to consider the evidence of D.W. 3, he is a close relative and the daughter of the first defendant is married to D.W. 3 and the marriage was performed in the year 1980-81. He speaks about the execution of the Will by Thimmawa bequeathing the 8 properties to defendants 2 to 6 and according to him, he was asked by Thimmavva to come to the office of the Sub-Registrar. So directly from his village, he came to Tiptur and Thimmavva got Ex. D5 prepared on her instructions though the scribe who wrote it. read over the same and Thimmavva admitted it. to be correct, and affixed her thumb impression. He also states that at. that time, another attesting witness Siddaramaiah was also present and he identifies the respective signatures. He states that Thimmavva was in a sound disposing state of mind. So, if the evidence of this attesting witness D.W. 3 is perused, the execution of the document and the registration are on the same day. But. as could be seen from the document, the execution is on 13.6.1984, whereas, the registration, is on 14.6.1984. Thereby, the evidence of D.W. 3 to the effect that he was called by Thimmavva at Tiptur and that he directly went there and the Will was executed and registered is contrary to the contents of Ex. D5. So, this is also a serious circumstance in the due execution of the document. 27. Some witnesses state that the Will was executed in between 9.30 a.m. and 10.30 a.m. and some witnesses say that it was from 10.00 a.m. to 11.15 a.m. and even as regards the timings, writing and execution etc., is also not consistent. So, the evidence of the attesting witnesses and that of D.W. 1 is not natural and when admittedly, Thimmavva was an illiterate woman, who was not capable to move herself on her own, it appears that the condition in which she was placed has been, misused by the first defendant in getting the document without, her knowledge. 28. Furthermore, as stated by D.W. 3, he does not know as to who purchased the stamp papers required to prepare Ex. D5. But D.W. 1 has stated that on the very date of execution of Ex. D5 in his presence, at Tiptur, Thimmawa purchased the stamp papers by affixing her LTM in the Register of Stamp vendor. 28. Furthermore, as stated by D.W. 3, he does not know as to who purchased the stamp papers required to prepare Ex. D5. But D.W. 1 has stated that on the very date of execution of Ex. D5 in his presence, at Tiptur, Thimmawa purchased the stamp papers by affixing her LTM in the Register of Stamp vendor. So if this evidence of D.W. 1 is to he taken as truthful, the Will Ex. D5 cannot be the document as the perusal of the back page of the Will Ex. D5 reveals that the stamp papers were purchased by one Ramaiah, Resident of Doddikatie, on 11.6.1984, i.e., two days earlier to the alleged execution of the Will. So. this is also a serious circumstance which goes contrary to the evidence led by the defendants to prove the execution of the document. There is no explanation as to why the name of Ramaiah was mentioned as the purchaser of the stamp paper for the execution of the Will and though the said Ramaiah. is the purchaser of the stamp paper and also the scribe, who has identified the thumb impression of Thimmavva on the alleged Will Ex. D5, the defendants have not chosen to examine the said witness. 29. Another aspect, which cuts the case of the defendants 1 to 6 at. the root is with regard to the validity of the Will, is the mention of the properties at item Nos. 1, 2, 4, 9, 1.2 to 14. As contended by the defendants, these properties are the self acquired properties of Thimmawa, their mother and there is mention of these items of the properties in the Will, said to have been executed by her and at the same time, in the partition deed Ex. P10 (palupatti), there is mention of these items of the properties and thereby, it could be inferred that the mother Thimmawa had given a share to the plaintiff as well under the document Ex. P10 dated 27-10-1983. So when once she gave the share to the plaintiff, there was no question of the said properties being bequeathed by her in favour of defendants 2 to 6 under the Will Ex. P10 dated 27-10-1983. So when once she gave the share to the plaintiff, there was no question of the said properties being bequeathed by her in favour of defendants 2 to 6 under the Will Ex. D5 and in case, if really she had to bequeath any properties of her with an intention to give those properties to defendants 2 to 6, there could not have been any mention of the said properties in the Palupatti Ex. P10. 30. It is in the said evidence of D.Ws. 1 and 3 that while writing the Will, it is Thimmawa who gave the particulars of the survey numbers, the boundaries, the extent and situation of the lands etc., but as she is an illiterate women, it is rather impossible for her to give the survey numbers, the assessment and the other details of the lands. The fact that she is illiterate is borne out from Ex. D5 her thumb impression. So considering the doubts narrated above, the Will Ex. D5 is shrouded with innumerable suspicious circumstances for which there is no explanation by the defendants. It is in the evidence of P.W. 1 that Thimmawa was not in a position to execute the Will and she never had any desire to execute the Will in favour of Defendants 2 to 6. P.W. 5 in the evidence states that Thimmawa was an old aged lady and was not in a position to move, sit or walk. These circumstances in the evidence of P.Ws. 1 and 5 have not been disputed in the cross-examination of these witnesses. So if all these circumstances are considered together, a conclusion could be arrived at that, the Will Ex. D5 has been shrouded with many suspicious circumstances which have not been explained and the initial burden is not discharged by the propounder of the Will. So merely because that the document is registered, considering the circumstances stated above, even the registration do not come to the help of the defendants to raise any presumption with regard to the genuineness of the Will said to have been executed by Thimmawa. 31. So merely because that the document is registered, considering the circumstances stated above, even the registration do not come to the help of the defendants to raise any presumption with regard to the genuineness of the Will said to have been executed by Thimmawa. 31. The counsel for the appellant has placed reliance on the decision of the Apex Court reported in H. Venkatachala Iyenger vs. B.N. Thimoiajamma and others, AIR 1959 SC 443 wherein the Apex Court observed that, in dealing with the proof of the Will, the Court, will start on the same enquiry as in the case of proof of documents and the propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in sound disposing state of mind, that he understood the nature and effect of the dispositions, and put. the signature to the document of his own free will. So also, it. held that ordinarily when the evidence adduced in support, of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, the Courts would be justified in giving a finding in favour of the propounder. 32. So now, as could be seen from the circumstances stated above, the legitimate suspicious circumstances naturally tend to make the initial onus very heavy and unless it is satisfactorily discharged, the Court, would be reluctant to treat the document as the last. Will of the testator. Even without any such plea, the circumstances may raise a. doubt as to whether the testator was acting on her own free will in executing the Will and in such circumstances, it would be a part of the initial burden to remove any such legitimate doubts in the matter. When the propounder or beneficiaries themselves take a prominent part in the execution of the Will which confer on them substantial benefits, it is generally treated as a suspicious circumstance attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. 33. So, as could be seen from the suspicious circumstances stated above, the defendants have not discharged their burden of proving the Will as genuine. 33. So, as could be seen from the suspicious circumstances stated above, the defendants have not discharged their burden of proving the Will as genuine. Except the beneficiaries under the Will and the close relatives, who are the attesting witnesses, there were no other persons other than the stamp vendor who has not. been examined by the defendants. Though the Trial Court, held that the Will has not been proved, the Lower Appellate Court reversed the finding without assigning acceptable reasons for the rejection. So far as the registration of the Will at Tipiur is concerned, which is at a distance place, it. says that there is nothing on record to show that Thimmawa was not keeping a good health and that coming to Chikkanayakanahaih may be inconvenient than coming to Tiptur. When the material placed on record reveals that she was old aged and was not. able to rise, sit or walk, nothing more is necessary to prove the inability of Thimmawva to move from place to place. At the same time, though the testator did not bequeath any interest in the property in favour of the plaintiff and also excluded Defendant No. 7. the Trial Court observes that it is not a justifiable ground to set aside the Will, So also, it observes that the Trial Court has attached undue importance to the fact, that two attesting witnesses were close relatives of Defendant Nos. 1 to 6 and they are not the residents of her village. The Trial Court says that merely because local witnesses have not been secured for attesting the Will it cannot be said that the Will is forged or fabricated one. This approach of the Lower Appellate Court is erroneous, in view of the decisions referred to supra and also the principles with regard to the acceptance of the Will as genuine by removing the suspicious circumstances. Though the Will did not see the light, of the day, except after production of the same in the Court and it: was suppressed for more than 3 to 4 years, the Lower Appellate Court states that it is not a suspicious circumstance. When a party claims exclusive right on the basis of a document, naturally such person would approach the revenue authorities to get his name entered on the basis of such document. When a party claims exclusive right on the basis of a document, naturally such person would approach the revenue authorities to get his name entered on the basis of such document. The inaction on the part of the defendants in not getting their names entered immediately after the death of Thimmawa would really raise a doubt with regard to the genuineness of the document. Therefore, I am of the opinion that the Lower Appellate Court was not justified in reversing the finding and holding that the Will is valid. The discussion of the evidence, its reappreciation reveal that the Will Ex. D5 is fabricated and has not been proved to be the Will of Thimmawa. In the circumstances, the substantial question, of law raised is answered in negative. 34. Now, so far as the nature of the properties are concerned, if is relevant, to note that the Trial Court on appreciation of the material on record held that the properties at item Nos. 1 (a), (b) and (c) are the ancestral properties and the other properties except properties at item No. 15 are the joint family properties acquired from the income of the ancestral properties. This finding of the Trial Court has not been disturbed even by the Lower Appellate Court. Thereby, there are concurrent findings by the Courts below so far as the nature of the properties are concerned. On this aspect, of the matter, a reference could be made to the decision of the Hon’ble Apex Court, reported in Sundra Naieka Vadiyar (dead) by LRs. and another vs. Ramaswami Ayyar (dead) by his LRs. AIR 1994 SC 532 wherein there were concurrent findings and the Apex Court held that the re-appreciation could be done by this Court if the Courts have ignored the material documents, compromise containing recitals of surrender of possession and other material evidence and there could be an interference even in the concurrent findings. But any how, as could be seen from the appreciation of the evidence by the Trial Court, the properties at item No. 1 (a), (b) and (c) were purchased by Thimmappa in the joint name of himself and his wife Thimmawa for consideration of Rs. 1,000/- by registered sale deed dated 16.08,1.931. These properties include Survey No. 3 measuring 27 guntas, Survey No. 4/1 measuring 32 guntas and. 1,000/- by registered sale deed dated 16.08,1.931. These properties include Survey No. 3 measuring 27 guntas, Survey No. 4/1 measuring 32 guntas and. Survey No. 4/2 measuring 12 guntas with common boundaries and since the date of the purchase, they were enjoyed as joint family properties by all the members of the family and Ex. P1 the original sale deed (certified copy is at, Ex. D4) dated 16.8.1931 reveals that the properties were purchased by both Thimmappa and his wife and there is no specific recital as to the extent of contribution of funds made by each of them. Though there was a mortgage transaction for an amount, of Rs. 1,000/- in favour of the executant of the sale deed, it. is relevant to note that in the sale deed, there is no specific mention as to who has paid the sale consideration. In the circumstances, when the properties were purchased in joint names, the question as to where and how the source of consideration came from each of the purchasers is irrelevant, and inconsequential. On this aspect, of the matter, the counsel for the appellant-plaintiff has relied upon the decision of this Court; reported in Narayana Murthy vs. Venkateshalu, ILR 1995 Kant. 2876. 35. So considering the law laid clown by this Court and that there was a nucleus which, would yield sufficient income to purchase the properties by the members of the family, a presumption would arise with regard to the properties being joint family properties. 36. It is well established principle of law that when there is a nucleus which yields sufficient income, the subsequent acquisitions of the properties by the members of the joint family are presumed to be joint acquisitions and if is for the other party to rebut the said presumption. On this aspect of the matter, the learned counsel has relied on the decision of the Apex Court reported in Srinivas Krishnarao Kango vs. Narayan Devjio Kango and others, AIR 1954 SC 379 . 37. The suit was instituted by the appellant, seeking partition and separate possession of his share in the suit properties. So far as the properties, i.e., 1 acre and 7 guntas of land in S. No. 4, i.e., portion of item No. 1 and item Nos. 3, 7, 8, 11, 12, 14 and 15 are the properties of deceased Thiinmawa. the Will, having not. So far as the properties, i.e., 1 acre and 7 guntas of land in S. No. 4, i.e., portion of item No. 1 and item Nos. 3, 7, 8, 11, 12, 14 and 15 are the properties of deceased Thiinmawa. the Will, having not. been proved on the death of Thiinmawa and alter the decision of the Court that the Will is fabricated and not a genuine document, the appellant is entitled to his share in all these properties. If the Will was proved, intact, the plaintiff could not have maintained a suit for partition in respect of these properties as the said properties go to the beneficiaries under the testamentary succession. It is only because the Will is not proved, that a right, accrues to the plaintiff to seek share in these properties. Therefore, the appellant even without seeking the reopening of partition, can claim share in these properties in view of the finding that the Will has not been proved. The Lower Appellate Court committed an error in accepting the Will as a genuine document, though no explanation was offered by the propounder of the Will to explain the suspicious circumstances referred to supra. In the circumstances, the appellant has to succeed in his suit for partition and separate possession of the properties enumerated in the Will except those which are mentioned in the Palupatti. The Courts below could have granted a decree for partition and separation possession of 1/3rd share of the plaintiff in the said properties. 38. As the plaintiff/appellant has been granted share in Item Nos. 1, 2, 4, 9, 12 and 14 of the suit schedule, he cannot claim any share in the suit, properties. So also, as item No. 5 is purchased by 3rd defendant, when he was High School Teacher, no presumption arises that this property is self acquired property. The properties at Item Nos. 3, 7 and 15 were inherited by the deceased Thimmawa, whereas, the properties at Item No. 11 was purchased in her name. The property at Item No. 8 was gifted in her name. Item Nos. 10 and 13 are the joint family properties acquired from the income of joint family in which the plaintiff has 4/9 share and in the remaining properties succeeded by Thimmawa, either by way of gift or inheritance, the plaintiff is entitled to 1/3 share. The property at Item No. 8 was gifted in her name. Item Nos. 10 and 13 are the joint family properties acquired from the income of joint family in which the plaintiff has 4/9 share and in the remaining properties succeeded by Thimmawa, either by way of gift or inheritance, the plaintiff is entitled to 1/3 share. In the circumstances, I proceed to pass the following: ORDER Both the appeals are allowed. The judgment and decree of the Trial Court in O.S. No. 19/1990 dated 24-3-2001 is modified by setting aside the judgment and decree in the appeals and the suit of the appellant/plaintiff is partly decreed granting 4/9 share in Item Nos. 10 and 13 and 1/3 share in Item Nos. 3, 7, 8, 31 and 15 and the decree of the Trial Court declaring the Will Ex. D5 having not been proved is restored. In the circumstances, there is no order as to costs. Draw a decree accordingly.