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2011 DIGILAW 272 (KAR)

Adiveppagouda v. Manjula

2011-03-07

H.N.NAGAMOHAN DAS, K.L.MANJUNATH

body2011
JUDGMENT K.L. Manjunath, J : The legality and correctness of the judgment and decree passed by the Additional Civil Judge (Sr. Dn.), Hubli dated 16.9.2004 in O.S.No.88/1999 is challenged in this appeal. 2. The appellant is the plaintiff who has lost his suit before the Court below. The plaintiff filed suit for partition and separate possession of his 8/21 share in all the plaint schedule properties and to further declare that the Will dated 20.6.1995 alleged to have been executed by Mallanagouda V. Rayanagoudar is null and void and the Will is not binding on the plaintiff and to further declare that he is the absolute owner in possession of the newly constructed R.C.C. building and for perpetual injunction. 3. The plaintiff and defendant No.3 are two sons of late Mallanagouda Rayanagoudar. Defendants No.1, 2 and 4 to 6 are the married daughters of late Mallanagouda Rayanagoudar. Mallanagouda Rayanagoudar was earlier working in Army thereafter he joined South Central Railway at Hubli and he retired after attaining the age of superannuation on 31.10.1977. According to the plaint averments, Mallanagouda Rayanagoudar was drawing a meager salary of 550/- per month and that he had ownership of 1/3rd share in the agricultural land situated at Kiresur village of Hubli Taluka and had a residential house in Byahatti village and that he was getting a considerable income. Out of the agricultural income, he acquired a site bearing No.18 at Nagashettikoppa village of Hubli as a member of the Vijayanagar Co-op. Housing Society Limited, Hubli which site is measuring 80 feet x 75 feet and was registered in the name of Mallanagouda Rayanagoudar on 3.12.1958 and thereafter out of the amount invested by the plaintiff and defendant No.3 a house was constructed in a portion of the said house and that the plaintiff has been residing with his family by looking after his late father Mallanagouda Rayanagoudar till his death. Mallanagouda Rayanagoudar was not keeping good health and had lost his mental balance on account of plaintiffs mother left the house. According to him, the house property situated in CTS No.1893 Vijayanagar, Hubli is a joint family property that the plaintiff is also having equal share along with his brother and father and that defendants have created a will as if the entire house situated in Vijayanagar, Hubli has been bequeathed to his sisters. According to him, the house property situated in CTS No.1893 Vijayanagar, Hubli is a joint family property that the plaintiff is also having equal share along with his brother and father and that defendants have created a will as if the entire house situated in Vijayanagar, Hubli has been bequeathed to his sisters. After the death of Mallanagouda Rayanagoudar, he came to know of the creation of the Will later the matter was referred to Panchayat. In Panchayat, it was held that all the children are having equal share. Instead of accepting the decision of the Panchayat the defendants No. 1, 2 and 4 to 6 claim that they alone are entitled. Hence, the suit was filed for the aforesaid relief. 4. The sisters-defendants contested the suit. The brother of the plaintiff who is 3rd defendant did not contest the suit. According to contesting defendants, Mallanagouda Rayanagoudar was the absolute owner of the house situated in Vijayanagar and he acquired the same out of his self earning and that he was not getting income from the agricultural lands situated in Kiresur village. By borrowing the loan from Railways he had constructed a house in a portion of the property. As both the sons of Mallanagouda Rayanagoudar were gainfully employed in railways, as the financial conditions of his daughters was not sound, he bequeathed the house property in favour of his five daughters under registered Will dated 26.9.1995. Later he died on 10.4.1998 and they came to know of the registered Will ten days after his death when DW. 1 was searching the treasury. Therefore they contend that suit filed by the plaintiff claiming share in respect of house property which is the subject matter of the Will is not maintainable. Accordingly, they requested the Court to dismiss the claim of the plaintiff in regard to property contained under Will. 5. Based on the above pleadings, the following issues were framed by the Trial Court. i. Whether the plaintiff is in possession of 8/21st share with separate possession in the suit properties? ii. Whether plaintiff proves that "WILL" dated 26.9.1995 executed by M.V. Rayanagoudar in favour of defendants 1, 2, 4 to 6 is null and void as alleged in the plaint? iii. Whether plaintiff proves that plaintiff is the absolute owner in possession of R.C.C. Building as alleged in the plaint? IV. ii. Whether plaintiff proves that "WILL" dated 26.9.1995 executed by M.V. Rayanagoudar in favour of defendants 1, 2, 4 to 6 is null and void as alleged in the plaint? iii. Whether plaintiff proves that plaintiff is the absolute owner in possession of R.C.C. Building as alleged in the plaint? IV. Whether defendant No.6 proves that "WILL" dated 26.9.1995 executed by M.V. Rayanagoudar in favour of defendant Nos.1, 2, 4 to 6 is legally enforceable document? v. Whether respective defendant is entitled for share as sought in respective written statement? vi. Whether plaintiff is entitled for reliefs sought? vii. What order or decree? 6. In order to prove his contentions, the plaintiff got himself examined as PW. 1. He relied upon the evidence of PW.2 and 3 and Exs.P1 to P15. On behalf of defendants, defendant No.6 got herself examined as D.W. 1, one advocate G.M. Sheelavantar was examined as; DW.2, one S.M. Bedsoor the attestor of the Will was examined as D.W.3. Defendants relied upon Exs.D1 to D10. 7. The trial Court after considering the entire evidence let in by the parties held Issue Nos. 1, 5 and 6 partly in the affirmative, Issue No.3 in negative and Issue No.4 in Affirmative. Issue No.3 has not been answered since the same was not pressed by the plaintiff. Ultimately, the suit of the plaintiff came to be decreed in part holding that the plaintiff is entitled for 1/5th share plus l/7th share in 1/5th share of his father in item No.1 to 4 of plaint schedule properties. Suit of the plaintiff came to be dismissed on item No.5 which is the subject matter of the Will. 8. Challenging the legality and correctness of the judgment and decree as null and void and does not binding in not granting share in the item No.5, the present appeal is filed. 9. We have heard learned Counsel for both the parties. 10. At the outset, the learned Counsel for the plaintiff-appellant submits that the plaintiff has confined only to the property bequeathed under the Will and he further submits that there is no necessity for this Court to consider the pleadings and evidence of the parties in regard to other suit items. In the Circumstances, we have to consider the case of the appellant only in regard to the Will in question. 11. In the Circumstances, we have to consider the case of the appellant only in regard to the Will in question. 11. According to the learned Counsel for plaintiff, the Trial Court has committed a serious error in holding that the defendants have proved the execution of the Will propounded by them. According to him if the Trial Court has considered evidence let in by the parties, the Trial Court ought to have held that the defendants have failed to prove the execution of the Will of Mallanagouda Rayanagoudar and further the Trial Court would have decreed the suit of the plaintiff holding that he is having his share in item No.5. To support his arguments, he contends that the Trial Court did not consider that the will has not been proved in accordance with Section 63 of the Evidence Act. According to him, D.W.3 the attestor has not identified either the signature of him or of deceased Mallanagouda Rayanagoudar. The Trial Court based on the appreciation of evidence of D.W.2 the person who drafted the Will has wrongly decreed the suit. He further contends that the Trial Court did not consider the suspicious circumstances in execution of the Will. According to him, when Mallanagouda Rayanagoudar was residing with the plaintiff-appellant there was no reason for the deceased Mallanagouda Rayanagoudar to exclude his two Sons while bequeathing the property under the Will. He further contends that the execution of the Will was not made known to any one and the said Will came into existence ten days after the death of Mallanagouda Rayanagoudar. Therefore, the said will could not have been believed by the Court. 12. He contends that deceased Mallanagouda Rayanagoudar was not of sound mind and body nine months prior to the execution of the Will since the date of missing of his wife and therefore he was not in a position to bequeath the property. According to him the manner in which the property has been divided amongst his five daughters is illogical and cannot be implemented and cannot be made use of by the daughters. Therefore, Will has come into existence under suspicious circumstance. In the circumstances, he requests the Court to allow this appeal and set aside the finding of the Court below on the question of illegality. 13. Per contra, Mr. M.V. Hiremath contends that Will has been proved by defendant Nos. Therefore, Will has come into existence under suspicious circumstance. In the circumstances, he requests the Court to allow this appeal and set aside the finding of the Court below on the question of illegality. 13. Per contra, Mr. M.V. Hiremath contends that Will has been proved by defendant Nos. 1, 2 and 4 to 6. According to him, the Will in question is a registered Will which has been executed in the year 1995 and three years later Mallanagouda Rayanagoudar died. Defendants have proved the Will by examining DWs.2 and 3. DW.2, G.M. Sheelavantar is not only a person who drafted the Will but also a person who identified Mallanagouda Rayanagoudar in the Sub-Registrar Office while registering the document. In other words, he contends that at the request of Mallanagouda Rayanagoudar, D.W.2 had drafted the Will and the same was handed over to the testator with an instruction to bring the two attestors of his choice. Accordingly the deceased Mallanagouda Rayanagoudar came along with attestors and based on the draft Will prepared by DW.2 was got typed by a typist and later the Will was executed in the presence of DW.2 and DW.3 who is an atttestor and later the Will was presented for registration. He further contends that defendant No.2 who has identified the signature of the testator in the Sub-Registrar Office and who is also scribe of the will has not only identified the signatures of the testator and also the signature of the attestors who attested the document. He further contends that DW.2 in his examination-in-chief has categorically identified the signature of him and of the testator and the evidence of DWs.2 and 3 is not challenged seriously by the plaintiff. In the circumstances, he requests the Court to dismiss the appeal. 14. Having heard the Counsel for both the parties, the points to be considered in this appeal are: i. Whether defendant Nos. 1, 2 and 4 to 6 have proved the Will of deceased Mallanagouda Rayanagoudar? ii. Whether the judgment and decree of the Trial Court requires to be interfered with? 15. After hearing the parties, it is noticed by us in this appeal is plaintiff is not disputing the signature of Mallanagouda Rayanagoudar on the Will in question. His arguments are two-fold. ii. Whether the judgment and decree of the Trial Court requires to be interfered with? 15. After hearing the parties, it is noticed by us in this appeal is plaintiff is not disputing the signature of Mallanagouda Rayanagoudar on the Will in question. His arguments are two-fold. According to him, Will has come into existence under a suspicious circumstances and the Will has not been proved but unfortunately the plaintiff has not contended that the signature found on the Will is not that of his father. In the circumstances, we have to see whether the defendants have proved the execution of the Will of Mallanagouda Rayanagoudar as stated supra. We have got the evidence of DWs.2 and 3. DW.2 is a respectable member of Hubli Bar. He was aged about 75 years. There is no reason for an advocate of 75 years old who is commanding respect in the Bar to give false evidence against the plaintiff and as a matter of fact no motive is also suggested to DW.2 to give false evidence against the plaintiff. According to DW.2, Mallanagouda Rayanagoudar had come with a request to prepare the Will and based on his instructions he drafted the Will. Draft Will was given to him and sketch was prepared by the testator. Later on 26.9.1995 he had come with two attestors with the draft Will which was prepared by him earlier and also the sketch which was required to be enclosed to the Will. Later he got it typed through the typist by name G.O. Dharwad and thereafter Mallanagouda Rayanagoudar red the typed Will and in his presence Mallanagouda Rayanagoudar, signed the document and so also the attestors and the typist who got typed the Will and thereafter they went to Sub-Registrar's Office. In the Sub-Registrar office the document was registered. He has identified the signature of Mallanagouda Rayanagoudar in the Sub-Registrar Office. EX.D1 is marked through DW.2. He has also identified the signature of testator on the Will on Ex.D.1. He has also identified the signatures of other two attestors of the typist who got typed the document. 16. We have seen the cross-examination, it runs two paragraphs only but unfortunately, the evidence of DW.2 is not challenged seriously. There is nothing for any Court to disbelieve the evidence of DW.2 by looking into the tenor of his cross-examination. He has also identified the signatures of other two attestors of the typist who got typed the document. 16. We have seen the cross-examination, it runs two paragraphs only but unfortunately, the evidence of DW.2 is not challenged seriously. There is nothing for any Court to disbelieve the evidence of DW.2 by looking into the tenor of his cross-examination. Therefore, the evidence of DW.2 has been rightly accepted by the Court below. We have also seen the evidence of DW.3 S.M. Bedsoor who is the attestor to the document. He is a retired official and he was also an employee of South Western railway where the deceased Mallanagouda Rayanagoudar was working. He has also deposed in detail how the Will of Mallanagouda Rayanagoudar was typed by the typist on the instructions of Mallanagouda Rayanagoudar and his advocate G.M. Sheelavantar. He has also identified the signatures on the Will and he has also stated that he can identify the signatures of Mallanagouda Rayanagoudar and himself in the Will. He has also been cross-examined. Focusing his attention on the other properties of Mallanagouda Rayanagoudar and at the end it is elicited that the Will was got typed in the office of Taluk Kacheri and at that point of time, the advocate i.e. DW.2 was present in the Taluka Office and it is also stated by him in his cross-examination that he has signed the Will after reading the document. He has further stated that the deceased Mallanagouda Rayanagoudar signed the document after reading the Will. He has denied that Mallanagouda Rayanagoudar was unwell and that he had no memory and no motive is attributed to DW.3. If the Trial Court has accepted the evidence of D.W.3 it is difficult for any Court to differ with the view taken by the Court below only on the ground that there is an ambiguity with regard to place where Mallanagouda Rayanagoudar and DW.3 met DW.2. According to DW.2, Mallanagouda Rayanagoudar came with attestor to Civil Court complex and later they went to Sub-Registrar Office after typing the Will. But DW.3 has stated that they met DW.2 in the Taluka Office. Just because there is ambiguity in regard to meeting place cannot be a ground to discard the evidence of DW.3. The Civil Court as well as Taluka Office are situated in one complex bifurcated by a road. But DW.3 has stated that they met DW.2 in the Taluka Office. Just because there is ambiguity in regard to meeting place cannot be a ground to discard the evidence of DW.3. The Civil Court as well as Taluka Office are situated in one complex bifurcated by a road. In local area Court premises, Taluka Kacheir, Sub-Registrar office are all surrounding one area in one complex and it is commonly known as Taluka office. It cannot be said by the appellant on the ground DW.3 did not mention where the Civil Court complex situated. In the circumstances, we are of the opinion that the evidence of DWs.2 and 3 has been properly appreciated. 17. So far as the suspicious circumstances alleged by the appellant is concerned, we have to discard the said contention also for the following reasons. 18. It is true that Mallanagouda Rayanagoudar is having two sons no share is given in the house to them on the ground that they are gainfully employed in South Central Railways. So it was his desire to give the house property to his five daughters on account of the financial difficulties of the married daughters. If one house property is given to them excluding the sons who is gainfully employed in railways it cannot held that exclusion sons would be a suspicious circumstances. The other limb of the arguments of the plaintiffs Counsel before us is tracing of the Will. It has come in the evidence of DW. 1 that ten days after the death of her father when she was searching the treasury of her father she found the Registered Will and immediately she has informed the same to all the family members. There is no law which declares that a person who executes a Will is required made known the public about the execution of the Will normally it will not be disclosed to anyone except to close kith and kin and/or a friend who will be trusted by the testator. Therefore, nondisclosure of the Will cannot be a ground to disbelieve the genuineness of the Will. While looking into the evidence, it will be clear that when the site was acquired by Mallanagouda Rayanagoudar he was not getting any agricultural income. He has acquired the site out of his salary savings. He has constructed the said house out of his salary. While looking into the evidence, it will be clear that when the site was acquired by Mallanagouda Rayanagoudar he was not getting any agricultural income. He has acquired the site out of his salary savings. He has constructed the said house out of his salary. In fact, no evidence was let in by the plaintiff to show that the father had acquired the site out of the joint family properties. Where a person who was in Army and who serving in the railways has acquired the site at a nominal cost and built a very small house, his children who were not even the age of earning cannot contend that they have also contributed in the acquisition of the property. There is no iota of evidence to show their contribution or to show that the deceased was getting income from his joint family agricultural lands. Therefore, all the points urged by the appellant Counsel are answered in the negative. 19. In the result, we do not find any reasons to interfere with the finding of the Court below. Accordingly the appeal is dismissed. Parties to bear their own costs. Appeal is dismissed.