N. Kumar, J.This is first defendants regular first appeal challenging the judgment and decree of the trial Court which has decreed the suit of the plaintiffs for partition and separation possession granting 1/5th share to each of the plaintiffs.

2. For the purpose of convenience, the parties are referred to as they are referred in the original suit.

3. The subject matter of the suit is immovable property bearing No. 114, 4th Main, Opposite to BPL India School, Bangalore-3, measuring East to West 60 feet, North to South 63 feet which is more particularly described in the schedule to the plaint and hereinafter referred to as the schedule property.

4. The plaintiffs and the defendants are the children of one Sri. M.C. Thirunarayanan. Sri M.C. Thirunarayanan had three wives namely Smt. Godamani, Smt. Ranganayaki and Smt. Chingamani. The case of the plaintiffs is, Sri M.C. Thirunarayanan out of his own income and savings had acquired several immovable properties in his name and also in the name of his 3rd wife Smt. Chingamani, who is the mother of defendant No. 1. The plaintiffs 1 and 2 are born to the first wife of late Sri M.C. Thimnarayanan namely Smt. Godamani, plaintiff No. 3 is born to the 2nd wife of Sri M.C. Thimnarayanan namely Smt. Ranganayaki. Incidentally, Smt. Chingamani is the younger sister of Smt. Ranganayaki. The schedule property is the self acquired property of late Sri M.C. Thimnarayanan. He was employed with the PWD department in the Old Madras State and later in 1954 he opted and joined Andhra Government PWD (Irrigation Department). He retired as Superintendent Engineer from Andhra Pradesh State, PWD department in 1969. The schedule property was bought by Sri M.C. Thimnarayanan while he was working as an Executive Engineer, K.C. Canal-PWD, Andhra Pradesh. The ground floor comprised of a house of 15 square. He constructed the first floor after about 3 to 4 years out of his own income. In 1967 the adjoining complex ground floor of 9 square was constructed by him out of his own funds. In the year 1970, the first and second floor of the complex was completed by him by selling his property at Hyderabad and also by utilizing the savings of the first plaintiff. The first plaintiff was employed with railways as Medical Officer in 1969 and she has also contributed for construction of the property.

5. Sri M.C. Thirunarayanan expired intestate on 9.2.1993 leaving behind the plaintiffs and the defendants as the sole and surviving legal heirs. The plaintiffs being legal heirs of the deceased M.C. Thirunarayanan are entitled to an equal share in the immovable properties left behind by the said M.C. Thirunarayanan. The plaintiffs and defendants are therefore joint and co-owners of the schedule property. In spite of the plaintiffs requesting defendant No. 1 to partition of schedule property and hand over to them their share, the defendant No. 1 on one pretext or the other has been avoiding to do the same. Having waited for a considerable time, the plaintiffs were constrained to issue a notice on 31.10.2001 calling upon the defendant No. 1 for partition of the schedule property. Defendant No. 1 replied to the said notice on 1.12.2001 refusing the partition of the property contending that the suit property stands in the name of Smt. M.C. Chingamani under a registered sale deed dated 18.8.1967. The plaintiffs have no share. The plaintiffs were throughout under the impression that the properties stands and was held by the deceased father in his individual name during his life time. However, it is pertinent to note that the property stands in the name of Smt. M.C. Chingamani did not confer any absolute right, title and interest over the same as she was a ordinary house wife having no independent source of income and having born in a very poor family, she had lost her father in a young age of three years and her widowed mother used to do small household jobs. It is falsely contended by defendant No. 1 in his reply notice that the property is acquired by his mother by investing her Sthreedhana and also by selling her gold ornaments and other precious articles. He is put to strict proof of the same.

6. Even assuming that the property stands in the name of mother of defendant No. 1, she was holding the same only in trust and in a fiduciary capacity for and on behalf of all the members of the family. Hence she has no independent right, title and interest for the same in any manner. The Will, if any, purported to have been executed by the mother of defendant in his favour dated 7.4.1975 and the Codicil dated 9.9.1992 are not valid and as such do not confirm any right, title or interest over the property to the defendant No. 1. Admittedly, Smt. Chingamani expired in 1986. Hence, the Codicil purported to be executed in 1992 is patently illegal. Even for other circumstances, the Will and Codicil are not genuine and valid in the eye of law, as the other legal heirs to the property have been deprived of their legitimate and valuable share without any valid and justifiable cause.

7. Being Class-I heirs, the plaintiffs along with defendant No. 1 are entitled to 1/5th share each in the schedule property. The schedule property comprises of seven portions. The front portion ground floor is in occupation of the first defendant. As far as the remaining portions are concerned, is let out to various tenants on a monthly rent of Rs. 12,000/- to Rs. 14,000/- by collecting huge advances. After the death of their father in 1993, first defendant has been collecting the rent from the tenants. He has not rendered any accounts so far to anybody, in spite of several requests and demands. The first defendant is liable to render true and proper account with regard to the rents and advances received by him from the schedule property. Out of the said amount, the plaintiffs are entitled for the respective share. Therefore, the plaintiffs filed the suit for partition and separate possession of their 1/5th share in the suit schedule property.

8. After service of summons, first defendant entered appearance and filed a detailed written statement contesting the claim of the plaintiffs. He did not dispute the relationship of marriage of his father with three wives. It is pleaded that his father married Smt. Ranganayaki who hailed from a very rich family and the said Smt. Ranganayaki had four brothers and were working in prestigious undertakings. The said Ranganayaki gave birth to plaintiff No. 3. Within one month from the date of giving birth of her daughter, she passed away. Subsequent to the death of said Smt. Ranganayaki, Sri M.C. Thirunarayanan in order to look after plaintiffs 1 to 3 and defendant No. 2, married sister of Ranganayaki by name Chingamani. The said marriage was solemnized owing to immense persuasion made by brothers of Chingamani. They were very much interested in welfare of plaintiffs and defendant No. 2 and were equally interested in the welfare of M.C. Thirunarayanan. Keeping the said aspect in mind, they prevailed upon M.C. Thirunarayanan to marry Chingamani and at the time of marriage, Chingamani was given Stridhana in the form of cash, jewelry etc.

9. Smt. Chingamani gave birth to the 1st defendant. The first plaintiff studied up to M.B.B.S. She got married and is living separately with her husband. The 2nd plaintiff studied up to B.Sc. and got married and is living separately with her husband. The 3rd plaintiff studied up to B.Com and got married in the year 1979 and is living separately with her husband. The 2nd defendant studied up to M.L. She is married and residing in the suit schedule premises with the members of her family. The mother of plaintiffs 1 and 2 and 2nd defendant died on 20.12.1986. Sri M.C. Thirunarayanan, the father of the plaintiffs died on 9.2.1993. The mother of lst defendant Smt. M.C. Chingamani purchased the schedule property for valuable consideration of Rs. 20,000/- from Smt. G. Kamala Bai under a registered Sale Deed dated 17.8.1961. The entire sale consideration amount was paid by Smt. M.C. Chingamani by cash and Khata of the said property was changed in her name. She made certain alterations in the schedule property and enjoyed the schedule property as absolute owner.

10. She executed a Will dated 7.4.1975 and it was duly registered on 11.4.1975. The father executed an affidavit which was sworn to before the First Munsiff, Bangalore City. Smt. M.C. Chingamani in her Will dated 7.4.1975 has categorically stated that she had purchased the ground floor portion and some incomplete portion of upstairs. She sold jewellery and other precious articles and paid the sale consideration amount to the vendor and to some extent, her husband M.C. Thirunarayanan helped her in purchase of house and for further construction. At the time of execution of the Will bequeathing the entire property in favour of the first defendant, plaintiff No. 3 was 16 years old and she was studying. Therefore, an obligation was put on the first defendant to give all encouragement and financial assistance to the 3rd plaintiff during her education period. He was also expected to meet her marriage expenses including customary jewels to be given to her at the time when she gets married. In the event of failure to fulfill the above conditions, the 3rd plaintiff was entitled to ground floor in the northern side house and she can have a separate Khata for the said portion.

11. Smt. M.C. Chingamani executed a Codicil dated 18.11.1983 which was also duly registered. The three conditions which were put in the Will was performed by the parties and as such same necessitated amendments to execute a Codicil wherein it is clearly mentioned that the 3rd plaintiff after completion of her B.Com, married one K.S. Prabhakar and is comfortably living with her husband. The marriage expenses were met by Smt. M.C. Chingamani and her husband and all the obligations in the Will are fulfilled. Therefore, the lst defendant was not required to do anything and therefore there is no default on his part.

12. In the affidavit of the father he has declared that the 3rd plaintiff was married and he has performed the marriage by meeting all the expenses. His father M.C. Thirunarayanan executed a Will on 10.9.1992 which was also duly registered. He has reiterated the contents of the Will executed by his wife and the Codicil. It is categorically stated that the schedule property was the absolute property of the first defendant. If any right is available to him, that was also bequeathed in favour of the 1st defendant. Thus, the lst defendant is enjoying the schedule property as absolute owner. Khata of the property has been changed in his name. Water connection is in his name, he is paying the taxes due to the Corporation. No other person has got any right, title or interest over the schedule property and therefore he contended that the suit of the plaintiffs is liable to be dismissed.

13. On the aforesaid pleadings, the trial Court framed the following issues:

"1. Do the plaintiffs prove that the suit schedule property was the self acquired property of their father Sri M.C. Thirunarayana and therefore each one of them have got 1/5th share in the suit property

2. Does the first defendant prove that the suit property was purchased by his mother Smt. M.C. Chingamani

3. Does the plaintiffs prove that Smt. M.C. Chingamani had no capacity to execute the Will therefore the Will and the Codicil executed by her in favour of the first defendant is illegal and invalid

4. Does the first defendant prove that his father Sri M.C. Thirunarayana also executed a Will on 10.9.1992 in respect of all his movable and immovable properties and thereby he became the absolute owner of the suit property as stated in paragraphs 8 and 9 of his written statement

5. Are the plaintiffs entitled for reliefs claimed in the plaint If so what order or decree"

14. The plaintiffs in order to substantiate their claim examined the first plaintiff Dr. (Mrs.) M. Srimathi as PW1. They did not produce any document. The defendant No. 1 examined himself as DW1 and he examined two attesting witnesses M.C. Shekhar and Jayaram as DWs. 2 and 3 to the Will of his father. He also produced 27 documents which are marked as Exs.D1 to D27.

15. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the source of income for the purchase of schedule property essentially has flown from the father of the plaintiffs and defendants, since he was the only earning member of the family and therefore it is his property. Insofar as genuineness of the Will is concerned, it held that the Will dated 7.4.1975 marked as Ex. D4 and the Codicil dated 18.11.1983 which is marked as Ex. D6 are not proved, as no attesting witnesses were examined. Though the plaintiffs identify the signature of father in the said Will, it held as she is the plaintiff, her evidence cannot be considered for proving the Will. Similarly it also held that the Will executed by the father as per Ex. D8 is also not proved, as it is surrounded by suspicious circumstances which are not properly explained by the propounder of the Will. It also disbelieved the affidavits relied upon by the 1st defendant. Thus, it held that the plaintiffs suit is to be decreed and each plaintiffs are to be entitled for 1/5th share in the suit schedule property. Aggrieved by the said judgment and decree of the trial Court, the lst defendant has preferred this appeal.

16. The learned counsel for the first defendant appellant assailing the impugned judgment and decree of the trial Court contended that, admittedly the Sale Deed stands in the name of 3rd wife. Therefore, the findings of the trial Court that it is the self acquired property of the husband is ex-facie illegal. In order to come to the said conclusion, the trial Court relies on the so called admissions of PW1, where she admitted that her father also has contributed for purchase of the property. Therefore, according to the trial Court, the entire burden of proving the consideration for sale has flown from the mother of the 1st defendant which is not established. It is settled law, if the case of the plaintiffs is that 3rd wife was a Benamidar of her husband, the burden of proving the entire consideration for purchase of the property has flown from the husband to the 3rd wife is on the plaintiff who has pleaded the same. Absolutely there is no evidence on record to substantiate the said contention. Therefore, in view of the judgment of the Apex Court, the case of the plaintiffs is not established and the trial Court has committed a serious error in decreeing the suit of the plaintiffs. He also contended that the mother of the lst defendant executed a Will dated 7.4.1975 appointing her husband as Executor and the Executor has also put his signature. As on the date of the suit, both the attesting witnesses were not alive. The natural mode contemplated under law for proving the execution of the Will was to examine the person who has put his signature as attesting witness. Therefore, when the Will and the signature of the attesting witness was confronted to the plaintiff who is none other than the daughter of one of the attesting witness, in categorical terms she admits that it is the signature of her father. Therefore, that finding proves the Will which has been without any justification reported by the trial Court. Similarly, as though the attesting witness to the Will is father of the first defendant is also dead. The 1st defendant is examined. The father-in-law and scribe of the Will have identified the signature of one of the attesting witness. Yet another attesting witness M.S. Shekhar was examined, who has deposed in support of the Will. That apart there are affidavits of the father of the 1st defendant who graphically sets out the circumstance under which the Will and Codicil have come into existence and also the intention of the parties which clearly demonstrates that the father never claim any right in the property. On the contrary he has categorically stated that this property exclusively belongs to his 3rd wife. Therefore, the evidence on record has not been properly appreciated and therefore he submits the judgment and decree of the trial Court is required to be set aside and the suit of the plaintiffs is to be dismissed.

17. Per contra, the learned counsel appearing for the plaintiffs-respondents submit, the case of the plaintiffs is not that of any benami transaction i.e. the transaction which the appellant counsel is canvassing for the first time before this Court. The specific case of the plaintiffs before the Court below was the schedule property is the self acquired property of M.C. Thirunarayanan. He purchased the schedule property in the name of his 3rd wife. He contributed the sale consideration. He contributed the cost of construction of the building and therefore it is his self acquired property in which all his children are entitled to a share. The evidence on record clearly establishes that the 3rd wife had no source of income. Therefore, the burden of showing that the consideration for the same and the cost of construction was met by her was clearly on the lst defendant, which burden the 1st defendant has failed to discharge and therefore, the trial Court was justified in recording the finding that the schedule property belongs to the husband and not the 3rd wife. He further pointed out that, the discrepancy in the Will executed by the 3rd wife whether the affidavit which was sworn to subsequent to execution of the Will finds a difference. In fact, Thirunarayanan is also attesting witness. All of them have colluded to deprive the plaintiffs legitimate right in the property. Therefore, rightly the trial Court rejected the said Will as having not been proved. Similarly the affidavits on which reliance is placed and the Will of Thirunarayanan is also not proved in accordance with law. He further submitted that, the contents of the affidavits clearly establishes that the husband contributed towards the purchase of the schedule property. He contributed for construction of the property and therefore the schedule property is the self acquired property of the husband, but not the self acquired property of 3rd wife. Therefore, the trial Court committed no illegality in decreeing the suit of the plaintiffs.

18. In the light of the aforesaid facts and the rival contentions, the points that arise for our consideration in this appeal are as under:

"(i) Whether the finding of the trial Court that the schedule property belonged to the husband and not to that of his 3rd wife is supported by legal evidence on record

(ii) Whether the finding of the trial Court that the Will Ex. D4, Codicil Ex. D6, the Will of the father Ex. D8 are not proved, calls for any interference

(iii) What order"

Point No. (i):--

19. The specific case pleaded by the plaintiffs as contained in para 3 of the plaint is that, M.C. Thirunarayanan out of his own income and savings had acquired several immovable properties in his name and also in the name of his third wife Smt. Chingamani who is the mother of defendant No. 1. As stated above the schedule property is the only property which is included in the suit for partition. The several immovable properties in the name of M.C. Thirunarayanan are not included. The first defendant has categorically stated in the written statement as well as in the reply notice to the legal notice that his mother Smt. M.C. Chingamani purchased the schedule property under a registered deed of sale dated 17.8.1961. The entire sale consideration amount was paid by her by cash. Katha of the property was changed in her name. She made certain alterations to the schedule property and enjoyed the schedule property as absolute owner.

20. In the light of these contentions, in order to appreciate the case of both the parties it is necessary to look at the sale deed under which this property was acquired. The original sale deed is marked in this case as Ex. D1. It is dated 17.8.1961. It is executed by one G. Kamala Bai, W/o Sri A. Gopala Rao, in favour of M.C. Chingamani, wife of M.C. Thirunarayanan. The sale consideration was Rs. 20,000/-. The said consideration was paid by cash, the receipt of which the vendor acknowledged under the sale deed. The property which was the subject matter of sale was land with dwelling house and out house. Thus, it is clear the registered sale deed stands in the name of Smt. M.C. Chingamani and not M.C. Thirunarayanan. The further case of the plaintiffs is that, M.C. Thirunarayanan was employed with the PWD Department in the old Madras State and later in 1954 he opted and joined Andhra Government PWD Department (Irrigation Department). He retired in the year 1969. The schedule property was acquired by him while he was working as Executive Engineer, K.C. Canal, PWD, AP. On the date of purchase, the ground floor of the schedule premises consisted of 15 square building. It is he who constructed first floor after about 3 to 4 years out of his own income. In 1967 the adjoining complex ground floor of 9 squares was constructed by him out of his own funds. In the year 1970, the first and second floor of the complex was completed by him by selling his property at Hyderabad and also by utilizing the savings of the first plaintiff. The first plaintiff was employed with the Railways as a Medical Officer in 1969 and she was also contributing for the construction. This plea has been specifically denied by the defendants. Therefore, when the plaintiffs were contending that the consideration for purchase of the schedule property has flown from their father and the consideration for the development of the property has flown from the father of the first plaintiff, the burden of establishing the said facts is squarely on the plaintiffs. Except the oral testimony of PW1, absolutely no evidence is produced in support of the said plea. It is in this background, it is necessary to look at the oral evidence adduced by PW1.

21. She has stated in examination-in-chief which was by way of affidavit that, she was employed with Railways as a Medical Officer in 1969 and also contributed for the construction. The plaintiff has not, therefore, contributed anything for purchase of the property as the purchase was in the year 1961. Her contribution if at all is only for construction. In the cross-examination of PW1 it is elicited from her that she completed MBBS in 1967. She was married in the year 1968. Her father performed the marriage. Her date of birth is 10.5.1948. She owns two residential houses one at Mysore and another at Hyderabad. Her husband owns an old ancestral house at Lakshmipalyam, Kadapa District. The schedule property was purchased in the year 1961. She has not seen the registered sale deed. She also does not know in whose name the suit property stands. She also does not know from whom the suit property was purchased. She is not aware of the sale transaction. Occasionally she was visiting the suit property during the lifetime of her father. She does not know whether any estimate was made in respect of the suit property. She also do not know whether the sanction plan was taken for improvement. She also do not know what is the extent of money spent for renovation. She do not know the bank accounts of her father and Chingamani. She do not know whether her father declared the suit property as his property in his service records. It is in 1965 the first floor was constructed. The out house might have been constructed in the year 1968.

22. Therefore, as she was employed in 1969, her contribution to the first floor out house does not arise. According to her, the first and second floor on the out house were constructed around the year 1972-73. She does not know in whose name the katha of the suit property stands. Even on the day she was deposing in Court she had not made any enquiries about who is paying the property tax from the date of purchase. She had not made any enquiries with the Corporation in respect of sanction plan. She also did not make any enquiry to find out in whose name electricity and water connections are standing. She has categorically stated, in the month of March 1969 she joined Railway Hospital. At that time her take home salary was Rs. 300/-. It is not her case that she raised any loan and paid to her father for construction of the house. Therefore, obviously if really she paid any amount, it would be the savings from her salary. There is no whisper in the entire evidence of the total amount paid by her to her father, the date on which such payment is made and before making payment, where that amount was lying. Therefore, her plea that she also contributed for construction has remained as a plea without any evidence to substantiate her claim.

23. Similarly, though she asserted that her father has contributed funds for construction of the property, absolutely no evidence is adduced to substantiate the said claim. The total amount spent by her for construction, what is the mode of payment of that amount by her father and in fact the nature of construction, the cost of construction are not forthcoming. It is in this context, we have to find out on what basis the trial Court has come to the conclusion that the consideration for purchase and development of the property has flown from the father. In the judgment the trial Court has extracted the so called admissions of the first defendant. It relies on the admission in cross-examination of DW1 to the effect that, it is true that his father has contributed for purchase of the suit property and that his mother was not employed. Further, he has admitted that the pension amount of his father alone would not be able to construct the out house, ground floor and first floor. The brothers of his mother have not contributed any amount for the improvement. Similarly, he has pleaded that he cannot tell the contributions made by the brothers of his mother in purchasing the suit property towards sale consideration. He cannot tell the value of the jewelry given to his mother as streedhana property. Acting on these admissions, the trial Court has recorded a finding that, in its opinion the source of income for the purchase of the suit property has essentially flown from the father of the plaintiffs and the defendants, since he was the only earning member in the family and admittedly he was serving as Superintending Engineer in Andhra Pradesh PWD.

24. While coming to the said conclusion, the trial Court failed to notice the said admissions are in the nature of hearsay evidence which are inadmissible in evidence because DW1 was born on 28.9.1961 whereas the schedule property was purchased on 17.8.1961, i.e., prior to his birth. Even the constructions which are put up as could be seen from the evidence on record are in the year 1965, 1968, 1971 and 1972, i.e., when he was hardly a boy of 10 years. Therefore, he has no personal knowledge about the nature of construction, the cost of construction, how those constructions were made. Even it is not his case or anything suggested to him that either his father or mother has told him about the cost of construction being made available by the father. Overlooking this all important matter, the trial Court purely acting on the hearsay evidence of DW1 has recorded the said finding. At this juncture, it is necessary to point out the suit is one for partition and separate possession on the ground that the schedule property is the self acquired property of the father. Admittedly, the schedule property was acquired under the registered sale deed in the name of the third wife of his father, Smt. Chingamani. Even before the filing of the suit, in the reply notice sent to the legal notice, the stand of the defendant was made clear. In categorical terms he had denied the right of the plaintiffs to any share in the schedule property asserting that it is the property of his mother. Therefore, before the plaintiffs could seek for partition and separate possession on the ground that the property is the self acquired property of the father, they should have sought for a declaration that it is the self acquired property of their father when the sale deeds stood in the name of his wife. No such prayer is forthcoming. When once the sale deed in respect of the property stands in the name of a person, no other person can claim title to the property under the said sale deed. The only exceptions are, if there exists a joint family and if the sale deed stands in the name of the member of the joint family, though the presumption is the property belongs to that person exclusively, it is open to the other members to contend that it is a joint family property and that property is acquired by the joint family nucleus. If the existence of the joint family is established, existence of joint family nucleus is established, and it is further established that the property is acquired by the joint family nucleus, the said property could be held to be a joint family property in which all the members of the joint family have a right. That is not the case pleaded by the plaintiffs in this case. Therefore, when the property stands in the name of Chingamani, plaintiffs claiming to be the property of their father M.C. Thirunarayanan on the face of it is unsustainable. This aspect has been completely missed by the trial Court. Realising this, the plaintiffs have pleaded in para 5 that, even assuming that the property stands in the name of the mother of defendant No. 1, she was holding the same only in trust and in a fiduciary capacity for and on behalf of all the members of the family. In other words it is a case of benami that is pleaded. If it is a case of the father purchasing the property in the name of his wife and the wife is a benamidar, in order to succeed in a claim in respect of the suit property, what the plaintiff has to establish in a Court is laid down by the Apex Court in the case of Valliammal (D) by Lrs. Vs. Subramaniam and Others, . In paras 13 and 14 it has been held as under :--

"13. This Court in a number of judgments has held that it is well-established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises, as a substitute for proof."

Relying on the several judgments of the Apex Court on the point, it was held as under :--

"It has been held that in the judgments referred to above that the question whether a particular sale is a benami or not, is largely one of fact, and for determining the question no absolute formulas or acid test, uniformly applicable in all situations can be laid. After saying so, this Court spelt out following six circumstances which can be taken as a guide to determine the nature of the transaction:

"1. the source from which the purchase money came;

2. the nature and possession of the property, after the purchase.

3. motive, if any, for giving the transaction a benami colour;

4. the position of the parties and the relationship, if any, between the claimant and the alleged benamidar;

5. the custody of the title deeds after the sale; and

6. the conduct of the parties concerned in dealing with the property after the sale."

14. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another...."

25. Reliance was placed on yet another judgment of the Apex Court in the case of Vidhyadhar Krishnarao Mungi and Others Vs. Usman Gani Saheb Konkani and Others, wherein it was held as under : -

"9..... In the beginning of this century a Hindu husband often used to negotiate and obtain receipts for his wife in his own name. The probability of this inference is enhanced by the circumstance that there is no reference to this receipt in the sale deed. On the other hand, the sale deed recites that the amount of Rs. 100/- was paid by Jankibai. It is said that Isar Pawati was not mentioned in the sale deed in order to conceal the real nature of the transaction with the object of defeating any potential claim of Sadashiv for maintenance from Laxman...."

26. Now, in the instant case, keeping the said position in view, if we look into the plaint, there is no plea in the plaint stating why M.C. Thirunarayanan took the sale deed in the name of his third wife. In fact, the averments in the plaint makes it clear the plaintiffs till they received the reply were not aware that the schedule property stood in the name of Chingamani. In para 4, after referring to the reply notice, the plaintiffs in categorical words have stated that plaintiffs were throughout under the impression that the property stands and was held by the deceased father in his individual name during his lifetime. Therefore, till the reply they were not aware that the property stands in the name of Chingamani and obviously they have not given any reason why the father took the sale deed in the name of his third wife. As stated earlier, if the property belongs to the father and he has purchased in the name of his third wife, plaintiffs in order to succeed should establish that the entire consideration for the sale has flown from the father. There is absolutely no evidence in this regard. On the contrary, reliance is placed on the evidence produced by the defendants. Though they do not admit the document on which reliance is placed, they rely on the recitals in the said document to show that the consideration has flown from the father. According to them, they are all admissions in writing and, therefore, even in the absence of the said documents being proved in accordance with law, the said admissions could be looked into. It is settled law that, if admissions are in writing, the entire writing is to be taken as a whole. We cannot bisect a portion or a sentence and ignore the other portions in writing.

27. Keeping in mind this legal principle, let us look into the documents on which reliance is placed by the plaintiffs which the defendant has produced. The first of the document is, Ex. D4-the last Will and Testament of M.C. Chingamani. After referring to the schedule property and the constructions which was put up, it is averred in the said Will that by selling gold jewels and other precious articles Smt. Chingamani paid the consideration to the vendor and also improved upon the estate by putting up upstairs building to the main house and also constructed ground floor and first floor of the out house. To some extent her husband M.C. Thirunarayanan helped her in contributing some amounts towards purchase of the premises and also for construction. It is asserted that, nevertheless she is the absolute owner of the premises having right of disposition. Again in the Will she has referred to the first two wives of her husband, the children born to them and on the date of the sale the second wifes daughter who is the third plaintiff in the suit was a minor studying. An obligation was cast on the first defendant to give encouragements and financial assistance during her studies and that he should not discourage her in continuing the studies. He must support her as long as she wants to continue the studies and he should also get her married by bearing the expenses of the marriage. It was made clear if the son-the first defendant do not fulfill the said obligations, then the third plaintiff would get the ground floor in the northern side out house and she can have separate katha made out in her name. She appointed her husband as executant of the Will. Her husband also affixed his signature as attesting witness to the Will along with H.R. Shankarappa. Therefore, this Will which was executed on 7.4.1975 which was also duly registered nearly about 11 years prior to her death, if the plaintiffs were relying that portion of the admission that the father contributed some amount towards purchase of the premises and also for further constructions, the Court cannot ignore the other portion of the admissions where it is categorically stated that the consideration was paid by her by selling the gold jewels and other precious articles. Even if her husband has contributed some money towards purchase of the property and for construction, that by itself would not confer any right on him in the immovable property. After all he was assisting his wife in completing the construction of the property.

28. In this context it is to be remembered Chingamani is the third wife of M.C. Thirunarayanan. Through the first wife he had three daughters. After the death of the first wife he married Ranganayaki, the second wife. Ranganayaki after giving birth to the third plaintiff within a month died. It is in those circumstances, Ranganayakis younger sister Chingamani was married to M.C. Thirunarayanan with the only purpose of taking care of these young 4 girls, though their difference in age was about 20 years. The evidence on record makes it clear Chingamanis brother insisted M.C. Thirunarayanan to marry her so that the plaintiffs and the second defendant could be taken care of. If in those circumstances M.C. Thirunarayanan was marrying Chingamani who was 20 years younger to her as third wife, it was quite natural within a year from the date of marriage the schedule property was purchased in the name of the third wife. That is the reason why in 1975 when she made the Will it had the complete blessings of her husband. The husband was appointed as Executor. He was an attesting witness. If some contribution is made by the husband towards purchase and for construction, and if the major portion has flown from Chingamani as per the contents contained in Ex. D4 it cannot be said that the schedule property is the self acquired property of M.C. Thimnarayanan and the entire sale consideration of Rs. 20,000/- was paid by him. The said case put forth by the plaintiff runs counter to the contents of Ex. D4 on which the plaintiffs are relying on.

29. It was contended that, though an obligation was cast on the first defendant, admittedly he has not performed the obligation. That is clear from the Codicil which was again executed by Chingamani on 18.11.1983 which was also got duly registered. The necessity of Codicil arose because, the three obligations cast on the first defendant by the testator was fulfilled by her and her husband and, therefore, that condition in the bequest lost its meaning. Therefore, a Codicil was executed on 18.11.1983 as per Ex. D6 making it clear that the son who is aged about 22 years on the date of Codicil is entitled to the schedule property without any such conditions. In the said Codicil the execution of the Will dated 7.4.1975 is reiterated and M.C. Thimnarayanan is also an attesting witness to the said document. On the day the Will was produced into Court and marked, admittedly both the attesting witnesses were dead. Section 68 of the Indian Evidence Act makes it clear that in so far as the Will is concerned it is necessary to call attesting witness in proof of execution of any document. Section 69 provides that, if no such attesting witness could be found then it must be proved that the attestation of one attesting witness at least is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. Therefore, when both the attesting witnesses are dead, an obligation is cast on the propounder of the Will to examine a person who is well acquainted with the signature of the attesting witness. In the instant case, in the cross-examination of PW1, the signature of M.C. Thirunarayanan was shown to PW1, the daughter who has in categorical terms has admitted that it is the signature of his father. Similarly, DW2-the son-in-law of the attesting witness H.R. Shankarappa who was also the scribe of the Will has identified the signature. When the Will was executed on 7.4.1975 and the executant lived for nearly 11 years after due execution and in 1983 she executed a Codicil, got it registered where the execution of the Will dated 7.4.1975 is reiterated and when on the death of the attesting witnesses persons who are well acquainted with the signature have admitted their signature, the trial Court committed a serious error in holding that the Will is not proved.

30. Even if the Will is not proved and the contents are taken as admission as sought to be done by the plaintiffs, the said admissions clearly go to show that the husband did not pay the entire sale consideration of Rs. 20,000/- nor paid the cost of entire construction. In fact, in this case we have the affidavit of M.C. Thirunarayanan which is sworn on 11.4.1975, i.e., 4 days after the execution of the registration of the sale deed where the contents of the Will are reiterated.

31. It was contended that though the affidavit was sworn to on 11.4.1975, it finds a reference in the Will dated 7.4.1975 and, therefore, the Will is a fabricated document. As could be seen from the recitals in the Will and the affidavit, they are prepared by Advocate Shankarappa who obviously has prepared these documents together and in the Will there is a reference to the affidavit to the effect that as recognition of acceptance of the legal position he has not only made a sworn affidavit but also has attested the Will as a witness. It is true that the affidavit is sworn to on 11th but the Will is dated 7th. Though the said argument looks attractive, we do not find any substance in the same because the affidavit which is prepared is on stamp paper which is dated 11.4.1975 and if the Advocate has prepared both these documents together and merely because the affidavit was sworn to subsequently would not render the Will which is duly registered illegal.

32. It is in this context it is also to be noticed M.C. Thirunarayanan himself had made a Will as per Ex. D8 on 9.9.1992. In the said Will he has referred to the Will dated 7.4.1975, Codicil dated 18.11.1983, about the sons and daughters and the bequest made in favour of the first defendant by his wife and further he says he is bequeathing whatever is remaining with him by way of cash and moveable properties to the first defendant who is the only son. After the said bequest it is stated that, if he has any right in the schedule property that is also bequeathed in favour of the first defendant. Relying on the stray sentence it was argued that he had a right to the property which he has bequeathed. When we read the entire Will it is clear what is bequeathed under the Will is only cash and moveable which exclusively belongs to him. After referring to the earlier Will, the bequest made by his wife, by way of abundant caution, he has stated that if he has any right in spite of such bequest, even that is bequeathed in favour of his son. That by itself would not make the husband the owner of the schedule property, nor confers any right on him to bequeath the property which does not belong to him, to the first defendant. Again he has sworn to an affidavit which is marked in this case. In this context it is interesting to note that Chingamani died on 20.12.1983. Immediately thereafter application was filed by the first defendant to make out the katha in his name on the basis of the Will of Chingamani and the Codicil. None objected including his father. The katha of the property was changed in the name of the first defendant on 30.4.1987. M.C. Thirunarayanan did not object to the same. He was alive for more than six years after such katha transfer. In 1992 he made the Will-Ex. D8. Therefore, it is clear M.C. Thirunarayanan never claimed any right in this property during his lifetime. On the contrary he accepted that this property exclusively belongs to the first defendant after the death of his third wife. Therefore, in the light of the judgment of the Apex Court in Valliammals case (supra), if we look into the intention of the parties which is very crucial, when the property was purchased in the year 1961 M.C. Thirunarayanan never intended to have any right in the said property. When Chingamani made the Will in 1975, Codicil in 1983 bequeathing the entire property in favour of the first defendant, M.C. Thirunarayanan virtually consented for the same. He did not object nor put forth any claim. These plaintiffs did not put forth any claim against the said property. In fact, they were not aware of this Will at all. Again by the Will Ex. D8 in 1992 M.C. Thirunarayanan did not put forth any claim, on the contrary he accepted the title of the first defendant. Therefore, the intention of the party throughout is consistent. M.C. Thirunarayanan treated this property as the exclusive property of his wife notwithstanding the assistance given by him for acquiring the property or for constructing the property and in particular in seeing that this property goes to the first defendant. After the death of Chingamani, katha of the property was transferred in the name of the first defendant, he has been paying taxes, he has let out the premises to the defendants and he is collecting the rents. Therefore, he has exercised his absolute right over the property. As stated earlier no motive is whispered or suggested by M.C. Thirunarayanan for purchasing this property in the name of Chingamani, however a faint attempt is made by the learned counsel during the arguments contending that as M.C. Thirunarayanan was working as Executive Engineer in the PWD Department instead of purchasing the property in his name, he has purchased the property in the name of third wife and, therefore, he wanted the Court to take judicial notice of the conduct by these Government employees. In other words, the judicial notice which the learned counsel wants to take note is that M.C. Thirunarayanan was earning apart from the salary. If he had purchased the property he should have declared the assets to the Government and the source of income. In order to avoid the same he has purchased in the name of his wife. Even if the property is purchased in the name of his wife, a Government servant is expected to declare the said asset. It is on record that this asset was not declared by M.C. Thirunarayanan. At any rate, no judicial notice could be taken as sought to be made by the learned counsel for the respondent. In fact, that is not the case of the plaintiffs before the trial Court and, therefore, we do not see any substance in the said contention. Admittedly, the title deeds in respect of the schedule property are in the custody of the first defendant. The first defendant has been exercising his absolute right over the schedule property by paying taxes, by getting the water and electricity connections in his name, by letting out the premises to various tenants and collecting rents. Therefore, seen from any angle this property exclusively belongs to Chingamani, Will or without Will, after the death of Chingamani the property devolves on first defendant and, therefore, plaintiffs have no manner right, title or interest to any extent over the schedule property. Therefore, the finding recorded by the trial Court is contrary to the legal evidence on record and unsustainable in law. Accordingly, it is hereby set aside.

Point No. (ii):--

33. For the aforesaid reasons, we also hold, the evidence on record, i.e., in the case of Will of Chingamani, the evidence of PW1 and DW2 clearly establishes due execution of Exs.D4 and D6-the Will and the Codicil. Similarly, the evidence of DW3-attesting witness clearly establishes the Will of M.C. Thirunarayanan. In that view of the matter, the impugned judgment and decree passed by the trial Court cannot be sustained. Therefore, it is hereby set aside.

34. Hence, we pass the following order :--

"(a) Appeal is allowed.

(b) The judgment and decree of the trial Court is set aside.

(c) The suit of the plaintiffs is dismissed."

Parties to bear their own costs.