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2020 DIGILAW 103 (KAR)

Ashok Arjun Jadhav v. Jotiba Arjun Jadhav

2020-01-10

NATARAJ RANGASWAMY

body2020
JUDGMENT : NATARAJ RANGASWAMY, J. 1. This regular second appeal is filed challenging the Judgment and Decree of the Courts below in O.S. No. 286/1996 passed by the I Addl. Civil Judge (Jr. Dn.) Belagavi dated 03.10.1998 and the Judgment and Decree dated 06.10.2005 passed by the II Addl. District Judge at Belagavi in R.A. No. 509/2004. 2. For the sake of easy understanding, the parties are referred to as they were arrayed before the Trial Court. This appeal is by the plaintiff. The defendants are respondents herein. 3. The plaintiff filed O.S. No. 286/1996 and claimed that the plaintiff and defendants are siblings and children of Arjun Jyotiba Jadhav and that the suit properties were purchased by the deceased Arjun Jyotiba Jadhav. It was stated that, the suit properties were their ancestral properties and belonged to their family. It is alleged that, the defendant No. 1 took his share in the ancestral properties and separated. The plaintiff claimed that, his father was living with him and that the plaintiff had looked after his father until he breathed his last. He contended that, his father executed a Will dated 07.06.1993 bequeathing the suit properties which were his self acquired properties. He therefore contended that the defendants do not have any right, title or interest in respect of the suit properties. He also contended that, after the death of his father on 09.02.1994, the Village Accountant transferred the revenue records to his name with effect from 27.07.1994. The defendant No. 1 had challenged the mutation proceedings before the Assistant Commissioner who rejected the appeal and directed the parties to approach Civil Court. The plaintiff therefore filed a suit for declaration of his title and also sought for perpetual injunction restraining the defendant No. 1 from interfering with the possession of the plaintiff in the suit schedule properties. Schedule-A to the plaint contains the details of the properties that were allegedly bequeathed by the father of the plaintiff. 4. The defendant No. 1 filed his written statement and disputed the execution of the testament by his father in favour of the plaintiff. The defendant No. 1 contended that, he was taking care of his father and was providing him with medical care. He denied of taking his share in the ancestral properties. He also contended that, the family possessed seven parcels of agricultural land and two residential houses. The defendant No. 1 contended that, he was taking care of his father and was providing him with medical care. He denied of taking his share in the ancestral properties. He also contended that, the family possessed seven parcels of agricultural land and two residential houses. He contended that, since the testament did not disclose about all the properties, the alleged Will was suspicious. He contended that, he was cultivating the land and the revenue entries made in the name of the plaintiff based on the Will was set aside by the Assistant Commissioner in terms of his order dated 12.03.1996. The defendant No. 1 denied of being separated from the family and claimed that there was no partition of the properties of the family. The defendant No. 2 filed her separate written statement admitting the execution of the Will and that the defendant No. 1 had separated from the family after taking his share in the ancestral properties, during the life time of their father. 5. Based on the above contentions, the Trial Court has framed the following issues: (i) Whether the plaintiff proves that the suit properties are the self acquired properties of late Arjun Jyotiba Jadhav his father? (ii) Whether plaintiff proves that his father Arjun executed a Valid Will on 7.6.1993 bequeathing the suit properties in favour of the plaintiffs? (iii) Whether plaintiff proves that he is in lawful possession of the suit properties as on the date of filing of the suit? (iv) Whether plaintiff proves that 1st defendant is interfering his peaceful possession and enjoyment of the suit properties? (v) Whether plaintiff is entitled for the relief of declaration as prayed for? (vi) Whether plaintiff is entitled for the relief of perpetual injunction? (vii) Whether this Court has got pecuniary jurisdiction to try and entertain the suit? (viii) Whether valuation of the suit property and Court fee paid is correct? (ix) What order or decree? 6. The plaintiff was examined as PW-1 and an attesting witness was examined as PW-2. They marked Ex.P1 to P16. The defendant No. 1 was examined as DW-1 and he marked Exs.D1 to D18. The Trial Court after considering the evidence on record and deciphering the suspicious circumstances surrounding the execution of the alleged Will, dismissed the suit in terms of its Judgment and Decree dated 03.10.1998. The plaintiff thereafter filed R.A. No. 223/1998 before the lower Appellate Court. The defendant No. 1 was examined as DW-1 and he marked Exs.D1 to D18. The Trial Court after considering the evidence on record and deciphering the suspicious circumstances surrounding the execution of the alleged Will, dismissed the suit in terms of its Judgment and Decree dated 03.10.1998. The plaintiff thereafter filed R.A. No. 223/1998 before the lower Appellate Court. The lower Appellate Court considered the material on record and in terms of its Judgment and Decree dated 06.10.2005, dismissed the appeal. The plaintiff is therefore in appeal before this Court in this regular second appeal. 7. This appeal was admitted on 18.11.2009 and the following substantial questions of law were framed: (i) In the light of the finding recorded by the Trial Court holding that it had no pecuniary jurisdiction to try the suit, whether there was any justification for it to return the findings on the merits of other issues? (ii) Whether the lower appellate Court was right and justified in not examining the correctness of the findings recorded by the Trial Court on the issue relating to pecuniary jurisdiction by the Trial Court and in simply proceeding to dismiss the appeal concurring with the findings of the Trial Court on the merits of the case? (iii) Whether both the Courts below were justified in recording a finding that the Will was not genuine? 8. In so far as the first substantial question of law is concerned, the Trial Court had framed an Issue, whether the Court had pecuniary jurisdiction to try and entertain the suit? This Issue arose in view of the assertions made in paragraph No. 13 of the written statement of the defendant No. 1, wherein he contended that, the value of the suit properties as on the date of the suit was more than rupees one lakh. 9. The Trial Court answered the above Issue in the negative. However, perusal of discussions on Issue No. 7 by the Trial Court invariably leads to the answer that the Trial Court had jurisdiction. Therefore, it can safely be held that answering Issue No. 7 in the negative was an inadvertent error. 9. The Trial Court answered the above Issue in the negative. However, perusal of discussions on Issue No. 7 by the Trial Court invariably leads to the answer that the Trial Court had jurisdiction. Therefore, it can safely be held that answering Issue No. 7 in the negative was an inadvertent error. Be that as it may, in order to ascertain whether the defendant No. 1 who had raised this question of jurisdiction had proved that Issue, I have perused the evidence of PW-1 which discloses that, a suggestion by the defendant No. 1 that the value of one acre of Paddy growing land of Anagol is more than Rs. 1,60,000/- was denied as he was ignorant of the same. PW-1 admitted that, the value of the House No. 288 was more than Rs. 60,000/- in the year 1998. The defendant No. 1 has not extracted the value of the suit properties as on the date of the filing of the suit. In the evidence of DW-1, he claimed that the value of the agricultural land at the time of filing of the suit was Rs.1 lakh and that the value of the suit property was above Rs. 1,20,000/-. In his cross-examination, DW-1 stated that, he came to know about the market value of the suit property from others. DW-1 had not produced any documents to demonstrate that the value of the suit property was more than Rs. 1,00,000/- as alleged by him. Ex.D-17 is an extract of a declaration filed by the deceased Arjun Jyotiba Jadhav under Section 6(1) of the ULC Act in respect of R.S. No. 25, 35/21, 1¼ and the total value of the property as declared by him is Rs. 63,000/-. Except this Ex.D-17, there is no other document which indicates the market value of the property. Thus, it has to be held that, the defendant No. 1 who had raised the question about the pecuniary jurisdiction of the Court had failed to produce any material to substantiate his contention. The Trial Court had noticed this, but inadvertently answered the said Issue in the negative though it must have answered the Issue in affirmative. A perusal of the entire material discloses that, the defendant No. 1 had miserably failed to establish that the Trial Court did not have pecuniary jurisdiction to decide the suit. The Trial Court had noticed this, but inadvertently answered the said Issue in the negative though it must have answered the Issue in affirmative. A perusal of the entire material discloses that, the defendant No. 1 had miserably failed to establish that the Trial Court did not have pecuniary jurisdiction to decide the suit. Thus, the substantial question of law framed by this Court is answered in the affirmative and it is held that the Trial Court was justified in returning findings on the merits of the other Issues. 10. In so far as the 2nd substantial question of law is concerned, though the Judgment and Decree of the lower Appellate Court is cryptic, but yet the lower Appellate Court did not consider the question about the pecuniary jurisdiction of the Court. It appears from the Judgment that the lower Appellate Court had glossed over this Issue. However, the lower Appellate Court was justified in considering and deciding the lawful and valid execution of the Will. Though the lower Appellate Court could have more elaborately dealt with the issue, however the final findings of the lower Appellate Court is based on the available evidence. Hence I answer the substantial question of law at S. No. 2 in the affirmative. 11. In so far as the 3rd substantial question of law is concerned, the properties in question were purchased in the name of the deceased testator and the same is evident from Ex.P-6, P-7, P-8, P-9 and P10. It is also found that, the name of the deceased testator is entered in the revenue records as per Ex.P-11, 12, 13, 14 and 15, which discloses that the testator was the owner of the residential building. The testator expired on 09.02.1994 which is evident from Ex.P-2. The plaintiff claimed that, the testator had executed the Will (Ex.P-1) in respect of suit properties when the testator was in good health and possessed sound mind and was in a condition to dispose of his properties. 12. Per contra, the evidence of PW-1 indicates as follows: “At the time of executing the Will, my father was aged about 70 years. It is true that Neminath Kudachi who is witness to the Will is resident of Tanaji Galli of Anagol. It is true that Distance between my house and house of above stated witness is about 50 feets. Per contra, the evidence of PW-1 indicates as follows: “At the time of executing the Will, my father was aged about 70 years. It is true that Neminath Kudachi who is witness to the Will is resident of Tanaji Galli of Anagol. It is true that Distance between my house and house of above stated witness is about 50 feets. I do not know whether he had agricultural lands at Anagol.” “My father called Neminath Kudachi to sign the document as witness. I was present at the time when my father executed the will. One Yallappa Laxman Nesarkar was present as another witness. It is true that I know said Nesarkar since about 15 to 20 years. It is true that we help each other in agricultural operation.” “On the date of execution of Will myself, my father and witnesses were present. My father had brought all the requisite documents. It is true that my father was illiterate.” “Myself and my father had given instructions to the scribe for writing the Will. Except suit properties I have not given instructions to the bond writer with respect of the other properties.” “I was personally present at the time when Will was written. I have not intimated my brother, mother and sister, regarding execution of the Will witness volunteers my mother and sisters were knowing about it. It is true that I had no difficulty to intimate my brother regarding execution of the Will.” “My father himself has identified his thumb impression I have not attested thumb impression of my father.” “After writing the Will the first signature was put by Kudachi and Nesarkar, who were witnesses to said document. They have signed in the office of stamp vendor. My father had signed in the presence of Sub-Registrar. At that time attesting witnesses were present at the office of the sub-registrar. My father had put thumb impression. After registration of the Will, the Will was sent by post.” “It is true that as per the Will I had given application to Village Accountant to enter my name to the suit property.” “It is true that, there during January 1994 my father was ill.” 13. The evidence of PW-2 who is the attesting witness is as follows: “Previous day Arjun had come to my house. On the day execution of the Will he alone had come to my house. The evidence of PW-2 who is the attesting witness is as follows: “Previous day Arjun had come to my house. On the day execution of the Will he alone had come to my house. I do not know personally whether said Arjun was ill from 1st week of June 1993 up to 16.06.1993. It is true that when the said Arjun was admitted in the hospital plaintiff used to look after him. At the time I did not visit Civil Hospital. Deceased had put up his thumb impression on the Will first stamp vendor had identified his thumb impression. Stamp vendor had identified the thumb impression of Arjun by putting his signature in my presence. Now I see Exh.P.1 and I say that said Punnappa Patil has not identified thumb impression of Arjun by putting his signature. All of us have signed the document in office of Stamp vendor Patil. The said Will is not scribed on stamp paper. It is scribed on the white paper. On the date of execution of the Will, the present plaintiff was present in the office of the stamp vendor.” 14. A perusal of the Will i.e. Ex.P-1 discloses that, the said document was registered on 07.06.1993 and a thumb impression is found on this Will which is stated to be thumb impression of the testator. There are two attesting witnesses to the document and the signature found at Ex.P1-D is stated to be signature of PW-2. It is also found that, the testator died on 09.02.1994 i.e. within six months from the date of the execution of the alleged Will. 15. A perusal of the above facts and circumstances indicates the following suspicious circumstances: (i) The deceased testator was aged about 70 years and he was illiterate and was afflicted by illness. PW-1 has admitted that his father’s medical condition required treatment and that PW-1 had provided medical treatment to his father. The plaintiff must therefore be in possession of the medical records relating to the treatment that was given to the testator. However, the plaintiff has failed to produce the same before the Court and the Court is deprived of assessing the condition of the deceased testator. (ii) The plaintiff was admittedly present at the time when the Will was executed. He categorically stated that he and the testator gave instructions to the scribe to prepare the Will. However, the plaintiff has failed to produce the same before the Court and the Court is deprived of assessing the condition of the deceased testator. (ii) The plaintiff was admittedly present at the time when the Will was executed. He categorically stated that he and the testator gave instructions to the scribe to prepare the Will. It is therefore evident that the plaintiff had a clear role in brining about the execution of the Will. (iii) The plaintiff claimed that his mother, brother and sister were aware of the execution of the Will by his father. However, it is seen that his mother, brother and sister were neither informed nor they were present at the time of registration which was an important event in the family. (iv) The plaintiff claimed that the witness PW-2 was helping him out in the agricultural operations. (v) While PW-1 claimed that the attesting witness signed the Will in the presence of the stamp vendor in his office but the testator affixed his thumb impression in the office of the Sub-Registrar. Therefore, the attesting witness had not affixed his signatures in proof of he seeing the testator affixing his thumb impression. (vi) The deceased testator had not mentioned anything about the other properties that he possessed. In Ex.P-17 it is mentioned that, the properties belong to the family but yet, the testator had excluded his other heirs without mentioning any reasons therefor. 16. Under the aforesaid circumstances, the Trial Court and the Court below were perfectly justified in holding that the Will was brought about in suspicious circumstances and that the plaintiff was not able to remove suspicious circumstances that were attached to the Will. I find that, since the Courts below have affirmatively held that the execution of the Will was not proved and that the suspicious circumstances attached to the Will were not purged and as this is a pure question of fact, I would concur the finding of fact that the Will was not genuine and that the plaintiff had failed to remove the suspicious circumstance surrounding the execution of the alleged Will. Thus, the substantial question of law at S. No. 3 framed by this Court is held in the affirmative. 17. Hence, the following Order: This Regular Second Appeal is dismissed.