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2011 DIGILAW 797 (KAR)

S. K. Shyamaraju v. Subramani

2011-08-08

K.GOVINDARAJULU, MOHAN M.SHANTANAGOUDAR

body2011
JUDGMENT MOHAN SHANTANAGOUDAR, J.—This appeal is filed by the unsuccessful plaintiff against the Judgment and decree passed in O.S. No. 9826/1998 by 14th Additional City Civil Judge (CCH-28). The parties will be referred as per the ranking before the trial Court: 2. Shri Adi Krishnaiah Shetty is the father of the plaintiff and defendant. Adi Krishnaiah Shetty has got three sons and two daughters including the plaintiff and defendant. The name of the first son is S.K. Satyanarayana. He is not a party to the suit. The second son of Adi Krishnaiah Shetty is Mr. Shamaraju (plaintiff), Mr. Subramani (defendant) is third son. The case of the plaintiff is that his father Adi Krishnaiah Shetty executed a Will(Ex. P5) on 4.2.1994 which came to be registered bequeathing the suit schedule property. The executant of the Will-father of the parties expired In the year 1996 thereafter, plaintiff started enjoying the property as his own. Since the defendant; started denying the title of the plaintiff, he filed the present suit for declaration and injunction in respect of the suit schedule property. The case of the defendant is that his father did not execute the Will in favour of the plaintiff, as alleged by the plaintiff. The defendant himself has contributed major portion of the amount for the purposes of purchasing the suit property since the date of purchase, the defendant alone is living in the property in question; alleged Will Ex. P5 dated 4.2.1994 was got registered by the plaintiff fraudulently; that executant of the Will executed another Will as per Ex. D.1 dated 10.4.1995 in favour of the defendant. Hence, the defendant alone is the owner of the property. 3. In view of the respective pleadings, the following issues were framed by the trial Court: “1. Whether the plaintiff proves that the suit schedule property was the self acquired property of his father? 2. Whether the plaintiff proves that his father suit schedule property In favour of plaintiff under a Will dated 4.2.1994? 3. Whether plaintiff proves that; he acquired right of ownership of suit schedule property through the said Will dated 4.2.1994? 4. Whether plaintiff proves that he is entitled for possession of the suit schedule property? 5. Whether plaintiff proves that he is entitled for mense profits? 6. Whether defendant proves that court-fee and is not sufficient? 7. What order or decree? Additional issue framed on 5.8.2005: 1. 4. Whether plaintiff proves that he is entitled for possession of the suit schedule property? 5. Whether plaintiff proves that he is entitled for mense profits? 6. Whether defendant proves that court-fee and is not sufficient? 7. What order or decree? Additional issue framed on 5.8.2005: 1. Whether defendant proves that his father has executed Will dated 10.04.1995 bequeathing the suit schedule property in his favour by canceling the earlier will dated 04.02.1994?” In order to prove his case, the plaintiff himself examined as P.W. 1 and examined attestor of the Will. Three documents were got marked on behalf of the plaintiff. Defendant examined himself as D.W. 1 and examined D.W.2 who is the attestor of Ex. D1. He got marked ten exhibits. Based on the material on record, the trial Court dismissed the suit holding that both the Wills relied upon by the parties are unreliable. Against the said Judgment, this appeal is filed by the plaintiff. 4. Learned Advocate for the appellant/plaintiff submits that the attestor of the Will-P.W.2 has clearlydeposed that he went to the house of the executant on the invitation of the executant and thereafter, the Will was prepared by an Advocate. Both the attestors put their signatures in the presence of the executant and thereafter, all of them went to Sub-Registrar’s office for the purposes of getting the Will - Ex. P5 registered. According to the plaintiffs Counsel, since the Will -Ex. P5 is duly proved in accordance with law, as there are no suspicious circumstances surrounding the Will -Ex. P5, the trial Court is not justified in dismissing the suit. The learned Advocate for the respondent - defendant opposes the appeal by submitting that the trial Court is justified in concluding that Will - Ex. PS is surrounded with suspicious circumstances and thus, the -same is unreliable; that the evidence of P.W.2 is totally unbelievable inasmuch as he is total stranger to the family and executant and the act of getting the Will attested by P.W.2 is against the natural human conduct; that the family was having ancestral property and Shri Adi Krishnaiah Shetty was admittedly the manager of the family; the suit property was purchased with the help of the joint family funds and not by Adi Krishnaiah Shetty’s personal earnings; since the family has remained joint till this day, every member of the family will get their respective shares. On these among other grounds, he argues for dismissal of the appeal. 5. Based on the rival contentions of the parties, the following points arise for consideration in this appeal: (a) Whether the Court below is justified in concluding that the suit schedule property is the self-acquired property of Shri Adi Krishnaiah Shetty? (b) Whether the Court below is justified in disbelieving Ex. P5 - Will dated 4.2.1994 and Ex. D1 - Will dated 10.4.1995? 6. Admittedly, the family was having agricultural lands at Gowribidarnur. The Will - Ex. P5 said to have been executed by Adi Krishnaiah Shetty itself reveals that an agricultural land situated at Gowribidarnur is the ancestral property of the family, which means that the family has got agricultural background. The plaintiff is a Conductor working in the KSRTC whereas the defendant is working in the Police Department. The property in question was purchased on 10.11.1976 in the name of Adi Krishnaiah Shetty. There is nothing on record to show that Adi Krishnaiah Shetty has got separate income of his own, which is sufficient for purchasing the said property. Admittedly, Adi Krishnaiah Shetty was a manager of the family as is clear from the evidence of P.W.I. P.W.I also admits that the family has got joint family ancestral properties, In the absence of any material to show that Adi Krishnaiah Shelly had got sufficient income of his own and that he has purchased the property in question out of his own self-earnings without the help of joint family funds, the only conclusion that can be reached is that the property in question is a joint family property. As aforementioned the joint family consists of father, three sons and two daughters. The first son of Adi Krishnaiah Shetty is running a flour mill in the village. The plaintiff and defendant were serving the State Government in different capacities. They are married and living with their respective families. These facts clearly reveal that the property in question is purchased by Adi Krishnaiah Shetty out of the family funds and, therefore, the property in question is not a self-acquired property of Adi Krishnaiah Shetty. 7. The case of the plaintiff is based on the Will dated 4.2.1994 (Ex. P5). It is no doubt true that the said Will is registered. 7. The case of the plaintiff is based on the Will dated 4.2.1994 (Ex. P5). It is no doubt true that the said Will is registered. Merely because the same is registered, it cannot be said that the Will is genuine and could be relied upon. To prove the will, P.W.2 is examined who is said to be the attestor. According to P.W.2, he is from Doddi village of Magadi Taluk; that himself and Bommlingaiah have attested Ex. P5. P.W.2 has further deposed that he knew Adi Krishnaiah Shetty through one Mr. Devaraj co-brother of P.W.2 and the said Devaraj is residing in IX Block Jayanagar. Adi Krishnaiah Shetty also resides in 9th block Jayanagar. His further evidence reveals that Adi Krishnaiah Shetty was running a cloth shop at Jayanagar and he used to visit the said shop for about 15 years from 1984 onwards. Thus, according to P.W. 2, he knew Adi Krishnaiah Shetty very well. Though P.W.2 deposes that he was visiting the shop of Adi Krishnaiah Shetty for about 15 years does not know the name of shop of Adi Krishnaiah Shetty. Mr. Devaraj, who introduced P.W.2 to Adi Krishnaiah Shetty is not examined before the Court. P.W.2 further admits that at the time of execution of the Will-Ex. P5, the first son of Adi Krishnaiah Shetty and wife of Adi Krishnaiah Shetty were present apart from the plaintiff. If all these persons were really present at the time of execution of Ex. P5, there is no reason why they have not put their signatures as witnesses. While recording the deposition of P.W.2, the Court below has mentioned that P.W.2 had made certain notes on his left palm and he was referring to such notes. Hence, the witness was directed by the Court to avoid referring to such notes made on his palm. These facts clearly go to show that he is not a truthful witness but a got up witness. 8. P.W.2 admits the signature of Adi Krishnaiah Shetty as found at Ex. D1. Ex. D1 is another will put forward by the defendant. The defendant relies upon the said Will to argue that the first will executed by Adi Krishnaiah Shetty is revoked and consequently, by virtue of Ex. D1, the property in question is bequeathed in favour of defendant. P.W.2 admits the signature of Adi Krishnaiah Shetty as found at Ex. D1. Ex. D1 is another will put forward by the defendant. The defendant relies upon the said Will to argue that the first will executed by Adi Krishnaiah Shetty is revoked and consequently, by virtue of Ex. D1, the property in question is bequeathed in favour of defendant. If the evidence of P.W.2 is to be believed, then the plaintiff does not have case inasmuch as Will - Ex. D1 needs to be believed in the light of evidence of P.W.2. Question as to whether the Will - Ex. D1 is reliable or not will be considered by us in subsequent paragraph. Be that as it may. The aforementioned facts clearly reveal that P.W.2 is not a truthful witness inasmuch as he blows hot and cold at the same time. It is against natural course of conduct on the part of Adi Krishnaiah Shetty to take the assistance of P.W.2 for attesting the Will - Ex. P5 because P.W.2 was an otter stranger to the family. Even according to the P.Ws. 1 and 2 all the three brothers and apart from their mother were present at the time of execution. There was no reason as to why Adi Krishnaiah Shetty did not request the other two sons or wife of him to attest the Will. 9. P.W, 1 - plaintiff has clearly admitted that deceased Adi Krishnaiah Shetty was residing with defendant till the date of his death. It is further admitted by P.W. 1 that all brothers have performed the death ceremony of father. Admittedly Adi Krishnaiah Shetty was aged about 78 years at the time of execution of Ex. P5. However, the evidence on record reveals that Adi Krishnaiah Shetty was healthy though he was suffering from minor illness. P.W. 1 further submits that, defendant is residing in the suit property alongwith the plaintiff and the defendant has paid a sum of Rs. 6,000/- to KHB for getting the sale deed registered in respect of the suit, schedule property. Hence, the exclusion of other family members more particularly defendant No. l, raises doubt in the mind of the Court about the genuiness of Ex. P5. P.W.I further admits that in the year 1976, his father was kartha of the joint family and he was managing the family affairs. Hence, the exclusion of other family members more particularly defendant No. l, raises doubt in the mind of the Court about the genuiness of Ex. P5. P.W.I further admits that in the year 1976, his father was kartha of the joint family and he was managing the family affairs. P.W.I specifically admits that the sale deed was executed in favour of his father, as he was the kartha of the joint family. All these facts clearly go to show that the property in question is a joint family property and that the Will is surrounded with various suspicious circumstances. 10. Since the property in question is a joint family property, deceased Adi Krishnaiah Shetty could not have bequeathed the property in favour of any person; even otherwise Will Ex. P5 is surrounded with suspicious circumstances and the same is rightly held to be not proved by the Trial Court. We also confirm the said finding. 11. So also, the trial Court is justified in concluding that Will - Ex. D1 dated 10.4.1995 is unbelievable. The said document did not see the light of the day, even at the time of filing of the written statement. During the course of trial of the suit, the defendant amended the written statement to take up the plea that he found out the said Will Ex. D1 dated 10.4.1995 while searching the old records. Though the parties have fought litigations at earlier point of time, in none of the occasions, the defendant has brought, to the notice of the Court that such a Will was in existence. Even the evidence of D.W.2(attestor of Ex. D1) is lightly disbelieved by the Court, below by assigning valid reasons. D.W.2 has deposed in the cross-examination that the Will - Ex. D1 is typed on a stamp paper whereas Will - Ex. D1 is actually on a plain paper. Though D.W.2 has deposed that he was visiting Adi Krishnaiah Shetty’s house for several years, he has not explained for what purpose he was visiting the house of the defendant and his father frequently. In view of surrounding suspicious circumstances, the trial Court has rightly disbelieved Ex. D1 also. It is relevant to note that defendant herein had filed O.S. No. 3642/1996 for injunction against the plaintiff herein and another brother. The said suit came to be decreed holding that defendant is in possession of the property. In view of surrounding suspicious circumstances, the trial Court has rightly disbelieved Ex. D1 also. It is relevant to note that defendant herein had filed O.S. No. 3642/1996 for injunction against the plaintiff herein and another brother. The said suit came to be decreed holding that defendant is in possession of the property. Since the said suit was for bare injunction, the question of title was not gone into. 12. Be that as it may. Even on re-appreciation of the material on record, we do not find any ground to interfere with the impugned conclusion and order of dismissal of the suit, though we disagree with the conclusion reached by the trial Court in respect of issue No. 1. 13. Accordingly, the appeal fails and the same -stands dismissed.