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2023 DIGILAW 1219 (KAR)

Anasuya Bai v. B. R. Raghunath Rao

2023-10-13

C.M.JOSHI, K.S.MUDAGAL

body2023
JUDGMENT C.M.JOSHI, J. - This Regular First Appeal is filed by the defendants under Sec. 96 of CPC against the judgment and decree dtd. 24/10/2008 passed in O.S.No.94/2002 by the learned XXII Additional City Civil Judge, Bangalore, whereby the suit filed by the plaintiff for partition and separate possession of his 1/4th share in the suit schedule property and for declaration that Wills are not binding on him came to be decreed. 2. The parties would be referred to as per their rankings before the trial Court in the original suit. 3. The suit schedule property is the premises bearing No.9, 4th Main, 8th Cross, Chamarajpet, Bangalore-18, measuring 30 x 50 feet with constructed area of 10 x 50 feet. 4. In brief, the case of the plaintiff is as below: The plaintiff and the defendant Nos.2 and 3 are the brothers. Defendant No.1-Anasuya Bai is their mother and one B.M. Rama Rao was the husband of defendant No.1 and father of plaintiff and defendant Nos.2 and 3. He had ancestral properties. The suit schedule property had fallen to the share of their father B.M. Rama Rao under a registered partition deed dtd. 18/3/1953 entered into between B.M.Rama Rao, his father and brothers. 5. The plaintiff contended that he and the defendants were coparceners of the hindu undivided family and B.M.Rama Rao, was the Kartha of the family. He further contended that even though the plaintiff and defendants are residing separately for their convenience and to eke out their lively hood at different places, there was no partition in the joint family properties. It is stated that the plaintiff was serving in Forest Department as a Ranger at different places till his retirement. 6. The plaintiff also contended that the deceased B.M. Rama Rao was working in KEB as Assistant Engineer and out of his self earnings he had purchased the property at Basavanagudi, Bengaluru. The said property was sold by B.M.Rama Rao, during his life time for a valuable consideration and he distributed the money among the plaintiff and the defendants according to his wish and that major portion of sale proceeds was paid to the defendants. After the death of B.M.Rama Rao, the plaintiff and defendants succeeded to the suit schedule property as joint owners. After the death of B.M.Rama Rao, the plaintiff and defendants succeeded to the suit schedule property as joint owners. The plaintiff further contended that defendant No.3 with fraudulent intention filed an application to the Assistant Revenue Officer of the Bangalore City Corporation, Chamarajpet, Bengaluru, for effecting transfer of the khatha of the suit property to his name on the basis of alleged unregistered Wills dtd. 2/2/1996 and 21/2/1996 executed by B.M. Rama Rao, which were not valid in the eye of law. The plaintiff, having come to know about the act of the defendant No.3 enquired further and came to know that on the basis of a joint affidavit of no objection, the defendant No.3 had got his name entered in the khatha. It was alleged that the signature of the plaintiff was forged and as such, an objection was filed to the Bangalore City Corporation. It was stated that the defendants made request for a settlement through their relatives but thereafter, they did not come forward for any settlement and as such, he was constrained to file a criminal complaint to the jurisdictional Magistrate on 20/12/2000 in PCR No.731/2000. In the meanwhile, the objections filed to the Bangalore City Corporation went in vain. Thereafter, again, the defendants came up with a proposal for partition in respect of the suit schedule property and accordingly, the plaintiff had also agreed for receiving the value of his 1/4th share in the suit schedule property and as such made necessary preparations by valuing the suit schedule property through a registered valuer. The defendants again resiled from the compromise proposal and changed their minds. The plaintiff also contended that the suit schedule property was all along in the joint possession and enjoyment of the plaintiff and defendant Nos. 1 to 3; with an intention of grabbing entire property, they are trying to alienate the suit schedule property to the third parties and therefore, the plaintiff was left with no other way than to file the suit seeking his 1/4th share in the suit schedule property. 7. On being served with summons by the trial Court, the defendants appeared and filed their joint written statement. They admitted the relationship, but they denied that the plaintiff and defendants are coparceners of the joint hindu family and that B.M.Rama Rao, was the kartha of the family till his death i.e. 13/10/1998. 7. On being served with summons by the trial Court, the defendants appeared and filed their joint written statement. They admitted the relationship, but they denied that the plaintiff and defendants are coparceners of the joint hindu family and that B.M.Rama Rao, was the kartha of the family till his death i.e. 13/10/1998. They denied that the plaintiff and defendants have succeeded to the suit schedule property as members of the undivided joint family. 8. They also contended that the plaintiff was a Government Employee working at Mysore and he had a desire to purchase a house at Gokulam Mysore. The defendant No.2 was residing at Banashankari and he had a desire to purchase a house at Banashankari, Bangalore. They also contended that the plaintiff and the defendant No.2 compelled B.M.Rama Rao to sell away all the suit schedule property and give their share so as to enable them to purchase the house properties of their choice. On account of the persistent demand by the plaintiff and defendant No. 2, B.M. Rama Rao sold his self acquired property situated at Anjaneya Temple Street, Basavanagudi, Bangalore, during February 1995 to Ashok Leyland and distributed the sale proceeds to the plaintiff and defendant No.2. Out of such amounts distributed by B.M. Rama Rao, the plaintiff acquired the house property at Gokulam, Mysore, and defendant No.2 purchased a house at Banashankari III Stage, Bangalore. They contended that at the time of disbursement of sale proceeds, B.M.Rama Rao, had imposed a condition to the plaintiff and defendant No.2 that they shall not be entitled for any share in the remaining small house, i.e., the suit property situated at Chamarajpet, where himself, defendant Nos. 1 and 3 were residing. Therefore, there was a family settlement which was amicably accepted by all the parties. They contended that the defendant No.1 and the defendant No.3 continued to reside in the suit schedule property even after the death of B.M.Rama Rao. During the life time of B.M.Rama Rao, he had executed a Will on 21/9/1996, narrating all the above facts and bequeathed the property to the defendant No.3. 9. They contended that the plaintiff being the eldest son of B.M.Ram Rao was close and affectionate towards B.M.Rama Rao and as such, all the documents pertaining to the family properties; along with gold, silver and other valuables were with him. 9. They contended that the plaintiff being the eldest son of B.M.Ram Rao was close and affectionate towards B.M.Rama Rao and as such, all the documents pertaining to the family properties; along with gold, silver and other valuables were with him. They also contended that the plaintiff was also demanding money from B.M.Rama Rao, for his various needs i.e. for purchase of a house at MUDA Colony, Mysore, to come out of mis-appropriation charges and suspension of the plaintiff in Forest Department, medical treatment, donation to admit his children to the school etc. Therefore, it is contended that the entire property of the joint family was divided by B.M.Rama Rao during his life time and as such, the suit schedule property is not available for partition. They also contended that when the plaintiff had given in writing that he does not claim any share in the ancestral property after receiving the proceeds from the sale of self acquired property by signing on the Will/settlement deed, now cannot contend that the Will executed by B.M.Rama Rao is not valid. On these grounds, the defendants contended that the transfer of khatha of suit schedule property in favour of defendant No.3 is proper and correct. Hence, they sought for dismissal of the suit. 10. On the basis of the above pleadings, the following issues were framed by the trial Court and were answered as below after letting in the evidence of the parties and hearing them. Plaintiff No.1 was examined as PW1 and got two witnesses examined as PWs.2 and 3 and Exs.P1 to P11 were marked on behalf of the plaintiff. Defendant Nos.1 and 3 were examined as DWs. 1 and 2, the attestor to the Will has been examined as DW3 and a witness to the registered sale deed is examined as DW4 and Exs.D1 to D13 were marked on behalf of the defendants. 11. By the impugned judgment, the suit of the plaintiff came to be decreed holding that the plaintiff is entitled for partition and separate possession of his 1/4th share and that the Will at Ex.D4 dtd. 21/2/1996 by B.M.Rama Rao is not binding on the plaintiff. 12. Being aggrieved by the said judgment and decree, the defendant Nos. 1 to 3 have approached this Court in appeal. 13. The plaintiff/ respondent No.1 herein died on 24/10/2008 i.e. before filing this appeal on 13/3/2009. 21/2/1996 by B.M.Rama Rao is not binding on the plaintiff. 12. Being aggrieved by the said judgment and decree, the defendant Nos. 1 to 3 have approached this Court in appeal. 13. The plaintiff/ respondent No.1 herein died on 24/10/2008 i.e. before filing this appeal on 13/3/2009. The appellants while complying the office objections on the appeal, brought the legal heirs of the respondent No.1 on record and the office has raised objections pursuant to which applications under Order 22 of CPC were filed, and after hearing counsel for the appellants and the caveators, who are none else than the LRs of the respondent No.1, the applications came to be allowed by this Court vide order dtd. 3/8/2009. 14. The appellants contend that though the plaintiff had not at all contended that the Will is the out come of any undue influence or coercion on the part of the defendants, the Trial Court held that the Will is not binding on the plaintiff. This conclusion is apparently erroneous when the trial Court comes to a definite conclusion that the defendants had proved the execution of the Will at Ex.D4 as required under Law and had answered issue No.4 in the affirmative. Therefore, when the Will is proved, its contents automatically bind the plaintiff and the trial Court could not have found fault with the applicability of the said Will and the capacity of the testator to bequeath the property. Therefore, it is contended that the impugned judgment is erroneous and the same is liable to be set aside. 15. On admitting the appeal, the trial Court records have been secured and the arguments by learned counsel appearing for the appellants and learned counsel appearing for respondent Nos. 1(a) to (c) were heard. 16. The learned counsel for the appellants would contend that the father of the plaintiff B.M.Rama Rao was working as an Engineer in MSEB (Later known as KEB). Out of his earnings and savings, he acquired the property bearing No.72, East Anjaneya Temple Street Basavanagudi, measuring 110 x 30 ft. On account of the demands for partition made by the plaintiff and defendant No.2, he sold the above said self acquired property in favour of Ashok Leyland under Registered sale deed dtd. 4/5/1995. Prior to it, an agreement for sale was also entered into on 25/1/1995. On account of the demands for partition made by the plaintiff and defendant No.2, he sold the above said self acquired property in favour of Ashok Leyland under Registered sale deed dtd. 4/5/1995. Prior to it, an agreement for sale was also entered into on 25/1/1995. In both these documents, the plaintiff, his sons and the defendants are also parties and signatories despite the fact that the property was the self acquired property of B.M.Rama Rao. He would contend that acceding to the requests made by his sons, he sold the above said property for a consideration of Rs.23.5 lakhs and distributed the same to the plaintiff as well as defendant No.2. He also bequeathed the ancestral property i.e. the suit schedule property in favour of the defendant No.3 and thereby effected a settlement, which he mention in his Holographic Will dtd. 21/2/1996. The said Will was in the presence of two attesting witnesses and it was also signed by the plaintiff, his sons and the defendant Nos. 2 and 3. The learned counsel would also submit that the contents of the said Will were known to the plaintiff and his sons. He also draws the attention of the Court to the letters written by the plaintiff dtd. 25/7/1994 and 27/5/1992 which are Exs.D1 and D2, wherein, the plaintiff had expressed that he would prefer to obtain money instead of the property towards his share. Therefore, the learned counsel for the appellants submits that the trial Court had erred in holding that the Will executed by deceased B.M.Rama Rao would not bind the entire ancestral property, but it binds only in respect of the share of Rama Rao in it. Hence, he has sought for intervention by this Court. 17. Per contra, the learned counsel appearing for the respondents submit that the existence of the joint family of the plaintiff and the defendants and that the said joint family inherited the suit schedule property as ancestral property is not in dispute. He also submits that the property at Anjaneya Temple Street, Basavanagudi, was self acquired property of B.M.Rama Rao is also not in dispute. Obviously, B.M.Rama Rao could not have Willed away the share of his sons, who were the co-parceners without their consent. He also submits that the property at Anjaneya Temple Street, Basavanagudi, was self acquired property of B.M.Rama Rao is also not in dispute. Obviously, B.M.Rama Rao could not have Willed away the share of his sons, who were the co-parceners without their consent. Therefore, he contends that the Will executed by B.M.Rama Rao binds only in respect of his share in the property and therefore, the impugned judgment is proper and correct. Moreover, there is variance between the pleadings and the proof in respect of the insistence by the plaintiffs and the defendant No.2 to effect a partition. This aspect is observed by the trial Court in para 14 of its judgment and therefore, no fault can be found with the impugned judgment. 18. After hearing both the sides, the points that arise for our consideration are: (i) Whether the last Will of B.M. Rama Rao produced at Ex.D4 is proved? (ii) Whether there was family settlement between the plaintiff and the defendants as stated in the Will at Ex.D4 executed by B.M.Rama Rao? (iii) Whether the suit property remains to be an ancestral joint family property after such family settlement? (iv) Whether the impugned judgment suffers from perversity and arbitrariness? 19. The fact that B.M.Rama Rao had inherited the suit schedule property under Ex.P1 the partition deed between his father and brothers is not in dispute. It is an admitted fact the suit schedule property was ancestral property of the plaintiff and defendants. It is also an admitted fact that B.M.Rama Rao purchased the property at Anjaneya Temple Street, Basavanagudi, under a sale deed dtd. 25/8/1967 out of his own earnings. It is also an admitted fact that B.M.Rama Rao along with the plaintiff and defendants sold the said property under a registered sale deed dtd. 4/5/1995 in favour of Ashok Leyland as per Ex.D6. 20. The dispute between the parties is only in respect of the Will executed by B.M.Rama Rao and the availability of the suit schedule property for partition after the said Will. The plaintiff contend that B.M.Rama Rao sold the property acquired by him in favour of Ashok Leyland and distributed the sale proceeds as per his wish. Such distribution was oblivious to the shares of the parties in the ancestral joint family property. 21. The plaintiff contend that B.M.Rama Rao sold the property acquired by him in favour of Ashok Leyland and distributed the sale proceeds as per his wish. Such distribution was oblivious to the shares of the parties in the ancestral joint family property. 21. Whereas the defendants who are the mother and brothers of the plaintiff contend that there was a family settlement which is depicted in the Will executed by B.M.Rama Rao, wherein, the self acquired property was sold by him and in order to satisfy the share of the plaintiff and defendant No.2, the sale proceeds were distributed to the plaintiff and the defendant No.2 only. This aspect was narrated by B.M.Rama Rao in his Will which is subscribed by the plaintiff and the defendant Nos. 2 and 3. Therefore, the plaintiff cannot ignore his consent to such family settlement which is mentioned in the Holographic Will of B.M.Rama Rao. It is relevant to note that the plaintiff has denied about the Will executed by his father, B.M.Rama Rao. 22. Evidently, the burden of proving the Will of B.M.Rama Rao is on the defendants. The said Will is produced by the defendants at Ex.D4. Prior to the said Will, B.M.Rama Rao had also executed another Will as per Ex.D3 which is not attested by any attesting witnesses. However, it appears, realizing that the Will is not valid in the absence of any attesting witnesses, another Will as per Ex.D4 came to be executed. The last Will of the testator is dtd. 21/2/1996 and is at Ex.D4. The testator died on 13/10/1998. 23. The perusal of the said Wills at Ex.D3 and D4 show that they were written in the hand writing of testator B.M.Rama Rao. The contents of both these Wills are one and the same. 24. In order to prove the said Will, in compliance with Sec. 63 of the Indian Succession Act, and Sec. 68 of the Indian Evidence Act, the defendants have examined the attesting witness as DW3. He has stated that the Will was executed by B.M.Rama Rao in his presence and also in the presence of another attesting witness Raghavendra Rao and they have signed it as attesting witnesses. He has stated that the Will was executed by B.M.Rama Rao in his presence and also in the presence of another attesting witness Raghavendra Rao and they have signed it as attesting witnesses. In his affidavit evidence, he stated that the testator has sold the Basavanagudi property and has shared the sale proceeds equally between the first and second sons and the present residential house was allotted to the third son, defendant No.3. 25. In the detailed cross-examination, it is elicited that he is also the resident of the neighborhood, the Will was written by B.M.Rama Rao in his house. It is also elicited in the cross- examination that at the time of the execution of the Will the plaintiff as well as defendant No. 1 to 3 and grandchildren of B.M.Rama Rao and his daughters-in-law were also present. It is also elicited that children of B.M.Rama Rao have also signed the said document. There is nothing in the cross-examination of DW3 which would show any suspicious circumstance. It is also relevant to note that Ex.D4 being a Holographic Will, there is no room to suspect the same. Evidently, B.M.Rama Rao was a retired Assistant Engineer of MSEB and was aged about 85-86 years and was capable of writing the document. It is also pertinent to note that in Exs.D3 and D4, the testator has signed wherever there are corrections/insertions. It is not the case of the plaintiff that B.M.Rama Rao was not in disposable state of mind at the time of executing the Will. 26. The trial Court after examining the evidence available on record has come to the conclusion that the said Will at Ex.D4 is executed by B M Ramarao. It has also referred to the Judgment of the Apex Court in the case of Mrs. Joyce Primrose Prestor (Nee Vas) vs Miss Vera Marie Vas and others reported in 1996 (9) SCC 324 , wherein, it was held that in case of a holographic Will, the greater presumption of the Will arises. The trial Court has also observed that the plaintiff has not denied that Exs.D3 and D4 are in the handwriting of B.M.Rama Rao. Under these circumstances, we also come to the conclusion that the defendants have proved the Will Ex.D4. Thus, the finding on issue No.4 cannot be found fault with. 27. The trial Court has also observed that the plaintiff has not denied that Exs.D3 and D4 are in the handwriting of B.M.Rama Rao. Under these circumstances, we also come to the conclusion that the defendants have proved the Will Ex.D4. Thus, the finding on issue No.4 cannot be found fault with. 27. The next question that arises is, Whether B.M.Rama Rao had sold his self acquired property alone or it was in furtherance of a family settlement?. 28. It is the case of the plaintiff that the Will-Ex.D4 does not bind him in respect of his share in the ancestral property inherited as coparcener. The defendants contend that the sale proceeds of the self acquired property were distributed among the plaintiff and defendant No.2 only. The plaintiff, out of such sale proceeds purchased the property at Goklulam, Mysore and the defendant No.2 purchased the property at Banashankari, Bangalore. Defendant No.2 has admitted that he has purchased the property at Banashankari. However, the plaintiff denied that he had applied such sale proceeds for the purchase of the property at Gokulam Mysore. 29. Para 12 of the cross-examination of PW1- B.R.Raghunath, dtd. 12/12/2006 reads as follows: "12. It is not correct to suggest that I own a house in Gokulam Extension, Mysore. (Witness volunteers to state that there is a house in the name of his wife in Gokulam Extension, Mysore which was purchased out of the money given by his father). It is true that I own a house in Kalyanagiri Extension, Mysore." 30. Further the cross-examination of PW1-Raghunath dtd. 15/3/2007 at para 16 reads as below: "16. It is true that all the vendors shown in Ex.D.5 have joined the execution of Sale Deed infavour of Ashok Layland Finance Ltd., for the sale of Basavanagudi property. It is true that from out of the amount paid to me after the sale of Basavanagudi property I purchased property at Mysore." 31. Thus, it is evident that PW1 in unequivocal terms has admitted that he had purchased the property at Mysore out of the money he obtained from the sale of the self acquired property of B.M.Rama Rao. 32. The Ex.D4, Will reads as below: 33. Thus it is evident that B.M.Rama Rao was aware of the fact that he had the ancestral property at Chamarajpet (suit property) and he had self acquired property at Anjaneya Temple Street, Basavanagudi. 32. The Ex.D4, Will reads as below: 33. Thus it is evident that B.M.Rama Rao was aware of the fact that he had the ancestral property at Chamarajpet (suit property) and he had self acquired property at Anjaneya Temple Street, Basavanagudi. He has stated that the plaintiff desired to stay at Mysore and the defendant No.2 desired to live independently and therefore, he has sold his self acquired property to Ashok Leyland during February 1995 and has distributed the money to the plaintiff and the defendant No.2 to acquire properties at Gokula Extension, Mysore and Banashankari III Stage, Bangalore, respectively. Accordingly, they had purchased the properties and are staying there and therefore, they do not have any right in the ancestral property and therefore, he is bequeathing the ancestral property to defendant No.3. 34. It is also evident from the perusal of Ex.D4 that it was signed by the plaintiff, his wife Sandhya, sons - B.R. Mukunda and B.R. Pradeep Kumar and the defendant No.2. These signatures are admitted by the PW1-plaintiff, PW2- B.R. Mukunda and PW3-B.R. Pradeep kumar as well as DW1-defendant No.2. 35. It is the contention of the plaintiff that though, himself, his sons and wife have signed Ex.D4, the signatures were taken by B.M.Rama Rao in the guise of a mutation being effected in favour of Ashok Leyland in pursuance to the sale deed. It is evident from the perusal of Exs.D3 and D4 that, the stamp papers for Ex.D3 were purchased on 17/1/1996 and stamp paper for Ex.D4 was purchased on 8/2/1996 by B.M.Rama Rao himself. The sale deed as per Ex.D6 was executed in favour of Ashok Leyland on 4/5/1995. Prior to it, an agreement of sale was executed as per Ex.D5 on 25/1/1995. For both these documents, B.M.Rama Rao, his three sons, sons of the plaintiff and wife of the plaintiff have signed. It was not explained why the plaintiff, his sons and wife also signed Exs.D5 and D6 even though the said property was the self acquired property of B.M.Rama Rao alone. This aspect attains significance when it is stated by plaintiff that they signed Ex. D4 blindly at the instance of B. M. Rama Rao. 36. It is evident that there is no recital either in Ex.D4 or in any other documents about the equal distribution of the sale proceeds. This aspect attains significance when it is stated by plaintiff that they signed Ex. D4 blindly at the instance of B. M. Rama Rao. 36. It is evident that there is no recital either in Ex.D4 or in any other documents about the equal distribution of the sale proceeds. The plaintiff contends that the sale proceeds were distributed to all equally. He does not clarify as to whether his sons and wife also received the equal amount in the sale proceeds. 37. On the contrary, the defendants contend that the sale proceeds were distributed to the plaintiff and defendant No.2 only. DW.1 states in his testimony that he had received Rs.11, 55, 000.00 which is half the sale consideration. The defendants rely on the two letters written by the plaintiff to defendant No.2 and B.M.Rama Rao which are at Exs.D1 and 2. These letters were marked by confronting the same to the PW1, who admitted that they were in his handwriting. In Ex.D1 dtd. 25/7/1994 written to defendant No.2 the plaintiff states that he is unable to come to Bangalore and therefore, defendant No.2 and defendant No.3 have to choose their share and the leftover has to be given to him. He also expressed that he does not desire to come to Bangalore and it would suffice that the property be sold and the money be given to him. Apart from that, he has also refers to some differences between his parents and wife. He has also mentioned that he was suspended from his job and he is yet to receive the balance of the salary. Thus it is evident that the plaintiff desired that the properties at Bangalore have to be chosen by defendant No. 2 and 3 and only the left over should be given to him. 38. Further the perusal of Ex.D2, the letter dtd. 25/7/1994 written by the plaintiff to B.M.Rama Rao shows that, he had received the DD and he was trying to sell the property which he had purchased at Kalyanagiri Nagar and he would sell that when he gets proper price and out of that, he would return a sum of Rs.50, 000.00 or else, if B.M.Rama Rao desires, the entire amount of Rs.1, 00, 000.00 would be paid after his retirement, from the gratuity amount received by him. He also expressed that B.M.Rama Rao had lost the trust in the plaintiff. 39. He also expressed that B.M.Rama Rao had lost the trust in the plaintiff. 39. These letters would show that the plaintiff was in need of money and he had borrowed money from B.M.Rama Rao. Therefore, in furtherance of such intention and expression by the plaintiff, B.M.Rama Rao decided to sell the self acquired property and satisfy the claim of the plaintiff and defendant No.2. The recitals in Exs.D3 and D4 show the same. In other words, B.M.Rama Rao treated the self acquired property as the joint family property and satisfied the claim of the plaintiff. The plaintiff and his family members not only signed the agreement with the purchaser but also signed the sale deed. If the property sold was not the joint family property, there was no reason for the plaintiff and his family members to join in executing the agreement as well as the sale deed. Not only that, the plaintiff and his family members have signed Ex.D4 also. 40. The plaintiff was a Range Forest Officer, and was not a layman. PW2-B.R. Mukunda and PW3-B.R. Pradeep Kumar were the major sons of PW1. All of them say that they did not know the contents of the Ex.D4, the Will executed by B.M.Rama Rao. This contention of PWs 1 to 3 that their signatures were taken by B.M.Rama Rao in the guise of a requirement to complete the sale of the self acquired property in favour of Ashok Leyland cannot be accepted. They were not the laymen and it was subsequent to the agreement of sale as per Ex.D5 and the sale deed as per Ex.D6. Moreover, DW3 Nagaraj states that he has signed the Ex.D4 after it was signed by the testator and PWs 1 to 3 and defendant No.2. Under these circumstances, it cannot be held that the plaintiff and his sons have signed on a blank stamp paper at the instance of B.M.Rama Rao. Evidently, plaintiff had expressed that B.M.Rama Rao had lost the trust in him. Therefore, it cannot be said that plaintiff was oblivious to the contents of Ex.D4. 41. From the above evidence on record, it is clear that plaintiff has acquiesced to the contents of Ex.D4, the holographic Will executed by B.M.Rama Rao. In fact, Ex.D4 speaks of a settlement effected by the testator. Therefore, it cannot be said that plaintiff was oblivious to the contents of Ex.D4. 41. From the above evidence on record, it is clear that plaintiff has acquiesced to the contents of Ex.D4, the holographic Will executed by B.M.Rama Rao. In fact, Ex.D4 speaks of a settlement effected by the testator. It is an admitted fact that B.M.Rama Rao was the kartha of the family and therefore, he had the power to effect the settlement by throwing his self acquired property into the family hotchpot. This arrangement made by B.M.Rama Rao was well within the knowledge of the plaintiff and his family members. For obvious reasons, B.M.Rama Rao did not spell out the amounts which were given to the plaintiff and the defendant No.2. The defendant No.2 in his evidence has stated that he and the plaintiff were given Rs.11, 55, 000.00 each. However, the plaintiff states that he had received only Rs.6, 00, 000.00. It is also evident that there were money transactions between B.M.Rama Rao and the plaintiff. The plaintiff is totally silent in respect of the promise made by him to his father as per letter at Ex.D2. Under such circumstances, the plaintiff cannot go back on the contents of Ex.D4 which was within his knowledge. 42. The perusal of the judgment of the trial Court discloses that it has not bestowed its attention on the contents of Exs.D3 and D4. It says that Ex.D4 can bind only the share of B.M.Rama Rao as the suit property is the ancestral property. It did not bestow its attention on the acts of B.M.Rama Rao as stated in Ex.D4, which is supported by the letters written by the plaintiff as per Exs.D1 and D2. When the trial court had accepted Ex.D4, a holographic Will, there was no reason to discard the say of the testator that he has settled all the family properties. Testator B.M.Rama Rao had considered the suit schedule property as well as self acquired property in achieving a family settlement. It is also pertinent to note that there is no evidence to show that B.M.Rama Rao had treated the property at Anjaneya Temple Street as his exclusive property and had kept the same separately from the joint family properties. Plaintiff admits in his letter at Ex.D1 that the defendant Nos. 2 and 3 can retain any of the properties. It is also pertinent to note that there is no evidence to show that B.M.Rama Rao had treated the property at Anjaneya Temple Street as his exclusive property and had kept the same separately from the joint family properties. Plaintiff admits in his letter at Ex.D1 that the defendant Nos. 2 and 3 can retain any of the properties. Therefore, the conclusions reached by the trial Court that the self acquired property was kept separately from the suit schedule property and the sale proceeds of the property even though distributed to the sons, would not amount to giving their share from the ancestral property is erroneous and unsustainable in law. Further, the conclusions reached by the trial Court in respect of issue No.3 are also erroneous as demonstrated above. Obviously, the trial Court did not bestow its attention on the contents of Ex.D4 where testator B.M.Rama Rao had sold his self acquired property with the consent of the all the family members and distributed the proceeds to all the family members. This Court does not find any bias or one sided approach in the conduct of B.M.Rama Rao. It is evident that he has thrown his self acquired property into the hotchpot and distributed the sale proceeds to the plaintiff and defendant No.2 and settled the property inherited by him in favour of defendant No.3. 43. The above view of ours on the competence of a Kartha of HUF gets impetus from a decision of Madras high Court. The competence of the Manager of a HUF, especially father, was dealt by Madras High Court in the case of Ramayya Goundan vs Kolanda Goundan and three others, ILR 1940 Mad 322. in following words: "I think it is perfectly within the competence of the manager of a Hindu family to allot to individual, members a sufficient portion of the family property having regard to its status and circumstances in order to enable them to maintain themselves out of its income. So long as the provision is fair and reasonable and the manager acts in good faith, without making the occasion a pretext for favouritism or injustice, the arrangement would be upheld by a Court as within the powers of the managing, member. For it cannot be denied that every member of the family, while it remains joint, has a right to be maintained out of the common assets. For it cannot be denied that every member of the family, while it remains joint, has a right to be maintained out of the common assets. When the manager, proceeds bona fide to satisfy such a claim, which is plainly the inherent right of every member, he is merely discharging a duty incumbent upon him under the law. In fact, the propriety of his act in this behalf cannot be questioned. For, when the manager acts in such circumstances, it must be regarded as the act of the entire family not capable of being impeached at the instance, of a single dissentient member. His consent will be presumed for every dealing, with the family estate by the manager dictated by the necessities of the family or of the individuals composing it." (Emphasis supplied) 44. A perusal of Ex.D4, the Holographic Will executed by the testator B.M.Rama Rao would speak his mind. When we have come to the conclusion that the Will executed by the testator is proved, the next question would be, whether he was competent to bequeath the suit schedule property to the defendant No.3? The mind of the testator as may be found from Ex.D4 would show that he intended to effect a settlement by throwing his self acquired property into the hotchpot and to buy peace among his children. Exs.D1 and D2 show that there was trust deficit between the plaintiff and the testator B.M.Rama Rao. In order to bridge this gap and also to see that there would not be any litigation between his sons, the testator had thrown his property into the hotchpot and included the plaintiff and defendant Nos. 2 and 3 and also the wife and children of the plaintiff in the transaction with Ashok Leyland while selling his self acquired property. Otherwise, there was no reason for B.M.Rama Rao to include the plaintiff, his wife and children, defendant Nos. 2 and 3 in the sale transactions. The intention of the testator was to blend his self acquired property into the joint family and to settle the shares of his children. 45. Whether the self acquired property can be blended with the joint family property was considered by the Apex Court in the case of D.S. Lakshmaiah v. L. Balasubramanyam, (2003) 10 SCC 310 . in following words: "19. 45. Whether the self acquired property can be blended with the joint family property was considered by the Apex Court in the case of D.S. Lakshmaiah v. L. Balasubramanyam, (2003) 10 SCC 310 . in following words: "19. Another contention urged for the respondents was that assuming Item 1 property to be self-acquired property of Appellant 1, he blended the said property with the joint family property and, therefore, it has become joint family property. Assuming the respondents can be permitted to raise such a plea without evidence in support thereof, the law on the aspect of blending is well settled that property separate or selfacquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation." (emphasis supplied by us) 46. Thus, it is clear from the reading of Ex.D4 that the testator B.M.Rama Rao had intended that the plaintiff and the defendant No.2 were sufficiently compensated out of the money acquired by selling his self acquired property in lieu of their share in the joint family property and then Willed away the suit schedule property in favour of defendant No.3. This act of the testator was within his realm of powers as Kartha of the family. This intention of B.M.Rama Rao as Kartha of the family was not considered by the trial Court while appreciating the contents of the Will at Exs.D3 and D4. Obviously, B.M. Rama Rao had spoken his mind through Exs.D3 and D4. 47. This act of the testator was within his realm of powers as Kartha of the family. This intention of B.M.Rama Rao as Kartha of the family was not considered by the trial Court while appreciating the contents of the Will at Exs.D3 and D4. Obviously, B.M. Rama Rao had spoken his mind through Exs.D3 and D4. 47. Under the circumstances, we are unable to agree with the view taken by the trial Court in holding that the suit schedule property being an ancestral property remained to be the ancestral property even after the settlement by the Kartha of the joint family as stated by him in his last Will. There was no need to find wedge in the Will of B.M.Rama Rao, to say that the bequeath would only bind in respect of his share in the ancestral property. If the Will at Ex.D4 had not spoken about selling of his self acquired property, the view of the trial Court could have sustained. Hence, we hold that after the settlement made by B.M.Rama Rao as stated in his last Will at Ex.D4, the suit schedule property had not remained to be the ancestral joint family property. The acceptance of the money out of the sale proceeds of the self acquired property of B.M.Rama Rao, by the plaintiff and defendant No.2, in whatever the quantum might be, and consenting to the Will of B.M.Rama Rao has to be viewed as the acceptance of such settlement. The trial Court has erred in holding that even after the Will executed by B.M.Rama Rao, the suit schedule property remained as the ancestral property of the family of B.M.Rama Rao. Hence, the points raised by us are answered in favour of the defendants. 48. In view of the above findings, there was family settlement and the suit schedule property was allotted to the share of defendant No.3. As a consequence, the suit filed by the plaintiff is liable to be dismissed. Hence, the following: ORDER The appeal filed by the defendants is allowed. The impugned judgment and decree passed by the trial Court in O.S.No.94/2002 dtd. 24/10/2008 is hereby set aside. The suit of the plaintiff is dismissed. In view of the relationship between the parties, costs made easy.