Research › Search › Judgment

Karnataka High Court · body

2005 DIGILAW 613 (KAR)

V. SAYEESH v. V. B. DHARMAJAH GOWDA

2005-09-20

C.R.KUMARASWAMY, S.R.NAYAK

body2005
( 1 ) SINCE both the above appeals are directed against the same judgment and decrees dated 14-11-2003 passed in O S Nos 177 of 1997 and 165 of 1998 on the file of the Civil Judge (Senior Division), Chickmagalur, both the appeals were clubbed, heard together and they are being disposed of by this common judgment ( 2 ) THE appellant in R F A No 253 of 2004 is defendant 2 in O S No 165 of 1998, whereas, the appellant in RF A No 254 of 2004 is the plaintiff in O S No 177 of 1997 The ranks of the parties have been referred to in this judgment with reference to the ranks assigned to them in the suit ( 3 ) IN R F A No 253 of 2004, respondent 1 is the plaintiff, respondent 2 is defendant 1 in O S No 165 of 1998 In R. F A No 254 of 2004, the 1st respondent is defendant 1, 2nd respondent is defendant 2 in O S No 177 of 1997 In both the suits, the relief of declaration and injunction was sought The plaintiff in O S No 177 of 1997 is defendant 2 in O S no 165 of 1998 and defendant 2 in O S No 177 of 1997 is defendant 1 in O S No 165 of 1998 Defendant 1 in O S No 177 of 1997 is the plaintiff in O S No 165 of 1998 ( 4 ) THE facts and contentions in both the suits are substantially similar The common contentions of the parties in the suits, in brief, are as follows - it is an admitted fact that the late Thangamma Heggadathi was the owner and possessor of suit schedule property along with other properties Her name was entered in RTC and RR RTC and rr are produced Thangamma Heggadathi during her last days was residing with defendant 2 in 0 S No 177 of 1997 Out of love and affection, she executed a Will deed in favour of the plaintiff in o S No 177 of 1997 on 28-3-1993 when she was in sound state of mind and good health On 21-4-1993 Thangamma died in tammadavalli Village of Koppa Taluk After her death, the plaintiff and defendants performed her funeral ceremonies After her death, the plaintiff in O S No 177 of 1997, filed an application before the Deputy Tahsildar, Hariharapura to change the khatha of the schedule property in his name The Deputy tahsildar passed the order for change of khatha of the schedule property equally in the name of the defendants The order passed by the Deputy Tahsildar was challenged by the plaintiff in appeal before the Assistant Commissioner, Chickmagalur, which was dismissed on 15-1-1997 Aggrieved by the said order, the plaintiff filed appeal before the Deputy Commissioner, Chickmagalur, which was also dismissed on 7-10-1997 The certified copy of the order is produced The defendants have denied the title of the plaintiff over the schedule property The khatha of the schedule property has been changed in the name of defendants, which is illegal So alleging, the relief of declaration and permanent injunction is sought in O S No 165 of 1998 ( 5 ) THE defendant 1 in O S No 177 of 1997 i e , the plaintiff in 0 S no 165 of 1998 has filed his written statement It is admitted that thangamma Heggadathi was the owner and possessor of suit Sy No 147 of Thammadavalli Village, Koppa Taluk The said land was measuring 5 00 acres The defendant 2 is father of the plaintiff, they have colluded together in order to cause loss to the defendant 1, thangamma Heggadathi was residing in the house of the defendant 1 during her lifetime It is the defendant 1 who was looking after her welfare ( 6 ) IT is contended that the alleged Will deed dated 28-3-1993 is not a genuine document, but a concocted one It is cooked up by the plaintiff and defendant 2 with the assistance of some persons who are favourable to them The said Will deed is created only with an intention to grab the suit land from defendant 1 Hence, such a fraudulent document cannot be relied on The said Will deed is a most suspicious document and it is not valid It is admitted that Thangamma Heggadathi died on 21-4-1993 It is defendant 1 who has performed her funeral ceremonies, as he was looking after her during her lifetime. The plaintiff in this case approached the Deputy Tahsildar, Hariharapura to change the khatha of the schedule property in his favour, for which the defendant 1 raised the objection. After holding the enquiry, the Deputy Tahsildar dismissed the application, against which an appeal was preferred. The appeal is also rejected. Since the Will deed was a suspicious document, it was not relied on by the Revenue Authorities. Hence, the khatha is ordered to be changed in the name of defendant 1 as well as defendant 2 dividing the sy. No. 147/p into 2 acres 20 guntas each. The appeals preferred by the plaintiff are all dismissed. Hence, the plaintiff has not at all become the owner of the suit schedule property. He is not entitled for any declaration and injunction. As such suit must be dismissed. ( 7 ) THE defendant 2 has filed the written statement. He is the father of plaintiff. It is admitted that Thangamma Heggadathi was the owner and in possession of the schedule property. During the lifetime she was residing with defendant 2. The defendant 1 is the senior uncle of the plaintiff. The plaintiff is the son of the defendant 2. It is admitted that thangamma Heggadathi executed Will deed dated 28-3-1993 in respect of schedule property in favour of the plaintiff out of her free Will. She died on 21-4-1993 at village Thammadavalli. Hence, it is contended that the suit schedule property belongs to plaintiff. Thangamma Heggadathi has executed the Will deed in the presence of witnesses. Prior to the execution of the Will deed, the plaintiff and the defendant 2 were managing the schedule property After the death of Thangamma heggadathi, the plaintiff alone is maintaining and managing the schedule property. The defendant 1 is not in possession of the property. ( 8 ) IN O. S. No. 165 of 1998, the plaintiff has contended that out of Sy. No. 147/p, the plaintiff is in possession and enjoyment of 2 acres 20 guntas of land and he is cultivating it. The said land was belonging to his mother previously. The entire land was measuring 5. 00 acres. There was partition in the family during the lifetime of their mother on 13-7-1979. The said partition is registered. In the partition, the land in sy. No. 147/p measuring 5. 00 acres was allotted to their mother thangamma Heggadathi. The said land was belonging to his mother previously. The entire land was measuring 5. 00 acres. There was partition in the family during the lifetime of their mother on 13-7-1979. The said partition is registered. In the partition, the land in sy. No. 147/p measuring 5. 00 acres was allotted to their mother thangamma Heggadathi. After her death, the plaintiff in this suit has inherited 2 acres 20 guntas of land; similarly, the defendant 1 has inherited 2 acres 20 guntas of land in Sy. No. 147/p. After the death of thangamma Heggadathi, the defendants in O. S. No. 165 of 1998 have colluded with each other and have created a false Will deed, which is not binding on the plaintiff. The defendants are influential persons; they tried to interfere with possession of the plaintiff on 5-8-1997, which was resisted by the plaintiff. Hence, he prayed for declaration and injunction. The contentions of the defendants in this case are the repetition of the contentions in O. S. No. 177 of 1997. ( 9 ) THE learned Trial Judge, in the premise of the above pleadings, framed the following issues in both the suits: issues in O. S. No. 177 of 1997.- 1 Whether the plaintiff proves that the late Smt thangamma Heggadathi during her last days was residing with the 2nd defendant Oat of love and affection late Smt Thangamma Heggadathi has executed a Will dated 28-3-1993 of the schedule property in favour of the plaintiff out of her own free will when she was of sound mind, sound body and of good health? 2 Whether the defendant 1 proves that the said Will dated 28-3-1993 executed in favour of the plaintiff is a concocted, fabricated and cooked up document by the plaintiff and the 2nd defendant? 3 Whether the defendant 1 proves that this defendant alone performed her funeral ceremony and other obsequies and he was along looking after Smt thangamma Heggadathi during her lifetime? 4 Whether the plaintiff proves that he is the full owner of the schedule property under the Will dated 28-3-1993? 3 Whether the defendant 1 proves that this defendant alone performed her funeral ceremony and other obsequies and he was along looking after Smt thangamma Heggadathi during her lifetime? 4 Whether the plaintiff proves that he is the full owner of the schedule property under the Will dated 28-3-1993? issues in O. S. No. 165 of 1998.- 1 Whether the plaintiff proves that he is the owner and khathedar and in possession of the land in Sy No 147/p of Thammadavalli Village measuring 2 acres 20 guntas and he has inherited the same after the death of her mother Smt Thangamma Heggadathi and the revenue authority changed the khatha to his name? 2 Whether the defendant proves that Sy No 147/p of thammadavalh Village measuring 5 00 acres was the property of late Thangamma Heggadathi and further the defendant 2 proves that out of love and affection deceased grandmother executed a Will dated 28-3-1993 and it is valid in law? 2 Whether the defendant proves that Sy No 147/p of thammadavalh Village measuring 5 00 acres was the property of late Thangamma Heggadathi and further the defendant 2 proves that out of love and affection deceased grandmother executed a Will dated 28-3-1993 and it is valid in law? ( 10 ) PLAINTIFF in O S No 177 of 1997, who is defendant 2 in O S No 165 of 1998 is examined as P W 1 and one Srinivasa is examined as p W 2 in both the suits and Exs P 1 to P 10 documents are marked plaintiff in O S No 165 of 1998, who is defendant 1 in O S No 177 of 1997 is examined as D W 1 in both the suits and Exhibits D 1 to D 9 are marked ( 11 ) THE learned Trial Judge having appreciated the oral and documentary evidence, answered issues 1, 3 and 4 in the negative and issue 2 in the affirmative in O S No 177 of 1997 Further, the learned trial Judge answered issue 1 in the affirmative and issue 2 in the negative in O S No 165 of 1998 declaring that the plaintiff in O S No 165 of 1998 as the owner of 2 acres 20 guntas of land in Sy No 147/p as described in the plaint schedule in O S No 165 of 1998 Further, the learned Trial Judge granted perpetual injunction restraining the defendants, their men, servants, agents or anyone claiming under them from interfering with the peaceful possession and enjoyment of the above 2 acres 20 guntas of land Hence, these two appeals R F A No 253 of 2004 by the aggrieved 2nd defendant in O S No 165 of 1998 and r F A No 254 of 2004 by the plaintiff in O S No 177 of 1997 ( 12 ) SINCE the success of the appellants in these appeals very much depends upon the validity of the Will alleged to have been executed by late Thangamma Heggadathi on 28-3-1993, it was contended vehemently by the learned Counsel for the appellant that the evidence on record would prove that the Will executed by late Thangamma heggadathi is valid one and that the finding of the Court below that the said Will is cooked up and concocted is perverse and that finding is not based on any legal evidence On the other hand, the learned Counsel appearing for the contesting respondent in both the appeals would support the judgment and decrees passed in both the suits ( 13 ) HAVING heard the learned Counsels for the parties, the only substantial question that arises for decision in these appeals is whether the Will said to have been executed by late Thangamma Heggadathi on 28-3-1993 is valid? Answer to this question would determine the fate of all other inter se claims between the parties We say this because it is the claim of the plaintiff in O S No 177 of 1997 that he has become the absolute owner of entire 5 acres of land comprised in Sy No 147, which is the suit land, by virtue of a Will executed by his grandmother thangamma Heggadathi on 28-3-1993, whereas, it is the claim of the plaintiff in O S No 165 of 1998 that he inherited 2 acres 20 guntas of land in Sy No 147 after the death of his mother Thangamma heggadathi ( 14 ) THE plaintiff in O S No 177 of 1999 who is defendant 2 in 0 S no 165 of 1998 has contended that out of love and affection his grandmother Thangamma Heggadathi executed a Will dated 28-3-1993 and as such, the entire schedule property belongs to him This claim of the plaintiff in O S No 177 of 1997 is squarely denied by defendant 1 the defendant 1 is the elder brother of defendant 2 and defendant 2, understandably, supported the case of the plaintiff in O S No 177 of 1997 who is his son The question to be considered is whether the plaintiff in O S No 177 of 1997 has discharged the burden cast on him and proved the Will on which his claim rests It is an admitted fact that there was a partition in the year 1979 between defendants 1 and 2 along with their mother Thangamma Heggadathi In that partition, the land measuring 5 acres of wet land (the suit land) was allotted to the share of their mother Thangamma Heggadathi It is also an admitted fact that thangamma Heggadathi died on 21-4-1993 leaving behind defendants 1 and 2 as her legal heirs Therefore, defendant 1 has contended that he has become the owner to the extent of 50% of suit schedule property after his mother's death It is trite that if the Will claimed to have been executed by late Thangamma Heggadathi on 28-3-1993 is not proved, the defendants 1 and 2 will be entitled to equal share in the suit schedule property ( 15 ) ACCORDING to the plaintiff in O S No 177 of 1997, who is examined as P W 1, one Nagaraju wrote the Will, Exhibit P 9 on 28-3- 1993 P W 1 in his deposition has stated that at the time of writing the will by Nagaraju, witnesses were not present but they had assured him that if the Will deed is brought to them, they would sign it According to p W 1, himself, his father, his grandmother and the scribe Nagaraju went to Koppa in a car, at Koppa they met two persons by name H S srinivas and B R Parameshwara, Thangamma Heggadathi explained to them that she had executed the Will and requested them to put their signature on the deed of Will and thereafter wards, those witnesses have signed it. The above circumstances stated by P W 1 create a serious doubt to accept the testimony of P W 1 as credible It is not explained why Thangamma Heggadathi did not choose any person from her own village to be witnesses to the Will deed It looks to be very unnatural for thangamma Heggadathi to get the Will written by Nagaraju, P W 2 and then proceeding to Koppa to find witnesses to the said Will deed In the cross-examination, P W 1 admits that when the Will deed was wntten by Nagaraju, the witnesses were not there but, they signed the will deed sitting beneath a tree near Syndicate Bank in Koppa From the evidence of P W 1, it is quite clear that at the time of writing the will by Nagaraju, while taking Thangamma Heggadathi to Koppa from her village in a car and getting the signatures of the witnesses on the will sitting beneath the tree near Syndicate Bank, Koppa, defendant 2 and his father were present all along and actively participated in the preparation and execution of the Will This circumstance would show the extraordinary interestedness shown by them ( 16 ) P W 2 who is the attesting witness has stated that he signed the will deed by standing outside the car P W 2 further says another witness, Parameshwara, also signed the Will deed by putting it on the back seat of the car where Thangamma Heggadathi was sitting In the cross-examination P W 2 admits that he could not say whether thangamma Heggadathi had put her signature on Exhibit P 9 ( 17 ) IT needs to be noticed that Thangamma Heggadathi on the date of execution of the alleged Will, Exhibit P 9 was about 88 or 89 years old and she lived only for 23 days after the execution of the Will The circumstances surrounding the preparation and execution of the Will on 28-3-1993 show that Thangamma Heggadathi was not in a state of sound mind and good health and she was in the clutches and influence of P W 1 and his father ( 18 ) IN para 12 of the cross-examination, P W 1 admits that on 18-3-1993 Thangamma Heggadathi had executed another registered will deed At the time of execution of that Will deed, the Sub-Registrar had come to their house Having said it, P W 1 has stated that he does not know whether the Will deed dated 18-3-1993 i e, Ex P 10 was executed in presence of the Sub-Registrar P W 1 also states that he does not know that the Sub-Registrar was requested to come to their residence to execute the Will deed dated 18-3-1993 because of her critical health If Thangamma Heggadathi was not keeping good health as on 18-3-1993, it is reasonable to infer that the same health condition continued on 28-3-1993 also and in that view of the matter, taking her to koppa town from her village in a car to execute another Will deed and obtaining signatures of the witnesses at Koppa, that too, making her sit inside a car and securing the signatures of the witnesses leaves a senous doubt in the mind of the Court about the competency of thangamma Heggadathi to execute the Will out of her free Will and volition ( 19 ) ANOTHER circumstance which goes against the plaintiff in O S No 177 of 1997 is that if Thangamma Heggadathi wanted to gift the entire suit schedule land in favour of her grandson, the plaintiff, she could have done the same under Exhibit P 10 itself executed on 18-3-1993 exhibit P 10 is not cancelled P W 1 has not given any reason/explanation as to why his grandmother did not think of bequeathing the entire suit schedule property in the Will deed, Exhibit p 10 itself and the circumstances and further developments, if any, which have taken place between 18-3-1993 and 28-3-1993, hardly ten days If we peruse the testimony of P W 1 about the execution of Exhibit p 10 and Exhibit P 9, there is every reason, as rightly pointed out by the learned Tnaljudge, to disbelieve the version of P W 1 On the other hand, there is good reason to accept the testimony of defendant 1 that thangamma Heggadathi, at the time of execution of Ex P 10, was not in a position to walk and her health condition was critical That seems to be the reason why the Sub-Registrar was secured at the house of the plaintiff to execute Exhibit P 10 If as on 18-3-1993 Thangamma heggadathi was in such a cntical health condition and having regard to her advanced age, immediately after 10 days from 18 3-1993, she could not have been in a better position and in sound mind to execute Exhibit p 9, Will voluntarily and out of free Will It is not at all understandable why Thangamma Heggadathi did not choose any of the persons in the village as attesting witnesses to Exhibit P 9 and why she went in a car along with P W 1 and his father along with the scribe of the Will, P W 2 to Koppa town to secure the presence of the witnesses to the Will deed ( 20 ) THE evidence of P W 2 who is one of the attesting witnesses to the Will is also very scanty and of doubtful integrity and in no way that will aid or help the case of P W 1 As rightly pointed out by the learned trial Judge in the paragraphs 20 and 21 of the judgment, P W 2 and another witness Parameshwara are close friends and they are secured by P W 1 to create a false document Exhibit P 9 to defeat the legitimate right of defendant 1 According to us, the learned Tnal Judge has rightly doubted the credibility of the version of P W 2 ( 21 ) IT is well-settled that though on the basis of the same evidence two views are possible, the Appellate Court should not upset the view taken by the Trial Court In the instant case, the finding recorded by the learned Trial Judge with regard to validity of Exhibit P 9-Will deed is the only plausible view that may be taken by the Court on the basis of the legal evidence adduced in the case. This is not even a case where two views are possible on the basis of the evidence adduced in the case. Looking from any angle, we have no good reason to discard the factual finding recorded by the learned Trial Judge with regard to validity of exhibit P 9-Will deed If Exhibit P. 9 is held to be invalid, we cannot take any exception to the decree passed by the learned Trial Judge, decreeing the suit in O S No 165 of 1998 and dismissing the suit in O S no. 177 of 1997. ( 22 ) IN the result and for the foregoing reasons R. F A No. 253 of 2004 and R F A. No 254 of 2004 are dismissed with costs throughout --- *** --- .