Research › Search › Judgment

Karnataka High Court · body

2022 DIGILAW 1234 (KAR)

Dileep Shankar Poojari v. Raju Vishnu Poojari

2022-09-16

H.P.SANDESH

body2022
JUDGMENT/ORDER 1. This appeal is filed challenging the judgment and decree of dismissal of the suit dtd. 22/12/2006, filed by the plaintiff seeking the relief of declaration, partition and separate possession in O.S.No.183/2001 on the file of the Civil Judge (Sr.Dn.), Honavar. 2. The parties are referred to as per their original rankings before the Trial Court to avoid the confusion and for the convenience of the Court. 3. The factual matrix of the case of the plaintiff before the Trial Court is that defendant No.4 is his father, defendant Nos.1 to 3 are uncles and defendant No.5 is the aunt of the plaintiff and defendant No.6 is the sister of defendant Nos.1 to 4. It is contended that Hindu Mitakshara Law governs the plaintiff and the defendants. The Land Tribunal, Honavar granted the occupancy rights in respect of suit schedule properties in favour of defendant Nos.1 to 4 and their mother by name, Smt.Gulabi w/o Vishnu Poojari. In pursuance of the said order, Form No.10 came to be issued on 14/3/1983. Accordingly, mutation entry No.979 came to be certified. It is his contention that all of them jointly enjoyed the suit properties, but subsequently they started cultivation of the suit properties separately as per arrangement made among them orally. The said Smt. Gulabi was separately cultivating the suit properties. The suit 'A' schedule property was allotted to her share. Due to differences between her children and herself, she took the minor plaintiff with her and was cultivating the suit 'A' schedule properties fallen to her share with the assistance of the plaintiff. Due to love and affection towards the plaintiff, she executed a registered Will dtd. 29/9/1983, thereby bequeathed the suit land Survey No.68/1 along with house therein and shed situated in Survey No.68/2 and other immovable properties belonging to her in favour of the plaintiff. The said Smt. Gulabi died on 20/12/1994. Thereafter, the plaintiff has succeeded to the properties of the deceased Smt. Gulabi as per the Will. The plaintiff has continued his possession and cultivation of the suit 'A' schedule property. The names of defendant Nos.1 to 4 came to be entered in the revenue records as legal heirs of deceased through mutation entry No.1477. The plaintiff challenged the said order before the Assistant Commissioner, Bhatkal and the said appeal came to be dismissed. The plaintiff has continued his possession and cultivation of the suit 'A' schedule property. The names of defendant Nos.1 to 4 came to be entered in the revenue records as legal heirs of deceased through mutation entry No.1477. The plaintiff challenged the said order before the Assistant Commissioner, Bhatkal and the said appeal came to be dismissed. It is the contention of the plaintiff that defendant Nos.1 to 3 threatened to dispossess the plaintiff from suit 'A' schedule properties in view of the said order. Hence, the plaintiff filed O.S.No.84/1996 in the Court of Civil Judge (Jr.Dn.) Honavar against defendant Nos.1 to 4. The defendant Nos.1 to 3 filed their written statement. As the other joint family properties were not included in the said suit and on account of pecuniary jurisdiction, the plaintiff withdrew the said suit with permission to file fresh suit on same cause of action. Hence, the plaintiff was constrained to file the suit for the relief of declaration of his right by way of Will and partition and separate possession of the share of deceased Smt. Gulabi over the suit properties and prayed to decree the suit. 4. In pursuance of the suit filed by the plaintiff, the suit summons were issued and defendant Nos.1, 4 and 5 appeared through their learned respective counsel and defendant Nos.2, 3 and 6 remained exparte. The defendant No.1 filed the written statement denying all the averments. However, admitted the relationship between the parties and also admitted that the Land Tribunal granted the land. It is contended that the suit schedule properties are joint family properties and are in joint possession and cultivation of the defendants and their mother. The mother of the defendants was never in possession and enjoyment of the suit schedule properties separately, as contend by the plaintiff and the defendants are enjoying their common right over the suit schedule properties separately. There was no oral partition or arrangement made between the defendants and Smt. Gulabi. It is contended that the mother of the defendants was aged about 85 years and she was not able to think rationally as she had lost memory power and was unable to understand the things and the very execution of the Will is fraudulent, created and illegal and all other averments made in the plaint was denied. 5. It is contended that the mother of the defendants was aged about 85 years and she was not able to think rationally as she had lost memory power and was unable to understand the things and the very execution of the Will is fraudulent, created and illegal and all other averments made in the plaint was denied. 5. Defendant Nos.4 and 5 have filed their separate joint written statement, wherein these defendants have admitted the relationship between the parties to the suit, but denied all other averments made in the plaint. These defendants have duly admitted the contents of the plaint paras 3 and 4, however denied that the deceased Smt. Gulabi executed Will dtd. 29/9/1983 in the name of the plaintiff, but admitted that the deceased Smt. Gulabi was separately residing with the plaintiff till her death. The defendants have claimed 1/7th share each over the suit schedule properties. After the filing of the written statement by defendant No.1, the plaintiff got amended the plaint and thereby added 'B' schedule property. The defendant No.1 also filed the additional written statement and also Sl.Nos.22 to 28 are got added to 'A' schedule property and claims the defendants have got right over the suit 'A' and 'B' schedule properties and entitled for partition. 6. Based on the pleadings of the parties, the Trial Court framed following issues: 1. Whether the plaintiff proves that deceased Gulabi Vishnu Poojari was in separate possession and cultivation of the suit 'A' schedule properties? 2. Whether the plaintiff proves that deceased Gulabi Kom Vishnu Poojari has bequeathed her 1/7th right in the suit 'A' and 'B' schedule properties by a legally executed Will dtd. 29/9/1983 in his favour and he has acquired 1/7th right over the suit properties under the Will? 3. Whether the plaintiff proves that he is in separate possession and enjoyment of suits 'A" schedule property by virtue of the Will document 29/9/1983 executed by Gulabi? 10 4. Whether the defendant No.1 proves that himself and defendant Nos.2 to 4 are in samaik possession and enjoyment of suit properties? 5. Whether the suit is barred by limitation? 6. Whether the suit is bad for non-joinder of all the immovable properties of the family situated at Adukal Village? 7. Whether the plaintiff is entitled for partition and separate possession of 1/7th share in all the suit properties? 8. 5. Whether the suit is barred by limitation? 6. Whether the suit is bad for non-joinder of all the immovable properties of the family situated at Adukal Village? 7. Whether the plaintiff is entitled for partition and separate possession of 1/7th share in all the suit properties? 8. Whether defendant Nos.4 and 5 are entitled for partition and separate possession of 1/7th share each in the suit properties? 9. What decree of order? 7. The plaintiff in order to prove his case, examined himself as P.W.1 and examined two witnesses as P.W.2 and P.W.3 and got marked the documents at Exs.P.1 to 47. The son of defendant No.1 was also examined as power of attorney holder of defendant Nos.1 to 3 as D.W.1 and got marked the documents at Exs.D.1 to 10. The defendant Nos.4 and 6 have not adduced any evidence. The Trial Court after considering both oral and documentary evidence available on record, answered almost all the issues as negative and in respect of issue No.8 whether defendant Nos.4 and 5 are entitled for partition and separate possession of 1/7th share each in the suit schedule properties, answered partly in the affirmative. It was ordered that defendant Nos.1 to 3 and 5 are entitled to partition and separate possession of their 7/36th share each over the suit schedule 'A' and 'B' properties by metes and bounds. Defendant Nos.4(a) to 4(h) are together entitled to partition and separate possession of their 7/36th share and defendant Nos.6(a) to 6(c) are together entitled to partition and separate possession of their 1/36th share. In view of the dismissal of the claim of the plaintiff in coming to the conclusion that the Will came into existence under suspicious circumstances, the present appeal is filed by the plaintiff. 8. The main contention of learned counsel for the appellant/plaintiff before this Court is that the very conclusion of the Trial Court that the Will has not been proved and the same came into existence under suspicious circumstances is erroneous. The discrepancy does not create any suspicion and stray sentence is relied upon by the Trial Court. Two attesters died and hence the son of one of the attester is examined and proved the Will in terms of Sec. 69 of the Evidence Act. The discrepancy does not create any suspicion and stray sentence is relied upon by the Trial Court. Two attesters died and hence the son of one of the attester is examined and proved the Will in terms of Sec. 69 of the Evidence Act. The learned counsel submits that P.W.2 is the scribe of the Will and an advocate who drafted the Will and he also supports the case of the plaintiff. P.W.3, no doubt, is his relative, but he is the son of one of the attester and by examining the son of one of the attester proved the very execution of the Will by examining P.W.2 and P.W.3. The Trial Court harped upon the paper publication which is marked as Ex.D.1 and disbelieved the evidence of P.W.2. The Will is a registered Will. Ex.P.39 ration card is also produced before the Court which shows that the grandson was staying along with the grandmother. There is no suspicious circumstances even though the Trial Court comes to the conclusion that the Will came into existence under suspicious circumstances and hence it requires interference of this Court. 9. The respondents though represented through the counsel, the counsel was absent. In the earlier occasion also the counsel for the respondents was absent and it was made it clear earlier that it is the matter of the year 2007 and if the learned counsel for the respondents does not appear on the next date of hearing, the appeal will be heard in his absence and accordingly the matter is heard in his absence and reserved. 10. Having heard the learned counsel for the appellant and also on perusal of the lower Court records and the grounds urged in the appeal memo, the points that would arise for the consideration of this Court are: (i) Whether the Trial Court has committed an error in dismissing the suit in coming to the conclusion that the Will has not been proved by answering issue No.2 as negative? (ii) What order? Point No.(i): 11. The main contention of the plaintiff is that the grandmother Smt. Gulabi W/o Vishnu Poojari separated from her children and started staying along with the plaintiff and cultivating the land allotted to the grandmother which is mentioned in 'A' schedule property. (ii) What order? Point No.(i): 11. The main contention of the plaintiff is that the grandmother Smt. Gulabi W/o Vishnu Poojari separated from her children and started staying along with the plaintiff and cultivating the land allotted to the grandmother which is mentioned in 'A' schedule property. It is also the claim of the plaintiff that the occupancy rights was granted in respect of the suit schedule properties in favour of defendant Nos.1 to 4 and their mother by name, Smt. Gulabi. It is also the contention of the plaintiff that Smt. Gulabi was separately cultivating the suit properties and the plaintiff was taking care of the grandmother and hence due to love and affection towards the plaintiff, the grandmother had executed the registered Will on 29/9/1983. The plaintiff also led his evidence in order to substantiate his case reiterating the contents of the plaint. In the cross- examination he admits that the suit schedule properties are ancestral properties and also admits that defendant Nos.4 and 5 are also having 1/7th share in respect of the suit schedule properties. He also admits that they are cultivating the land separately and he has no objection to give share in respect of defendant Nos.4 and 5. He admits that defendant No.4 is his father. He admits that the house was divided as A, B, C and D and the houses are standing in the names of defendant Nos.1 to 4 separately. When his grandfather was alive all were living together, but he cannot tell when his grandfather had passed away. He admits that from last 30 years, all the defendants are living separately. He claims that his father and he himself are living separately and in the back portion he himself and his grandmother are living separately and his father and other children are living in the said portion of the house. He cannot tell how many items are mentioned in the suit and he cannot tell what was the income in favour of his grandmother out of share given to her and also cannot tell how much money was spent for cultivation. He claims that when they were living separately, they have obtained the ration card and also paying the tax separately. He claims that when they were living separately, they have obtained the ration card and also paying the tax separately. He also admits that the attesting witnesses of the Will are the brothers of his mother and also he admits that his maternal uncles Manu and Gavadi have signed the said Will and Will was written by S.S.Naik and he read the contents and he cannot tell when Tondi Vatani was taken place. They have not produced any documents to evidence the same. He admits that now all the properties are standing in the names of four brothers. But he claims that after the death of the grandmother in the year 1994, he is paying the tax in favour of the houses and during her lifetime she was paying the tax. 12. The other witness is P.W.2, who is the scribe of Ex.P.38 Will and he claims that when he was in the Senior office, he drafted the Will and in the cross-examination he admits that he prepared the Will in the year 1983 in the month of September. He also admits that he became notary in the year 1994. The document of Ex.D.1 was confronted to him and he admits the same, but he claims that he does not know the contents of the same. He claims that when he was called to the Sub-Registrar's office, he accompanied the executant. He cannot tell the timings of the visit made to the Sub-Registrar's office and he cannot tell how many signatures are obtained. 13. The other witness is P.W.3, who is the brother of one of the attesting witness and he identifies the signature of his brother. In the cross-examination, he admits that he had seen the signature of his brother 4-5 years ago. It is suggested that he cannot identify the signature of his brother and the same was denied. However, he admits that he is the brother of the plaintiff's mother. 14. The other witness is D.W.1 and in his evidence he gave the evidence on his behalf and also on behalf of other defendants and filed the detailed affidavit. In the cross- examination he admits that he is the son of defendant No.1 and also admits that the suit schedule properties are ancestral properties and the same was granted by the Land Tribunal. In the cross- examination he admits that he is the son of defendant No.1 and also admits that the suit schedule properties are ancestral properties and the same was granted by the Land Tribunal. He admits that when the grandmother was alive, defendant Nos.1 to 4 were living together and he cannot tell in whose ration card the grandmother name was entered. He admits that in his father's ration card, only his father, mother and their children's names were mentioned. He admits that defendant Nos.1 to 3 have obtained the loan from the Co-operative Bank by pledging the suit schedule properties. In the cross-examination he admits that from last 15 years the grandmother was not keeping well and they have provided treatment, but no documents are produced and also cannot tell the name of the doctor with whom treatment was provided. 15. Having reconsidered the evidence available on record, as this Court being the First appellate Court can give finding of fact as well as question of law by appreciating the evidence available on record. 16. Having considered the oral and documentary evidence available on record, it is the claim of the plaintiff that the grandmother had executed the Will in his favour and in terms of Ex.P.38 it is clear that he was aged about 16 years at the time of the execution of the Will. But it is the contention of the plaintiff that the grandmother was not having good relationship with her children including the father of the plaintiff. Hence, she took separate share and started living along with the plaintiff. Admittedly, he was a minor and in the cross- examination categorical admission was given that the attesting witnesses are brothers of his mother and also witness P.W.3 is one of the brother, who comes and deposes and identifies the signature of his brother, who is one of the attester. But he claims that he himself was making the payment of tax when the grandmother was alive and was having separate ration card when both the plaintiff and grandmother were residing together and the ration card is marked as Ex.P.39. On perusal of Ex.P.39, no reference on what date the same was issued. But he claims that he himself was making the payment of tax when the grandmother was alive and was having separate ration card when both the plaintiff and grandmother were residing together and the ration card is marked as Ex.P.39. On perusal of Ex.P.39, no reference on what date the same was issued. But on perusal of Ex.P.39, he started taking food items from the ration shop after 1995 and by that time, the grandmother was not alive and the grandmother had died in the year 1994 itself and the same is admitted. The tax paid receipts are also after 1995 onwards and there is no specific pleadings as to when the grandmother separated from her sons. He cannot tell the details of how many survey numbers are included in the plaint and also he cannot tell what would be the income from the land of grandmother and what was the expenditure, but he claims that he himself and grandmother were cultivating the said land. It is important to note that he categorically admits that his maternal uncle Manu and Gavadi have only signed the Will as witnesses and also he claims that the Will was written by P.W.2. He also admits that to show that either he himself or his grandmother were cultivating the land separately and to show that Tondi Vatani was taken place, no documents are placed before the Court. It is his case that the grandmother was paying the tax when she was alive, but no such documents are produced before the Court. I have already pointed out that the tax paid receipts are after 1995 i.e., after the death of the grandmother. P.W.2 is only a scribe of the Will. But he claims that Smt. Gulabi came along with two persons and the very credence of these witnesses is questioned during the course of cross-examination with regard to swearing of an affidavit with P.W.2, who is a notary that a document was prepared in the name of a person, who is no more and Ex.D.1 is also confronted. But he claims that he was sitting in the office of Sub-Registrar while registering the document, but he cannot tell on what time he went and how long he was in the Sub- Registrar's office. But he claims that he was sitting in the office of Sub-Registrar while registering the document, but he cannot tell on what time he went and how long he was in the Sub- Registrar's office. He cannot tell how many signatures were taken and also he cannot tell whether the witnesses signatures are taken or not and the Trial Court not believed the evidence of P.W.2 regarding identification and attestation signature of the executant of the Will. 17. The other witness is P.W.3 who has identified the signature of his brother and he is none other than the maternal uncle of the plaintiff and the same has been elicited in the cross- examination of P.W.3. Hence, it is clear that P.W.3 is none other than the interested witness and no doubt, in order to prove the attestation of the Will examined P.W.3 in terms of Sec. 69 of the Evidence Act. 18. Having considered both oral and documentary evidence available on record, the evidence available before the Court does not inspire the confidence of the Court. The Trial Judge also rightly comes to the conclusion that the Will has not been proved and the same came into existence in a suspicious circumstances and reasons are also assigned in coming to such a conclusion and admittedly the suit schedule properties which the plaintiff claims as holder of the Will belongs to the family. He was only 16 years old when the Will was executed i.e., immediately after the grant was made in favour of defendant Nos.1 to 4 and their mother and that was on 29/9/1983 and alleged Will came into existence within a span of six months and there is no material before the Court when the grandmother started to live separately along with the plaintiff. It is the claim of the plaintiff that due to love and affection since he used to take care of the grandmother, the Will was executed. When he was only 16 years old at the time of the execution of the Will, the question of taking care by the plaintiff, as contended does not arise. No doubt, the plaintiff relies upon Ex.P.39 ration card and I have already pointed out that in the ration card, entry is found only after 1995 for having taken the ration and in the ration card, the name of the grandmother was rounded off. No doubt, the plaintiff relies upon Ex.P.39 ration card and I have already pointed out that in the ration card, entry is found only after 1995 for having taken the ration and in the ration card, the name of the grandmother was rounded off. But there are no entries prior to 1994 and admittedly, the grandmother died in the year 1994. If any documents are placed before the Court prior to 1994 to show that both of them were living together and cultivating the land, then the case of the plaintiff would have been accepted. Hence, the very Will came into existence in a suspicious circumstances as observed by the Trial Court. The Trial Court in detail discussed analyzing the evidence available on record in paragraph Nos.30 to 36 and also taken note of insertion in Ex.P.38 that defendant No.4 has represented minor plaintiff and also observed in paragraph No.41 that oral evidence of the scribe of the Will has been falsified by his own testimony and he was not able to speak either about identification of the executant before the Sub- Registrar or identification of thumb impression of the executant. It is also observed that there is no evidence to show that each of the attesting witnesses have signed the Ex.P.38 in the presence of the executant and not believed the evidence of P.W.1 to P.W.3. When such being the case and when the material is not suffice to come to a conclusion that the very execution of the document by the grandmother excluding her own sons and executing Will in respect of grandson who is the plaintiff, cannot be accepted and it is the grouse of the grandmother that all the sons are not cordial with grandmother, but the plaintiff's father is none other than one of the son of the grandmother and if she is not having any confidence on her children, why the other son i.e., defendant No.4 who is father of the plaintiff represented on behalf of the minor son also is the other suspicious circumstance and the same is also considered by the Trial Court. 19. Having considered the material available on record, I do not find any force in the contention of the learned counsel for the appellant to come to other conclusion that the Trial Court has committed an error. 19. Having considered the material available on record, I do not find any force in the contention of the learned counsel for the appellant to come to other conclusion that the Trial Court has committed an error. Both oral and documentary evidence does not inspire the confidence of the Court to come to other conclusion and I do not find any error of finding of fact and finding of law. Hence, I do not find any merit in the appeal. Hence, I answer point No.(i) as negative. Point No. (ii): 20. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed.