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2013 DIGILAW 1008 (KAR)

Narayanamma v. Lakshmamma

2013-08-29

A.S.PACHHAPURE

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JUDGMENT 1. The appellants have challenged the judgment and decree of the Trial Court granted in favour of the respondents seeking relief of declaration and possession. 2. The facts reveal that the appellants herein are the defendants and the respondents instituted a suit for the aforesaid reliefs. The suit property is the agricultural land described in the schedule to the plaint. The suit property was granted by the Government vide order dated 20.10.1986 in favour of Narayanappa, the father-in-law of the first plaintiff. The said Narayanappa had a son by name Ramappa who is the husband of first plaintiff and plaintiffs 2 to 4 are their children. Ramappa pre-deceased his father Narayanappa and the plaintiffs claim that as they are the sole LRs of deceased Narayanappa, they are the absolute owners of the suit property and are entitled to the possession. As the first plaintiff had left the village and as there were no adult male members in the family, the appellant-defendant No.1 is said to have created a fictitious Will to get her name entered in the records and illegally is said to be in possession. Therefore, the plaintiffs sought for declaration and possession. The appellants appeared before the Trial Court and contested the suit instituted claiming that Narayanappa executed a Will under Ex.D1 in favour of the first defendant on 10.11.1992 bequeathing the suit property in her favour. Therefore, she claimed the absolute possession of the suit property on the basis of said Will. The Trial Court framed the issues and parties led the evidence. The first plaintiff was examined as PW1 and the documents Exs.P1 to P5 were marked. The defendants examined DW1 (first defendant) and Exs.D1 to D6 were marked. The Trial Court after hearing the counsel for parties and on appreciation of the material on record has decreed the suit holding that the Will is not proved. Aggrieved by the judgment and decree of the Trial Court, the appellants approached the First Appellate Court in RA No.8/2011 and it came to be dismissed on merits on 03.07.2012. Aggrieved by the judgment and decree of the Courts below, the present appeal is filed. 3. I have heard Sri.V Vishwanath, learned Counsel for the appellants. 4. Aggrieved by the judgment and decree of the Trial Court, the appellants approached the First Appellate Court in RA No.8/2011 and it came to be dismissed on merits on 03.07.2012. Aggrieved by the judgment and decree of the Courts below, the present appeal is filed. 3. I have heard Sri.V Vishwanath, learned Counsel for the appellants. 4. It is the contention of learned Counsel for the appellants that husband of the first plaintiff had signed the Will Ex.D1 and as the deposition of attesting witness which was recorded in OS No.142/2007 was also produced, he would contend that the Courts below committed an error in rejecting the version of the defendants (appellants herein) and he would submit that there is a substantial question of law for consideration in this appeal. 5. There is no dispute that Narayanappa is the father-in-law of first plaintiff and the suit property was granted in his name by the Government and to prove the said fact, though the plaintiffs have produced the records, the appellant-defendant No.1 herself has produced the Grant Certificate (Ex.D2), which would reveal that the suit property was granted to Narayanappa. It is also not in dispute that Narayanappa had a son by name Ramappa, the husband of first plaintiff and he pre-deceased Narayanappa. The first plaintiff is the widow of Ramappa and daughter-in-law of Narayanappa whereas plaintiffs 2 to 4 are their children, thereby plaintiffs would be Class-I heirs. 6. So far as the defendants are concerned, though there is a defence that they are grand children's, the relationship is not established and the only claim of the defendants is on the basis of Will (Ex.D1). So, in case, if the defendants prove the Will (Ex.D1), they are entitled to the property in exclusion of the plaintiffs. This was only the important question for consideration before the Courts below. 7. For a Will, attestation of two witnesses is necessary. Perusal of the evidence of DW1 would reveals that she was not present at the time of execution of the Will. Though in the cross examination, she states that she saw Ramappa, the husband of first plaintiff signing the Will (Ex.D1), the Courts below have not accepted her version in the cross examination as in the chief examination itself, she states that she was not present at the time of execution of Will. She had not examined any other witnesses. Though in the cross examination, she states that she saw Ramappa, the husband of first plaintiff signing the Will (Ex.D1), the Courts below have not accepted her version in the cross examination as in the chief examination itself, she states that she was not present at the time of execution of Will. She had not examined any other witnesses. Ramappa died 4 or 5 years prior to the death of Narayanappa. Though DW1 states that signature at Ex.D1 is of Ramappa, as her presence at the time of execution of Will is not accepted by the Courts below concurrently, it cannot be said that she was able to identify the signature of Ramappa at Ex.D1. 8. That apart, though the attesting witness by name Nareppa was very much alive, the appellants did not take any steps to examine the said attesting witness. Though a copy of deposition of Nareppa in OS No.142/2007 was read by the counsel in the Courts below, that cannot be taken as evidence in the present case for the reason that the said Nareppa did not enter the witness box before the Trial Court and there was no opportunity for the plaintiffs to cross examine Nareppa. In the circumstances, the mere reading of depositions of Nareppa which was recorded in some other case is of no help to the appellants. It is for this reason that the Trial Court did not rightly took into consideration the deposition of said Nareppa. 9. Furthermore, the appellants have not examined either the scribe or any other person who were present at the time of alleged execution of Will. In the absence of evidence of attesting witness, the execution is not proved. That apart, the deceased Narayanappa had left behind the Class-I heirs and a suspicious circumstance is brought on record in the execution of Will in favour of the first defendant overlooking the close relationship of the plaintiffs with Narayanappa. There is no answer by the appellants on this question as well. In the absence of any material to prove Ex.D1, the Courts below have rightly rejected the request of appellants and granted a decree in favour of the respondents. I do not find any substantial question of law for consideration in this appeal. Hence, the appeal fails and it is dismissed.