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2022 DIGILAW 1013 (KAR)

D. Mahabala Raju Since Deceased By His Lrs. - Jayarathna v. D. Susheelamma W/o. A. Dharanendraiah

2022-08-02

SACHIN SHANKAR MAGADUM

body2022
JUDGMENT : The captioned second appeal is filed by the plaintiffs questioning the divergent judgment and decree of the Courts below. 2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court. 3. The facts of the case are as under: The family tree is culled out as under: Sri.Devarajappa (Dead) Jayamma (wife)(dead) 1.D.Mahabalaraju(dead) 2.D.Brahmarayappa 3.Paddamma(Dead) 1(a).Jayarathna(wife) 3(a).S.N.Malini 1(b).Sudha 3(b).S.N.Nagarathna 1(c).A.M.Padma Prasad 3(c).S.N.Dharanendraiah(Dead) 1(d).A.M.Ananthapadmanabha Veena(Wife of 3(c)) 1(e).A.M.Jinachandra 3(d).S.N.Padma Latha 4.D.Lalithamma(dead) 5.D.Sumitramma(dead) 6.D.Susheelamma 4(a).S.V.Vidyavathi 5(1). Nagachandra(dead) 5(1)(a).Suchithra 5(1)(b).Sharathchandra 5(1)(c).Sharanya 5(2).Sujatha 5(3).Madhuchandra 5(4).Jwalashree 7.A.D.Jwalamma 3(a) The plaintiffs have instituted a suit for declaration and injunction in O.S.No.3/2008. The plaintiffs claim that the propositus Devarajappa has bequeathed the suit schedule properties under Will dated 14.6.1971 in favour of deceased plaintiff No.1 and plaintiff No.2 creating life interest in favour of his wife namely Jayamma. Plaintiffs on the basis of the Will claim that they are the absolute owners of the suit schedule properties and prayed for perpetual injunction to restrain the defendants from interfering with their peaceful possession and enjoyment over the suit schedule properties. 3(b) Defendants on receipt of summons contested the proceedings and seriously disputed the Will set up by plaintiffs. Per contra, defendants 1, 4 and 5 set up a counter Will alleging that widow of Devarajappa namely Jayamma has bequeathed the suit schedule properties in favour of defendants 1,3,4 and 5 under the Will dated 27.5.1991. 3(c) The plaintiffs to substantiate their claim led oral and documentary evidence. The defendants to counter the case of the plaintiffs led oral and documentary evidence. The Trial Court having assessed the oral and documentary evidence decreed the suit holding that the plaintiffs have succeeded in proving the bequeath made by their father under the Will dated 14.6.1971. The Trial Court recorded a finding that the plaintiffs have succeeded in proving their lawful possession over the suit schedule properties. 3(d) Feeling aggrieved by the judgment and decree of the Trial Court, defendants 4 and 5 preferred an appeal before the Appellate Court. The Appellate Court having independently assessed the oral and documentary evidence however reversed the findings recorded by the Trial Court on the Will dated 14.6.1971. The Appellate Court being the final fact finding authority has meticulously examined the evidence relating to the Will set up by plaintiffs vide Ex.P4. The Appellate Court having independently assessed the oral and documentary evidence however reversed the findings recorded by the Trial Court on the Will dated 14.6.1971. The Appellate Court being the final fact finding authority has meticulously examined the evidence relating to the Will set up by plaintiffs vide Ex.P4. While disbelieving the Will, the Appellate Court has taken note of several significant factors. The first and foremost aspect which was taken into consideration by the Appellate Court was the fact that the Will has not seen the light of the day for almost 23 years. The alleged bequeath by the propositus in favour of his two sons is dated 14.6.1971. The testator died on 24.10.1971. There were several litigations in the interregnum. The widow of Devarajappa namely Jayamma has meddled with the properties and P.W.2 who is shown to be attesting witness to the Will vide Ex.P4 has deposed in his evidence that he was present when Jayamma alienated some of the items of the suit schedule properties. Therefore, the Appellate Court was of the view that non production of the Will at the earliest point of time is one of the strongest circumstances indicating that the Will vide Ex.P4 is shrouded with suspicious circumstances. The Appellate Court has also taken note of the fact that the testator has signed the Will after securing signatures of the attesting witnesses and scribe. Therefore, Appellate Court was of the view that the requirements of Section 63(c) of the Indian Succession Act are not complied with and therefore, the Appellate Court was of the view that plaintiffs have failed to prove due execution of Will in accordance with law. On these set of reasoning, the Appellate Court has reversed the judgment and decree of the Trial Court. The Appellate Court however concurred with the findings of the Trial Court recorded on the Will set up by defendants. The plaintiffs have questioned these divergent judgments. 4. Heard the learned counsel for the plaintiffs and the learned counsel for the defendants. 5. The deceased plaintiff No.1 and plaintiff No.2 are the sons of the testator Devarajappa. The genealogical tree clearly indicates that the testator is survived by two sons and four daughters. Though testamentary succession is bound to exclude the natural heirs from inheriting the properties, the Court has to be cautious when a Will is set up by the parties. 5. The deceased plaintiff No.1 and plaintiff No.2 are the sons of the testator Devarajappa. The genealogical tree clearly indicates that the testator is survived by two sons and four daughters. Though testamentary succession is bound to exclude the natural heirs from inheriting the properties, the Court has to be cautious when a Will is set up by the parties. Plaintiffs claim that Devarajappa bequeathed the suit schedule properties under the Will dated 14.6.1971 vide Ex.P4. The testator died on 24.10.1971. Plaintiffs have contended that P.W.4 who is the grand son of attesting witness Puttannaiah who is none other than the brother of testator was aware of the Will. P.W.4 has also specifically deposed that he had accompanied his grand father. If P.W.4 had witnessed the bequeath made by Devarajappa, his conduct in not informing the plaintiffs in regard to the bequeath made by Devarajappa appears to be unnatural. The material on record also indicates that testator’s brother Puttannaiah was also alive till 1996. Therefore, the conduct of Puttannaiah in not informing the plaintiffs about the bequeath made by their father till 1996 appears to be unnatural. 6. If there was a bequeath made by Devarajappa in favour of his two sons, P.W.4 and his grand father Puttannaiah were silent spectators to the alienations made by the widow of Devarajappa. No convincing explanation is forthcoming from the legatees as to why the attesting witness to the Will who incidentally happened to be the brother of Devarajappa did not inform the plaintiffs and object the alienations by Jayamma. All these significant details would give rise to strong suspicion in regard to the genuineness of the Will vide Ex.P4. The material on record does not indicate that plaintiffs have succeeded in dispelling the suspicious circumstances surrounding the Will. All these significant details are minutely considered by the Appellate Court. Therefore, the reversal of decree at the hands of the Appellate Court is based on the material on record and this Court does not find any serious infirmities in the judgment rendered by the Appellate Court. 7. The additional documents produced by the plaintiffs particularly, the registered release deed executed by A.D. Rajanna, is not at all necessary for adjudication of the controversy between the parties. 7. The additional documents produced by the plaintiffs particularly, the registered release deed executed by A.D. Rajanna, is not at all necessary for adjudication of the controversy between the parties. The Appellate Court has declined to grant the relief of partition not only on the ground that one son by name Rajanna is not a party to the present proceedings. The Appellate Court on examination of records has found that Devarajappa had one son from his first marriage by name Nemichandra who is no more. At paragraph 45 of the judgment, the Appellate Court has held that his son and widow who are Class-I heirs are also not parties to the present proceedings. Therefore, this Court is of the view that the Appellate Court was justified in not granting relief of partition as all the legal heirs of Devarajappa are not parties to the proceedings. Therefore, the application seeking production of additional evidence is liable to be rejected and accordingly, I.A.No.2/2019 is rejected. 8. In that view of the matter, no substantial question of law arises for consideration. Accordingly, the appeal is dismissed. 9. In view of disposal of the appeal, I.A.1/2019 does not survive for consideration and is accordingly, rejected.