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2013 DIGILAW 407 (KAR)

H. RAVINDRAPPA v. H. R. SHOBHA

2013-03-27

B.MANOHAR

body2013
JUDGMENT B. MANOHAR, J.-Appellant is the plaintiff challenging the legality and correctness of the judgment and decree dated 16.12.2004 passed in O.S. No. 27/2004 by the I Addl. Civil Judge (Sr. Dn.) Davangere, partly decreeing the suit filed by the plaintiff, filed this appeal. 2. The plaintiff filed a suit against the defendant who is none other than his daughter seeking for partition and separate possession of half share in the suit schedule properties. In the plaint, the plaintiff has contended that as per the registered partition deed dated 09.06.1980 the properties were divided between him, his wife Jayamma and her son Kuberappa and the suit schedule property was allotted to the share of Smt. Jayamma, since Kuberappa was minor at that time. There was dispute between the husband and wife. The plaintiff has taken a second wife in the year 1980. The son of the plaintiff namely Kuberappa died on 30.08.2004 and the wife of the plaintiff Jayamammadied on 11.03.2003. Since the plaintiff is Class I heir of Smt. Jayamamma, he sought for partition of the property belonging to said Jayamma. The plaintiff claims that after the death of his wife Jayamma he and defendant jointly succeeded the share in the property of said Jayamma, hence he is entitled for half share in the suit schedule property and accordingly he filed the suit. 3. The defendant entered appearance and filed written statements denying the entire averments made in the plaint except admitting the fact that she is the daughter of late Jayamma and Kuberppa was her brother. She also admitted the registered partition deed dated 9.06.1980 between the plaintiff and Jayamma and also admitted that both Kuberappa and Jayamma died. She has also contended that during the life time of Jayamma, she had executed a registered Will dated 22.02.2003 bequeathing the suit schedule property in favour of the defendant. Hence the plaintiff has no right whatsoever in respect of the suit schedule property and sought for dismissal of the suit. 4. On the basis of the pleadings of the parties, the trial Court has framed the following issues: 1. Whether the plaintiff proves that, himself and defendant jointly succeeded to the suit schedule properties after the death of his wife smt. Jayamma? 2. Whether the plaintiff proves that, himself and defendant are in joint possession and enjoyment of the suit schedule properties? 3. Whether the plaintiff proves that, himself and defendant jointly succeeded to the suit schedule properties after the death of his wife smt. Jayamma? 2. Whether the plaintiff proves that, himself and defendant are in joint possession and enjoyment of the suit schedule properties? 3. Whether the defendant proves that, the said Jayamma had bequeathed the suit schedule properties in her favour through a registered will, dated 22.02.2003? 4. Whether the suit is barred by limitation? 5. Whether the suit is valued properly and paid the sufficient Court fee? 6. Whether the plaintiff is entitled for partition and separate possession of half share in the suit schedule properties? 7. Whether the plaintiff is entitled for mesne profits? 8. What order or decree? 5. The plaintiff in order to prove his case examined himself as PW 1 and got marked five documents as Ex. P 1 to Ex P 5. On behalf of the defendant, she examined herself as DW 1 and examined two other witnesses as DWs 2 and 3 and got marked 13 documents as Exs. D 1 to D 13. 6. The trial Court on appreciation of oral and documentary evidence let in by the parties had partly decreed the suit and declared that the plaintiff is entitled for half share in suit item No. 2, house property and also mesne profits. However, the plaintiff is not entitled for any share in respect of item No. 1 of the suit schedule property, accordingly dismissed the suit in respect of item No. 1 of the suit schedule property. 7. Being aggrieved by the same, the plaintiff has preferred the present appeal contending that the judgment and decree passed by the trial Court is contrary to law. The finding of the trial Court that the plaintiff is not entitled for share in item No. 1 of the suit schedule property is erroneous in law. The alleged Will was not proved in accordance with law. Hence sought for setting aside the judgment and decree by allowing the appeal. 8. On the other hand the contesting respondent argued in support of the judgment and decree passed by the trial Court contending that as per the Registered Will dated 22.02.2003 Smt. Jayamma bequeathed item No. 1 of the suit schedule properties and another property in favour of the defendant. The attesting witnesses of the Will had been examined as DW 2 and DW 3. The attesting witnesses of the Will had been examined as DW 2 and DW 3. DW 2 in his evidence deposed that the defendant was not present at the time of execution of the Will. However DW 3 in his evidence has deposed that the defendant was present at the time of registration of the Will. There is contradiction in the evidence of DWs 2 and 3. The trial Court taking note of the said fact that at the time of preparation of the Will, the defendant was not present held that she has not influenced the executant of the Will. Since the Will is a registered one, more weight has to be given to the same and accordingly held the plaintiff is not entitled for share in respect of item No. 1 of the suit schedule property, however he is entitled to half share in item No. 2 of the suit schedule property. There is no illegality or infirmity in the said finding and sought for dismissal of the same. 9. After hearing the learned Counsel for the parties, the only point that arises for my consideration in this appeal is: Whether the appellant has made out any case to interfere with the judgment and decree of the trial Court? 10. The records clearly disclose that as per the registered partition deed dated 9.06.1980 the suit schedule property was allotted to the share of Smt. Jayamma and her son Kuberappa and at that time Kuberappa was a minor. Kuberappa died on30.08.1994 intestate. Jayamma became Class-I heir. She died on 11.03.2003. The plaintiff claims that he and the defendant are in joint possession of the said property. However, the defendant claims that she is the owner of the property on the basis of the registered Will dated 22.02.2003 executed by Jayamma. The plaintiff in his evidence has reiterated the plaint averments. In the cross examination he has admitted that the suit schedule property was allotted to Smt. Jayamma, who is none other than his wife. From the year 1980 they were living separately and he had taken a second wife. Defendant Shobha is the daughter of Jayamma. The registered partition deed is marked as Ex. P 1 and death certificates of Smt. Jayamma and her son Kuberappa were marked as Ex. P 2 and P 3. From the year 1980 they were living separately and he had taken a second wife. Defendant Shobha is the daughter of Jayamma. The registered partition deed is marked as Ex. P 1 and death certificates of Smt. Jayamma and her son Kuberappa were marked as Ex. P 2 and P 3. The records clearly disclose that from the year 1980 there was no contact between the plaintiff and Jayamma, Jayamma was living separately along with her son. He denied the Will executed by Jayamma. However DW 1 in her evidence has deposed that her mother had executed a Will bequeathing item No. 1 and another property as per registered Will dated 22.03.2003. In view of the registered partition deed dated 9.06.1980 and on the death of Kuberappa, Jayamma became the absolute owner of the property and she has the right to bequeath the suit schedule property in favour of her daughter. She got marked the Will dated 22.02.2003 as Ex. D 11. In the cross examination she has deposed that her role is not there in preparing the Will. Hanumantharaju and Prakash are the attesting witnesses of the said Will and Gurudeva was the scribe of the said Will. DW 2 in his evidence has deposed that Jayamma had executed a registered Will dated 22.03.2003 in favour of her daughter and grand son Vinayaka. At the time of execution of the Will the defendant was present. On the instructions of Jayamma, Will has been prepared. At the time of preparation of the Will B.C. Hanumantharaju and S.B. Prakash were present. Hanumantharaju and S.B. Prakash singed the Will as attesting witnesses. Thereafter the Will was registered at the Sub-Registrar Office. In the cross examination, he deposed that Hanumantharaju and S.B. Prakash singed in the Will as attesting witnesses and the scribe of the Will was Gurudeva. He admitted that at the time of execution of the Will, he was present. However he has not signed the Will as attesting witness. 11. PW 3 S.B. Prakash who is one of attesting witness in his evidence has deposed that Smt. Jayamma executed the Will dated 22.02.2003 bequeathing the suit schedule property in favour of her daughter and grand son Vinayaka. At the time of execution of the Will the defendant was not present. However she was present at the time of registration of the Will. At the time of execution of the Will the defendant was not present. However she was present at the time of registration of the Will. In the cross examination he deposed that he was present at the time of preparation of the Will and the Will has been prepared on the instructions of Jayamma. The said Will was drafted by Gurudeva. Thereafter the contents of the Will was read over to Jayamma and she executed the Will. Hanumantharaju and himself singed the Will as attesting witnesses. At the time of execution of the Will, Jayamma was hale and healthy. On the basis of oral and documentary evidence adduced by the parties, the trial Court came to the conclusion that Jayamma executed the Will bequeathing item No. 1 of the suit schedule property in favour of her daughter and grand son and no Will has been executed in respect of item No. 2 of the suit schedule property in favour of the defendant and the plaintiff is entitled for half share in item No. 2 of the suit schedule property. Therefore there is no illegality or irregularity in the said finding. 12. The records clearly disclose that there was no contact between the plaintiff and Jayamma from 1980 onwards. The attesting witnesses in their evidence admitted that at the time of execution of the Will the defendant was not present. The Will has been prepared on the instructions of Jayamma. However DW 3 in the cross examination deposed that at the time of registration of the Will, the defendant was present. Even though, the defendant was present at the time of registration of the Will, no evidence has been brought on record to show that at the instance of the defendant the Will has been prepared. The Will has been prepared on the wishes of Jayamma and the role of the defendant is not there. Except disputing the execution of the Will, no oral or documentary evidence was adduced before the Court to show that the Will has been executed in a suspicious circumstance. In the absence of the same the Will executed by Jayamma has to be accepted. 13. I do not find any illegality or infirmity in the findings recorded by the trial Court. The appellant has not made out any good case to interfere with the judgment and decree passed by the trial Court. In the absence of the same the Will executed by Jayamma has to be accepted. 13. I do not find any illegality or infirmity in the findings recorded by the trial Court. The appellant has not made out any good case to interfere with the judgment and decree passed by the trial Court. Accordingly the appeal is dismissed as devoid of merits. Parties to bear their own costs.