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2012 DIGILAW 203 (KAR)

S. Arjun Rao Birje v. S. Vittal Rao Birje

2012-03-06

K.GOVINDARAJULU, K.L.MANJUNATH

body2012
Judgment :- MANJUNATH, J 1. The appellants are questioning the legality and correctness of the judgment and decree passed in O.S.No.118/2004 by the I Addl. City Civil and Sessions Judge, Bangalore, dated 20th April 2008. 2. The facts leading to filing of this appeal are hereunder: According to the plaint averments, one Narve Somoji Rao, was the full and absolute owner of the plaint schedule property. He had no male issues and died intestate. He died leaving behind him his wife Ladu Bai and daughter -Ganga Bai, who was the mother of the plaintiff and defendant. It is also his case that in addition to the plaintiff and defendants, their mother had three daughters by name Kousalya Bai, Muktha Bai and Kasturi Bai and they married prior to 1990. The maternal grand father -Narve Somoji Rao died in the year 1932 leaving behind him his widow -Ladu Bai and only daughter -Ganga Bai, who is the mother of the parties. It is also his case that Ladu Bai -grand mother of the parties died in the year 1956 leaving behind her only daughter -Ganga Bai, who succeed the estate of Narve Somoji Rao. On the ground that Ganga Bai died on 20.3,1976, the plaintiff and defendants being the sons of Ganga Bai are entitled to equal share, suit was filed claiming partition and separate possession of 1/3 share. The appellant who was 1st defendant before the court below contested the case. The 2nd defendant did not contest the suit and he was placed ex-parte. 3. According to the 1stdefendant, the relationship between the plaintiff and 1st defendant is not in dispute. It is also not in dispute that the maternal grand father -Narve Somoji Rao was the absolute owner of the schedule property. He also admits that Narve Somoji Rao died in the year 1932 leaving behind his widow -Ladu Bai and daughter -Ganga Bai, as his legal-heirs. During the life time of Somoji Rao, he had celebrated his daughters marriage and the mother of the parties was residing separately from her parents. According to him, after the death of Narve Somoji Rao, as per the provisions of the Hindu Woman's Right to Property Right ('Act' for short) Act, 1937, Ladu Bai being the widow of Narve Somoji Rao succeeded to the schedule property and she was the only absolute owner of the suit schedule property. 4. According to him, after the death of Narve Somoji Rao, as per the provisions of the Hindu Woman's Right to Property Right ('Act' for short) Act, 1937, Ladu Bai being the widow of Narve Somoji Rao succeeded to the schedule property and she was the only absolute owner of the suit schedule property. 4. It isalso the case of the 1st defendant that Ladu Bai executed a registered Will on 15.3.1952 bequeathing the entire schedule property to the 1st defendant. It is also his case that he was given in adoption and he was brought up by his maternal grandparents. It is also his case that after the death of Ladu Bai, he has beenenjoying the schedule property as absolute owner and he had borrowed loan from the Bank by mortgaging the property and constructed the houses out of his funds. Therefore, he requested the Court to dismiss the suit. 5. Based on the above pleadings, the following issues were framed by the Court below; 1) Whether the plaintiff proves that the suit schedule property is ancestral property? 2) Whether the plaintiff is entitled for relief of partition by metes and bounds of his share? 3) If so, to what share? 4) Whether the plaintiff is entitled for mesne profit from date of suit? 5) Whether the suit is barred by limitation? 6) Whether the suit is bad for non-joinder of necessary party? 7) Whether the defendant No.1 proves that Ladu Bai executed her last Will dated 15.3.1952 and thereby bequeathed property in favour of defendant No.1? 8) Whether defendant proves that he is adopted son of Ladu Bai? 9) What Order or decree? 6. In order to prove their respective contentions, plaintiff was examined as P.W.1 and he also relied upon the evidence of P.W.2 and P.W.3 and Ex.P.1 to Ex.P.21. The appellant who was defendant no.1, was examined as D.W.1 and he relied upon Ex.D.1 to Ex.D.27. The Trial Court after appreciating the evidence let in by the parties held issue no.1 in affirmative, issues 5 to 8 in negative. In regard to issues 2 and 3, it was held that plaintiff is entitled to 1/3 share on the ground that the suit schedule property is the maternal grand father's property and that the Will set up by the defendant no.1 has not been proved. In the circumstances, the suit filed by the plaintiff came to be decreed. In regard to issues 2 and 3, it was held that plaintiff is entitled to 1/3 share on the ground that the suit schedule property is the maternal grand father's property and that the Will set up by the defendant no.1 has not been proved. In the circumstances, the suit filed by the plaintiff came to be decreed. Challenging the said judgment and decree, the present appeal isfiled. 7. It is the case of the appellants' counsel that the Trial Court did not consider the evidence and pleadings let in by the parties properly. According to her, if thecourt below had considered the effect of Section 4 of the Act, the court would have dismissed the suit filed by the plaintiff. According to her, the maternal grand father of the parties died intestate and if there are no male issues up to the 3rd generation, the widow would have succeeded to the estate. Therefore, he contends that in view of Section 4 of the Act, after the death of Narve Somoji Rao, his wife -Ladu Bai succeed to the estate of Narve Somoji Rao. According to her, if Ladu Bai had not been alive as on that day, then Ganga Bai, the daughter would have succeeded to the same. He further contends that when Ladu Bai was the absolute owner, if she had executed the Will on 15.3.1952 bequeathing the property in favour of the defendant no.1, when such a Will was not questioned by Ganga Bai during her life time, the said Will cannot be attacked by the plaintiff in the year 2004. According to her, during the lifetime of Ganga Bai she has given a declaration declaring the plaintiff as the absolute owner. In other words, the Will executed by the grand mother of the appellant had been confirmed by hismother -Gangai Bai as legal-heir. When such a Will isnot challenged during the life time of Ganga Bai, the plaintiff being her son could not maintain a suit. In other words, the Court also did not consider the effect of Section 90 of the Evidence Act When the registered Will dated 15.3.1952 executed by Ladu Bai is of more than 30 years old registered document produced from the proper custody, it has to be presumed that the contents of the Will or execution of the Will cannot be disputed. The Trial Court Without considering the effect of Section 4 of the Act has erroneously decreed the suit. Therefore, he requests the Court to re-appreciate the entire evidence and set aside the judgment and decree of the court below by allowing the appeal. 8. Per contra, Mr.Suryanarayana Rao, learned counsel for the respondent submits that the presumption under Section 90 of the Evidence Act, in regard to 30 years old registered document is only in regard to signature and every other part of such document or the person who executes such document end in regard to attestation, when such attestation is said to have been proved. Therefore, he contends that whether the Will was really executed by Ladu Bai and whether she had sound, mind and body has to be proved by examining the attestors. In the circumstances, he requests the court to dismiss the appeal. 9. Having heard the learned counsel for the parties, the points that arise for consideration in this appeal are as follows; 1) Whether the appellant has proved the Will of Ladu Bai dated 15.3.1952, 2) When the Will dated 15.3.1952 has not been challenged by Gangabai during her lifetime as sole legal heir of Ladu Bai and admitted the execution of the Will by her mother, whether it is open for the son of Ganga Bai to challenge the Will of his grandmother or the mother of Ganga Bai? 3) Whether the judgment and decree of the trial Court is to be reversed or modified? 10. As stated supra, the relationship between the parties is not in dispute. It is the case of the plaintiff that his grand father -Narve Somoji Rao was the owner of the property and that he died intestate in the year 1932. He had only a daughter by name -Ganga Bai. In view of the said Act, when a male Hindu died intestate, such property can be succeeded only by the widow and not by the daughter. Ladu Bai died on 20th July 1956. Ganga Bai, the mother of the parties died on 6.7.1974. The suit is instituted in the year 2004, 50 years after the death of Ladu Bai and 30 years after the death of Ganga Bai. Ladu Bai died on 20th July 1956. Ganga Bai, the mother of the parties died on 6.7.1974. The suit is instituted in the year 2004, 50 years after the death of Ladu Bai and 30 years after the death of Ganga Bai. Ex.D.2 is the registered Will, which is more than 50years old document During the lifetime of Ganga Bai the suit property was mortgaged to Malleswaram Co-operative Bank Limited by the appellant on 12.6.1969 and he had borrowed loan. Khata of the property was changed immediately after the death of Ladu Bai and he has been paying taxes right from 1957 onwards. These facts are not in dispute. On 28.1.1959 as per Ex.D.16 Ganga Bai had given a declaration before the Court of Magistrate, Bangalore stating that the appellant/1st defendant is the absolute owner of the suit property. This declaration is not disputed by any one. If Ganga Bai had not admitted the Will dated 15.3.1952 of her mother Ladu Bai, which was executed in the year 1952 and when her mother died in the year 1956, Ganga Bai would not have given a declaration recommending the ownership of the appellant in the year 1959 itself. When she has not challenged the Will of her mother -Ladu Bai, her children cannot question the Will after the death of Ganga Bai. The Trial Court without examining this legal position and without giving due regard to the registered Will dated 15.3.1952, mortgage deed dated 12.6.1969 and also the declaration dated 28.1.1959 has wrongly held that the Will has not been proved. Admittedly, it is not the case of the respondent/plaintiff that attestors of the Will are still alive. It is a too not his case that scribe of the Will is alive. If the attestors and the scribe of the Will are not alive, when the registered Will is more than 30 years old, it has to be presumed that the Will has been proved. The trial Court could not have disbelieved the Will -Ex.D2 produced by the appellant. If the attestors and the scribe of the Will are not alive, when the registered Will is more than 30 years old, it has to be presumed that the Will has been proved. The trial Court could not have disbelieved the Will -Ex.D2 produced by the appellant. In the circumstances, we are of the view that the suit filed by the plaintiff was not maintainable, because his mother Ganga Bai did not challenge the Will of her mother and that she has confirmed the Will executed by her mother bequeathing the property in favour of the appellant, as the Will is of the year 1952 and the same was registered on 22.3.1952. Since the suit is filed in 2004, as the will is more than 50 years old, in view of Section 90 of the Evidence Act, we are of the opinion that by producing the Will from a proper custody, the contents of the Will or execution of the Will has been proved by the 1st defendant/appellant The Trial Court without considering these facts and evidence has erroneously held issue no.7 against the appellant which requires to be reversed. 11. In the result, the appeal is allowed. The judgment and decree passed in O.S.No.118/2004 by the I Addl. City Civil and Sessions Judge, Bangalore, dated 20thApril 2008, is hereby set aside. The suit instituted by the 1st respondent in O.S.No. 118/2004 is hereby dismissed. Parties to bear their costs.