Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 668 (KAR)

M. S. RAMACHANDRA v. SAMPATHU LAKSHMI

2013-06-11

K.N.KESHAVANARAYANA

body2013
JUDGMENT K.N. KESHAVANARAYANA, J.-This appeal by Defendant No. 1 in O.S. No. 10217/2006 on the file of the XVIII Additional City Civil Judge, [CCH-10], Bangalore, is directed against the judgment and decree dated 01.01.2011 passed in the said suit decreeing the suit filed by Respondent No. 1 herein for partition and separate possession of the suit schedule property holding that the plaintiff and Defendant Nos. 1 to 5 are entitled to 1/6th share each in the suit schedule property. The subject matter of the suit is the house property bearing old No. 25 and New No. 35 measuring East-West:35 ft. and North-South: 45 ft. comprised of a RCC Roofed building situated in II Main, I Stage, I Phase, Division No. 2, West of Chord Road, Rajajinagar, Bangalore-10. 2. For the sake of convenience, the parties herein are referred to with reference to their ranking in the trial Court. 3. The case of the plaintiff as pleaded in the original plaint was that, the plaintiff as well as the Defendants are the children of late Sri. Sathyanarayana Shetty and Smt. Mahalakshmi; that the suit schedule property was purchased in the name of the mother Smt. Mahalakshmi under the registered sale deed dated 03.09.1982; that however, the said property was being enjoyed by the joint family; that Smt. Mahalakshmi died on 11.09.1999 leaving behind the plaintiff as well as Defendants as her legal heirs as such, all the children of Smt. Mahalakshmi succeeded to the suit schedule property, therefore, each of them are entitled for 1/6th share in the suit schedule property. 4. Defendant Nos. 1, 4 & 5 filed their joint written statement admitting the case of the plaintiff to the extent that suit property was owned by their mother Smt. Mahalakshmi. They contended that their mother Smt. Mahalakshmi died leaving behind a Will dated 05.01.1998 bequeathing the entire property in favour of Defendant No. 1, therefore, upon the death of their mother, Defendant No. 1 has succeeded to the entire property, as such, the plaintiff has no share in the suit schedule property. 5. In the light of the written statement of Defendant Nos. 1, 4 & 5, the plaintiff amended the plaint and contended inter alia that, the purported Will set-up by the Defendants is a concocted and created document and that Smt. Mahalakshmi has not left behind any Will. 5. In the light of the written statement of Defendant Nos. 1, 4 & 5, the plaintiff amended the plaint and contended inter alia that, the purported Will set-up by the Defendants is a concocted and created document and that Smt. Mahalakshmi has not left behind any Will. Therefore, she contended that she is entitled for a share in the property. She also set-out certain circumstances, which according to her are suspicious circumstances surrounding execution of the alleged Will. The Defendants filed their additional written statement to the amended plaint setting-out the circumstances under which the Will came to be executed and as to how the Will came to the knowledge of the 1st defendant. The 1st defendant further contended that his mother during her lifetime sold a portion of the suit schedule property measuring 15 × 45 ft. and therefore, the entire property described in the schedule is not available and what is remaining is only 20x45 ft. He further contended that his mother had mortgaged this property in favour of Canara Bank for obtaining loan and since loan was not repaid, the Canara Bank filed a suit for recovery of money and has obtained the decree, as such, the property is encumbered and if for any reason, the plaintiff is held to have any share in the suit schedule property, she is required to pay her share of the liability on the suit schedule property. 6. In the light of the pleadings of the parties, the trial Court framed the following issues:- (i) Whether Defendants-1, 4 & 5 prove that the 1st defendant is the absolute owner by virtue of Will executed by their mother as contended? (ii) Whether the plaintiff and 3 rd defendant are entitled to 1/6th share in the suit property? (iii) Whether the plaintiff is entitled for the relief of perpetual injunction prayed? 7. After hearing the learned counsel appearing on both sides and on appreciation of oral as well as documentary evidence, the trial Court by the judgment under appeal decreed the suit holding that the plaintiff is entitled for 1/6th share in the suit schedule property. The trial Court disbelieved the Will propounded by Defendant No. 1 on the ground that there are several suspicious circumstances which have not been dispelled by the propounder of the Will. The trial Court disbelieved the Will propounded by Defendant No. 1 on the ground that there are several suspicious circumstances which have not been dispelled by the propounder of the Will. Aggrieved by the said judgment and decree, Defendant No. 1 is in appeal before this Court. 8. I have heard the learned counsel appearing for the appellant-defendant and the plaintiff-1st Respondent. Perused the records secured from the trial Court. The points that arise for my consideration in this appeal are,- (i) Whether the Court below is justified in disbelieving the Will propounded by Defendant No. 1? (ii) Whether the trial Court is justified in holding that the plaintiff is entitled for 1/6th share in the suit schedule property. 9. As rightly contended by the learned counsel for Defendant No. 1, the trial Court in the course of the judgment under appeal has erroneously observed that, Defendant No. 1 in his written statement has not disclosed about the existence of the Will. This shows that the learned trial Judge has not properly looked into the pleadings of the parties. In the original written statement filed by Defendant Nos. 1, 4 & 5 on 15.03.2007 itself, there has been a clear statement in Paragraph-12 about their mother Smt. Mahalakshmi leaving behind the Will dated 05.01.1998. In fact, it was this statement contained in the written statement of Defendant Nos. 1, 4 & 5, which necessitated the plaintiff to file application for amendment to the plaint disputing the Will propounded by Defendant No. 1. Thereafter, the 1st defendant filed the additional written statement to meet the allegations made in the amended plaint. These facts have not been noticed by the learned trial Judge. However, that circumstance was not the only reason for the trial Court to disbelieve the Will. 10. There is no serious dispute that the suit schedule property was owned by Smt. Mahalakshmi, the mother of the parties. It is the specific case of Defendant No. 1 that his mother died leaving behind the Will. It is the contention of the learned counsel for the appellant that the Will has been proved in accordance with law by examining one of the attestors of the Will and other attestor, who is none other than the 5th defendant in the suit and as she having died by that time, she could not be examined before the Court. It is the contention of the learned counsel for the appellant that the Will has been proved in accordance with law by examining one of the attestors of the Will and other attestor, who is none other than the 5th defendant in the suit and as she having died by that time, she could not be examined before the Court. Therefore, it was contended that the Will has been proved in accordance with law and the trial Court has not appreciated the evidence placed by the 1st defendant in support of the proof of Will. No do but the 1st defendant, who is the propounder of the Will has examined one of the attestors. The evidence of the attestor of course would establish the execution of the Will. However, the trial Court has noticed two strong circumstances to doubt the genuineness of the Will. One of the circumstances was that though the mother of the parties died on 11.09.1999, three years later, Defendant No. 1 alongwith two other sisters and father have entered into a deed of partition, partitioning the suit schedule property among themselves without giving any share to the plaintiff. If in the year 1998 the mother had executed the Will and she having died in the year 1999, there was no occasion for the parties to enter into a partition three years later. Defendant No. 1 being the beneficiary under the Will would not have certainly agreed to effect partition of the property, if there was a Will executed in his favour. No doubt, in the additional written statement, Defendant No. 1 sought to contend that he had no knowledge of the existence of the Will as on the date of partition deed since the original Will had been given to the custody of DW.3 by the testatrix and it was only after the death of the father DW.3, handed over the Will to Defendant No. 1 and that is the reason why the parties entered into a deed of partition in the year 2001. It is pertinent to note that this explanation was not found in the original written statement filed. Even according to the evidence of DW.3, the original will was handed-over to Defendant No. 1 immediately after the death of the father of Defendant No. 1. It is not in dispute that their father died on 18.04.2003. It is pertinent to note that this explanation was not found in the original written statement filed. Even according to the evidence of DW.3, the original will was handed-over to Defendant No. 1 immediately after the death of the father of Defendant No. 1. It is not in dispute that their father died on 18.04.2003. Therefore, even according to Defendant No. 1, he came to know about the Will immediately thereafter. However, conspicuously in the written statement filed on 14.03.2007, these details were not pleaded. These explanations came only by way of additional written statement filed after the plaintiff disputed the genuineness of the Will. It is necessary to note that Defendant No. 5, one of the daughters was stated to be an attestor to the Will, and she is also a party to the partition deed. As on the date of partition deed, Defendant No. 5, had knowledge about the Will and also leaving the same in the custody of DW.3. The original written statement was filed jointly by Defendant Nos. 1, 4 and 5. In spite of the same, the explanation sought to be given in the additional written statement were not found in the original written statement. In spite of knowledge about the existence of the Will, the fact that Defendant No. 5 also joined the partition deed would casts serious doubt about the genuineness of the Will. These circumstances in my opinion has been rightly viewed seriously by the Court below as strong suspicious circumstance to doubt the genuineness of the Will. The judgment of the trial Court, in my considered opinion, is sound and reasonable. It is well-settled that the propounder of the Will has to prove the execution of the will in accordance with law and also should dispel all the suspicious circumstances surrounding execution of the Will. The plaintiff in her amended plaint has set-out suspicious circumstances and those circumstances have been viewed seriously by the Court below. The 1st defendant, proponunder of the Will has not satisfactorily explained the suspicious circumstances. Therefore, in my considered opinion, the trial Court is justified in disbelieving the Will propounded by Defendant No. 1. The plaintiff in her amended plaint has set-out suspicious circumstances and those circumstances have been viewed seriously by the Court below. The 1st defendant, proponunder of the Will has not satisfactorily explained the suspicious circumstances. Therefore, in my considered opinion, the trial Court is justified in disbelieving the Will propounded by Defendant No. 1. If the Will propounded by Defendant No. 1 is eschewed from consideration, in view of the fact that the property admittedly belonged to the mother and upon her death the property is succeeded by her heirs in accordance with Sections-15 & 16 of the Hindu Succession Act. The plaintiff being one of the daughters, is entitled for equal share in the property alongwith other children of Smt. Mahalakshmi. Therefore, the Court below is justified in holding that the plaintiff is entitled for 1/6th share in the suit schedule property since the deceased Smt. Mahalakshmi died leaving behind two sons and four daughters. 11. The documentary evidence produced by Defendant No. 1 marked as Ex.D1 would clearly indicate that, out of total extent of the schedule property, an area measuring 15 × 45 ft. was sold by Smt. Mahalakshmi during her lifetime. Therefore, as on the date of the death of Smt. Mahalakshmi, the property which was available to be succeeded by her heirs was 20 × 45 ft and not 35 × 45 ft. The plaintiff has not disputed the execution of the sale deed-Ex.D1 by Smt. Mahalakshmi. This fact has been completely over-looked by the Court below. The Court below has granted decree in favour of the plaintiff in respect of the entire property though a portion of the property had been sold by Smt. Mahalakshmi during her lifetime. Therefore, the plaintiff is entitled for 1/6th share only in the remaining property measuring 20 × 45 ft. and to this extent the decree is required to be modified. 12. Defendant No. 1 has produced the certified copy of the judgment and decree obtained by Canara Bank in O.S. No. 2474/1989 as per Ex.D6. Smt. Mahalakshmi was arraigned as Defendant No. 3 to this suit. As could be seen from Ex.D6, the suit was decreed for payment of Rs. 3,00,000/- together with interest @ 18% pa. from the date of release of the funds by the plaintiff-Bank till the date of actual repayment. Smt. Mahalakshmi was arraigned as Defendant No. 3 to this suit. As could be seen from Ex.D6, the suit was decreed for payment of Rs. 3,00,000/- together with interest @ 18% pa. from the date of release of the funds by the plaintiff-Bank till the date of actual repayment. A preliminary decree as per Order 34, Rule 2 CPC has been directed to be drawn. The contents of the judgment-Ex. D6 would indicate that the suit schedule property has been mortgaged in favour of the bank as security for the repayment of the loan obtained from Canara Bank and by the date of the decree Smt. Mahalakshmi, the 3rd defendant therein had died. Under the preliminary decree, six months time was granted to the judgment debtors to pay-off the decretal amount, failing which, the mortgaged property was directed to be sold for realization of the decretal amount. This shows that there is a liability attached to the suit schedule property incurred by Smt. Mahalakshmi during her lifetime. The plaintiff while succeeding to a share in the property is also liable to share the liability attached to the property. Therefore, the plaintiff has to be directed to bear the liability to an extent of 1/6th share due to the Canara Bank vide judgment and decree obtained as per Ex.D6. To the extent indicated above, the judgment and decree of the trial Court is required to be modified. It is also brought on record that two of the sharers have released their share in the property in favour of Defendant No. 1 as such, Defendant No. 1 is entitled for 3/6th share. In this view of the matter, an attempt was made to bring out an amicable settlement regarding division of property with a view to avoid further litigation, by valuing the share of the plaintiff. However, parties could not reach a resolution. Therefore, this aspect is left to be decided by the Court below at the time of passing final decree, keeping in mind the provisions of Partition Act. 13. Accordingly, the appeal is allowed in part. While confirming the judgment of the Court below holding that the plaintiff is entitled for 1/6th share, it is ordered that the plaintiff is entitled for 1/6th share in the remaining area of the suit schedule property after deducting the area measuring 15 × 45ft. sold under the sale deed-Ex.D1. 13. Accordingly, the appeal is allowed in part. While confirming the judgment of the Court below holding that the plaintiff is entitled for 1/6th share, it is ordered that the plaintiff is entitled for 1/6th share in the remaining area of the suit schedule property after deducting the area measuring 15 × 45ft. sold under the sale deed-Ex.D1. In other words the plaintiff is entitled for 1/6th share in an area measuring 20 × 45 ft. out of the schedule property. The plaintiff is also directed to bear 1/6th of the liability due to Canara Bank as per the judgment and decree-Ex.D6. The Court below, at the time of passing Final Decree shall bear-in-mind the provisions of the Partition Act, having regard to the measurement of the property available for partition and the quantum of share to which the plaintiff is entitled to. Office to draw the Preliminary Decree as indicated above.