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2015 DIGILAW 1050 (KAR)

Dharmapala v. Seethamma

2015-09-04

G.NARENDRA, N.KUMAR

body2015
JUDGMENT : N. Kumar, J. 1. This is a second defendant's regular first appeal challenging the judgment and decree of the trial Court decreeing the suit of the plaintiffs and declaring them as absolute owners of the plaint schedule property and granting a decree of permanent injunction restraining the defendants from trespassing or interfering with the possession and enjoyment of the plaint schedule property. 2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit. 3. The subject matter of the suit is house and compound situated in Permanoor Village of Mangalore Taluk, outside City Corporation, bearing Sy. No. 68/3B and measuring 22 cents in extent and containing thereon building bearing D. Nos. 2-166(A) 1 to 4 of former Permannoor Panchayath now within Ullal Town Panchayath, which is more particularly described in the schedule to the plaint and for short herein after referred to as 'Schedule Property". 4. The first plaintiff is the 2nd wife of late Lakshmana. The plaintiffs Nos. 2 to 4 are their children. The first defendant is the 1st wife of Lakshmana whose marriage had dissolved by a decree of divorce. The second defendant is the son of first defendant. Late Sri. Lakshmana purchased the schedule property under a registered sale deed dated 07.03.1966. The property was mutated in his name, on the basis of the said sale deed. The parties belonged to Belchada by caste and they follow the Aliyasanthana system of personal law. The first defendant was divorced by the said Lakshmana in O.P. No. 48/62 of Aliyasanthana Act. After divorce of the first defendant, he married the first plaintiff who in turn gave birth to plaintiff Nos. 2 to 4. Lakshmana expired on 04.07.2003, leaving behind his last Will and testament dated 21.06.1994 which is duly registered. He had voluntarily executed the said will while he was in the sound and disposing state of mind. As per the said will, the plaint schedule property had been bequeathed to the first plaintiff to be enjoyed by her during her life time and thereafter the property would belong to plaintiff Nos. 2 to 4, they being entitled to specific portions of the building, with the joint right in the entire land. The said Will being last Will and testament, came into operation after life time of said Lakshmana. 2 to 4, they being entitled to specific portions of the building, with the joint right in the entire land. The said Will being last Will and testament, came into operation after life time of said Lakshmana. Thus, the plaintiffs are the present owners of the schedule property. On 06.08.2003, the first plaintiff applied to the Tahsildar of Mangalore to register her name in the revenue record relating to the plaint schedule property. The 2nd defendant gave application dated 01.10.2003 to the Village Accountant of Permannur to enter his name in the RTC. He did not mention the particulars of the alleged Will, in his application to Village Accountant. The Deputy Tahsildar conducted enquiry and by on order dated 31.05.2004, he declined to enter the name of any of the applicants in view of the dispute relating to the succession. The plaintiffs had filed an appeal to the Assistant Commissioner of Mangalore. The said appeal came to be dismissed as per the order dated 22.01.2007. In HRC No. 127/2003 filed by the plaintiff No. 1 against tenant - Rama, the defendants had been shown as respondent Nos. 2 and 3 in that case. The trial court by its order dated 21.07.2006, ordered eviction of the tenant. But as regard to the rival contentions of the plaintiffs and defendants, the said court observed that it should be decided in civil suit. The Assistant Commissioner had relied upon the said observation of the court and dismissed the appeal of the plaintiffs. Hence, to establish the right of the plaintiffs to the schedule property, a suit was filed in O.S. No. 322/2007. 5. The alleged Will dated 18.08.1995, the 2nd defendant has put forward before the revenue authorities, is a forged and got up document. It contains several false and incorrect recitals in it. It does not bear the signature of late Lakshmana. The one and only last genuine Will of Lakshmana is the one dated 21.06.1994 that the plaintiffs have mentioned above. Late Lakshmana had no affection towards defendants. This statement shows that he has not executed any Will in their favour. 6. After service of summons, the first defendant did not contest the suit and she was placed ex-parte. It is only the 2nd defendant who filed detailed written statement contesting the claim of the plaintiffs. The second defendant denied the Will set up by the plaintiffs. This statement shows that he has not executed any Will in their favour. 6. After service of summons, the first defendant did not contest the suit and she was placed ex-parte. It is only the 2nd defendant who filed detailed written statement contesting the claim of the plaintiffs. The second defendant denied the Will set up by the plaintiffs. He contends that his father died on 04.07.2003 leaving behind his last Will dated 18.08.1995. Under the said Will, he has bequeathed 22 cents of land situated in S. No. 68/3B of Permannur village of Mangalore taluk, i.e., the schedule property to him and 28 cents of land situated in T.S. No. 795 of Mangalore Thota village of Mangalore to the plaintiffs. On the death of his father, he became the absolute owner of 28 cents i.e., schedule property. He has disputed the proceedings before the Tahsildar and the Assistant Commissioner. He also admits the proceedings in HRC No. 127/2003. The framing of suit is bad, court fee paid is insufficient and therefore, he sought for dismissal of the suit. 7. On the aforesaid pleadings, the trial Court has framed the following issues: (1) Whether the plaintiff proves that they are the lawful owners of the plaint schedule property by virtue of the duly registered last Will and Testament dated: 21.06.1994 of the lat Laskhsmana? (2) Whether the plaintiff proves the cause of action? (3) Whether the defendants prove that Late Lakshmana died interstate on 04.07.2003 leaving behind his Last Will dated 18.08.1995? (4) To what relief the parties are entitled to? (5) To what order or decree? 8. In order to substantiate the claim, the 2nd plaintiff got examined himself as P.W. 1 and one Rajendra Prasad who is said to be the attesting witness to the Will was examined as P.W. 2. He also produced 21 documents which are marked as Ex. P1 to Ex. P21. The 2nd defendant was examined as DW. 1 and one Rama who is said to be the attesting witness to the Will set up by the defendant was examined as DW. 2. He also produced 11 documents which are marked as Ex. D1 to D11. 9. He also produced 21 documents which are marked as Ex. P1 to Ex. P21. The 2nd defendant was examined as DW. 1 and one Rama who is said to be the attesting witness to the Will set up by the defendant was examined as DW. 2. He also produced 11 documents which are marked as Ex. D1 to D11. 9. The trial Court on appreciation of the aforesaid oral and documentary evidence held that the plaintiffs proved the due execution of the Will and testament dated 21.06.1994 of late Lakshmana and accordingly, they have established that they are the lawful owners of the plaint schedule property. However, the defendant has failed to prove that late Lakshamana left behind the Will dated 18.08.1995 and therefore, decreed the suit of the plaintiffs as prayed for and granted a decree of permanent injunction. Aggrieved by the said judgment and decree of the trial court, the 2nd defendant is in appeal. 10. The learned counsel for the defendant-appellant assailing the impugned judgment and decree of the trial Court contends that Ex. P3 propounded by the plaintiffs is not proved. The signature of one of the attesting witness is marked and no body has spoken about the signature of other attesting witness. Evidence on record did not establish that attesting witnesses were present at the time of execution of Ex. P3 by the testator and nobody has spoken about the attestation of the Will by other attesting witness Shekar. He further contended that Ex. P3 is surrounded by suspicious circumstances. Though in the Will, the testator has disowned 2nd defendant, the subsequent conduct namely, the 2nd defendant was living with the 1st wife and her children and in the marriage invitation card published as per Exs. D1 and D2 which was of the year 2001, the name of the first defendant was mentioned in the wedding card and therefore, his statement in respect of Ex. P3 stands rebutted. Further, he contended that the evidence on record shows that testator was not in sound state of mind nine months prior to date of his death which clearly establishes that the Will executed is vitiated as the testator was not in sound state of health at the time of execution of the Will. Further, he contended that the Will set up by the 2nd defendant at Ex. Further, he contended that the Will set up by the 2nd defendant at Ex. D3, is duly proved by examination of the attesting witness i.e., DW. 2 - Rama. The court below has not properly appreciated the evidence and erred in recording a finding that Ex. D3 is not proved. Therefore, he submits that case for interference is made out and the plaintiffs' suit is liable to be dismissed. 11. Per contra, learned counsel appearing for the plaintiffs submitted that evidence of PW. 2 - Rajendra Prasad - one of the attesting witnesses clearly establishes the due execution of the Will and same is as required under Section 63 of the Indian Succession Act R/w Section 68 of Evidence Act. The testator was in sound state of mind at the time of execution of the Will. Merely, because the 2nd defendant's name is shown in the wedding card does not lead to inference that what is stated in Ex. D3 is false. In fact, the evidence on record shows that at the earliest point of time, the defendant did not produce the Will Ex. D3. There is no whisper during the HRC proceedings. The Will - Ex. P3 is a registered one and the Will set up by the defendant is not a registered Will. Therefore, the trial Court on proper appreciation of the evidence on record rightly held that Ex. D3 is not proved and therefore, he submits no case for interference in appeal is made out. 12. In the light of the aforesaid facts and rival contentions, the points that arise for our consideration in this appeal are: 1. That the finding of the trial court that the Will propounded by the plaintiffs dated 21.06.1994 marked as Ex. P3 is duly proved as held by the trial Court? 2. Whether the finding of the trial Court that the Will propounded by the 2nd defendant dated 18.08.1995 marked as Ex. D3 in the case is not proved or calls for interference? Point No. 1: 13. The facts are not in dispute. The relationship between the parties is admitted. The schedule property is a self acquired property of late Lakshmana, having purchased under the registered sale deed dated 07.03.1966 which is marked as Ex. P2. Lakshmana married the first defendant and the 2nd defendant was born out of the said wed-lock. Point No. 1: 13. The facts are not in dispute. The relationship between the parties is admitted. The schedule property is a self acquired property of late Lakshmana, having purchased under the registered sale deed dated 07.03.1966 which is marked as Ex. P2. Lakshmana married the first defendant and the 2nd defendant was born out of the said wed-lock. It is not in dispute that said Lakshmana divorced the first defendant. After divorce, he married the first plaintiff and after the said marriage, plaintiff Nos. 2 to 4 were born. In fact, evidence on record shows that both the plaintiffs and defendants are residing in Gorakshadandu Compound under different portions of the same building having a different mess. It is also on record that Lakshmana till his death lived with the plaintiffs. DW. 1 has categorically stated in his evidence that there was divorce and he was living separately with his mother and his mother took care of the 2nd defendant. In fact, in the marriage invitation printed in the year 2001, the name of the 2nd defendant also finds a place. The said Lakshmana was a business man. Now coming to the execution of Ex. P3 is concerned, it is in Kannada Language. This Lakshmana has affixed his signature in Kannada and it runs to 05 pages. It is duly attested by two witnesses namely, K. Shekar and Rajendra Prasad. It is prepared by an advocate Smt. Pushpalatha. The evidence of PW 2 an attesting witness - Rajendra Prasad, shows that testator affixed his signature in Ex. P3 in the advocate Smt. Pushapalatha's office. At the time of affixing his signature, PW. 2, other attesting witness and the advocate were all present. After execution of the Will in the office of the advocate, all of them went to the office of Sub-Registrar. Before the Sub-Registrar also he and the other attesting witness - Shekar identified the thumb impression of testator. The said witness knew the Lakshmana about two to three years prior to execution of the Will. He is the brother of advocate Smt. Pushpalatha. The said witness is extensively cross-examined. In the cross-examination, he has categorically stated that Lakshmana read the Will prior to affixing his signature. When the said Lakshamana affixing the signature in the Will - Ex. P3, he, the attesting witnesses - Rajendra Prasad and Shekar, and also advocate were all present. He is the brother of advocate Smt. Pushpalatha. The said witness is extensively cross-examined. In the cross-examination, he has categorically stated that Lakshmana read the Will prior to affixing his signature. When the said Lakshamana affixing the signature in the Will - Ex. P3, he, the attesting witnesses - Rajendra Prasad and Shekar, and also advocate were all present. In fact, only suggestion that was suggested in cross-examination is that the Will is not duly executed in accordance with law and PW. 2 has deposed in his evidence that he is close to PW. 1. In fact in the cross-examination-in-chief of DW. 1, at Page-7, he has categorically stated that the Will dated 21.06.1994 is not a genuine document. That the plaintiffs taking undue advantage of the illiteracy of his father have misguided him about the contents of the same have fraudulently and without his knowledge have taken the signature on the purported Will, with the sole intention to knock off the plaint schedule property. Thus, the signature of Lakshmana on Ex. P3 is admitted. Sri Lakshmana executing the Will is also admitted. This admission coupled with evidence of PW. 2 which clearly establishes due execution of Ex. P3, due attestation on Ex. P3 and the trial Court on proper appreciation of oral evidence on record has rightly held that Will is proved. The finding which is based on legal evidence cannot be found fault with. 14. In so far as the argument that the testator was not in sound state of mind at the time of execution of the Will is concerned, not only execution of Will on 21.06.1994, he get it duly registered. In fact, he died only on 04.07.2003 i.e., nearly eight years after the execution of the Will. No doubt, the evidence on record shows that he had suffered Senility and he was inpatient for about 09 days and thereafter he was treated in the house itself. The very fact that he survived for 09 long years after due execution of the Will should be sufficient to hold that on the date of execution of the Will he was in a sound state of mind. The very fact that he survived for 09 long years after due execution of the Will should be sufficient to hold that on the date of execution of the Will he was in a sound state of mind. In fact, the recitals in the Will makes it very clear how meticulously he has confessed title of schedule property in favour of the plaintiffs and he also had given reason for disowning the 2nd defendant and not giving him any share in the schedule property. Merely in the year 2001, in the invitation card printed for marriage ceremony the name of the 2nd defendant was mentioned would not show his good relationship with him as contended. Merely because the other attesting witness signature is not marked, it does not vitiate to the Will and that is not the requirement of law at all. The requirement of law is, the testator should affix his signature to the Will in the presence of two witnesses. Those two witnesses after being satisfied with the signature of the testator should affix their signature in his presence. In this case, evidence on record clearly establishes due attestation, due execution of Will and the testator was in sound state of mind and there was no suspicion circumstances surrounded the Will. In that view of the matter, the finding recorded by the trial court is unexceptional. Point No. 2: 15. In sofar as the Will propounded by 2nd defendant is concerned, this is surrounded by suspicious circumstances. Firstly, we have compared the signature of Lakshamana in Ex. P3 and Ex. D3; they do not appear to be same. Secondly, if Lakshmana after execution of Ex. D3 took no steps to get it duly registered. Thirdly, if we have taken assistance of the drafter of Ex. P3, there is no reason forth coming as to why second defendant had not taken assistance of an advocate to draft Ex. D3. In fact the name of the author of the Ex. D3 is not forth coming. The evidence on record shows that the plaintiffs initiated eviction proceedings against one Rama who was the tenant in the portion of the property. To the said proceedings, defendants in the suit were also made parties. There, they specifically pleaded that under the Will Ex. P3 they claim title to the property. Neither the said tenant nor the 2nd defendant whispered about Ex. To the said proceedings, defendants in the suit were also made parties. There, they specifically pleaded that under the Will Ex. P3 they claim title to the property. Neither the said tenant nor the 2nd defendant whispered about Ex. D3 in the said proceedings. The evidence on record shows that in spite of 2nd defendant giving evidence in support of tenant, the eviction came to be allowed. The revision petition is now pending for consideration. It is that tenant against whom the plaintiffs have filed eviction, is one of the attesting witness of Ex. D3. Therefore, the plaintiffs have subsequently contended that the said Rama and 2nd defendant colluded together created this Will in order to defeat the valuable right of the plaint schedule property. The fact that eviction case was filed against Rama and the 2nd defendant deposed against tenant and eviction is allowed is not in dispute. If that is so, the evidence of the Rama an attesting witness has to be considered with a pinch of salt. In fact, his evidence shows in cross-examination-in-chief, he has stated that after the death of Lakshmana, some dispute arose between family members as Lakshmana has two wives and both wives have children they were claiming share in the property and he was unable to find out who are the real owners of the plaint schedule property as both were demanding rent, he has deposited the rent in court as deposed in HRC No. 127/03. The evidence is marked as Ex. P15 in this case. He has not whispered about Ex. D3 which is attested by him in the said proceedings. Now in the present proceedings, he has deposed that he was unable to say on what date, where, Will was prepared and he did not know the scribe of the Will. He admits in the statement of objections filed in HRC proceedings, he did not mention about this Will Ex. D3. Ex. D3 was prepared by the owner and brought to him, where it was prepared he is not aware. He has identified the signature of Lakshmana in every page and he also identified his signature. He has deposed that other attesting witness was present. D3. Ex. D3 was prepared by the owner and brought to him, where it was prepared he is not aware. He has identified the signature of Lakshmana in every page and he also identified his signature. He has deposed that other attesting witness was present. In view of the evidence given by him in HRC, which runs counter to the evidence in the instant case and he has pleaded complete ignorance about place, time of preparation of the Will and scribe of the Will, the trial Court disbelieved his evidence. In fact, it really 2nd defendant serious about proving the Will, he should have examine other witness. Therefore, the trial Court held that Ex. D3 is not proved, the said finding is based on legal evidence and no fault could be found with the finding. 16. Therefore, when the trial Court has appreciated the entire oral evidence on record looked into, documentary evidence carefully and kept the legal position in background and has rendered well considered order which is based on legal evidence, we do not find any justification to interfere with the trial Court judgment and decree. No merits dismissed.