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2006 DIGILAW 17 (KAR)

Ratne (D) by LRs. v. Kasturi (D) by LRs.

2006-01-04

V.G.SABHAHIT

body2006
JUDGMENT 1. This appeal by defendants 2 to 4 is directed against the judgment and decree passed by the Court of the Pri. Civil Judge (Sr. Dn.), Karwar, in R. A. No. 48/1993 dated 26-7-2003 reversing the judgment and decree passed by the Court of the Munsiff, Karwar, in O. S. No. 100/1977 dated 20-7-1993 and decreeing the suit of the plaintiffs against defendants 1 to 4 for the relief of declaration that the plaintiffs and defendant No. 5 are the successors of the properties of late Ganapathi Naik and granting permanent injunction restraining defendants 1 to 4, their men, agents etc., from interfering with the peaceful possession and enjoyment of the suit schedule properties by the plaintiffs. 2. The essential facts of the case leading up to this appeal with reference to the rank of the parties before the trial Court are as follows :— The plaintiffs 1 to 10 filed the suit, O.S. No.100/1977 on the file of the Munsiff, Karwar, seeking for declaration that the plaintiffs are the owners and successors to the suit schedule properties and as such defendants 1 to 4 and their men be restrained permanently from interfering with the possession of the suit properties by the plaintiffs and from asserting any title to the suit properties as the so- called Will is void and inoperative and for costs. It is averred in the plaint that plaintiff No. 1 is the wife of Ganpathi and plaintiff Nos. 2, 3, 6 to 10 and defendant No. 5 are the sons and daughters of plaintiff No.1, who are born in the Hindu joint family constituted with plaintiffs 2 and 3 and all of whom reside under one roof and continue as members of Mithakshara co-parcenary with undivided family. Defendant No.5 was not available to sign at the time of filing the suit and wherefore, he has been arrayed as defendant. Ganpathi died on 10th August 1977 at Kadwad in the house of defendant No.1 and at the time of his death, he was suffering from serious mental and physical ailments for which he was operated in the year 1975 and he was continuously given sleeping tablets so that he should not feel the pain. On 25th and 26th, Ganapathi was not able to discriminate and exercise his free will and was not in disposing state of mind so as to execute any document. On 25th and 26th, Ganapathi was not able to discriminate and exercise his free will and was not in disposing state of mind so as to execute any document. The document purported to have been executed, was not in the custody and it was not within the knowledge of the deceased Ganpathi. Fraud was practiced by defendant No.1 and V. L. Tamse with the active assistance of L. K. Shet who happens to be petition writer. The so-called attestation to the document alleged to have been made on 26th June 1975 was only out of fraud just to deprive the legitimate right of succession to the plaintiff and their family which constitute Hindu undivided family. It is further averred that the lands were cultivated by the members of the family and family house where Ganapathi and his brother and brothers wife lived with an arrangement had been illegally purported to have been given away under the Will and the recital made in the alleged Will is false. Defendant No.1 was carrying on prostitution and she has got Shambu and Chandrakant and other sons born out of illicit connection and she had illicit intimacy with one Gaja Bhat, who secured a land in his name and he had a Hotel and for sometime, it was managed by Ratne. Therefore, the Will is void, illegal and inoperative and not binding and the said Will is only got up and even the thumb impression is not admitted to be that of Ganapathi and the same is hit by undue influence and fraud as Ganapathi was virtually forced to be kept by defendant No.1 under the pretext of treatment when he was not conscious of his well being. The schedule properties are in the possession of the plaintiffs and the plaintiffs are the legal heirs of Ganapathi. Plaintiff No.1 is the legally wedded wife of Ganapathi and plaintiffs 2, 3 and 6 to 10 and defendant No.5 are their children. All the plaintiffs jointly cultivate the land they together live in the ancestral house and the defendants 1 to 4 are neither related nor have any right, interest in the suit properties. Plaintiff No.1 is the legally wedded wife of Ganapathi and plaintiffs 2, 3 and 6 to 10 and defendant No.5 are their children. All the plaintiffs jointly cultivate the land they together live in the ancestral house and the defendants 1 to 4 are neither related nor have any right, interest in the suit properties. On the basis of the so-called Will, the defendants have got entered their name in the revenue records and are out to create trouble and cause irreparable loss to the plaintiffs by interfering with the peaceful cultivation and enjoyment of the suit schedule properties and wherefore, the suit for the above said reliefs. The properties described in the schedule to the plaint comprise of nine items. 3. The suit was resisted by defendants 1 to 4 by filing the written statement. It is averred in the written statement that it is not admitted that plaintiff No.1 is the wife of deceased Ganapathi Nilo Naik and it is also not admitted that plaintiff Nos. 2, 3, 6, to 10 and defendant No.5 are the children of Ganapathi and the first plaintiff. It is utter false that the plaintiffs have constituted joint Hindu family as alleged in para 1 of the plaint. Plaintiff No.1 Kasture has been leading immoral life and all her children are born to one Gana Purso Fondekar and she never lived with late Ganapathi at any time as his wife. Thus, neither plaintiff No. 1 nor her children have any right of heir ship over the properties belonging to Ganapathi and the suit schedule properties were not at all the joint family properties of the deceased Ganapathi and his brothers. All the suit properties were exclusively held by late Ganapathi and he was cultivating the same with the help of the defendants 1 to 4 till his death. It is further averred that Ganapathi Naik died on 10th August 1977 in the house of defendant No.1 and had a peaceful death and he duly executed a Will on 26-6-1975 in favour of defendants 2 to 4 and defendants 2 to 4 have become the owners of the suit schedule properties under the said Will and they have been in possession of the same on the basis of the Will as owners having succeeded to the properties under the bequest made by Ganapathi Naik and wherefore, the suit is liable to be dismissed. 4. 4. The trial Court framed issues and additional issue having regard to the above said pleading. On behalf of the plaintiffs, plaintiff No.1 was examined as PW1 and plaintiff No.5 was examined as PW 2 and also examined PW 3 and got marked Exs. P1 to P34. On behalf of the defendants, defendant No.2 was examined as DW 1 and the defendants also examined DW2, attestor to the Will and DWs. 3 and 4 and got marked Exs. D1 to D7. The trial Court after considering the contentions of the counsel appearing for the parties and the material on record, by judgment dated 29-6-1985, partly decreed the suit declaring that the alleged Will executed by late Ganapathi Naik on 26-6-1977 is null and void and not binding on the plaintiffs and defendant No.5 and granted permanent injunction against defendants 2 to 4. Being aggrieved by the said judgment and decree, the defendants preferred Misc. Appeal No.14/1979 on the file of the Civil Judge, Uttara Kannada, Karwar, and the first appellate Court by judgment dated 18-3-1980, allowed the appeal and remitted the matter to the trial Court. After remand, the trial Court held that plaintiff No.1 is the legally wedded wife of Ganapathi Naik, however, the plaintiffs have failed to prove that plaintiff Nos. 2, 3, 6 to 10 and defendant No.5 are the children born to plaintiff No.1 out of the wedlock with Ganapathi Naik and further held that the defendants have proved that Ganapathi executed the Will on 26-6-1975 and accordingly, dismissed the suit of the plaintiffs by judgment dated 20-7-1993. Being aggrieved by the said judgment and decree, defendants 1 to 4 preferred R. A. No. 48/1993 on the file of the Prl. Civil Judge (Sr. Dn.), Karwar, and the first appellate Court by judgment dated 26-7-2003, allowed the appeal and reversed the judgment and decree passed by the trial Court and decreed the suit of the plaintiffs against defendants 1 to 4 for the relief of declaration that plaintiffs and defendant No.5 are successors to the properties of Ganapathi Naik and granted permanent injunction restraining defendants 1 to 4 from interfering with the peaceful possession and enjoyment of the suit properties by the plaintiffs. Defendant No. 1 died leaving behind defendants 2 to 4 as her legal representatives. Defendant No. 1 died leaving behind defendants 2 to 4 as her legal representatives. Defendants 2 to 4 have preferred this appeal being aggrieved by the judgment and decree passed by the first appellate Court. The appeal was admitted on 19-11-2003 and substantial question of law No.1 has been modified by a separate order dated 3-1-2006 and the substantial questions of law that arise for determination are as follows :— 1. Whether the appellate Court was justified in holding that the plaintiff No.1 is the wife of Ganapathi and plaintiffs 2, 3, 6 to 10 and fifth defendant are the children of Ganapathi and first plaintiff and whether the said finding is perverse and contrary to evidence on record? 2. Whether the finding of the appellate Court that testator Ganapathi has no competence to execute the Will in respect of the suit properties granted to him under the Land Reforms Act, is perverse and contrary to evidence on record, overlooking the material that the properties under the Will were the Malki properties and Moolgeni properties to which the prohibition envisaged under Land Reforms Act was not applicable? 5. I have heard the learned counsel appearing for the parties on the above said substantial questions of law. 6. Learned counsel appearing for the appellants defendants 2 to 4 submitted that the first appellate Court was not all justified in reversing the judgment and decree passed by the trial Court, which had rightly dismissed the suit of the plaintiffs by holding that Ganapathi had no access with plaintiff No.1 and wherefore, plaintiffs 2, 3, 6 to 10 and defendant No.5 were not the children of plaintiff No.1 out of the wedlock with Ganapathi and the first appellate Court was not justified in holding that the execution of the Will has not been proved and that Ganapathi had no testamentary capacity to execute the Will as it was a joint family property and the Will could not be executed in view of provisions of Sections 21 and 25 of the Karnataka Land Reforms Act. Learned counsel has relied upon the decision of the Honble Supreme Court in Sangappa Kalyanappa Bangi (Dead) Through L. Rs., v. Land Tribunal, Jamkhandi AIR 1998 SC 3229 in support of his contention that assignment of interest in land by tenant would not include the Will made in favour of legitimate kinship. Learned counsel has relied upon the decision of the Honble Supreme Court in Sangappa Kalyanappa Bangi (Dead) Through L. Rs., v. Land Tribunal, Jamkhandi AIR 1998 SC 3229 in support of his contention that assignment of interest in land by tenant would not include the Will made in favour of legitimate kinship. Learned counsel further submitted that having regard to the fact that Ganapathi Naik and defendant No. 1 have lived as husband and wife and have begotten defendants 2 to 4 out of the said relationship, marriage has to be presumed and in support of his contention, he has relied upon the decision of the Honble Supreme Court in Badri Prasad v. Deputy Director of Consolidation AIR 1978 SC 1557 , wherein the Honble Supreme Court has observed that law leans in favour of legitimacy and frowns upon bastardy and if man and woman live as husband and wife in Society, presumption can be raised regarding marriage and they cannot be called upon to prove the marriage by examining the witnesses. Learned counsel has also relied upon the Division Bench decision of this Court in Parameshwari Bai v. Muthojirao Scindia AIR 1981 Kar 40 , wherein it has been held that a man and a woman tied together by wedlock form the least unit of the complex society and whenever a man and woman lived as husband and wife for a fairly long time and were so reputed, law presumes that they are living as husband and wife and not in a state of concubinage and presumption is both with regard to factum of marriage and legality of it. Learned counsel further submitted that in the absence of any point for determination as to whether the properties were the joint family properties or the self-acquired properties of Ganapathi Naik, no finding could be given by the first appellate Court as no opportunity was given to the appellants herein to substantiate that the suit schedule properties were the self-acquired properties of Ganapathi Naik and the finding of the first appellate Court is erroneous. 7. 7. On the other hand, learned senior counsel appearing for the Respondents submitted that the first appellate Court has rightly reversed the finding of the trial Court regarding the relationship of plaintiffs 2, 3, 6 to 10 and defendant No. 5 as the children of Ganapathi and the first plaintiff, having regard to the provisions of Section 112 of the Indian Evidence Act, which is a conclusive presumption and in the absence of any material to show non-access, the first appellate Court has rightly held that they are the children of plaintiff No. 1 and Ganapathi, whose marriage is not disputed. Learned senior counsel further submitted that the execution of the Will has not been duly proved as rightly held by the first appellate Court and the material on record shows that it is clearly elicited in the evidence of DW1-defendant No.2 that there was no marriage between Ganapathi Naik and her mother, the first defendant and the first defendant had three children by name, Chandrakanth, Umesha and Shambhu prior to her relationship with Ganapathi Naik and the same would clearly probabilize the contention of the plaintiffs that defendant No.1 was a prostitute and there was no marriage between Ganapathi and the first defendant and wherefore, question of raising any presumption regarding the factum of marriage between the first defendant and Ganapathi Naik would not arise and the material on record clearly shows that the suit properties are the joint family properties and the appellants had opportunity to substantiate their contention before the first appellate Court. 8. I have considered the contentions of the learned counsel appearing for the parties and I have been taken through the oral and documentary evidence adduced by the parties and the judgments passed by the trial Court and the first appellate Court and I answer the substantial question of law as follows :— Substantial question of law No. 1 : in the affirmative by holding that the first appellate Court was justified in holding that plaintiff No.1 is the wife of Ganapathi Naik and plaintiffs 2, 3, 6 to 10 and defendant No.5 are the children of Ganapathi Naik and the first plaintiff and the said finding is neither perverse nor contrary to law. Substantial question of law No. 2 : in the affirmative for the following : REASONS 9. Substantial question of law No. 2 : in the affirmative for the following : REASONS 9. SUBSTANTIAL QUESTION OF LAW No. 1 : It is clear from a perusal of the material on record that there is no dispute among the parties that plaintiff No.1 is the legally wedded wife of Ganapathi Naik. However, the dispute is about the fact as to whether plaintiffs 2, 3, 6 to 10 and defendant No. 5 are born out of the wedlock between Ganapathi Naik and the first plaintiff. The trial Court held that Ganapathi Naik had no access with plaintiff No.1 and she had relationship with another person by name, Gana Purso Phondekar and the first plaintiff has failed to substantiate the contention that plaintiffs 2, 3, 6 to 10 and defendant No.5 are the children born out of the wedlock between herself and Ganapathi Naik and wherefore, plaintiffs 2, 3, 6 to 10 and defendant No. 5 are not the children born out of the wedlock between the first plaintiff and Ganapathi Naik. However, the first appellate Court having regard to the provisions of Section 112 of the Indian Evidence Act and in the absence of any material produced by the defendants to show that there was no access between Ganapathi Naik and the first plaintiff, held that the finding of the trial Court is erroneous and the first plaintiff has proved that plaintiffs 2, 3, 6 to 10 and defendant No. 5 are the children born out of the wedlock between herself and Ganapathi Naik. It is well settled that the presumption under Section 112 of the Indian Evidence Act is a conclusive presumption. Therefore, onus is on the defendants to show that there was no access between Ganapathi Naik and the first plaintiff at the time when plaintiffs 2, 3, 6 to 10 and defendant No.5 were conceived, by producing cogent and reliable evidence. It is well settled that the presumption under Section 112 of the Indian Evidence Act is a conclusive presumption. Therefore, onus is on the defendants to show that there was no access between Ganapathi Naik and the first plaintiff at the time when plaintiffs 2, 3, 6 to 10 and defendant No.5 were conceived, by producing cogent and reliable evidence. Having regard to the fact that the marriage between Ganapathi Naik and the first plaintiff is not disputed and that the defendants have not adduced any evidence regarding non-access between Ganapathi Naik and the first plaintiff at the time when plaintiffs 2, 3, 6 to 10 and defendant No. 5 were conceived, the first appellate Court has rightly held in view of the provisions of Section 112 of the Indian Evidence Act, which raised a conclusive presumption and in the absence of proof of non-access that plaintiffs 2, 3, 6 to 10 and defendant No. 5 are to be held to be the children born out of the wedlock between the first plaintiff and Ganapathi Naik. The first appellate Court has rightly held that the trial Court was not justified in proceeding on the basis that the first plaintiff had relationship with Gana Purso Phondekar and wherefore, Ganapathi Naik had no access with the first plaintiff. The trial Court has also proceeded on the basis that it was Gana Purso Phondekar who performed the marriage of plaintiff No.2 —Smt. Leela, but, the said fact by itself would not lead to the conclusion that there was no access between Ganapathi Naik and the first plaintiff and the material on record shows that according to the plaintiffs, Smt. Leela - plaintiff No.2 had been taken in adoption by Gana Purso Phondekar. Therefore, in the absence of any specific material to show that there was no access between Ganapathi Naik and the first plaintiff at the time when plaintiffs 2, 3, 6 to 10 and defendant No. 5 were conceived and in view of the admitted factum of marriage between the first plaintiff and Ganapathi Naik and the presumption under Section 112 of the Indian Evidence Act, which is conclusive, the first appellate Court was justified in holding that the first plaintiff has proved that plaintiffs 2, 3, 6 to 10 and defendant No.5 are the children born out of the wedlock between herself and Ganapathi Naik and the said finding cannot be said to be perverse or contrary to evidence on record and accordingly, I answer substantial question of law No.1. 10. SUBSTANTIAL QUESTION OF LAW No. 2 : Defendants 2 to 4 claim to be the children of defendant No. 1 and Ganapathi Naik and they also claim that Ganapathi Naik has executed a Will on 26-6-1975 as per Ex. D3 in favour of defendants 2 to 4 bequeathing the suit schedule properties in their favour and wherefore, they have become owners of the suit properties and the plaintiffs are not entitled to any share in the same. It is the contention of the plaintiffs that the said Will has been got executed by exercising fraud and misrepresentation and that Ganapathi Naik could not have executed the Will. The trial Court held that the execution of the Will is proved. However, the first appellate Court, in view of certain facts elicited in the cross-examination of DW 2-Agnelo, who is the attestor to the Will to the effect that he was not present when the Will was drafted and he does not know the contents of the Will, held that the execution of the Will had not been proved and further held that since the suit schedule properties were the joint family properties of Ganapathi Naik and his brothers, Ganapathi Naik alone, who had only a share in the suit schedule properties could not have executed the Will in respect of the entire extent of the schedule properties. The first appellate Court further held that in view of the provisions of Sections 21 and 24 of the Karnataka Land Reforms Act (for short, the Act), the tenancy rights in respect of the suit properties granted in favour of Ganapathi Naik, could not have been assigned by him by executing a Will in favour of defendants 2 to 4, who are not his legal heirs. It is clear from a perusal of the judgment passed by the first appellate Court that the first appellate Court has not given a specific finding as to whether the due execution of the Will has been proved and no point for determination has been framed by the first appellate Court regarding the nature of the suit schedule properties as to whether they are the joint family properties or the self- acquired properties of Ganapathi Naik and in the absence of the said point for determination, the first appellate Court has held that the suit schedule properties are the joint family properties and wherefore, Ganapathi Naik could not have executed the Will in respect of the entire extent of the suit schedule properties in favour of defendants 2 to 4. It is clear from a perusal of the judgment passed by the first appellate Court that the reasoning assigned by the first appellate Court regarding testamentary capacity of Ganapathi Naik in executing the Will and the prohibition under Sections 21 and 24 of the Karnataka Land Reforms Act, is clearly perverse and arbitrary. It is now well settled in view of the decision of the Honble Supreme Court in Sangappa Kalyanappa Bangi (Dead) Through LRs. v. Land Tribunal, Jamkhandi, and others ( AIR 1998 SC 3229 ) relied upon by the learned counsel appearing for the Appellants that it has overruled the earlier decisions of this Court in (1977) 1 Karnataka Law Journal 146 (Short Note No. 160) and (1979) 1 Kant LJ 18 and has held that a tenant can assign his rights only by way of Will notwithstanding the provisions of Section 21 of the Act to heirs noticed in the provisions and such heirs could only be the spouse or any descendants or who is related to the deceased tenant by legitimate kinship. Thus, it is clear that Section 21 of the Act does not disable the tenant to execute the Will, but, the Will can be executed only in favour of the category of persons referred to above by the Honble Supreme Court and wherefore, it is necessary to find out as to whether defendants 2 to 4 are the heirs born out of the legitimate kinship to prove the validity of the Will executed by Ganapathi Naik. The reasoning assigned by the first appellate Court to the effect that Ganapathi Naik could not have executed the Will at all in view of provisions of Section 21 of the Act is clearly erroneous and requires reconsideration in the light of the decision of the Honble Supreme Court in AIR 1998 SC 3232 , which has been reiterated in Jayamma v. Maria Bai (Dead) By Proposed LRs., and another (ILR 2004 Kar 3975) : (2004 AIR Kant HCR 2624). The finding of the first appellate Court that the suit schedule properties are the joint family properties of Ganapathi Naik and his brothers and there was no partition among them and therefore, Ganapathi Naik could not have executed the Will in respect of the entire suit schedule properties is also erroneous as no point for determination was framed in that behalf and no opportunity was given to the parties to substantiate their contention. So far as the reasoning given by the first appellate Court regarding the due execution of the Will is concerned, it is clear from a perusal of the evidence of DW2 that he is an attesting witness to the Will executed in favour of defendants 2 to 4 and the same has not been considered by the first appellate Court in the proper perspective as the first appellate Court has only taken certain facts elicited in the cross-examination of DW2 and has failed to consider the entire evidence of DW2 to decide as to whether due attestation of the Will has been proved and has also failed to consider as to whether the plaintiffs have been able to substantiate the contention that the said Will is result of misrepresentation and fraud. Therefore, it is clear that the judgment and decree passed by the first appellate Court in so far as it relates to execution of the Will in respect of the suit schedule properties in favour of defendants 2 to 4 is concerned, is perverse and arbitrary, being contrary to law and the material on record and the evidence adduced by the parties and accordingly, I answer the substantial question of law No. 2 in the affirmative. Learned Counsel appearing for the parties submitted that in view of the fact that the finding of the first appellate Court regarding execution of the Will, Ex. D3 is held to be erroneous and the first appellate Court is the final Court on the question of fact and law, the matter may be remitted to the first appellate Court for fresh disposal regarding the execution of the Will. Accordingly, I pass the following Order :— The appeal is allowed in part. The finding given by the Court of the Prl. Civil Judge (Sr. Dn.), Karwar, in R. A. No. 48/1993 holding that plaintiffs 2, 3, 6 to 10 and defendant No.5 are the children born out of the wedlock between the first plaintiff and Ganapathi Naik is confirmed. However, the finding of the first appellate Court in R. A. No. 48/1993, in so far as it relates to execution of the Will, Ex. D3 dated 26-6-1975 i.e. finding on Points 2, 3 and 4 is set aside and the appeal, R. A. No. 48/1993 is remitted to the first appellate Court for giving finding on points 2, 3 and 4 and also the point as to whether the suit schedule properties are the joint family properties or the self-acquired properties of Ganapathi Naik and thereafter, to dispose of the appeal in accordance with law in the light of the observations made in the body of this judgment. In view of the fact that during the pendency of this appeal, an order was passed on 19-11-2003 directing the parties to maintain status quo, it is ordered that the said order directing the parties to maintain status quo shall be in force during the pendency of the appeal before the first appellate Court. In view of the fact that during the pendency of this appeal, an order was passed on 19-11-2003 directing the parties to maintain status quo, it is ordered that the said order directing the parties to maintain status quo shall be in force during the pendency of the appeal before the first appellate Court. The first appellate Court is directed to dispose of the appeal expeditiously at any rate not later than eight months from the date of receipt of a copy of this order and the lower Court records. 11. Let a copy of this order and the lower Court records be transmitted to the first appellate Court forthwith. There shall be no order as to costs in this appeal. 12. Appeal partly allowed.