JUDGMENT : B.M. Shyam Prasad, J. 1. These appeals are by the plaintiff and some of the defendants in O.S. No. 207/2010 on the file of the Senior Civil Judge and JMFC, Navalgund (for short, 'the civil Court'). The appeal in RFA No. 100507/2020 is by the plaintiff, the appeal in RFA No. 100016/2020 is by the third to fifth defendants and the appeal in RFA No. 100148/2021 is by the tenth to fourteenth defendants. The parties for reasons of convenience are referred to as per their rank in the suit. 2. The civil Court, on 24.10.2019, has partly decreed this suit in O.S. No. 207/2010 declaring that the plaintiff, the first and third to fifth defendants are entitled to one fifth share each in certain agricultural lands and non-agricultural properties listed in the plaint schedules. The civil Court has also directed the Special Land Acquisition Officer, National Highway Authorities, Dharwad to release the amount payable under the award dated 17.11.2014 in SLAO/LAQ/CR/CR55/2014-15 to the first defendant. 3. The plaintiff is aggrieved because his claim for declaration of share and partition by metes and bounds is accepted only for certain agricultural lands and non-agricultural properties while the similar claim in the other properties is rejected. The third to fifth defendants, who are his sisters, have joined the plaintiff in his grievance against the declaration of shares in only certain properties as aforesaid; and the tenth to fourteenth defendants, who are the legatees under the Last Will and Testament dated 21.02.2018 executed by the second defendant's wife, have filed their separate appeal being aggrieved by the civil Court's finding that they have failed to establish the due execution of such Last Will and Testament. 4. The relationship amongst the parties is not disputed. The plaintiff and the first to fifth defendants are the children of Sri. Govindappa and Smt. Padma Bai, who have died respectively on 02.07.1994 and 29.03.2007. The plaintiff and the first and second defendants are their sons, and the third to fifth defendants are their daughters. The second defendant has died during the pendency of the suit, and on his death, his wife, Smt.Vijayalakshmi, is brought on record as his legal representative. Govindappa and Smt. Padma Bai, who have died respectively on 02.07.1994 and 29.03.2007. The plaintiff and the first and second defendants are their sons, and the third to fifth defendants are their daughters. The second defendant has died during the pendency of the suit, and on his death, his wife, Smt.Vijayalakshmi, is brought on record as his legal representative. On the demise of Smt.Vijayalakshmi, the tenth to fourteenth defendants, are brought on record as additional defendants because they, who are the children of her siblings, have asserted that she has executed her Last Will and Testament dated 21.02.2018 bequeathing her undivided interest in the suit schedule properties to them. The Genealogical Tree(1) is as follows: (1) The Sixth, Seventh and Ninth Defendants are not related, but the tenth and fourteenth Defendants are related to the plaintiff. The details of their relationship are not forthcoming except that they are children of Smt. Vijayalakshmi's siblings, including the plaintiff. Sri. Hanumanthappa S/o Govindappa Kademani Smt. Rindamma Sri Govindappa Smt. Padmabhai Sri Hanmathappa D No. 1 Sri. Satish Chandra D No. 8 Smt. Kasteruvva D No. 3 Smt. Vijayalakshmi D2a Smt. Asha Hosmani Sri. Pandappa D No. 2 Smt. Vijayalakshmi D 2a Smt. Kamla D No. 4 Smt. Annapurna D No. 5 Sri. Hema Chandra - P Kum. Geetha D 10 Sri. Ramachandrappa Sri Venkappa Smt. Vijayalakshmi, who is married to the second defendant, is the eldest daughter of the third defendant, the elder sister of the second defendant, and Smt.Vijayalakshmi's younger sister, Smt. Asha Hosamani, is examined as the guardian and next friend of the legatees under the registered Last Will and Testament dated 21.02.2018, and she is the plaintiff's wife. 5. It is undisputed that Sri. Govindappa acquired the immovable properties mentioned in serial Nos. 1, 2, 3 and 5 of the plaint schedule 'A' and certain other properties in an oral partition between himself and his brothers in the year 1953. There are revenue entries that mention this partition and the subsequent partition(2) between Sri. Govindappa, his wife, Smt. Padmavaa @ Padma Bai and the first and second defendants [their first two sons] in the year 1955 wherein these properties are divided. These defendants were minors in the year 1955. The plaintiff is born in the year 1958 and the weddings of the daughters, who were born prior to 1956, are performed in the year 1960s and 1970s. These defendants were minors in the year 1955. The plaintiff is born in the year 1958 and the weddings of the daughters, who were born prior to 1956, are performed in the year 1960s and 1970s. (2) In the revenue records the partition is referred to in the vernacular as 'Apsatwatni'.] 6. The plaintiff denies that there was partition between Sri. Govindappa and the first and second defendants, and his case is that even if there was any arrangement in the year 1955 between Sri. Govindappa, Smt. Padma Bai @ Padma Bai and their two elder sons, it was only an ad hoc arrangement within the family members for the management of the ancestral properties and such arrangement cannot be a partition by metes and bounds to exclude his rights in the properties that are subject matter of such arrangement and the properties that are purchased in the name of the individual members of the family after this arrangement. 7. Sri Govindappa and the first defendant also have purchased certain residential properties after this arrangement in their respective names. These residential properties are described in plaint schedule 'B'. The first defendant has purchased the land measuring 15 acres 6 Guntas in RS No. 147 of Annigeri Village, Navalgund Taluk [the property that is described in serial number No. 7 of plaint schedule 'A']. The first defendant apart from asserting absolute ownership to these residential and agricultural properties has also asserted absolute ownership in the property allotted to the second defendant in the partition in the year 1955 because of certain alleged transactions with him. 8. The first defendant contends that the partition in the year 1955 is a real partition valid in law and that the family members, even the plaintiff who is born in the year 1958, have accepted such partition. 8. The first defendant contends that the partition in the year 1955 is a real partition valid in law and that the family members, even the plaintiff who is born in the year 1958, have accepted such partition. The first defendant has further contended that because the plaintiff could not have been given a share in the partition in the year 1955, he and the second defendant have in the year 1973 relinquished to the plaintiff, at the instance of their father, all their rights and interest in the land measuring 12 acres in RS 156 of Annigeri Village, Navalgund Taluk [the property that is described in serial No. 8 of plaint schedule 'A'] which is purchased in their name, and the plaintiff has filed declarations before the Election Commissioner acknowledging that he is the absolute owner of such property apart from dealing with the same in his own rights. 9. The second defendant has died during the pendency of the suit, and his wife, Smt. Vijayalakshmi, is brought on record as his legal representative(3). Smt.Vijayalakshmi has also died during the pendency of the suit, but allegedly leaving behind her Last Will and Testament 21.02.2018 bequeathing her asserted undivided interest in the suit schedule properties in favour of the children of the plaintiff and some of the defendants. The daughters of Sri.Govindappa and Smt. Padma Bai [the third and fifth defendants] have filed their written statement supporting the plaintiff's case and asserting that they would also be entitled for an equal share in the suit schedule properties. (3) The second defendant and Smt. Vijayalakshmi were estranged and they did not have children. 10. It is also brought on record that Sri Govindappa has executed a Kutumba Vyavastha Patra dated 12.05.1994 in favour of Smt. Padma Bai insofar as the immovable properties that were in his name, and based on such agreement the revenue entries for these properties are mutated in her name. After her demise, the revenue entries are mutated in favour of all the children, and with the demise of Smt. Vijayalakshmi, based on the Will and Testament dated 21.02.2018, the names of the concerned grandchildren are also mutated. 11. These circumstances make the crux of the rival pleadings, and the rival case is discussed in detail later. The civil Court in the light of the rival pleadings has initially framed 18 Issues. 11. These circumstances make the crux of the rival pleadings, and the rival case is discussed in detail later. The civil Court in the light of the rival pleadings has initially framed 18 Issues. These essential Issues are on whether the plaintiff proves the existence of Undivided Hindu Joint Family comprising of Sri. Govindappa and his three sons, viz. [1] Sri Hanumanthappa - the first defendant, [2] Sri Pandappa - the second defendant, and [3] Sri Hemachandra - the plaintiff, and whether the first defendant proves that there was division of ancestral properties in the year 1955 in a partition between Sri Govindappa and his two elder sons and his wife Smt.Padma bai @ Padma Bai and the subsequent transactions relied upon by him. 12. The civil Court has also framed 6 [six] Additional Issues, and if the first defendant is called upon to prove the sale agreement dated 26.04.2016 executed by the plaintiff in favour of Sri. Veeresh for the land in survey No. 156 [Sl. No. 8 of plaint schedule 'A'], the tenth to fourteenth defendants are called upon to prove that defendant No. 2A [Smt. Vijayalashmi] has executed the Last Will and Testament dated 21.02.2018 and that they are entitled to the bequeath thereunder. 13. The plaintiff has examined himself as PW1 and got marked Ex. P1 to P22. The RTCs /Property Extracts/ Mutation Entry Extracts for the immovable properties mentioned in the plaint schedule 'A' are marked Exs. P1 to P18. The Death Certificate/s of the parents Sri. Govindappa and Smt. Padma Bai are marked as Exs.P19 and Ex.P.20. The plaintiff's birth certificate is marked as Ex.P.21, and the mutation entry in MV No. 10502 which is pursuant to the partition/arrangement in the year 1955 is marked as Ex.P.22. 14. The third defendant has examined herself as DW-1. Smt. Asha Hosamani has examined herself as DW2 and the next friend and guardian of the minor tenth to fourteenth defendants who claim legacy under the registered Will and Testament dated 21.02.2018. Smt.Venkatareddy Hosamani and Sri. Vinayak Bosale, who assert that they attested this said Will and Testament dated 21.02.2018, are examined as DW-3 and DW-4. The first defendant has examined himself as DW- 5. The defendants have also marked the RTCs /Property Extracts/ Mutation Entry Extracts for the suit schedule properties as exhibits. Smt.Venkatareddy Hosamani and Sri. Vinayak Bosale, who assert that they attested this said Will and Testament dated 21.02.2018, are examined as DW-3 and DW-4. The first defendant has examined himself as DW- 5. The defendants have also marked the RTCs /Property Extracts/ Mutation Entry Extracts for the suit schedule properties as exhibits. Apart from these exhibits, they have also marked the Last Will and Testament dated 21.02.2018, copies of the relevant agreement to sell and sale deeds as also school certificates of the sisters. 15. The details of the properties listed in the plaint schedule A and B, and the transactions in respect thereof as supported by evidence and the civil Court's discussion in that regard are as follows. The details of the properties and the transactions are as follows: A. R.S. No. 1409, measuring 8 acres 35 guntas, situated at Annigeri Village, Navalgund Taluk (Schedule A, Sl. No. 1). B. R.S. No. 1312, measuring 11 acres 27 guntas, situated at Annigeri Village, Navalgund Taluk (Schedule A - Sl. No. 2)(4) (4) The civil Court has declared that the plaintiff, the first and third to fifth defendants are entitled for 1/5th share in these two properties. 15.1 In the 1955 partition [as asserted by the first defendant but disputed by the plaintiff and the other defendants supporting him contending that this was an ad hoc arrangement], these properties are allotted to the Sri. Govindappa's share, and consequent to this transaction, the revenue records for these properties are mutated in his favor vide M.E. No. 10502 [Ex. P 22]. Sri. Govindappa has executed Kutumba Vyavastha Patra dated 12.05.1994 [Ex. D 37] in favour of his wife, Smt. Padma Bai, referring to these properties [and other properties] stipulating that on his demise only she shall be entitled to these properties and none of the children shall have any interest or claim therein. 15.2 After the demise of Sri. Govindappa, on the basis of an application filed SMT. Padma Bai along with the aforesaid Patra dated 12.05.1994, the revenue entries for these lands [as also residential properties mentioned in Sl. No. 1, 2, 3, 7 & 8 and 10 Schedule B of the plaint] are mutated in her favor vide M.E. No. 3883A [Ex. D 38]. Govindappa, on the basis of an application filed SMT. Padma Bai along with the aforesaid Patra dated 12.05.1994, the revenue entries for these lands [as also residential properties mentioned in Sl. No. 1, 2, 3, 7 & 8 and 10 Schedule B of the plaint] are mutated in her favor vide M.E. No. 3883A [Ex. D 38]. After the demise of Smt. Padma Bai, the revenue entries for these properties are in the joint names of all the children of Sri Govindappa and Smt. Padma Bai. The plaintiff has marked M.E. No. 10502(5) [Ex. P21] and RTC for these properties as Ex. P1 and Ex. P2. The first defendant has marked one of the RTCs for the Land in RS No. 1409 and 1312 as Ex. P 48 and 49. (5) This M.E. is also marked by the first defendant as Ex. D11 apart from M.E. No. 10073 (Ex. D1) which relates to the partition between Sri. Govindappa and his brothers.] 15.3 On behalf of the tenth to fourteenth defendants, Smt. Asha Hosmani is examined as DW2, and the Last Will and Testament dated 21.02.2018 is marked as Ex. D10. Apart from Smt. Asha Hosmani, Sri Venkat Reddy Hosamani and Sri Vinayaka Bhosle are examined as DW 3 and 4. This Will and Testament dated 21.02.2018 is relied upon to contend that Smt. Vijayalakshmi [the second defendant's wife] was entitled to succeed the second defendant's interest in the suit schedule properties [including the land said RS No. 1409 and RS No. 1312] and she has bequeathed her undivided interest in these properties in favour of her grandchildren. 15.4 However, the civil Court has opined that this last Will and Testament dated 21.02.2018 though registered is not established as required in law because of suspicious circumstances. The civil Court has referred to the contradiction in the evidence on the due attestation of this testament. The civil Court has opined that if the witnesses [DW 3 and 4] have said that the testatrix was present in the sub registrar's office and they have signed as witnesses in her presence at the sub registrar's office, the document itself mentions that it was executed on 21.02.2018 and presented for registration on 22.02.2018, and on 26.02.2018 the registration is completed with the testatrix being exempted from personal appearance. The civil Court has opined that this as also the fact that the legatees are the children of the plaintiff and those daughters who support him create suspicion about the execution and attestation thereof. 15.5 The civil Court has granted 1/5th share to the surviving children of Sri Govindappa and Smt. Padma Bai in view of this finding and the findings that the evidence establishes that the parties have acted upon a partition in the year 1955 amongst Sri Govindappa/Smt.Padma Bai and the first and the second defendants; that the plaintiff has accepted this partition; that after the demise of Sri Govindappa the katha for the properties allotted to him in this partition is mutated in favour of his wife, Smt. Padma Bai based on a settlement executed by him; and that after her demise the katha for these properties are entered in the name of all the children. C. R.S. No. 154, measuring 19 acres 33 guntas, situated at Saswihalli Village, Navalgund Taluk (Schedule A - Sl. No. 3)(6) (6) The civil Court has refused share in this property holding that this property belongs absolutely to the first/eighth defendants.] 15.6 The first defendant has asserted that this property is allotted to him in the partition in the year 1955, and that he has continued in possession and enjoyment of this property as the absolute owner until the year 2001 when he has relinquished all his rights in favour of his son, Sri. Satish Chandra [the eighth defendant]. The first defendant to buttress his case that this property was allotted to him and he was in enjoyment of this property as the absolute owner until the year 2001 and thereafter his son is in possession has relied upon RTC for the year 1953 [Ex. D-2], the Mutation Entry in ME No. 10502 [Ex. P-22] in his favour, Mutation Entry in ME No. 2851[Ex.D-16] dated 10.07.2001 in favour of his son. 15.7 It is also in evidence that Sri. Satishchandra [the eighth defendant] has availed a loan as against this property with the Union Bank. The first defendant has asserted that he has availed the loan as the absolute owner, but the plaintiff has asserted that such loan is availed for the benefit of the family. Smt. Vijayalakshmi [the second defendant's wife] has mentioned this property in her Last Will and testament dated 21.02.2018. The first defendant has asserted that he has availed the loan as the absolute owner, but the plaintiff has asserted that such loan is availed for the benefit of the family. Smt. Vijayalakshmi [the second defendant's wife] has mentioned this property in her Last Will and testament dated 21.02.2018. The legatees under this Last Testament and Will, the tenth to fourteenth defendants have obtained mutation of revenue entries for this property, and M.E.No. 1438 is the corresponding mutation entry which is marked as Ex.D- 12. 15.8 The civil Court has opined that neither the plaintiff nor the other defendants can assert any interest in this property because of its opinion that the parties have acted upon the partition affected in the year 1955. The civil Court has also opined that the plaintiff has not challenged the revenue entries for this land in favour of the first defendant at the first instance and later in favour of his son, the eight defendant, holding that the first defendant has established that this property is allotted to him in the partition and that he has relinquished his interest in this land in favour of his son and as such, a share is refused in this property. D. R.S. No. 1264, measuring 15 acres 21 guntas, situated at Annigeri Village, Navalgund Taluk (Schedule A - Sl. No. 5)(7). (7) The immovable property mentioned at Sl.No. 4 in Schedule 'A' is admittedly deleted, and further, the civil Court has not granted any share in this property.] 15.9 According to the first defendant this property is allotted to the second defendant in the partition in the year 1955. The first defendant has asserted that the second defendant entered into an agreement to sell [Ex. D-46] half a portion of this property to Sri. Amrutheshwar Naryanarao Kamath and received a sum of Rs.2,00,000/- as advance. This purchaser filed a suit for specific performance in OS No. 96/2004 [Ex.D.47 is a certified copy of the plaint] but was willing to withdraw his claim if the advance amount was refunded. However, the second defendant did not have the funds to repay this amount and as such, he borrowed this amount of Rs.2,00,000/- from him and in consideration thereof, he relinquished half portion in his favor under an oral arrangement. Accordingly, mutation is made in his name in M.E.No. 6530A [Ex.D.13]. However, the second defendant did not have the funds to repay this amount and as such, he borrowed this amount of Rs.2,00,000/- from him and in consideration thereof, he relinquished half portion in his favor under an oral arrangement. Accordingly, mutation is made in his name in M.E.No. 6530A [Ex.D.13]. The second defendant has also relinquished the remaining portion in his favour vide the Relinquishment Deed dated 28.03.2003 [Ex.D.14]. 15.10 The first defendant's evidence is that the second defendant and his wife Smt. Vijayalakshmi [who is brought on record as the defendant No. 2A] were estranged and as such, she resided separately with her parents and therefore, they did not have any children. The second defendant lived with him as a member of his family. This evidence is contested by the plaintiff and the other defendants who support him. 15.11 The civil Court has opined that the first defendant's case that this property was allotted to the second defendant in the partition in the year 1955 and that the second defendant, who was constrained because Sri. Amrutheshwar Naryanarao Kamath had commenced the suit in OS No. 96/2004, has relinquished his interest in this property in his favour, are evidenced by the RTC [Ex. D 15 and 17], the revenue entries [ME 6530/A dated 04.12.2002 - Ex. D13] and the registered Relinquishment Deed dated 28.03.2003 [Ex. D14]. Therefore, the civil Court has not granted share in this property. E. R.S. No. 147, measuring 15 acres 06 guntas, situated at Annigeri Village, Navalgund Taluk (Schedule A - Sl. No. 7)(8). (8) The immoveable property mentioned at Sl.No. 6 in Schedule 'A' is admittedly deleted. Further, the civil Court has not granted any share in this property at SL No. 7. 15.12 The first defendant has contended that this property is his absolute property because he has purchased this property from Sri. Mukkanna Siddappa Jhulki under the sale deed dated 29.01.1971 [Ex.D.23]. A portion of this property i.e., 7688 sq. mtrs is acquired by the National Highway Authorities and possession is also taken. The compensation payable therefor is in judicial deposit because of the present dispute(9). The notices relating to the acquisition are marked as Ex.D.3 to D.5. Mukkanna Siddappa Jhulki under the sale deed dated 29.01.1971 [Ex.D.23]. A portion of this property i.e., 7688 sq. mtrs is acquired by the National Highway Authorities and possession is also taken. The compensation payable therefor is in judicial deposit because of the present dispute(9). The notices relating to the acquisition are marked as Ex.D.3 to D.5. (9) The civil Court, by its order dated 29.06.2017, on an application filed by the plaintiff (IA No. 10) under Order XXXIX Rule 1 and 2 of CPC has restrained disbursement of the compensation payable under the award dated 17.11.2014 and as such, the compensation as in deposit with the civil Court. 15.13 The civil Court has opined that with the partition in the year 1955 it must be concluded that the first defendant has purchased this property from out of his own income, and the plaintiff, who is enjoined in law to demonstrate that the joint family nucleus was utilized for purchase of this property under the sale deed dated 29.01.1971, has not placed any material on record. As such, the civil Court has not only denied the claim for partition of this property by metes and bounds but has also declared that the first defendant is entitled to receive the compensation payable by the National Highway Authorities. F. R.S. No. 156 [also mentioned as 156/2A/2A+2B], measuring 12 acres 00 guntas, situated at Saswihalli, Tq. Navalgund [Schedule A - Sl. No. 8](10). 15.14 This property is purchased under the sale deed 28.10.1957 [Ex.D.19] from Smt. Seetabai and Smt. Lakshmi Bai in the name of the first and the second defendant when they were minors and are represented in this transaction by their father, Sri. Govindappa, as their guardian. The first defendant contends that the father called upon him and the second defendant to relinquish their rights in favor of the plaintiff. Accordingly, the second defendant and he have relinquished their rights in this property in favour of the plaintiff in the year 1973 and a 'Wardi' is also submitted. The revenue entries are entered in the name of the plaintiff vide M.E.No. 15199 [Ex.D.21].] (10) The civil Court has refused a share in this property. 15.15 The first defendant has contended that the plaintiff has accepted this relinquishment and has dealt with this property as the absolute owner. The revenue entries are entered in the name of the plaintiff vide M.E.No. 15199 [Ex.D.21].] (10) The civil Court has refused a share in this property. 15.15 The first defendant has contended that the plaintiff has accepted this relinquishment and has dealt with this property as the absolute owner. The plaintiff in accepting this relinquishment has also accepted the partition in the year 1955 inter se the father and the first and the second defendants. In support of these assertions, the first defendant contends that the plaintiff has entered into an agreement [Ex.D.7] with Sri.Veeresh for the sale of an extent of 3 acres and received consideration of Rs.6,00,000/-. The first defendant has also relied upon the plaintiff's affidavit [Ex.D.8] to contend that when the plaintiff contested the local elections, and when he was required to declare the properties held by him and his wife and the joint family properties, he has mentioned this property as his property without referring to the other plaint schedule properties or his share in his properties. The plaintiff, in the cross examination, has fielded certain questions in this regard but has admitted the agreement and contents of the affidavit. 15.16 The civil Court has opined that the plaintiff is the absolute owner of this property and the circumstances also establish the partition effected 1955 and the subsequent transaction adverting to the aforesaid transactions as evidenced by the sale deed dated 28.10.1957 [Ex. D.19], the Mutation chatter entry in ME No. 115199 [Ex. D.21] in favour of the plaintiff, the sale agreement in favour of Sri Veeresh [Ex. D.6], the affidavit and Form 15 [Ex. D7-8] filed by the plaintiff with the Election Commission. The civil Court has also considered that the plaintiff has filed an affidavit in the prescribed form with the Election Commission declaring that he is the absolute owner of this property. G. CTS No. 346, 347 and 2508 - 2546, Annigeri, Navalgund Taluk. These are residential properties and are mentioned at SL No. 1 - 3 of Schedule B.(11) 15.17 The civil Court has granted 1/5th share to the plaintiff and the first, third to fifth defendants. These properties are admittedly purchased by the father, Sri. Govindappa after the partition. 1955, and the revenue records stood in his name. However, after the demise of Sri. These properties are admittedly purchased by the father, Sri. Govindappa after the partition. 1955, and the revenue records stood in his name. However, after the demise of Sri. Govindappa, the revenue records are mutated in favour of his wife, Smt. Padma Bai in terms of M.E.No. 3883A [Ex.D.38]. The first defendant contends that the father executed 'Kutumba Vyvastha Patra' dated 12.05.1994 [Ex.D.37] stipulating that on his demise she shall be entitled to the property absolutely without any claim by the children and when this Patra is submitted to the revenue authorities, they have changed the revenue entries in her favour. (11) The civil Court has declared that the plaintiff, and the first and third to fifth defendants are entitled for 1/5th share in these properties. H. CTS No. 18/B 20, 18/B 21, 18/B 20, 18/B 22, 18/B 30 and 18/B 31, Annigeri, Navalgund Taluk. These are residential properties and are mentioned at SL No. 4 - 8 of Schedule B(12). (12) The Civil Court has declared that the first defendant is the owner of these properties.] 15.18 The first defendant has contended that if the father has purchased the properties in CTS No. 18/B 20 -22 in the year 1963, he has purchased the properties in CTS No. 18/B 30-31 in the year 1964. Both he and the father have purchased these properties from out of their respective incomes. However, in the year 1993, both he and Sri Govindappa have exchanged the properties and hence, he is the absolute owner of the properties in CTS No. No. 18/B 20 -22. 15.19 The civil court has opined that, though the first defendant has produced Mutation Extract as per Exhibit D 31 to show that the revenue entries were made consequent to the exchange, he has failed to produce any registered document, and in the absence of a registered document, it cannot opine that the exchange is established. The civil Court has accordingly opined that the first defendant will be the absolute owner of the properties bearing CTS No. No. 18/B 30-31, and because the parties do not dispute that both Sri Govindappa and his wife have died intestate and the revenue records stood in the name of the wife after the demise of Sri Govindappa, the properties bearing CTS No. No. 18/B 20 -22 must be partitioned amongst all the children. I. CTS No. 3093/B, measuring 1 acre, situated at Annagiri Village, Tq. Navalgund [Sl. No. 9 - Schedule B]. (13) (13) The civil Court has refused to partition this property holding that the first defendant in the owner of this property. 15.20 The first defendant has contended that he has purchased the land in RS No. 125/1A under the Sale Deed dated 15.07.1983 from a certain Sri Shivappa Kulkarni. However, upon diversion of this land from agricultural to non-agricultural purposes in the year 1989, it is assigned CTS No. 3093/B. The first defendant has marked a copy of the sale deed 15.07.1983 [Ex. D 25] and the order permitting conversion [Ex. D 28]. The revenue records are produced as Ex. D 26 & 27. The sixth and seventh defendants are strangers to the family, but their names are mentioned in these revenue records, and the first defendant's case is that these entries are behind his back. 15.21 This sixth and seventh defendants have not contested this claim. The civil Court, based on the terms of the sale deed dated 15.07.1983, has opined that this document does not indicate that the first defendant has purchased this property for the benefit of the family and the plaintiff has failed to place on record material to demonstrate that there were joint family properties, or income from such properties, for the first defendant to utilize the same to purchase this property. Further, the civil Court has opined that the plaintiff has not challenged the revenue entries for over a period of the case. This Court must also record that the civil Court has extended the benefit of its conclusion that 1955 partition is an effective partition and as such, the first defendant has purchased this property from his own resources. The rival submissions: 16. Sri. B.V. Somapur, the learned counsel who appears for plaintiffs and leads the learned counsels who are on record for the sisters and the legatees under the Last Will and Testament dated 21.02.2018, submits that this Court would have to examine whether the transaction in the year 1955 amongst Sri. The rival submissions: 16. Sri. B.V. Somapur, the learned counsel who appears for plaintiffs and leads the learned counsels who are on record for the sisters and the legatees under the Last Will and Testament dated 21.02.2018, submits that this Court would have to examine whether the transaction in the year 1955 amongst Sri. Govindappa, his wife, Smt. Padma Bai and his two sons is an ad hoc arrangement, and if such transaction is only an arrangement, the plaintiff and the sisters [along with the legatees claiming under the registered Last Will and Testament dated 21.02.2018 insofar as the second defendant's share] must be granted equal share in all the suit schedule properties. Sri. B.V. Somapur also submits that this Court would have to consider whether the legatees have proved the due execution of the Last Will and Testament dated 21.02.2018. 17. Insofar as the first aspect, Sri. B.V. Somapur submits that the same must be decided in the light of certain circumstances that are borne by the records and that cannot be challenged by the first defendant. In this regard, Sri. B.V. Somapur submits as follows: 17.1 The transaction in the year 1955 cannot be a partition because it is not an equitable partition inter se the parents and their two sons. It is undisputed that in these transactions, the father is allotted an extent of 29 acres, the mother is allotted 16 acres 37 guntas and the brothers are allotted 19 acres 33 guntas and 15 acres 31 guntas respectively. The fact that the arrangement is inequitable would be a strong circumstance to indicate that the transaction in the year 1955 was only an arrangement. The possibilities of the family extending and the fact that the daughters are not allotted a share also indicate that the properties could not have been divided to bring about severance, and the plaintiff cannot be bound by this arrangement. 17.2 If the transaction in the year 1955 was a partition as now asserted, there was no occasion for the first and the second defendants to agree for transfer of the revenue records of the land in survey No. 156 [property at Sl.No. 8 of plaint schedule 'A'], which is purchased in their names under the Sale Deed dated 28/10/1957. 17.2 If the transaction in the year 1955 was a partition as now asserted, there was no occasion for the first and the second defendants to agree for transfer of the revenue records of the land in survey No. 156 [property at Sl.No. 8 of plaint schedule 'A'], which is purchased in their names under the Sale Deed dated 28/10/1957. The undisputed fact that this land is purchased in the year 1957 and only revenue records are transferred in the name of plaintiff in the year 1973 also indicate that the transaction in the year 1955 was only an arrangement and the change in the revenue entries for this land in favour of the plaintiff in 1973 was a further arrangement subject to the respective rights in a properly concluded the partition. 17.3 The burden of establishing the arrangement in 1955 between Sri. Govindappa, his wife and two elder sons is a partition is on the first defendant, but he has not placed any evidence to establish that the transaction in the year 1955 is a partition. The first defendant and the second defendant were minors as of 1955 and if the transaction was a partition, they should have at least placed on record some evidence to establish that these defendants, on attaining majority separated from parents and started leaving together separately. There is no such evidence in this regard, and the fact that these defendants were staying with the parents for a long time strengthens the plaintiff's case that the transaction in the year 1955 is only an arrangement devised for the convenient management of the property. 17.4 The first defendant relies upon some transactions to contend that transaction in the year 1955 is a partition but these transactions are essential by the parties of the family and for the benefit of the family and therefore, these transactions by themselves cannot justify conclusion that there was a partition in the year 1955. 18. Sri. 17.4 The first defendant relies upon some transactions to contend that transaction in the year 1955 is a partition but these transactions are essential by the parties of the family and for the benefit of the family and therefore, these transactions by themselves cannot justify conclusion that there was a partition in the year 1955. 18. Sri. Prakash K Jawalkar, the learned counsel for the first defendant, rebuts each of these grounds contending that the plaintiff, who for the first time before this Court, contends that transaction in the year 1955 is an arrangement and not a partition, has not even stated this in his pleadings or in his evidence; that there is not even a suggestion to this effect to the first defendant, who is examined as DW.5 not to the other defendants. The parents were allotted certain properties exclusively in the partition in the year 1955, and they have admittedly transferred some of those properties. The transactions in this regard are not denied, and there is no explanation, except by way of some argument before this Court, to justify the sale or non-inclusion of the properties transferred by them. In this regard, the learned counsel submits that the mother, Smt. Padma Bai, is allotted 16 Acres 37 Guntas in RS.No. 1245/1+2 and she has transferred this property simultaneously with Sri.Govindappa transferring the lands in RS Nos.321/5, 325/1 allotted to him. These lands are not included in the plaint nor transaction explained. 19. Sri Prakash K. Jawalkar, relying upon the undisputed facts that the deceased second defendant, has purchased the land in RS.No. 61 in the year 1975 and after his demise, his wife Smt. Vijayalakshmi [the defendant No. 2a] has transferred this property in favour of third person in the year 2017 after initiation of a suit for specific performance, argues that the plaintiff has selectively not referred to this transaction or included this property but has included the properties purchased by the first defendant viz., property in CTS.No. 3093/B (earlier order bearing RS.No. 125/1A) under the sale deed dated 15.07.1983. However, inclusion of these properties and the failure to include properties sold, and to explain the transfer, demonstrate that the plea that the partition in the year 1975 is only an arrangement is nebulous. 20. Sri. However, inclusion of these properties and the failure to include properties sold, and to explain the transfer, demonstrate that the plea that the partition in the year 1975 is only an arrangement is nebulous. 20. Sri. Prakash K Jawalkar further submits that the deceased the second defendant had borrowed certain loan and therefore, had entered into an agreement to sale land in R.S.No. 1264 (item No. 5 of schedule A). The second defendant to discharge the loan has received the amount from the first defendant and relinquished his interest in favour of the first defendant by way of registered relinquishment deed dated 28.03.2003. This relinquishment is not challenged. The first defendant, who attained the age of majority in the year 1964, has purchased land in R.S.No. 147 (item No. 7 of schedule A) under the sale deed dated 29.01.1971 from out of his own resources. A portion of this land measuring 7688 sq. mtrs. is acquired by the National Highway Authorities. This property is deliberately included while some other transactions are not even mentioned. 21. Sri. Prakash K Jawalkar argues that the father could not have executed "Kutumba Vyavastha Patra" [Ex.D.37] if the transaction in the year 1955 was only an arrangement. The purchaser of the land in R.S. No. 61 of Annigeri Village had commenced the suit in O.S. No. 102/2016 as against Smt. Vijayalakshmi. She has filed the written statement contesting the suit. In this written statement, she has stated that she is the absolute owner of the property. Despite this statement, which would corroborate the first defendant's case that there was a partition in the year 1955, she has executed Last Will and Testament dated 21.02.2018 indicating that there is no partition in the family. This would be another circumstance which shows that there is a concerted effort to renege on the partition which has prevailed over decades. 22. Sri. Prakash K Jawalkar draws this Court's attention to the relationship between the plaintiff, and the legatees under the registered Last Will and Testament dated 21.02.2018. He submits that the records bear that Smt. Vijayalakshmi, the wife of the deceased second defendant, is the elder daughter of the third defendant. The plaintiff's wife is the third defendant's second daughter and some of the legatees are the children of the daughters of third defendant. The points for consideration and reasons: 23. He submits that the records bear that Smt. Vijayalakshmi, the wife of the deceased second defendant, is the elder daughter of the third defendant. The plaintiff's wife is the third defendant's second daughter and some of the legatees are the children of the daughters of third defendant. The points for consideration and reasons: 23. On the question of law viz., what constitutes a partition amongst Hindus as against an arrangement for mutual consent for partition, both Sri. B.V. Somapur and Sri. Prakash K. Jawalkar submits that to constitution a partition amongst Hindus, there must be severance of status coupled with division of properties by metes and bounds unlike in the case of an arrangement where properties are managed on an ad hoc basis by the different members of the family. With the learned counsel being unanimous in their submission on what constitutes partition, the points for consideration would be: i) Whether the civil Court had erred in concluding that there was a partition in the family in the year 1955 with the plaintiff, born after this partition, being given one of the lands purchased in the names of the first and the second defendants after such partition. ii) Whether the civil Court has erred in disbelieving the Last Will and Testament dated 21.02.2018 and declaring shares only to the surviving siblings of the deceased second defendant viz., the plaintiff, the first defendant and the third to fifth defendants in some of the suit schedule properties. iii) Whether the civil Court's judgment requires modification insofar as share that are allotted in certain suit schedule properties because of its reading of the "Kutumba Vyavastha Patra" [Ex.D.37] and the other evidence on record. 24. The first point for consideration is answered in the negative i.e., the civil Court has not erred in its conclusion that there was a partition in the family in the year 1955 and therefore, there cannot be a further a partition as now sought for. 24. The first point for consideration is answered in the negative i.e., the civil Court has not erred in its conclusion that there was a partition in the family in the year 1955 and therefore, there cannot be a further a partition as now sought for. The second point for consideration is also answered in the negative holding that the profounders of the Last Will and Testament dated 21.02.2018 have failed to prove due execution thereof and that because this Testament and Will is not proved to be duly executed, on the demise of the second defendant and his wife Smt. Vijayalakshmi, the shares of the deceased second defendant must devolve on the plaintiff, the first defendant and third to fifth defendants. 25. The third point for consideration is answered in the affirmative opining that "Kutumba Vyavastha Patra" is an acknowledgEment of the properties held by the father as of his demise, and the change of revenue entries in favour of his wife thereafter cannot be disbelieved insofar as exchange of item Nos.4, 5, 6 with item No. 7 & 8 of the 'B' schedule properties. The first defendant because of the aforesaid arrangement with his father would be entitled to item Nos.4, 5 and 6 of plaint Schedule B exclusively, but item Nos.7 & 8 of plaint schedule B must be divided into 1/4th amongst the parties as aforesaid. 26. At the outset, this Court must record that the family members have entered into oral transactions right from the year 1933, and acting upon such transactions, they have got the revenue records altered accordingly. In this regard the first reference must be to the partition in the year 1933 amongst Sri Govindappa and his three brothers. This oral transaction between the brothers is supported by the revenue entry in MA No. 10073 [Ex. D1 and D2]. The next oral transaction is partition amongst Sri Govindappa, his wife, Smt. Padma Bai, and their two sons in the year 1955. This oral transaction amongst them is recorded in ME No. 10502 [Ex. P22]. The plaintiff does not dispute these transactions though he contends that the transaction in the year 1955 must essentially be treated as an ad hoc arrangement. 27. This oral transaction amongst them is recorded in ME No. 10502 [Ex. P22]. The plaintiff does not dispute these transactions though he contends that the transaction in the year 1955 must essentially be treated as an ad hoc arrangement. 27. If over decades family members have consistently entered into oral transactions with the same being given effect to with the parties approaching the revenue authorities for changes accordingly, there must be due credence to the same, and especially when it is not disputed that oral transactions are recognized in law and the parties are held to such transactions when the collateral documents and conduct redoubtably establish the same. An useful reference in this regard could be made to the decision of the Hon'ble Supreme Court in Kale and Others v. Deputy Director of Consolidation and Others [1976] 3 SCC 119 and the later decisions including the decision in Thulasidhara and another v. Narayanappa and Others [2019] 6 SCC 409. The civil Court has rightly considered this aspect, and it is in this backdrop the relevance and probative value of the other transactions will have to be considered to decide whether all the suit schedule properties are to be partitioned. 28. Sri Govindappa has purchased the lands in RS No. 156 of Annigeri, Navalgund Taluk [the property at Sl. No. 8 in plaint schedule A] two years after the transaction in the year 1955 i.e., on 28.10.1957. The sale deed is obtained in the joint names of the first and the second defendants. Undisputedly, in the year 1973 these defendants have not only agreed that their rights in this property will be relinquished in favour of the plaintiff, the revenue entry in ME No. 15199 [Ex. D20] is accordingly mutated in favour of the plaintiff. The plaintiff has not challenged this position until commencement of the suit. If this land is mentioned as bearing RS No. 156 it is also undisputed that in the later days, it is assigned RS No. 156/2A/2+2B. It is argued before this Court that this transaction, like the transaction in the year 1955, must be construed as an ad hoc arrangement. However, the merits of this contention must necessarily be examined in the light of the transactions that the plaintiff has entered. 29. It is argued before this Court that this transaction, like the transaction in the year 1955, must be construed as an ad hoc arrangement. However, the merits of this contention must necessarily be examined in the light of the transactions that the plaintiff has entered. 29. The first defendant has produced a copy of the sale agreement executed by the plaintiff in favour of Sri Veeresh three [3] acres out of the total extent of Lake for total sale consideration of Rs.15 lakhs. The plaintiff does not dispute this transaction, and in fact, he has not contested the assertion that he has received a substantial part of this consideration as advance. Further, the plaintiff has filed Form No. 15 and an affidavit in compliance with the requirements of an electoral law declaring that he is the absolute owner of this property as against declaring that he has undivided interest in the property, and also in other properties. The sale transaction and the declaration [though executed during the pendency of the suit] establish a relevant fact, the state of affairs as accepted by the plaintiff, and the probative value of these documents and that cannot be ignored. The plaintiff, who had opportunity to offer an explanation in this regard, has not offered any. 30. This Court must opine that these two circumstances when read can jointly with the change in the revenue entries in favour of the plaintiff way back in the year 1973 and the fact that the family members have mostly entered oral transactions, establish that the plaintiff, in consonance with the partition affected in the year 1955 and in acceptance thereof, has received this land in RS No. 156 [RS No. 156/2A/2+2B] and has dealt with the same as his absolute property. 31. In the partition in the year 1955, the parents and the two sons born at that time have partitioned the different properties held by the family, and the details of the partition are as follows: Name of the person RS Nos. Corresponding Extents Village Sri. 31. In the partition in the year 1955, the parents and the two sons born at that time have partitioned the different properties held by the family, and the details of the partition are as follows: Name of the person RS Nos. Corresponding Extents Village Sri. Govindappa RS No. 1409 8 Acres 35 Guntas Annigeri, Navalgund Taluk RS No. 1312 11 Acres 27 Guntas RS No. 321/5 Not Available RS No. 325/1 Not Available Smt. Padma Bai RS No. 1245 Not Available Annigeri, Navalgund Taluk Sri Hanumanthappa - D 1 RS No. 154 19 Acres 33 Guntas Saswihalli, Navalgund Taluk Sri Pandappa - D2 RS No. 1264 15 Acres 71 Guntas Annigeri, Navalgund Taluk The argument is that this partition is inequitable and therefore, must not be accepted. However, two things stand out from the above-mentioned details. Firstly, both Sri Govindappa and Smt. Padma Bai have sold certain lands allotted to them, and the plaintiff has failed to mention the details of these lands and the sale and to offer an explanation as to why no relief is sought in view of these transfers. Secondly, there is not much of a difference in the respective extents retained after the sale of some of the lands by the parents. This Court must also opine that the plaintiff, if the partition or the later transactions were inequitable, would not have kept quiet for a long time. In this regard, this Court must refer to the decision of the Hon'ble Supreme Court in Deochand and Others v. Shiv Ram and Others [1969] 3 SCC 630 where the question of delay in disputing partition as inequitable is also considered. As such, the plaintiff cannot succeed on the ground that the partition in the year 1955 is inequitable for the reasons discussed earlier and these two reasons as also the circumstances discussed hereinafter. 32. Sri Govindappa and the first and second defendants have purchased properties in their names, and they have dealt with these properties and the properties allotted to them in the partition in the year 1955. In consonance with these transactions, Sri Govindappa has executed Kutumba Vyavastha Patra dated 12.05.1994 in favour of Smt. Padma Bai. After his demise, the revenue records of the properties that he held as on the date of his demise are transferred in the name of Smt. Padma Bai. In consonance with these transactions, Sri Govindappa has executed Kutumba Vyavastha Patra dated 12.05.1994 in favour of Smt. Padma Bai. After his demise, the revenue records of the properties that he held as on the date of his demise are transferred in the name of Smt. Padma Bai. The plaintiff has not challenged the document dated 12.05.1994 or the corresponding revenue entries. These are also very compelling circumstances. 33. This Court must next refer to the established fact that in terms of the revenue entries, the first defendant has relinquished his interest of the land in RS No. 147 [Sl. No. 7 in plaint schedule A] in favour of his son, the eighth defendant, who has availed loan in his personal capacity from Union Bank. Further, the first defendant has the advantage of a relinquishment deed executed / Wardi submitted by the second defendant in his favour for the land in RS No. 1264 [Sl. No. 5 of the plaint Schedule - A] after the culmination of the suit commenced SRI Amrutheswar Kamath because of the second defendant's inability to repay the loan borrowed. The plaintiff has not offered any explanation as to why he has not called in question these transactions, or the efforts taken by him to ascertain the status of the loan and the details of payments made. 34. Crucially, it is undisputed that the second defendant in the year 1975 has purchased the land in RS No. 61, measuring 13 acres 17 guntas, in Dhanargi Village, Bijapur Taluk and District, and after his demise, the katha for this property is mutated in favour of his wife, Smt. Vijayalakshmi. She has transferred this property in the year 2017. The plaintiff has not included this property in the plaint, and nor has he chosen to challenge the sale deed with Smt Vijayalakhmi transferring this property in the year 2017. The plaintiff's wife and Smt. Vijayalakshmi are sisters, and the second defendant and Smt. Vijayalakshmi were estranged. Smt. Vijayalakshmi was living with her parents and the second defendant was living with the first defendant. These undisputed facts also give a perspective into the reasons for the plaintiff in not coming forward with a plaint with all the details. The plaintiff's wife and Smt. Vijayalakshmi are sisters, and the second defendant and Smt. Vijayalakshmi were estranged. Smt. Vijayalakshmi was living with her parents and the second defendant was living with the first defendant. These undisputed facts also give a perspective into the reasons for the plaintiff in not coming forward with a plaint with all the details. The circumstances discussed overwhelm the circumstances canvassed SRI B V Somapur viz., that common residence is established, that the arrangement in the year 1955, even if a partition, was inequitable, that Sri Govindappa could not have intended this arrangement as a final transaction because of his extending family. The first point for consideration is answered accordingly. 35. The plaintiff and the contesting defendants propose to rely upon the Last Will and Testament dated 21.02.2018 executed SMT. Vijayalakshmi. Smt. Asha Hosmani, who has propounded the Will and Testament dated 21.02.2018, has said that this document is registered on 22.02.2018, and the testatrix has died on 04.04.2018. She does not say anything about the due execution or attestation by the concerned in her chief examination, but in her cross-examination, she has admitted that Smt. Vijayalakshmi was suffering from cancer for over 5 - 6 years though she has denied that she was incapacitated and unable to attend to herself for over years. Sri Venkatreddy Hosamani, a witness to this Last Will and Testament, has stated he has signed the document at the instance of the testatrix. However, in the cross-examination, he has denied knowledge of the testatrix's health condition while stating that only the testatrix, he and the other witness [Sri Vinayak Bhosle] were present at the Sub Registrar's office on 22.02.2018 without even indicating that he has seen the testatrix sign the deed. Sri Vinayak Bhosle's evidence is also in similar lines. This evidence which does not satisfy the requirement in law creates suspicion about the due execution of the Last Will and Testament. 36. The Last Will and Testament is dated 21.02.2018 and is presented with the Sub-registrar on 22.02.2018 and the document is registered on 26.02.2018 exempting the Testatrix - Smt. Vijaylakshmi's personal appearance. This evidence which does not satisfy the requirement in law creates suspicion about the due execution of the Last Will and Testament. 36. The Last Will and Testament is dated 21.02.2018 and is presented with the Sub-registrar on 22.02.2018 and the document is registered on 26.02.2018 exempting the Testatrix - Smt. Vijaylakshmi's personal appearance. This underlines the doubt about the execution of this document, and this document is rendered entirely incredulous by the fact that this document does not even refer to the transfer of the land in Sy No. 61, measuring 13 acres 17 guntas, in Dhanargi Village, Bijapur Taluk and District or about the status of her relationship with the second defendant before his death. This Court, in these circumstances, must concur with the civil Court's conclusion. The second point for consideration is answered accordingly. 37. The civil Court has disbelieved the first defendant's case that he has exchanged title to the residential properties in CTS No. 18/B 20 -22 for title to CTS No. 18B/3-31 with his father, Sri Govindappa, notwithstanding the revenue records in that regard, only on the ground that there is no registered document to support this exchange. The civil Court has concluded thus despite observing that both the first defendant and Sri Govindappa have purchased the properties respectively after the partition and that though the kathas for these properties were initially mutated according to the purchase, the revenue entries are later mutated according to the exchange. 38. This Court must observe that the first defendant's case on exchange is not based on any registered document, and it is, as in the case of partition in the year 1933 and 1955 and the relinquishment in favour of the plaintiff, in favour of the first defendant's son and by the second defendant in favour of the first defendant, is based on oral arrangement and the consequential revenue entry. This transaction, as every other transaction that is discussed, is supported by the revenue entries and the conduct. This Court must refer to Kutumba Vyavastha Patra dated 12.05.1994 executed by Govindappa. This agreement is executed by Sri Govindappa for the properties in CTS No. 18B/30 and 31 and not for the properties in CTS No. 18B/20--22. 39. This transaction, as every other transaction that is discussed, is supported by the revenue entries and the conduct. This Court must refer to Kutumba Vyavastha Patra dated 12.05.1994 executed by Govindappa. This agreement is executed by Sri Govindappa for the properties in CTS No. 18B/30 and 31 and not for the properties in CTS No. 18B/20--22. 39. This Court opines that if the aforesaid circumstances establish partition of the year 1955 and the later transaction on the scale of preponderance of probabilities, by the same measure the exchange of these properties is also established. There is no reason to conclude otherwise for this transaction, and the civil Court's opinion in this regard cannot be sustained and therefore must be limited interference in this regard. The third point for consideration is answered accordingly. For the foregoing the following: ORDER [i] The appeal in RFA No. 100507/2020 by the plaintiff in O.S. No. 207/2010 on the file of the Senior Civil Judge and JMFC, Navalgund is allowed in part, and the appeals in RFA No. 100016/2020, which is by the third to fifth defendants, and the appeal in RFA No. 100148/2021, which is filed by the tenth and fourteenth defendants, are dismissed. [ii] The civil Court's judgment and decree dated 24.10.2019 is modified declaring that plaintiff, the first defendant and third to fifth defendants shall be entitled to 1/5th share each in CTS No. 18/B 30 - 31 of Annigeri Village, Navalgund Taluk and the properties in CTS No. 18/B 30 - 31 of Annigeri Village, Navalgund Taluk belong absolutely to the first defendant. The civil Court's judgment and decree otherwise remains undisturbed. No cost is awarded. 40. The office is directed to draw decree accordingly.