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2020 DIGILAW 470 (KAR)

IRAPPA ANGADI S/O CHAMBANNA ANGADI v. NEELAMBIKA

2020-02-17

ASHOK S.KINAGI

body2020
JUDGMENT : This appeal is filed by the plaintiffs challenging the judgment and decree passed dated 03.10.2008 in O.S.No.176/2005 by the I Addl. Civil Judge (Sr.Dn.) Hubli confirmed by the judgment and decree dated 21.06.2016 in R.A.No.126/2008 passed by the V Addl. District Judge, Dharwad sitting at Hubballi. 2. For the sake of convenience, the parties are referred to as per their rankings before the trial Court. 3. Brief facts of the case are the suit schedule properties and other properties are the joint family properties of plaintiffs and husband of defendant No.1 Shekhappa Angadi. The suit properties were allotted to the share of the said Shekhappa and the said Shekhappa died issueless. While the said Shekhappa was suffering from HIV, the defendant No.1 deserted him and deserted him and went to her parents house. Shekhappa was working as teacher in Bellatti village and started to reside in his sister’s house. The plaintiffs being the sons of elder brother of Shekhappa were having special love and affection towards Shekhappa. They were very cordial with him since the childhood and during the time of his illness, they provided him good treatment and also rendered services to him. Thereafter, as Shekhappa had sensed that he will not be cured with disease, he executed a Will on 10.04.2001 at Bellatti village in the presence of witnesses. In the said Will, he has stated that immovable properties held by him should go to the plaintiffs and portion of LIC amount to his mother defendant No.2 and remaining LIC amount should go to his wife defendant No.1 and she should get all pensionary benefits and savings bank accounts, Rs.10,000/-should go to his sister. Plaintiff NO.3 is a minor under the care and custody of natural father and their names have been changed in the records and even as regards the insurance amount, the defendant No.1 has received and also all other pensionary benefits. In the month of March 2005, last week, the defendant No.1 came to the suit properties along with her henchman and interfered with the possession of the plaintiffs stating that it is the property belongs to her husband and prevented them by causing obstruction to the cultivation. Hence, the plaintiffs constrained to file the suit. 4. After the service of summons, defendant No.1 appeared and filed written statement denying the allegations made in the plaint. Hence, the plaintiffs constrained to file the suit. 4. After the service of summons, defendant No.1 appeared and filed written statement denying the allegations made in the plaint. It is contended that the Will produced by the plaintiffs is a concocted and husband of defendant No.1 has not executed any Will in favour of plaintiffs. It is further contended that she being the legally wedded wife of deceased Shekhappa, and long back there was a partition in the family of Shekhappa and his brothers and other members of joint family. There was no dispute between her and her husband and she took care of her husband. Further, she contended that she is in possession of suit properties. Hence, prayed to dismiss the suit. 5. Defendant No.2 being the mother of the deceased Shekhappa filed written statement contending that the suit schedule properties had fallen to the share of Shekhappa and he had every right to execute the sale deed; that after partition, her son became owner and possessor of the same and Shekhappa was working as a teacher and his marriage was performed with defendant No.1 and they had no issues. Defendant No.1 abandoned his company and deserted him. Shekhappa started taking treatment for his illness by residing in the house of his sister Sumangala and plaintiffs being sons of his elder brother have treated him providing medicines etc and she admits that as his illness had advanced, Shekhappa at Bellatti village executed will dated 10.04.2001. Shekhappa derived the suit schedule properties from his ancestors. He had no independent, absolute or exclusive right to execute the will deed with regard to the immoveable properties. After the death of her son Shekhappa, as there was no exclusive right to execute any will deed in respect of ancestral properties, defendant No.1 being a widow and she being mother are entitled to succeed to the property as legal heirs of deceased Shekhappa. Defendant No.2 filed counter claim for the relief of partition and separate possession in respect of the properties left by the deceased Shekhappa. 6. The trial Court on the basis of the above pleadings, framed the following issues: 1. Whether the plaintiffs prove that deceased Shekhappa has executed will deed dated 10.04.2001 in respect of suit schedule properties in their favour and they became exclusive owners and possessors of the suit schedule properties? 2. 6. The trial Court on the basis of the above pleadings, framed the following issues: 1. Whether the plaintiffs prove that deceased Shekhappa has executed will deed dated 10.04.2001 in respect of suit schedule properties in their favour and they became exclusive owners and possessors of the suit schedule properties? 2. Whether the plaintiffs prove the alleged interference by defendants to their possession and enjoyment of the suit schedule properties? 3. Whether defendant No.2 smt. Annapurna Angadi proves that as she being mother of deceased Shekhappa Angadi, she is entitled to get half share in the suit schedule properties and defendant No.1 being widow also entitled to get remaining half share in the suit schedule properties as claimed in the counter claim? 4. what order or decree? 7. In order to substantiate their claim, plaintiff No.2 examined himself as PW-1 and also examined one witness as PW-2 and got marked documents Exs.P-1 to P-9. On behalf of the defendants, defendant No.1 examined herself as DW-1 and did not produce any documents. 8. The trial Court after considering the pleadings, oral and documentary held that the plaintiffs have failed to prove that deceased Shekhappa had executed the will deed dated 10.04.2001 with regard to the suit schedule properties in their favour and they became exclusive owners and possessors of the suit schedule properties and further held that the plaintiffs have failed to prove the alleged interference by the defendants to their possession and enjoyment of the suit schedule properties and that defendant No.2 has proved that she being the mother of deceased Shekhappa, is entitled to half share in the suit schedule property and defendant No.1 being the widow is entitled to get the remaining half share in the suit schedule properties as claimed in the counter claim and consequently dismissed the suit of the plaintiffs and decreed the counter claim of defendant No.2. 9. The plaintiffs, aggrieved by the judgment and decree of the trial court dismissing their suit, filed R.A. No.126 of 2008. The plaintiffs did not challenge the decree passed in the counter claim by defendant No.2. 10. The appellate Court framed the following points for consideration: 1. Does the finding of the trial court o the will dated 10.04.2001 call for any interference? 2. What order? The plaintiffs did not challenge the decree passed in the counter claim by defendant No.2. 10. The appellate Court framed the following points for consideration: 1. Does the finding of the trial court o the will dated 10.04.2001 call for any interference? 2. What order? and held that the plaintiffs have failed to prove that the findings of the trial Court on will dated 10.04.2001 does not call for interference and consequently dismissed the appeal filed by the plaintiffs. 11. The plaintiffs aggrieved by the judgment and decree passed by the Courts below have filed this appeal. 12. Heard the learned counsel for the appellants as well as the learned counsel for the respondents. 13. Learned counsel for the appellants-plaintiffs submits that Shekhappa was suffering from AIDS and he was being taken care of by the plaintiffs by looking after him and providing medicine etc. Shekhappa considering the services rendered by the plaintiffs has bequeathed the suit schedule properties in favour of the plaintiffs. Hence, the plaintiffs became owners of the suit schedule properties by virtue of the will executed by deceased Shekhappa in their favour. The plaintiffs, in order to prove the contents of the will examined PW-2 who is the attesting witness to the will. He further submits that the will is not surrounded by any suspicious circumstances. He further contended that the courts below have committed an error in dismissing the suit of the plaintiffs. 14. Per contra, learned counsel for the respondents supports the impugned judgment and decree. 15. Perused the judgment and decree passed by the Courts below. 16. It is not in dispute that the suit schedule properties were inherited by Shekhappa from his ancestors and as the partition took place between Shekhappa and his brothers, the suit schedule properties have fallen to the share of Shekhappa. It is also not in dispute that defendant No.1 is the wife and defendant No.2 is the mother of deceased Shekhappa. That the marriage of Shekhappa was performed with defendant No.1 on 14.04.2000 and Shekhappa was diagnosed on 24.05.2001 and was suffering from HIV. Shekhappa died on 16.06.2001. Plaintiff No.2 examined himself as PW-1 and he has deposed that deceased Shekhappa was suffering from disease and defendant No.1 deserted Shekhappa. That the marriage of Shekhappa was performed with defendant No.1 on 14.04.2000 and Shekhappa was diagnosed on 24.05.2001 and was suffering from HIV. Shekhappa died on 16.06.2001. Plaintiff No.2 examined himself as PW-1 and he has deposed that deceased Shekhappa was suffering from disease and defendant No.1 deserted Shekhappa. In view of desertion by defendant No.1, the plaintiffs were looking after Shekhappa and the plaintiffs have provided treatment to Shekhappa and Shekhappa bequeathed the suit schedule properties in favour of the plaintiffs. Thus the plaintiffs became owners of the suit schedule properties by virtue of the will deed. In support of their contention, PW-2 was examined who is stated to be an alleged attesting witnesses to the will deed. PW-2 has deposed that he is one of the attesting witnesses to Ex.P-3. He has stated that deceased Shekhappa executed the will deed on 10.04.2001 bequeathing the suit schedule properties in favour of the plaintiffs. He further deposed that the will was drafted at the instruction of the deceased Shekhappa. The plaintiffs on the basis of the will, gave a wardi for effecting mutation. The revenue authorities effected mutation in the name of the plaintiffs and deposed that they have proved the execution of the will. 17. Per contra, on behalf of the defendants wife of Shekhappa examined herself as DW-1. She has deposed that the suit schedule properties are the ancestral properties of the deceased Shekhappa and in the partition effected between the Shekhappa and his brothers the suit schedule properties has fallen to the share of Shekhappa. After the death of Shekhappa, she has succeeded to the suit schedule properties. She further deposed that deceased Shekhappa has not executed any will deed in favour of the plaintiffs and the plaintiffs have got created the will and further deposed that the will is surrounded by suspicious circumstances. Though she is subjected to cross-examination noting has been elicited from the mouth of DW-1. 18. From the perusal of the evidence of the parties, it is seen that deceased Shekhappa was the owner in possession of the suit schedule properties and it is also not in dispute that he was suffering from AIDS. Though she is subjected to cross-examination noting has been elicited from the mouth of DW-1. 18. From the perusal of the evidence of the parties, it is seen that deceased Shekhappa was the owner in possession of the suit schedule properties and it is also not in dispute that he was suffering from AIDS. Though the plaintiffs have produced the records to show that deceased was suffering from AIDS, they have not examined the mental condition of the deceased as on the date of the execution of the alleged will deed and further have not examined the doctor who treated the deceased about the health condition of the deceased. Further the will is fully surrounded by suspicious circumstances. The plaintiffs except pleading that defendant No.1 deserted Shekhappa, no other material has been produced to show that defendant No.1 has deserted Shekhappa. The plaintiffs have also not produced any records to show that plaintiffs were looking after Shekhappa till the fag end of his life. Further though the marriage was performed on 14.04.2000, the deceased Shekhappa was diagnosed on 24.05.2001 i.e. 13 months from the date of marriage and he died on 17.06.2001. The plaintiffs have not explained the reasons for excluding legal heirs of the deceased i.e. mother and wife of the deceased. Even from the perusal of the recitals of the will, it is not mentioned why the wife and mother has been excluded. Further none of the attesting witnesses are the relatives of the defendants. Further PWs.1 and 2 admit that PW-1 was present at the time of execution of the will and has played a prominent role at the time of execution of the will. Further it is the case of the plaintiffs that defendant No.2 was in possession of the will deed and defendant No.2 has handed over the will to the plaintiffs. In fact defendant No.2 specifically stated that deceased Shekhappa was not having any right to execute the will deed in favour of the plaintiffs and further defendant No.2 in the written statement has not contended that she handed over the will to the plaintiffs. In such circumstances create suspicious circumstances, the Hon’ble Apex Court in the case of Bharpur Singh and others v Shamsher Singh reported in (2009) 3 Supreme Court Cases 687 at paragraph 23 held has under: “23. In such circumstances create suspicious circumstances, the Hon’ble Apex Court in the case of Bharpur Singh and others v Shamsher Singh reported in (2009) 3 Supreme Court Cases 687 at paragraph 23 held has under: “23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will: (i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. (ii) The condition of the testator’s mind may be very feeble and debilitated at the relevant time. (iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. (iv) The dispositions may not appear to be the result of the testator’s free will and mind. (v) The propounder takes a prominent part in the execution of the will (vi) The testator used to sign blank papers. (vii) The will did not see the light of the day for long. (viii) Incorrect recitals of essential facts. 19. Considering the facts and circumstances of the case, the following suspicious circumstances arise: i. The plaintiffs have not proved the health condition of the deceased Shekhappa as on the date of the execution of the will; ii. None of the attesting witnesses are close relatives of the deceased. iii. PW-2 has played prominent role at the time of execution of the will deed and further the plaintiffs have not explained the reasons for dispossession of the natural heirs i.e. defendant Nos.1 and 2; iv. There is contradiction in the evidence of PWs1 and 2 with regard to the timings of execution of the will deed; and v. The plaintiffs have not produced any records to show that the plaintiff has provided treatment to deceased Shekhappa and were looking after the deceased till the fag end of his life. 20. Defendant No.2 has filed written statement contending that the suit schedule properties are the ancestral properties of deceased Shekhappa and after the death of Shekhappa, defendant Nos.1 and 2 have succeeded to the properties left by deceased Shekhappa and she sought for the relief of partition in respect of the suit schedule properties. 20. Defendant No.2 has filed written statement contending that the suit schedule properties are the ancestral properties of deceased Shekhappa and after the death of Shekhappa, defendant Nos.1 and 2 have succeeded to the properties left by deceased Shekhappa and she sought for the relief of partition in respect of the suit schedule properties. The trial Court after considering the material on record has held that the plaintiffs have failed to prove execution of the will deed alleged to have been executed by deceased Shekhappa in their favour and further held that defendant Nos.1 and 2 have succeeded to the properties left by deceased Shekhappa and they are entitled for ½ share each in the suit schedule properties. The plaintiffs have not challenged decreeing of the counter claim sought by defendant No.2 and the said finding has attained finality. Thus, keeping in view all the facts and circumstances of the case, this court is of the opinion that the finding of the trial Court below holding that the plaintiffs have failed to prove that deceased Shekhappa has executed a will deed in their favour which has been confirmed by the appellate Court does not suffer from any illegality or irregularity and I do not find any ground to interfere with the orders passed by the Courts below. Accordingly, the following order is passed: 21. The appeal is dismissed. 22. In view of dismissal of the appeal, I.A.1 of 2019 does not survive for consideration. Accordingly, the same stands disposed off.