C.M. Poonacha, J.

1. The above first appeal is filed by Defendant Nos. 1 to 3 under Section 96 of the CPC challenging the judgment and decree dated 30.6.2016 passed in OS. No. 99/2008 by the I Additional Senior Civil Judge, Kalaburagi (hereinafter referred to as the 'Trial Court'), whereunder the suit for partition filed by the Plaintiffs has been partly decreed.

2. For the sake of convenience, the parties herein are referred to as per their rank before the Trial Court.

3. It is the case of the Plaintiffs that one Rudrappa s/o. Murgeppa is the propositus and head of the family. He had two sons, Murgeppa and Revanasiddappa and two daughters Lakshmibai and Kamalabai. Murgeppa, the elder son died in August, 1973. The Plaintiffs are the wife and daughter of deceased Murgeppa. The other children of Rudrappa, namely Revanasiddappa, Lakshmi Bai and Kamala Bai are arrayed as Defendants 1, 4 and 5 respectively. Revanasiddappa has two sons, Amresh and Satish who are arrayed as Defendant Nos. 2 and 3 respectively.

3.1. The suit properties 1 to 8 are agricultural lands and two residential houses which are described as suit schedule (II) property. That Defendant No. 1 without any right or title got the suit properties mutated in his name and his sons favour and by taking advantage of the same is trying to alienate the suit properties. Hence, the plaintiff has filed the suit seeking the following reliefs:

"a) A decree for partition and separate possession of the suit properties be passed holding the plaintiffs as entitled to 1/2 share together (or 1/4th each) by metes and bounds in all the suit properties.

b) A decree declaring that the registered Will Deed document No. 32/1991-92 dated 7-2-1992 is invalid, null and void and not binding on the rights of plaintiffs' share in the suit properties, be granted.

c) A decree directing the revenue/panchayat official to correct the revenue/panchayat records by way of inserting the names of plaintiffs alongwith the defendants, in respect of suit properties be passed.

d) A decree for perpetual injunction restraining the defendants from selling, mortgaging, encumbering or dealing with the suit properties in any manner so for the rights and share of the plaintiffs over suit properties are concerned, be granted.

d(i) Alternatively plaintiff be declared as the owner of the suit land sy no.460 and be put in actual possession of the same by dispossessing defendants and or any body through or under them.

e) Costs of the suit be awarded.

f) Any other relief to which the plaintiffs are entitled to may also granted."

3.2. It is the case of the Plaintiffs that the suit properties are the joint family and ancestral properties and are in joint possession of the Plaintiffs and Defendant No. 1. That some of the suit properties have been collusively and illegally got mutated in the names of Defendant Nos. 2 and 3 in collusion with the Revenue and Panchayat officials by the active participation and instance of Defendant No. 1 without the knowledge and consent of the Plaintiffs. That the husband of Plaintiff No. 1 was a Teacher in a Government School and fickle minded person and was neither looking after the family properties nor was managing the same. The propositus Rudrappa although being head of the family, he being aged and not having worldly knowledge, Defendant No. 1 was virtually handling all the family matters and having complete control over the family affairs. That after the death of the husband of Plaintiff No. 1, she and her daughter continued in the joint family. The marriage of Plaintiff No. 2 was performed during the lifetime of Rudrappa in the year 1991-92. Thereafter, Rudrappa died in the year 1993. That after the marriage, the Plaintiff No. 2 started residing in the house of her husband while Plaintiff No. 1 continued to reside in her marital home.

3.3. It is the further case of the Plaintiffs that Defendant No. 1 who was in total control and management of the family affairs and properties was looking after and providing for the maintenance of Plaintiff No. 1, started ill-treating Plaintiff No. 1 and was not providing the minimum facilities. Hence, Plaintiff No. 1 with the mediation of her brother, demanded her half share in the suit properties and expressed her desire to live separately by way of partition. To her surprise, Defendant No. 1 for the first time in the third week of February, 2008 represented that he would not give any share in the family properties as he has already got mutated all the properties of the family in the name of himself and his sons Defendant Nos. 2 and 3. Subsequent to the same, Plaintiff No. 1 with the help of her brother got copies of the revenue and panchayat records. That various attempts to amicably resolve the matter failed.

3.4. That a Will dated 7.2.1992 allegedly executed by Rudrappa was also relied on by the Defendants. It is the case of the Plaintiffs that Rudrappa never executed any Deed as he was a simpleton villager, was old and not having good health. That he was completely under the control of Defendant No. 1. That there was no occasion for Rudrappa to execute the alleged Will. That the said document is created by Defendant No. 1 in collusion with his henchmen behind the back of the Plaintiff.

4. The defendant Nos. 1 to 3 have filed their written statement, whereunder the relationship between the parties is admitted. However, the right of the Plaintiffs in the suit properties is denied. The Defendants further contended that Rudrappa had not inherited any property from his ancestors. That he has purchased properties by cultivating the lands of others on crop sharing basis and went on purchasing properties from time to time in the names of his children. That Rudrappa was healthy and hard working till his death and he was looking after the family affairs himself. That six months after the death of Murgeappa, Rudrappa partitioned the properties purchased by him since Plaintiff No. 1 started demanding the share of her husband. That upon coming into force of the Karnataka Land Reforms Amendment Act on 1.3.1974 Rudrappa filed a declaration before the Land Tribunal, Chincholi on 9.12.1975 since he was owning more than 40 acres of land in his name and in the names of his sons. That at the time of filing the declaration, he annexed a clarification note in Form No. 11 whereunder, there is reference to a partition made in the year 1973.

4.1. It is the case of the Defendants that in the said partition between Rudrappa and Defendant No. 1, Rudrappa retained his share and the share of his deceased son for and on behalf of the Plaintiffs. That the suit property at Sl. Nos. 1, 5, 6 and 7 were allotted towards the share of Rudrappa and Plaintiffs. The suit properties bearing Sy. Nos. 118, 123 and 125 were allotted to the share of Defendant No. 1. The suit houses were also equally divided between Defendant No. 1 and Plaintiffs and Rudrappa and since the said partition Defendant No. 1 and his family members are in possession and occupation of the property allotted to them.

4.2. That the Land Tribunal, Chincholi accepted the declaration filed by Rudrappa on 23.9.1977. That after the said partition Plaintiffs and Rudrappa started to reside together but Plaintiff No. 1 demanded the share of her husband and insisted to give suit land bearing Sy. No. 460 measuring 23 acres 28 guntas of Chengta village which was purchased in the name of her husband-Murgeappa towards their share. That in the presence of the villagers and well-wishers, Rudrappa gave the said land to the Plaintiffs as the share of late Murgeappa. Having accepted the same they are in possession of the said land and Rudrappa was cultivating the said land for and on behalf of the Plaintiffs.

4.3. That in the year 1991 when Plaintiff No. 2 was to be get married, both the Plaintiffs and Rudrappa in the presence of elders of the village requested Defendant No. 1 to take the said land bearing Sy. No. 460 and bear the entire marriage expenses of Plaintiff No. 2 and give Rs. 20,000/-cash and 21 tola gold in addition to the marriage expenses. Thus, there was an oral family arrangement in the Month of May 1991. Accordingly, Defendant No. 1 performed the marriage of Plaintiff No. 2 on 2.6.1991 in a grand manner and he gave the gold and cash as requested. A Memorandum of family settlement was written on a plain paper on 11.6.1991 and Plaintiff No. 1 signed the same in the presence of witnesses. Out of the said land, Defendant No. 1 and Rudrappa sold 3 acres of land at the rate of Rs. 5,900/-per acre prior to the family arrangement. That certain alienations were made and the remaining portion of the said land in Sy. No. 460 is mutated in the name of Defendant No. 1.

4.4. That Defendant No. 1 out of moral responsibility was providing maintenance to Plaintiff No. 1 out of the income derived from the properties of his father i.e., Sy. Nos. 27/1, 97 and 98, which properties were bequeathed by Rudrappa during his lifetime in favour of Defendant No. 1. He denied the fact that the Plaintiff No. 1 is consigned to the house and is not being treated well. It is also denied that health and other basic requirements of Plaintiff No. 1 are overlooked. Although attempts for resolving the matter have been admitted, it is contended by the Defendants that he produced all the relevant records in the said meeting.

4.5. It is further contended by the Defendants that the brother of Plaintiff No. 1 Shri. Sidramappa was working as a Revenue Inspector of Kamalapur Revenue Circle in the year 1997 within whose jurisdiction the suit lands in Sy. Nos. 97, 98 and 118 are situated and hence, he knows that the suit lands are mutated in the name of Defendant No. 1 and also knows regarding the declaration filed by Rudrappa. It is alleged that he has created mischief and manipulated the revenue records of the suit lands. That the Plaintiff No. 1 herself has given the suit land bearing Sy. No. 460 to Defendant No. 1 in the family settlement.

4.6. Defendants further contended that the Will dated 7.2.1992 has been validly executed by Rudrappa bequeathing his share in the suit property. It is further contended that the suit is not maintainable for non-joinder of necessary parties and the same is barred by limitation. That various self acquired properties of the Defendant No. 1 have also been included in the suit.

5. Defendant Nos. 4 and 5 have filed a written statement adopting the stand taken by Defendant Nos. 1 to 3 in their written statement. It is further stated by Defendant Nos. 4 and 5 that if the said defendants are entitled for a share, they relinquish their share in favour of Defendant Nos. 1 to 3. The Plaintiffs have also filed a rejoinder to the written statement.

6. The Trial Court based on the pleadings of the parties framed the following 15 issues:

"1. Whether the plaintiffs prove that, themselves and defendants constitute an undivided joint Hindu family

2. Whether the plaintiffs further prove that, the suit properties are the joint family ancestral properties of themselves and defendant No. 1

3. Whether the plaintiffs further prove that, they have got half share together (1/4th each) in the suit properties

4. Whether the plaintiffs further prove that, the registered will deed bearing document No. 32/1991-92 dated 07-02-1992 is invalid, null and void and not binding upon the rights of the plaintiffs in the suit properties

5. Whether the plaintiffs further prove that, they are entitle for the relief of perpetual injunction restraining the defendants from alienation mortgaging, encumbering and etc, with respect their shares in the suit properties, as sought-for in the plaint

6. Whether the defendant Nos. 1 and 2 further prove that, the suit properties are the self acquired properties of the defendant No. 1 and his father Rudrappa

7. Whether the defendant Nos. 1 and 2 further prove that, the suit of the plaintiff is bad for non-joinder of necessary parties ie., Dhansingh S/o Khubu and Lakma S/o Denu of Honbatta Tanda (Chengta) who are in possession of 3-00 Acre of land in Sy. No. 460

8. Whether the defendant Nos. 1 and 2 further prove that, the suit of the plaintiffs is barred by limitation

9. Whether the suit the plaintiffs is properly valued and court-fee paid is correct

10. Whether the defendant Nos. 1 and 2 further prove that, the defendant No. 1 has purchased the suit land bearing Sy. No. 124/6 of Chengta Village

11. Whether the plaintiffs are entitle for the relief of partition and separate possession by metes and bounds as sought for in the plaint

12. Whether the plaintiffs are entitle for the relief of declaration as sought-for in the plaint

13. Whether the plaintiffs are further entitle for the relief of perpetual injunction as sought-for in the plaint

14. Whether the plaintiffs are entitle for the directions to the Revenue Officials and Panchayat Officials as sought-for in the plaint

15. To what Order or Decree"

Additional Issue No. 1:

"Whether plaintiffs prove that, they are entitle for alternative relief as sought in the prayer column relating to declaration and possession"

7. The Plaintiff No. 2 examined herself as PW.1. Exs.P1 to P25 were marked in evidence. Defendant No. 1 examined himself as DW.1. Three witnesses were examined as DWs.2 to 4. Exs.D1 to D47 were marked in evidence. The Trial Court, upon consideration of the oral and documentary evidence on record, vide judgment and decree dated 30.6.2016 partly decreed the suit of the Plaintiffs and passed the following order:

"i) The suit of the plaintiffs is hereby partly decreed with costs.

ii) It is hereby declared that the will deed bearing document No. 32/1991-92 dated 7-2-1992 executed by Rudrappa is invalid and null and void.

iii) The plaintiffs are together entitled for 5/12th share in the suit schedule properties as described in para No. 2 of the plaint.

iv) It is further ordered and decreed that the partition in the suit properties shall be effected either by an amicable settlement between the parties to the suit if not through court by appointing court commissioner.

v) Draw the preliminary decree accordingly."

8. Being aggrieved the present appeal is filed.

9. Sri Ambekar, learned counsel for the Appellants-Defendants contended:

"i) That there was a prior partition as is forthcoming from Exs.D8 to D12 i.e., declaration given by Sri Rudrappa before the Land Tribunal.

ii) That the suit of the Plaintiffs is barred by limitation having regard to the fact that the marriage of Plaintiff No. 2 took place on 02.06.1991 and death of propositus of Shri.Rudrappa was in the year 1993 and the suit has been filed after nearly 18 years.

iii) That there was no plea of proof by the Plaintiffs that the suit properties are joint family properties.

iv) That consequent to the prior partition a family arrangement recorded on 16.05.1991 (Ex.D.46) was entered into, consequent to which properties have been dealt with as is also forthcoming from Will Ex.D17."

10. Hence, learned counsel seeks for allowing of the Appeal and dismissal of the suit filed by the Plaintiffs. In support of his contention, he relied on the judgment of Kale and Others V. Deputy Director of Consolidation and others AIR 1976 SC 807 [LQ/SC/1976/20] .

11. Per contra, Sri Shivaraj Appaji, leaned counsel for the Respondents/Plaintiffs contended

"i) The Defendants pleaded a case of prior partition. The same impliedly proves that suit schedule properties are joint family properties. Hence, there was no necessity for the Plaintiffs to adduce any evidence regarding the same.

ii) The family arrangement at Ex.D46 is neither stamped nor registered. Hence, the same being compulsorily registrable, the same cannot be looked into even for collateral purposes.

iii) The execution of Ex.D46 has not been proved.

iv) No reference is made in Ex.D46 to the Agreement of Sale Deed dated 15.05.1991-Ex.D45.

v) Sri Rudrappa was not entitled to bequeath the property under the Will-Ex.D17.

vi) The suit filed by the Plaintiffs is within time since cause of action in a suit for partition is a continuous one having regard to the Article 110 of the Limitation Act and the Defendants have to plead and prove ouster which has not been done in the present case.

vii) That all aspects having been duly appreciated by the Trial Court, which finding is just and proper and not liable to be interfered with in the present Appeal."

12. Hence, the learned counsel seeks for dismissal of the Appeal. In support of his contention, he relied on the following Judgments:

"1. Malakappa Vs. Annapurna and Others ILR 2010 KAR 2748

2. Sri Veerayya Mahantayya Koppad and Others Vs. Smt. Geetha and Others 2008(2) KCCR 619

3. P. Lakshmi Reddy Vs. L. Lakshmi Reddy AIR 1957 SC 314 [LQ/SC/1956/112]

4. Janaki Pandyani Vs. Ganeshwar Panda (Dead) by LRs. and Another (2001) 10 SCC 434 [LQ/SC/2000/1159] "

13. In response to the submissions of Sri Shivaraj Appaji, Sri Ambekar made the following submissions:

"a) The main aspect point that is required to be adjudicated is with regard to the prior partition Ex.D46 which has not been impugned even consequent to amendment of plaint.

b) Plaintiff No. 2 is beneficiary under Ex.D46 having regard to the fact that her marriage was performed consequent to the understanding arrived at vide Ex.D46.

c) Ex.D17-Will of Sri Rudrappa clearly sets forth the bequest made by him."

14. Alternatively, Sri Ambekar submits that the Judgment and Decree passed by the Trial Court warrants interference in so far as the share allotted to the Plaintiffs having regard to the judgment of the Hon'ble Supreme Court in the case of Sri Vineeta Sharma Vs. Rakesh Sharma and others (2020) 9 SCC 1 [LQ/SC/2020/597] .

15. Having regard to the contentions put forth by the parties, the following points would arise for my consideration:

"i) Whether the Plaintiffs prove that the suit properties are the joint family properties

ii) Whether the Defendants prove the prior partition in the year 1973 as pleaded in the Written Statement

iii) Whether the Defendants prove that the Plaintiffs have relinquished their share as per Ex.D46

iv) Whether the bequest made by deceased-Rudrappa vide Will-Ex.D17 is just and proper

v) Whether the suit of the Plaintiffs is barred by time

vi) Whether the share of the Plaintiffs determined by the Trial Court is just and proper

Re. Question Nos. (i) and (ii):"

16. Upon a re-appreciation of the material available on record, it is relevant to note that the relationship of the parties is not in dispute. The suit properties which are described at para No. 2 of the Plaint consist of 8 items of Agricultural properties and two residential properties. It is the case of the Plaintiffs that all the suit properties are the joint family properties. In support of their case, Plaintiff No. 2 has been examined as PW.1. Records of Rights of the suit property are produced as Exs.P1 to P16. Tax assessment extracts pertaining to the suit house properties are produced as Exs.P17 to P20 and certified copies of the mutation register entries are produced as Exs.P21 to 24.

17. It is the categorical case of the Defendants that there was prior partition in the year 1973 and a family arrangement in the year 1991. To demonstrate the prior partition of the year 1973, the Defendants relied on the declaration given by Rudrappa to the Land Tribunal which has been marked as Exs.D8 to D12.

18. Exs.D8 to D11 are the certified copies of Form No. 11 of the land held as on the appointed date. All the details of the properties are furnished in Ex.D8. The note referred in Ex.D8 is marked as Exs.D12 wherein Rudrappa has furnished a declaration that the properties bearing Sy. Nos. 123 and 125 have been purchased in the name of declarant in the year 1965; that Sy. No. 460 has been purchased by the declarant in the name of his eldest son Murgeppa; that there was a partition in the year 1973 on Ugad 1973 between the declarant and his younger son Shri. Revansiddappa and that the elder son of the declarant had expired prior to the said partition.

19. It is forthcoming from the declaration that lands in Sy. No. 460, 123 and 125 has been purchased with the income of joint family properties. It is stated that lands in Sy. No. 460, 98, 97 and 27 have been allotted to the share of the declarant Rudrappa and lands in Sy. Nos. 118, 123 and 125 have been allotted to Defendant No. 1-Revansiddappa. The Land Tribunal, pursuant to the said declaration, has perused the same and other relevant records and permitted the family of Rudrappa and Defendant No. 1-Revansiddappa to retain the said properties as is forthcoming from Ex.D14.

20. However, it is to be noticed that although in the declaration-Ex.D12 which is given on 09.12.1975 by Rudrappa, there is mention of a partition on Ugad of 1973, at an undisputed point of time, no other revenue records support the factum of partition. There is no specific plea by the Defendants as to the date of prior partition in the year 1973. It is not demonstrated by the Defendants that parties have actually effected partition of the properties in terms of the declaration given vide Ex.D12 and the parties were enjoying their respective shares, consequent to the said partition separately. The Trial Court considering the declaration given vide Ex.D8 has rightly noticed that the Plaintiffs constituting the legal heirs of deceased Murgeppa do not find a mention in Ex.D8. Hence, the declaration given by Rudrappa will not aid the case of the Defendants as the Plaintiffs being the legal representatives are not mentioned in the same and have also not been given their shares in the joint family properties It is also relevant to note that apart from Ex.D12, there are no other documents with regard to the prior partition of the year 1973. The said contention of the Defendant regarding prior partition is liable to be rejected.

21. The Defendants having specifically taken a plea of prior partition and the evidence of PW.1 as well as the other documents on record clearly demonstrate that the suit properties are the joint family properties, question No. (i) framed for consideration is answered in the affirmative and question No. (ii) is answered in the negative.

Re. Question No. (iii):

22. The Defendants further contend that in a family arrangement made vide Ex.D46, the Plaintiff No. 1 relinquished her share in property bearing Sy. No. 460. That Ex.D46 was executed by Plaintiff No. 1 at the time of marriage of her daughter-Plaintiff No. 2 in lieu of Defendant No. 1 performing the marriage of Plaintiff No. 2 and giving certain amount of gold and cash. Ex.D46 is dated 11.06.1991 and the Plaintiff No. 2 was married on 02.06.1991. It is forthcoming from Ex.D46 there was a family meeting on 16.5.1991 wherein Plaintiff No. 1 agreed to relinquish her rights over the land in Sy. No. 460. As on date of Ex.D46, it is not forthcoming as to how the Plaintiff No. 1 was the absolute owner of the said land in Sy. No. 460.

23. DW.1 in his examination in chief has stated that after the declaration given by Rudrappa was accepted by the Land Tribunal, Plaintiff No. 1 demanded the share of her husband and insisted to give the suit land in Sy. No. 460 towards the share of the Plaintiffs and in the presence of villagers and well-wishers, late Rudrappa gave the said land to the Plaintiffs as the share of Murgeppa and the Plaintiffs were in possession of the land and Rudrappa was cultivating the said land for and on behalf of the Plaintiffs. That in the year 1991, when Plaintiff No. 2 was to be married, the Plaintiffs and late Rudrappa in the presence of elders, requested the Defendant No. 1 to take the land in Sy. No. 460 and bear the expenses of the marriage of Plaintiff No. 2 as well as to give gold and cash in addition to marriage expenses and hence, there was an oral family arrangement in the month of May 1991 and the marriage of Plaintiff No. 2 was performed on 02.06.1991 and the memorandum of family settlement was written on 11.06.1991.

24. In support of Ex.D-46, DW.3 was examined and he has deposed in his examination-in-chief that on 11.06.1991, the settlement by way of memorandum of family arrangement had taken place between Plaintiffs and Defendant No. 1 wherein, Plaintiff No. 1 demanded share of her husband and insisted to give the suit land in Sy. No. 460 purchased in the name of her husband Murgeppa towards their share and that in the presence of DW.3, the said land was given to the Plaintiffs and they were in possession of the same and late Rudrappa was cultivating the said land on behalf of the Plaintiffs. That in the year 1991, the Plaintiffs and late Rudrappa in the presence of elders of the village requested Defendant No. 1 to take the said land in Sy. No. 460 and bear the entire marriage expenses of Plaintiff No. 2 as well as to give gold and cash to Plaintiff No. 2 and accordingly, the marriage was performed on 02.06.1991 and the memorandum of family settlement was written and signed on 11.06.1991 in his presence. However, in his cross-examination, he states that Plaintiff No. 1 has not signed Ex.D46. Further, in the cross-examination, DW.3 admits that he was unaware of any partition between the Plaintiffs and Defendant No. 1. He further states in his cross-examination that on the date of Ex.D46, Plaintiff No. 1 gave 05 acres of land to Defendant No. 1.

25. It is stated in Ex.D46 that on 16.05.1991, the marriage of Plaintiff No. 2 was fixed in the presence of family members and that the marriage was performed on 02.06.1991. That the Plaintiff No. 1 had agreed to relinquish her property i.e., land bearing Sy. No. 460 in favour of Defendant No. 1 and requested Defendant No. 1 to perform the marriage of Plaintiff No. 2 and bear the entire marriage expenses as well as gold and cash as mentioned therein. Accordingly, the said Family Arrangement dated 11.6.1991 was executed by Defendant No. 1.

26. It is relevant to note that the evidence of DW.1 and DW.3 with regard to the fact that suit land in Sy. No. 460 was given as the share of the Plaintiffs as demanded by Plaintiff No. 1 is contradictory, in as much as, DW.1 states that the said share of the Plaintiff was given after the declaration was accepted by the Land Tribunal, whereas DW.3 states said share of the Plaintiff No. 2 was given on 11.06.1991 when the settlement by way of memorandum of arrangement took place. There is no document demonstrating the fact that the suit land in Sy. No. 460 was allotted to the Plaintiffs as the share of Murgeppa as contended by the Defendants.

27. Also, the evidence of DW.3, who has been examined in support of Ex.D46 is contrary to what is stated in Ex.D46, in as much as DW.3 has deposed that on 11.6.1991 the Family Arrangement took place, whereas in Ex.D46 it is stated that the Family Arrangement took place on 16.5.1991 and it was reduced into writing on 11.6.1991 vide the said Ex.D46.

28. Ex.D46 is written on a plain paper and the same is neither stamped or registered. DW.3 in his examination in chief has stated that Plaintiff No. 1 signed the same in his presence. However, in the cross-examination has stated that Plaintiff No. 1 has not signed Ex.D46. The evidence of DW.3 who is examined in support of Ex.D.46 is not categorical and convincing. Hence, the Defendants have not proved the alleged relinquishment and the contention of the Defendant that by virtue of Ex.D46, the Plaintiffs have relinquished all their right, title and interest over the suit properties is liable to be rejected.

29. Learned counsel for the Appellants in support of Ex.D46 has relied on the case of Kale and others AIR 1976 SC 807 wherein the Hon'ble Supreme Court as held as follows:

The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family.

The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence.

The family arrangement may be even oral in which case no registration is necessary; (4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and is therefore, not compulsorily registrable.

30. The proposition of law as in the case of Kale and others AIR 1976 SC 807 [LQ/SC/1976/20] is not disputed. However, the same is in-applicable to the facts of the present case and Ex.D46 will not aid the case of the Defendants to deny the Plaintiffs share in the suit properties.

31. In view of the aforementioned, question No. (iii) framed for consideration is answered in the negative.

Re. Question No. (iv):

32. The Defendants have contended that consequent to the partition in the year 1973, on the demand made by Plaintiff No. 1 the propositus Rudrappa allotted the land in Sy. No. 460 to the share of the Plaintiffs. However, there is no document forthcoming regarding the said division between the said Rudrappa and the Plaintiffs who are the legal heirs of Murgeppa.

33. The Defendants also contend that by virtue of Will-Ex.D17, the propositus-Rudrappa has bequeathed his property in favour of children of Defendant No. 1. Although, Ex.D17 is registered, it is not forthcoming as to how Rudrappa was the absolute owner of the properties mentioned in Ex.D17 to entitle him to bequeath the same.

34. DW.4 has affixed his thumb impression to Ex.D17(C) as a witness. However, in the cross examination of DW.4, he states that Rudrappa was aged about 80 years at the time of his death and his eyesight was very poor and was incapable and in a helpless condition. He has further deposed that he is not aware as to the contents of Ex.D17 and that Defendant No. 1 was present and he was giving instructions regarding in the execution of Ex.D17. DW.4 in his cross-examination is also stated that Murgeppa, the husband of Plaintiff No. 1 and father of Plaintiff No. 2 was mentally unstable and Defendant No. 1 was maintaining all the family properties.

35. Having regard to the evidence of DW.4 and in the absence of the Defendants demonstrating that Rudrappa was absolutely entitled to deal with the properties mentioned in Ex.D17, the said Will dated 7.2.1992 also will not aid the case of the Defendants to deny the share of the Plaintiffs in the suit properties. In view of the aforementioned, question No. (iv) framed for consideration is answered in the negative.

Re. Question No. (v):

36. The Defendants have contended that the suit filed by the Plaintiffs is barred by time since the propositus-Rudrappa died in the year 1993 and the marriage of Plaintiff No. 2 took place on 2.6.1991 and the suit has been filed on 6.8.2008. That having regard to Article 58 of the Limitation Act, 1963, the suit ought to have been filed within 3 years when the right to sue accrued. The Plaintiffs specifically contend that the properties being the joint family properties and the Plaintiffs being entitled to the share of Rudrappa, the Defendants are required to plead the exclusion of the Plaintiffs and the period of limitation is governed by Article 110 of the Limitation Act.

37. As already held hereinabove, the suit properties are the joint family properties. In order to demonstrate that the Plaintiffs are not entitled to a share, their exclusion is required to be proved.

38. Article 110 of the Limitation Act, 1963 stipulates as under:

39. In the case of Malakappa ILR 2010 KAR 2748, relied upon by the Plaintiffs/Respondents, a Division Bench of this Court considering the aspect of exclusion has held as follows:

"6. The appellant who was the 1st defendant in the suit and who suffered a decree for partition to share family properties along with the plaintiff-his mother and other co-defendants 2 to 7 (who are his sisters), had put up a defence that the mother and sisters had earlier relinquished their share in the property by executing a document, but it was not registered, and therefore, the plaintiff and other defendants are not entitled for a share.

8. Even otherwise, the 1st defendant having admitted that it was an unregistered deed which in law does not take effect, either for gaining or losing rights in immovable property worth more than one hundred rupees, in view of the provisions of Section 17 of the Registration Act, 1908."

40. In the case of Shri. Veerayya Mahantayya Koppad and Ors. 2008(2) KCCR 619, relied upon by the Plaintiffs/Respondents a Co-ordinate Bench of this Court considering the aspect of exclusion has held as follows:

"29. The effect of law laid down by the Apex Court and the other High Court as mentioned above is that when there is no foundation laid to prove the factum of exclusion, the limitation under Article 110 will not start unless it is shown that a person was excluded from a joint family property to enforce his rights to share therein...... "

41. In the case of Laxmi Reddy AIR 1957 SC 314 [LQ/SC/1956/112] , relied upon by the Plaintiffs/Respondents, the Hon'ble Supreme Court has held as follows:

".... The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title......"

4. ....... It may be further mentioned that it is well-settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession."

42. In the case of Janaki Pandyani (2001) 10 SCC 434, [LQ/SC/2000/1159] relied upon by the Plaintiffs/Respondents the Hon'ble Supreme Court has held as follows:

"2. ... Admittedly, the property in dispute is joint family property and the plaintiff and the defendants are the co-shares of the property. In fact, there is no partition of the properly and so long as property is not partitioned, it continues to be a joint Hindu family property. Under such circumstances, one co-sharer cannot claim adverse possession against the other co-sharer. In view of the said legal position, the High Court fell in error in holding that the defendants had acquired title in the property by adverse possession."

43. Having regard to the aforementioned, the Defendants have not demonstrated that the Plaintiffs have been excluded from the joint family properties. The contention put forth that the suit of the Plaintiffs is barred by time is untenable and liable to be rejected. Accordingly, question No. (v) framed for consideration is answered in the negative.

44. The Trial Court upon the a detailed appreciation of the case of the parties and the oral and documentary evidence on record and the position of law as noticed above, has recorded the categorical finding of fact holding that the suit properties are the joint family properties and that the Plaintiffs are entitled to a share in the same. The Appellants/Defendants have failed in demonstrating that the findings of fact recorded by the Trial court are erroneous and warrants interference by this Court in the present Appeal. Upon a re-appreciation of the oral and documentary evidence available on record, the findings of fact recorded by the Trial Court with regard to the Plaintiffs being entitled to a share in the suit properties are required to be affirmed.

Re. Question No. (vi):

45. Having regard to the Judgment of Hon'ble Supreme Court in the case of Sri Vineeta Sharma (2020) 9 SCC 1, [LQ/SC/2020/597] share of the Plaintiffs as awarded by the Trial Court is required to be modified keeping in mind the law laid down in the said case. Rudrappa, the propositus died leaving behind two sons and two daughters. Hence, each of the them are entitled to 1/5th share. In the share of Rudrappa, each of his children are entitled to 1/4th share in 1/5th share of Rudrappa = 1/20th share. The Plaintiffs being the legal heirs of Murgeppa are entitled to 1/5th + 1/20th = 1/4th share in the suit properties. Accordingly, question No. (vi) framed for consideration is answered in the negative and the share of the Plaintiffs is modified as noted hereinabove.

46. In view of the aforementioned, I pass the following:

ORDER

I) The Appeal is partly allowed.

II) The Judgment and Decree dated 30.6.2016 passed in O.S. No. 99/2008 on the file of I Addl. Senior Civil Judge at Kalaburagi is modified only to the extent declaring that the Plaintiffs are entitled to 1/4th share in the suit properties.

III) The Judgment and Decree passed by the Trial Court in all other respects remained unaltered.

Decree to be drawn accordingly.