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2013 DIGILAW 413 (KAR)

RAJA RAJA SRINIVAS v. G. R. PANDU

2013-03-28

B.MANOHAR, D.V.SHYLENDRA KUMAR

body2013
JUDGMENT B. MANOHAR, J.-Appellants 1 to 3 are the defendants 3 to 5 and appellants 4 and 5 are the daughters of the deceased first defendant N.C. Govindaraju in O.S. No. 281/1993. Being aggrieved by the judgment and decree dated 19-12-2003 passed by the Small Cause and Additional Civil Judge (Sr.Dn.), Mysore decreeing the suit filed by the plaintiffs declaring that the first plaintiff is entitled to an extent of 1/4th share in item No. 1 properties and also entitled for mesne profit and further declaring that the second defendant is entitled to a share to an extent of 3/8th share in item No. 1 properties and to an extent of 1/8th share in respect of suit item No. 2 to 18 of the suit schedule properties and defendants 3, 4 and defendants 1 (a) to 1(e) are entitled to 1/8th share each in suit item No. 2 to 18 of the suit schedule properties, the appellants have preferred this appeal. 2. The respondents 1 and 2 herein filed a suit seeking for partition and separate possession and 1/6th share in the suit schedule properties by metes and bounds with mesne profits. At the time of filing of the suit, the first plaintiff was minor and the suit was brought by the second defendant as a next friend. After the first plaintiff attaining majority, the second plaintiff got him impleaded as a party to the proceedings. 3. In the plaint, the plaintiffs have contended that the suit schedule properties are the ancestral properties of the defendants 1 and 2. The second defendant is the father of the first plaintiff and son of the first defendant. The first defendant and his father Chikkaraju Chettiar constituted Hindu undivided joint family and the said joint family was holding lands at Shambugoudanahalli village, H.D. Kote Taluk and also running power loom near Maratha Ramamandira, K.T. Street, Mysore. Further, they were also running cloth business at Makkaji Chowk, Mysore. The said Chikkaraju Chettiar had two sons, i.e., first defendant and another by name Devendra. The said Devendra during the life time of Chikkaraju Chettiar, had gone out of the joint family taking his share and set up his own business separately. The first defendant and Chikkaraju Chettiar constituted to be a joint family. The second defendant was born to the first defendant through his first wife Smt. Kousalya who died in the year 1968. The said Devendra during the life time of Chikkaraju Chettiar, had gone out of the joint family taking his share and set up his own business separately. The first defendant and Chikkaraju Chettiar constituted to be a joint family. The second defendant was born to the first defendant through his first wife Smt. Kousalya who died in the year 1968. The first defendant had a kept mistress by name Alamelu Kasturi Bai, who is the 5th defendant in the suit. Out of the said relation, they got defendants 3 and 4. Since the marriage of the 5th defendant with the first defendant had taken place during the lifetime of the first wife, the second marriage is not a valid marriage. Defendants 3 and 4 cannot be called legitimate children of the first defendant and therefore they cannot be called as Coparceners. 4. It is the specific case of the plaintiffs that after the death of the first wife, the first defendant neglected the second defendant completely. The marriage of the second defendant was performed in the year 1980. Out of said wedlock, the first plaintiff was born on 26-04-1981. However, the first defendant neglected to maintain the second defendant, his wife and children. The first defendant started acquiring the properties in the name of 5th defendant in order to defraud the second defendant and the plaintiffs and large number of properties were acquired out of the nucleus of the joint family fund. The entire properties were under the common management and the income derived are pooled together for the joint family, for which, the first defendant was the Kartha and Manager. In spite of specific requests made by the plaintiffs, no share was given to the plaintiffs or the second defendant in the joint family properties though they were legally entitled for half share in the suit schedule properties. The first defendant was wasting and damaging the income of the joint family properties and he was diverting the entire income to the name of defendants 3 to 5 totally neglecting the second defendant and his family. In view of that, the plaintiffs had filed the suit with the above prayers. 5. The defendants 1 to 5 were served with notice. The second defendant remained unrepresented and he was placed ex parte. 6. In view of that, the plaintiffs had filed the suit with the above prayers. 5. The defendants 1 to 5 were served with notice. The second defendant remained unrepresented and he was placed ex parte. 6. Defendants 1, 3 and 4 have filed common written statement contending that the suit is not maintainable in law. The suit filed by the plaintiffs is a collusive suit. The first plaintiff was under the care and protection of the second defendant who is none other than his father and residing at Sargur. The second defendant was carrying on the business and residing in his own house at Sargur. The defendants admit that the first plaintiff is the son of the second defendant and denies all other allegations. The defendants have contended that the first defendant and his father Chikkaraju Chettiar were residing together with Devendra who is the brother of the first defendant for few years prior to 1967. During that time, the first defendant used to assist his father who was carrying on Cloths business at Makkaji Chowk. But the joint family of Chikkaraju Chettiar and the first defendant did not own any property in Shambhugoudanahalli, or power loom near Maratha Ramamandira, K.T. Street, Mysore. They also denied the allegation that Devendra went out of the family by taking his share and set up his business during the life time of Chikkaraju Chettiar. The specific case of the defendants 1, 3 and 4 is that the first defendant came out of the family a few years prior to 1967 and carried on his own business at Chamarajanagar. Thereafter, the first defendant shifted to Mysore and started his own business. The father of the first defendant and his son Devendra continued to run the cloth business at Makkaji Chowk, which was being run for some time by Devendra. Subsequently, they closed the cloth business and started Hotel business in the same premises and there is no existence of joint family properties. The defendants admitted that the second defendant is the son of the first defendant born through his first wife Smt. Kousalya. During her lifetime the first defendant married the 5th defendant on 14-09-1967 at the instance of the first wife, since she was suffering from some disease. Smt. Kousalya, the first wife of the first defendant died on 24th October 1968. During her lifetime the first defendant married the 5th defendant on 14-09-1967 at the instance of the first wife, since she was suffering from some disease. Smt. Kousalya, the first wife of the first defendant died on 24th October 1968. The defendants 3 and 4 are the children born out of the second marriage of the first defendant with 5th defendant. The defendants 3 and 4 are the legitimate sons of the first defendant. It was further contended that the Government has granted land bearing Sy. No. 1/1 situated at Shambhugowdanahalli, H.D. Kote Taluk in favour of Chikkaraju Chettiar for the purpose of cultivation. The joint family does not have any income to purchase item Nos. 2 to 37 properties. Item Nos. 2 to 18 are the self-acquired properties of the first defendant which he had acquired after coming out from the joint family in the year 1967. Item Nos. 19 and 31 were purchased by the fifth defendant out of her own income. The 5th defendant was running a Fair Price shop and also after availing loan from the Vysya Bank, she had purchased those properties. Some of the properties mentioned in the suit schedule properties are not in existence. Item Nos. 22 and 35 were purchased by defendants 3 and 4. Hence, these properties cannot be treated as joint family properties. 7. It is the specific case of the defendants that the second defendant was an educated person and he was keen in doing business. The first defendant had invested money and got him pawn-broker license under the name and style as Janatha Bank, which was being run in the premises bearing No. 3088, K.T. Street, Mysore, which the first defendant had taken on lease. After the marriage of second defendant in the year 1980, he continued to reside in the same premises where he was carrying on business along with his wife and children. At no point of time, the plaintiffs lived with the first defendant. However, the said business run by the second defendant was sold by public auction in the year 1985, thereafter, the second defendant started residing in the house of his father-in-law at Sarguru. Further, in the additional written statement defendants 3 to 5 contended that the first defendant died on 03-10-1999. However, the said business run by the second defendant was sold by public auction in the year 1985, thereafter, the second defendant started residing in the house of his father-in-law at Sarguru. Further, in the additional written statement defendants 3 to 5 contended that the first defendant died on 03-10-1999. During his life time, he has executed a registered Will dated 10-01-1993 bequeathing all his properties in favour of defendants 3 to 5. Thereafter, defendants 3 to 5 divided the properties between themselves as per the Will executed by the first defendant. Hence, the plaintiffs as well as the second defendant have no right whatsoever in respect of the suit schedule properties and sought for dismissal of the suit. 8. The 5th defendant filed written statement contending that the suit filed by the plaintiffs is not maintainable and is a collusive one and the same is barred for non-joinder of parties. During the lifetime of the first wife, the first defendant married her with the consent of all the members of the family. Item Nos. 19 and 31 are self-acquired properties of the 5th defendant. The 5th defendant was running a Fair Price Shop and also doing business of Pawn Broker. Out of the income, she derived from the said business and also availing loan from the Vysya Bank, she had purchased the properties. Hence, the plaintiffs have no right whatsoever in respect of the suit schedule properties and sought for dismissal of the suit. 9. On the basis of the pleadings of the parties, the Court below framed the following issues and additional issues on (i) Whether the plaintiff proves that the plaint schedule properties are all the joint family properties of the plaintiff and defendants 1 and 2? (ii) Whether the 1st defendant proves that he has legally married one Alamelu Ksthuri Bai and defendants 3 and 4 are his legitimate sons? (iii) Whether the plaintiff proves that he is entitled for 1/6th share in the plaint schedule properties? (iv) Whether the plaintiff proves that he is in joint possession of the plaint schedule property? (v) Whether the defendant Nos. 1, 3 and 4 prove that the plaint schedule properties are their self-acquired properties, as contended in paras 14, 15 and 16 of their written statement? (iv) Whether the plaintiff proves that he is in joint possession of the plaint schedule property? (v) Whether the defendant Nos. 1, 3 and 4 prove that the plaint schedule properties are their self-acquired properties, as contended in paras 14, 15 and 16 of their written statement? (vi) Whether the defendants 1, 3 and 4 further prove that the plaintiff has got no right over the plaint schedule properties by virtue of a Release Deed dated 28-08-1980 executed by the 2nd defendant? (vii) Whether the suit is not maintainable? (viii) Whether the plaintiff is entitled for partition and separate possession of the plaint schedule properties? (ix) To what relief parties are entitled? (x) What order or decree? Additional Issues dated 24-10-1997: (i) Whether the 5th defendant proves that item No. 19 of the plaint schedule property is her self acquired property? (ii) Whether the suit is barred by mis-joinder of parties? Additional Issue dated 09-07-2001: (i) Whether the defendants 3 to 5 proves that they are only entitled share and partition in suit property as per Will dated 10-1-1983 and which executed by defendant No. 1? 10. In order to prove their case, on behalf of the plaintiffs, the second plaintiff got examined herself as P.W.1 and got marked the documents as Ex.P1 to Ex.P47. Defendant No. 3 got examined himself as D.W.1 and 5th defendant got examined herself as D.W.3 and they examined one of the witnesses as D.W.2. They got marked the documents as Ex.D1 to Ex.D231. None of the Legal representatives of the first defendant who were brought on record got examined themselves. The second defendant was placed ex parte in the case. 11. P.W.1 in her evidence deposed that the suit schedule properties belonged to Chikkaraju Chettiar who is the father of her father-in-law. He owns a house at K.T. Street, Mysore and he was also running Handloom and Power loom in Makkaji Chowk, Mysore. The said Chikkaraju Chettiar has got two sons Govindaraju and Devendra. She also deposed that Devendra after taking his share separated from the joint family. Thereafter, Govindaraju and Chikkaraju Chettiar constituted a joint family. After death of her mother-in-law Smt. Kousalya in the year 1968, her father-in-law brought a lady from his relatives and kept her in his house. She got four children. Defendants 3 and 4 are the sons of kept-mistress of my father-in-law. Thereafter, Govindaraju and Chikkaraju Chettiar constituted a joint family. After death of her mother-in-law Smt. Kousalya in the year 1968, her father-in-law brought a lady from his relatives and kept her in his house. She got four children. Defendants 3 and 4 are the sons of kept-mistress of my father-in-law. She deposed that her marriage with the second defendant took place in the year 1980 and the first plaintiff was born in April 1981. At that time, the first defendant was managing the joint family properties. From the income of the said joint family, other items of the properties were purchased. Further, item No. 19 property was purchased by the first defendant in the name of Alamelu Kasturi Bai, who is the kept mistress of the first defendant. The first defendant was neglecting the second defendant and the plaintiffs. In spite of the repeated requests, the first defendant failed to partition the joint family properties. She got the documents marked as Ex.P1 to Ex.P32. In the cross-examination, she admitted that she married the second defendant in the year 1980 and some of the properties were purchased much prior to her marriage. The second defendant was assisting the first defendant in the family business. She has no personal knowledge regarding the business being carried on by Chikkaraju Chettiar. Item No. 1 property measuring 4.00 acres of land was granted by the State Government in favour of Chikkaraju Chettiar. After his death, it came to the share of the first defendant. From the year 1986, they are residing at Sarguru and constructed their own house and the second defendant is doing business in Sarguru. She is not aware of the release deed executed by Devendra in favour of Chikkaraju Chettiar. She has no document to show that they were residing together in the same house. 12. The second defendant who is the son of the first defendant, has not been examined himself to show that joint family is doing business and out of the income from the joint family business, they had purchased item Nos. 2 to 18 properties. 13. D.W.1 who is the 3rd defendant in the suit in his evidence deposed that Chikkaraju Chettiar did not own any properties and he was working as a Weaver for some time and thereafter, he worked as a driver. Thereafter he started textile business at Makkaji Chowk. 2 to 18 properties. 13. D.W.1 who is the 3rd defendant in the suit in his evidence deposed that Chikkaraju Chettiar did not own any properties and he was working as a Weaver for some time and thereafter, he worked as a driver. Thereafter he started textile business at Makkaji Chowk. Since, he could not run the business properly he handed over the same to his son Devendra. Further, Devendra also could not run the business. He closed down the said textile business and started M.N.C. Hotel in the same premises. The first defendant after executing the release deed dated 10-10-1967, separated from his father and doing his own business at Chamarajanagar for some time and thereafter shifted his business to Mysore. The first defendant was running 3 Fair Price Shops and also doing Pawn Broker business after obtaining license from the competent authorities. The 2nd defendant was assisting the first defendant in the business. After the marriage of second defendant in the year 1980, he was living separately at K.T. Street and he also executed release deed on 28-8-1980 as per Ex.D5. Hence, the second defendant has no right in respect of the suit schedule properties. All the properties were purchased subsequent to 10-10-1967 after separating from the joint family of Chikkaraju Chettiar. Hence, the suit schedule properties cannot be treated as joint family properties. In the cross-examination, D.W.1 admitted that 5th defendant married the first defendant during the lifetime of the first wife of the first defendant. He also admitted that item No. 1 property was granted by the State Government in favour of his grand father. After his death, it came to the first defendant. There is no mentioning about item No. 1 property in the release deed executed by the second defendant in the year 1980. The suit schedule properties, except item No. 1 property are self-acquired properties of defendants 1 and the first defendant executed a Will on 10-1-1983 bequeathing all his properties in favour of defendants 3 to 5. There was mentioning in the said Will that all these properties are self-acquired properties. 14. D.W.2 in his evidence deposed that the first defendant executed a Will in the year 1983 and he has signed as one of the attesting Witnesses to the Will. The said Will was attested by Narayanaswamy and Ramegowda. The said Ramegowda and Narayaswamy are not alive. 14. D.W.2 in his evidence deposed that the first defendant executed a Will in the year 1983 and he has signed as one of the attesting Witnesses to the Will. The said Will was attested by Narayanaswamy and Ramegowda. The said Ramegowda and Narayaswamy are not alive. While executing the Will by the first defendant, all the three were present and identified his signature. The said Will was registered before the Sub-Registrar. In the cross-examination, he has identified the Will executed by the first defendant. 15. D.W.3 in his evidence deposed that her marriage with the first defendant had taken place at Thirupathi. The first wife of the first defendant could not maintain good health. In order to maintain the family, the first wife of the first defendant herself celebrated the marriage of first defendant with her. Other members of the family had no objection for her marriage. The suit schedule properties are the self-acquired properties of the first defendant and he had executed a Will on 10-1-1983 and they are not the joint family properties. The plaintiffs as well as the second defendant had no right in respect of the suit schedule properties. Further, she deposed that she was running the Fair Price Shops and doing money lending business and from the said income out of those businesses, she had purchased item No. 19 and 31 properties. After the marriage of the second defendant in the year 1980, the first defendant got the business of Janatha Bank and the second defendant also executed a release deed in favour of the first defendant. Hence, they have no right whatsoever in respect of the suit schedule properties. In the cross-examination she has reiterated that she was doing the business of Fair Price shop as well as the money lending business. From the income of the said business, she purchased the suit schedule properties. 16. The Trial Court considering the oral and documentary evidence let in by the parties held issue Nos. 1, 3, 4 and 5 partly affirmative and issue No. 8 and additional issue No. 1 in affirmative and issue No. 2, 6, 7 and additional issue No. 2 dated 24-10-1997 and additional No. 1 dated 9-7-2001 in the negative. Consequently, by its judgment and decree dated 19-12-2003 partly decreed the suit. 1, 3, 4 and 5 partly affirmative and issue No. 8 and additional issue No. 1 in affirmative and issue No. 2, 6, 7 and additional issue No. 2 dated 24-10-1997 and additional No. 1 dated 9-7-2001 in the negative. Consequently, by its judgment and decree dated 19-12-2003 partly decreed the suit. The operative portion of the judgment reads as under: "(1) The suit of the plaintiffs is partly decreed with costs. (2) The first plaintiff is held entitled to the extent of 1/4th share in suit item No. 1 properties and the separate possession thereof, which shall be determined by metes and bounds. The plaintiff No. 1 is also entitle for ascertaining mesne profits by means of holding an enquiry from the date of suit till put in possession all his share which shall be determined by means of holding an enquiry as contemplated under Order 20, Rule 12 of C.P.C. (3) It is further ordered and decreed that the defendant No. 2 is entitled to a share to an extent of 3/8th share in suit item No. 1 properties and to the extent of 1/8th share in respect of suit item No. 2 to 18 of the suit schedule properties and also entitled for separate possession therefore, which shall be determined by metes and bounds. (4) The defendant No. 3, 4 and defendant No. 1 (a) to 1(e) are also entitled for 1/8th share each in the suit item No. 2 to 18 of the schedule properties and the separate possession thereof, which also shall be determined by metes and bounds. 17. Being aggrieved by the said judgment and decree passed by the trial Court, the defendants 3 to 5 and also legal representatives of the first defendant who are the daughters of first defendant filed this appeal. 18. Sri. V. Tarakaram, learned senior counsel appearing for the appellants contended that the judgment and decree passed by the Trial Court is contrary to law and erroneous in law. The finding recorded on various issues is contrary to evidence on record. The Trial Court ought to have dismissed the suit filed by the plaintiffs, on the ground that the father of the first plaintiff and the husband of the second plaintiff relinquished their rights in respect of the suit schedule properties as per the release deed dated 28-8-1980 and separated from the joint family of his father. The Trial Court ought to have dismissed the suit filed by the plaintiffs, on the ground that the father of the first plaintiff and the husband of the second plaintiff relinquished their rights in respect of the suit schedule properties as per the release deed dated 28-8-1980 and separated from the joint family of his father. Hence, the plaintiffs 1 and 2 are debarred from claiming any share in the properties of the first defendant. The finding of the Trial Court on issue No. 1 holding that the first plaintiff is entitled for share to an extent of 1/4 share in item No. 1 property and the second defendant is entitled for the share to an extent of 3/8th share in suit item No. 1 and to an extent of 1/8th share in respect of item No. 2 to 18 suit schedule properties and defendant 1(a) to 1(e) are also entitled for 1/8th share in item Nos. 2 to 18 of the suit property is contrary to the oral and documentary evidence. The Trial Court lost sight of the Will dated 10-1-1983 executed by the deceased first defendant in favour of defendants 3 to 5. The plaintiffs have not challenged the Will dated 10-1-1983. Hence, the reasoning of the Trial Court to disbelieve the Will and allotting the share is contrary to law. 19. The finding of the Trial Court on issue No. 2 that the marriage of the first defendant with 5th defendant is not valid and opposed to the statutory provisions of Hindu Marriage Act is erroneous in law. The evidence on record clearly discloses that marriage of the 5th defendant with the first defendant was with the consent of Smt. Kousalya who is the first wife of the first defendant and nobody had objected for the marriage of the 5th defendant with the first defendant. Everybody treated her as mother on the death of Smt. Kousalya. The finding of the Trial Court on issue No. 2 deprives legitimate share of defendants 3 to 5. 20. The finding of the Trial Court with regard to item No. 1 property holding that it is the ancestral property of the first defendant in the absence of any document is erroneous in law. The 2nd defendant who is the father of the first plaintiff and son of the first defendant has not stepped into the witness box. 20. The finding of the Trial Court with regard to item No. 1 property holding that it is the ancestral property of the first defendant in the absence of any document is erroneous in law. The 2nd defendant who is the father of the first plaintiff and son of the first defendant has not stepped into the witness box. In the absence of the same, the finding of the Trial Court with regard to item No. 1 property is erroneous in law. The allotment of shares in item Nos. 2 to 18 properties is also contrary to the Will executed by the first defendant and sought for allowing the appeal by setting aside the judgment and decree passed by the Trial Court. He also relied upon the judgment reported in AIR 1955 SC 363 , Naresh Charan vs. Paresh Charan; (2005) 8 SCC 67, Pentakota Sathyanarayan vs. Pentakotaseetharathnam; and 2004 (1) KCCR 145, Sanjeeva Naika vs. Shankara Naika. 21. On the other hand, Sri. Y.K. Narayanasharma, learned counsel appearing for the respondents 1 and 2 argued in support of the judgment and decree passed by the Trial Court and contended that the Will said to have been executed on 10-1-1983 by the first defendant came to light only long after the death of the first defendant, i.e., on 3-10-1999. In the written statement also neither the first defendant nor defendants 3 to 5 brought to the notice of Court regarding execution of the Will by the first defendant. The alleged Will executed by the first defendant is not proved in accordance with law. Hence, the Trial Court disbelieves the Will said to have been executed by the first defendant. Further, the 5th defendant is not the legally wedded wife of the first defendant and defendants 3 to 4 will not get the status of co-parceners. The alleged marriage took place during the subsistence of the first marriage and also first wife. Hence, the marriage of the fifth defendant with first defendant is null and void and defendants 3 and 4 are not the co-parceners of the joint family properties of the first defendant and sought for dismissal of the appeal. 22. The alleged marriage took place during the subsistence of the first marriage and also first wife. Hence, the marriage of the fifth defendant with first defendant is null and void and defendants 3 and 4 are not the co-parceners of the joint family properties of the first defendant and sought for dismissal of the appeal. 22. On considering the arguments addressed by the learned counsel for the appellants and respondents, the only point that arise for consideration in this appeal is- Whether the appellants have made out a case to interfere with the finding recorded by the Trial Court with regard to the following issues: (i) the validity of marriage of the 5th defendant with the first defendant? (ii) the appellants allotment of shares to the plaintiffs and other children of the deceased first defendant; (iii) execution of the Will by the first defendant in favour of the defendants 3 to 5 and relinquishment deed executed by the second defendant in favour of the first defendant. 23. The records clearly disclose that the first plaintiff is the son of the second plaintiff and the second defendant. Second defendant is the son of the first defendant through his first wife Smt. Kousalya. Apart from the second defendant, the first defendant also got four daughters who are the respondents 3 to 6 in this appeal. Smt. Kousalya, the first wife died on 24-10-1968. When the first wife was alive, the first defendant married the fifth defendant Smt. Alamelu Kasturi Bai on 14-09-1967 and defendants 3 and 4 are their children. The specific case of the plaintiffs is that after the marriage of the fifth defendant, the first defendant neglected the second defendant and his wife. From the nucleus of the ancestral property, large number of properties were purchased and some of the properties were purchased in the names of defendants 3 to 5. Though the second defendant assisted the first defendant in cultivating the agricultural lands and also in the business, no share in the joint family properties was given to the second defendant. Though the plaintiffs are legally entitled for share in the properties, the defendants denied the same. Hence, they sought for partition and separate possession of 1/6th share in all the suit schedule properties by metes and bounds. 24. Though the plaintiffs are legally entitled for share in the properties, the defendants denied the same. Hence, they sought for partition and separate possession of 1/6th share in all the suit schedule properties by metes and bounds. 24. It is the case of the defendants 1, 3 to 5 that the plaintiffs are not entitled for any share in the joint family properties and there is no existence of joint family properties. All the properties are the self-acquired properties of the first defendant. The first defendant executed a Will in favour of defendants 3 to 5. Hence, the plaintiffs are not entitled for any share. They further contended that the second defendant as per the relinquishment deed dated 28-8-1980 released his entire share in the properties in favour of the first defendant as per Ex.D5. Since, the second defendant himself is not entitled for any share in the suit schedule properties, the question of plaintiffs claiming share in the properties does not arise. Item Nos. 19 and 31 were the self-acquired properties of the fifth defendant and item Nos. 2 2 and 35 were purchased by the defendants 3 and 4. Some of the suit schedule properties, i.e., item Nos. 25 to 37 are not in existence. Hence, the plaintiffs are not entitled for any share in the properties. The specific case of the defendants is that the father of the first defendant Chikkaraju Chettiar got two sons, the first defendant and Devendra. As per the relinquishment deed dated 10-10-1967 both the sons of Chikkaraju Chettiar executed released deed in favour of their father and separated from the joint family. Thereafter the first defendant started his independent business and purchased some properties from his own income. The second defendant who is the son of the first defendant though assisted in the business and agriculture, after his marriage, he got separated from the first defendant after executing the relinquishment deed on 28-8-1980 and after taking his share in the form of money. Since then, the second defendant is living separately. The first defendant by spending huge money set up business for the purpose of second defendant, however, the second defendant could not run the business. The said business has been sold in the public auction. Hence, the second defendant is not entitled for any share and sought for dismissal of the appeal. 25. The first defendant by spending huge money set up business for the purpose of second defendant, however, the second defendant could not run the business. The said business has been sold in the public auction. Hence, the second defendant is not entitled for any share and sought for dismissal of the appeal. 25. During the pendency of the suit, the first defendant died on 3-10-1999 and his daughters were brought on record as his legal representatives. However, they have not filed any written statement. 26. The records clearly disclose that during the lifetime of Smt. Kousalya, the first defendant married fifth defendant on 14-09-1967. The marriage of 5th defendant with the first defendant is contrary to the Hindu Marriage Act which had come into force in the year 1956. Hence, the marriage of 5th defendant with the first defendant cannot be treated as valid marriage. Further, the sons and daughters born out of that marriage cannot get the status of legitimate children. Smt. Kousalya died on 24-10-1968. Even though, the marriage was celebrated in Thirumala Temple and it was registered before the competent authority, the said marriage cannot get the status of the valid marriage. No oral or documentary evidence was produced before the Court. The evidence of D.W3 to D.W5 clearly discloses that the other family members have consented for the second marriage. The Trial Court taking into consideration the evidence of the parties held that the marriage of first defendant with the fifth defendant is not a valid marriage and defendants 3 and 4 will not get the status of legitimate children. From the year 1968, the fifth defendant had cohabitation with the first defendant and got five children. Though their marriage is void, the children are entitled for share in the properties. We find there is no infirmity or irregularity in the said finding. 27. Though the defendants 3 to 5 in their written statement and also in their evidence contended that the first defendant did not possess ancestral properties and all the properties are self-acquired properties of the first defendant, the records clearly disclose that the State Government had granted 4 acres of land in favour of Chikkaraju Chettiar, after his death, the first defendant succeeded the estate of Chikkaraju Chettiar. Hence, item No. 1 property is the ancestral property of the father of the first defendant. Hence, item No. 1 property is the ancestral property of the father of the first defendant. Hence, the second defendant is the only coparcener and he is entitled for half share in the properties. The first plaintiff is the only son of the second defendant and he is entitled for 1/4th share in item No. 1 property. Insofar as item Nos. 2 to 18 are concerned, though the plaintiffs in their evidence contended that they are the joint family properties of the plaintiffs and defendants, no material has been produced before the Court. From the year 1967, the first defendant was residing separately from his father after executing the release deed as per Ex.D10. Thereafter, the first defendant by his hard earning purchased some properties in the year 1967 to 1975. At that time, the second defendant was minor, he attained majority only in the year 1971 and married in the year 1980. No document has been produced by the plaintiffs to show that from the joint family nucleus, the first defendant had purchased the properties. Admittedly, father of the first defendant Chikkaraju Chettiar was alive till 1976. He was cultivating the said lands till his death. Hence, the question of first defendant getting the nucleus from the joint family properties to purchase item Nos. 2 to 18 does not arise. As on the date of filing of the suit, the first defendant was alive and it is the self-acquired property of the first defendant. Hence, the 2nd defendant and other family members are entitled for share in the property acquired by the first defendant including defendants 3 and 4. The PW. 1 in her evidence admitted that the defendants 3 and 4 are the sons of the first defendant and entitled for their share. The Trial Court on considering the oral and documentary evidence held that the second defendant is entitled for 3/8th share in item No. 1 property and 1/8th share in item Nos. 2 to 18 properties and defendants 3 and 4 and defendants 1(a) to 1(e) are entitled for 1/8th share. We find no infirmity or irregularity in the allotment of shares. In respect of other items of the properties is concerned, the records clearly disclose that item Nos. 19 and 31 were purchased by the 5th defendant and item Nos. 22 and 35 were purchased by defendants 3 and 4. It is their self-acquired properties. We find no infirmity or irregularity in the allotment of shares. In respect of other items of the properties is concerned, the records clearly disclose that item Nos. 19 and 31 were purchased by the 5th defendant and item Nos. 22 and 35 were purchased by defendants 3 and 4. It is their self-acquired properties. The plaintiffs have no right in respect of the said properties. Further, some of the items of the properties were not in existence. The plaintiffs also not disputed the same. 28. The appellants have further contended that immediately after the marriage of the second defendant in the year 1980, he had relinquished his share in the suit schedule properties as per the release deed dated 28-8-1980 as per Ex.D5 and also after taking a sum of Rs. 5,000/- towards his share in the properties. Hence, the second defendant is not entitled for the share in the properties acquired by the first defendant. The evidence on record clearly discloses that the first defendant is running the business in Vedavyasa Traders, Janatha Giravi Shop, Bhagyalakshmi Stores and Latha Stores. The second defendant after attaining majority in the year 1971 was assisting his father in the business being run by him. From the income of the said business, the first defendant had purchased the vast extent of properties. But the value of the said property cannot be equated to Rs. 5,000/-, which was received by the second defendant on executing the release deed. D.W.1 in his evidence admitted that the second defendant was assisting the first defendant in running the business. At the time of executing the release deed, the first plaintiff was in the womb of his mother, hence, the second defendant cannot relinquish the joint family properties. Insofar as other properties are concerned, which were acquired from the income of the business, the value of the said properties cannot be equated to a sum of Rs. 5,000/- received by the second defendant towards his share. The second defendant also contributed his efforts in the business to acquire the properties and the share given to the second defendant is unequal share. Hence, the second defendant is entitled for share in item Nos. 2 to 18. 5,000/- received by the second defendant towards his share. The second defendant also contributed his efforts in the business to acquire the properties and the share given to the second defendant is unequal share. Hence, the second defendant is entitled for share in item Nos. 2 to 18. We find no infirmity or irregularity in the finding recorded by the Trial Court that the share given to the second defendant is not equal to the extent of his share and therefore, it is unreasonable and unfair. 29. The contention of the defendants 3 to 5 is that the first defendant as per the registered Will dated 10-01-1983 bequeathed the suit schedule properties in favour of them. Hence, the plaintiffs and other family members are not entitled for any share. In support of their contention, they have examined D.W.2 one of the attesting witnesses of the said Will. In his evidence, he had deposed that the said Will was prepared in the house of the first defendant. The fifth defendant Alumelamma and her children were present at the time of preparing the Will. At the time of execution of the Will, the first defendant was hale and healthy, except getting chest pain very often. While filing the written statement, the defendants have not disclosed the execution of the Will on 10-01-1983. The first defendant died on 03-10-1999. Thereafter, additional written statement has been filed and in that written statement, execution of the said Will was brought to light. In the Will, no reason has been assigned for denying share in the family properties to the legitimate children of the first defendant. Admittedly, defendants 3 and 4 are the illegitimate children of the first defendant. Denying the shares to legitimate children from the first wife is not mentioned in the Will. Further, the fifth defendant is in dominating position. Immediately after her marriage with the first defendant, she got executed Power of Attorney on 15-12-1969. D.W.1 in his evidence admitted that the first defendant used to do whatever the fifth defendant says. Further, presence of the fifth defendant and her children at the time of execution of the Will itself shows that the Will executed by the first defendant in favour of defendants 3 to 5 is at the external influence of defendant No. 5 and it is not free from external influence. Further, presence of the fifth defendant and her children at the time of execution of the Will itself shows that the Will executed by the first defendant in favour of defendants 3 to 5 is at the external influence of defendant No. 5 and it is not free from external influence. Otherwise, there is no reason to exclude the legitimate children from giving share in the properties acquired by the first defendant. The records clearly disclosed that immediately after the marriage of the second defendant, he was thrown out of the house by taking the relinquishment deed by paying him Rs. 5,000/- itself show that there was enmity between the second defendant and defendants 3 to 5. In order to deprive the second defendant and her sisters, who were born to Smt. Kousalya the first wife of the first defendant, the fifth defendant got executed the Will on 10-1-1983 itself and it was brought to light long after the death of the first defendant. There is a suspicious circumstances in execution of the Will in favour of defendants 3 to 5. The Trial Court taking into consideration oral and documentary evidence of the parties, came to the conclusion that though the first defendant executed the Will in favour of defendants 3 to 5, the said Will is executed at the external influence of the defendants 3 to 5 and they were present at the time of executing the Will. Accordingly, the Trial Court held that defendants 3 to 5 have miserably failed to prove the execution of the Will date 10-1-1983 as legal and valid. 30. Sri. V. Tarakaram, learned Senior Counsel appearing for the appellants relying upon the judgment reported in AIR 1955 SC 363 (supra) contended that the burden is on the plaintiffs to establish that the Will was resultant of undue influence brought by the profounder of the Will. In the instant case, the Trial Court having held that the Will executed by the testator stood proved, ought not to have held that presence of the fifth defendant at the time of executing the Will invalidates the Will and the said Will is made under external influence. He also relied upon the judgment reported in (2005) 8 SCC 67 (supra) contending that initial onus is on the propounder to prove the execution of the Will. He also relied upon the judgment reported in (2005) 8 SCC 67 (supra) contending that initial onus is on the propounder to prove the execution of the Will. When it is proved, thereafter, the onus shifts to the party alleging undue influence or coercion in execution of the Will. 31. In the instant case, the plaintiffs have not proved the undue influence or coercion in execution of the Will. The second defendant has not stepped into the witness box. Hence, the finding of the Trial Court is contrary to law. Further he also relied upon 2004(1) KCCR 145, Sanjeeva Naik and another vs. Shankar Narayana Naik and others contending that the presence of the beneficiary of the Will at the time of execution need not necessarily makes the Will invalid which is otherwise valid unless it is positively established that the beneficiary has acted in a manner to unduly influence the testator. The judgments relied upon by Sri. V. Tarakaram are not applicable to the facts of the present case. In the case on hand, immediately after the marriage in the year 1967, the first defendant executed a power of attorney o 12-12-1969 in favour of the fifth defendant. Evidence of D.W.1 clearly establishes that the fifth defendant is in dominating position in the house. Apart from that, the second defendant was thrown out of the house immediately after his marriage on 28-8-1980 after taking the releasedeed from him by paying Rs. 5,000/- towards his share of the properties. This itself shows that the fifth defendant has played a dominant role in executing the Will dated 10-01-1983. D.W.2 in his evidence had deposed that at the time of executing the Will, the fifth defendant and her children were present. Taking into consideration all these aspects of the matter, the Trial Court passed the judgment and decree. The appellants have not made out a case to interfere with the judgment and decree passed by the Trial Court. The Trial Court while allotting the shares, applied its mind and allotted 1/4th share in favour of the first plaintiff in item No. 1 property and allotted 3/8th share in item No. 1 property and 1/8th share in respect of item No. 2 to 18 of suit schedule properties in favour of the second defendant. The Trial Court while allotting the shares, applied its mind and allotted 1/4th share in favour of the first plaintiff in item No. 1 property and allotted 3/8th share in item No. 1 property and 1/8th share in respect of item No. 2 to 18 of suit schedule properties in favour of the second defendant. Since the suit schedule properties are self-acquired properties of the first defendant, defendants 3 and 4 and daughters of the first defendant who are defendants 1 (a) to 1(e) are also allotted 1/8th share in item Nos. 2 to 18 suit schedule properties. The finding of the Trial Court is in accordance with law. The appellants have not made out a case to interfere with the same. Accordingly, we pass the following ORDER The appeal is dismissed. Parties to bear their own costs.