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2023 DIGILAW 1052 (KAR)

Shantharama v. Rathna

2023-09-04

P.S.DINESH KUMAR, T.G.SHIVASHANKARE GOWDA

body2023
JUDGMENT T.G.SHIVASHANKARE GOWDA, J. - In this appeal, the defendant has challenged the judgment and decree dtd. 18/3/2021 passed in O.S.No.03/2017 on the file of the Prl. Senior Civil Judge and JMFC., Bantwal, D.K. (for brevity 'the Trial Court'). 2. For the sake of convenience, parties shall be referred as per their status before the Trial Court. 3. Brief facts of the plaintiff's case are, suit schedule 'B' properties are the Chalageni property of Smt.Ummakke, the grandmother of the plaintiff and defendant. As a tenant, after the advent of the Karnataka Land Reforms Act, 1961 (for brevity 'the Act') Ummakke filed an application under Sec. 48A of the Act before the Land Tribunal, Bantwal, seeking conferring of occupancy rights in TNC No.2792/74-75. By order dtd. 30/9/1977, the occupancy rights were conferred in her favour. Ummakke died intestate leaving behind her two daughters by name Kamala and Ramakke. Kamala died issueless. Plaintiff and defendant are the children of Ramakke. Ramakke died on 17/6/2007 leaving behind the plaintiff and defendant as her surviving legal heirs, who are entitled to succeed to the assets of Ramakke, which are acquired by her from her mother Ummakke. In the year 2014, plaintiff came to know that the defendant has made a petition to the Deputy Tahsildar claiming mutation in her name on the basis of a created and fraudulent Will said to have been executed by Ramakke. The deceased Ramakke, two months prior to her death was disabled, bed ridden due to stroke and brain haemorrhage. She was mentally disoriented and was not in a position to put her signature. The plaintiff after coming to know about the conduct of the defendant in placing reliance on the Will for change of mutation, objected for the change of khata. The defendant preferred an appeal before the Assistant Commissioner and it came to be dismissed. The defendant set up the forged Will and fraudulently making claim over the entire property on which the plaintiff has also got equal right as Ramakke did not execute any Will in favour of the defendant. After the death of Ramakke, both plaintiff and defendant are entitled to equal share in the suit 'B' schedule properties. In the first week of November 2016, she made a claim for partition, which was denied by the defendant. Hence, she filed the instant suit seeking partition. 4. After the death of Ramakke, both plaintiff and defendant are entitled to equal share in the suit 'B' schedule properties. In the first week of November 2016, she made a claim for partition, which was denied by the defendant. Hence, she filed the instant suit seeking partition. 4. The defendant has opposed the suit by filing written statement interalia admitting the relationship between the plaintiff and defendant. He has not denied that the property belonged to Ummakke was acquired by Ramakke. It is his specific case that Ramakke was in sound disposal state of mind with good health and on 10/6/2007 she executed a Will bequeathing the suit 'B' schedule property in favour of the defendant and said Will is the last testamentary disposition of Ramakke executed in front of witnesses and scribe. There is a clear reason assigned in the Will for bequeathing the property in favour of defendant as during her last days, Ramakke was residing with defendant, defendant was taking care of Ramakke and for this reason, the properties have been bequeathed in her name. After the death of Ramakke, defendant has continued in possession and enjoyment of the suit schedule 'B' property, which consists of a residential house in which she resides. This defendant has made vast agricultural improvements by installing bore-well and sprinkler system for irrigation. The plaintiff is aware of the Will executed in favour of the defendant by Ramakke and she did not claim any right in the suit 'B' schedule property. She has invented a false cause of action belatedly and the suit is liable to be dismissed. 5. On the basis of the above pleadings, the Trial Court has framed the following issues: 1. Whether the plaintiff proves that schedule property is partible property and she is entitled to 1/2 share in it? 2. Whether the defendant proves that Ramakke on 10/6/2007 has executed Will bequeathing plaint 'B' schedule property in his favour? 3. Whether the defendant proves that alleged Will of Ramakke has been acted upon and he has effected vast improvements in the schedule property? 4. What is the income from the schedule property? Whether plaintiff is entitled to seek account of the same? 5. Whether suit is properly valued and Court fee paid is sufficient? 6. Whether the plaintiff is entitled to relief claimed? 7. What order or decree? 6. 4. What is the income from the schedule property? Whether plaintiff is entitled to seek account of the same? 5. Whether suit is properly valued and Court fee paid is sufficient? 6. Whether the plaintiff is entitled to relief claimed? 7. What order or decree? 6. Before the Trial Court, in order to prove her case, plaintiff examined himself as PW-1 and relied upon 11 documents marked as Exs.P1 to P11. On behalf of defendant, two witnesses are examined as DWs-1 and 2 and four documents are marked as Exs.D1 to D4. 7. The Trial Court after hearing both sides and considering the material on record recorded positive finding on issue Nos.1, 5 and 6, negative finding on issue Nos.2, 3 and partly affirming issue No.4 decreed the suit declaring that the plaintiff is entitled for 1/2 share in the suit schedule 'B' property. Aggrieved by the same, the defendant has filed this appeal on various grounds. 8. Heard Shri H.C.Shivaramu, learned advocate for the appellant/defendant and Shri G.Ravishankar Shastry, learned advocate for the respondent/plaintiff. 9. It is the contention of the learned counsel for the defendant that his mother has executed Ex.D4/Will on 29/7/2014 bequeathing suit 'B' schedule property in his favour. The Trial Court has not properly appreciated the said Will. Based on the Will, entries in the revenue records have been changed, which gives a presumptive value that the Will has been acted upon. This aspect is also ignored by the Trial Court. The Trial Court also failed to consider that Kamala (sister of Ramakke, mother of both plaintiff and defendant) died issueless and thereby Ramakke succeeded to the estate of Kamala. It is further contended that though DW-2 has been examined being the attestor of the Will, the Trial Court has not given proper opportunity to comply Ss. 63 and 68 of the Evidence Act by concluding the evidence of the attestors and the scribe of the document. Unless the defendant is able to prove the Will by completing the evidence, the impugned judgment shall not be held as complete and it is not passed by considering the comprehensive evidence of the parties. The defendant is ready to complete the evidence in proof of the Will, for which, he sought for remand of the matter. 10. Unless the defendant is able to prove the Will by completing the evidence, the impugned judgment shall not be held as complete and it is not passed by considering the comprehensive evidence of the parties. The defendant is ready to complete the evidence in proof of the Will, for which, he sought for remand of the matter. 10. Per contra, learned counsel for the plaintiff has contended that in order to prove the Will, sufficient opportunity was given to the defendant. DW-2 is said to be the attesting witness, has been brought before the Court, but he was not tendered for cross-examination. Neither the other attesting witnesses nor the scribe are brought before the Court. Hence, there is non-compliance of Ss. 63 and 68 of the Evidence Act and the Trial Court has rightly disbelieved the execution of the Will. It is further contended that the sister of Ramakke, i.e., Kamala was alive on the date of death of Ramakke. Ramakke has no legal right to execute the Will in respect of property belonging to Kamala. By virtue of death of Kamala without any issues, both plaintiff and defendant have equal right in the share of Kamala in the undivided property. This has been considered by the Trial Court and the suit has been rightly decreed. As the defendant did not utilize the opportunity provided, without there being any ground for remand, now for mere pleading before this Court that the matter be remanded for leading evidence in proof of the Will, cannot be permitted and he supported the impugned judgment and sought for dismissal of the appeal. 11. We have given our anxious consideration to the arguments addressed on behalf of both parties and perused the records. 12. The relationship between the plaintiff and defendant is admitted. Ummakke, the grandmother of plaintiff and defendant had two daughters by name Kamala and Ramakke. Plaintiff and the defendant are the children of Ramakke. Kamala died issueless and whatever property that fell to her share shall have to go to plaintiff and defendant. Defendant has taken a contention that Kamala died prior to Ramakke and thereby Ramakke acquired the property belonging to Ummakke and she has executed a Will on 10/6/2007. In this regard, issue Nos.2 and 3 have been framed by the Trial Court. In order to declare that a Will has been established, the propounder has to comply Ss. Defendant has taken a contention that Kamala died prior to Ramakke and thereby Ramakke acquired the property belonging to Ummakke and she has executed a Will on 10/6/2007. In this regard, issue Nos.2 and 3 have been framed by the Trial Court. In order to declare that a Will has been established, the propounder has to comply Ss. 63 and 68 of the Evidence Act regarding proof of Will. Defendant, the propounder examined himself as DW-1 and his evidence has been completed. DW-2 is the attesting witness to the Will. He has been examined in chief and he has not tendered himself for crossexamination. Since he has not been tendered for cross-examination, the evidence of the defendant is taken as 'closed' and the matter has been heard and impugned order has been passed holding that the Will under Ex.D4 has not been proved. 13. Ex.D4 is the Will said to have been executed by Ramakke. If the Will is proved, whatever share that Ramakke acquired from Ummakke, her mother, the legatee under the Will i.e., the defendant may acquire the property. The contention that Kamala died subsequent to death of Ramakke has been considered by the Trial Court. It is pertinent to note that Ex.D4 is the Will on which the defendant is claiming entire suit 0'B' schedule property. The Trial Court is required to examine whether Ex.D4/Will has been proved or not. We find from the impugned judgment that for want of evidence, the Trial Court has recorded that the propounder has not discharged the burden under Ss. 63 and 68 of the Evidence Act in proving the Will. Unless the defendant is permitted to complete his evidence in proof of the Will, recording a finding on merits will certainly affect the rights of the parties. If the Will is proved, then the question arises as to whether Kamala died prior to the death of Ramakke or subsequently. If Kamala died subsequently, what will be the legal position and how the plaintiff and defendant acquire title over the share of Kamala in the property has to be determined. In order to do this exercise, the incomplete evidence on behalf of the defendant will not give complete justice to the case. For the reasons best known to him, the defendant has not tendered DW-2 for cross-examination and to examine other attestors and the scribe of the Will. In order to do this exercise, the incomplete evidence on behalf of the defendant will not give complete justice to the case. For the reasons best known to him, the defendant has not tendered DW-2 for cross-examination and to examine other attestors and the scribe of the Will. Hence, we feel that the impugned judgment is incomplete and not based on the complete evidence. Hence, to meet ends of justice, without touching the merits of the case, we deem it appropriate that the matter requires re-consideration by the Trial Court on merits. 14. As we notice from the impugned judgment, the Trial Court though given an opportunity for tendering DW-2 for cross-examination, the same has not been utilized by the defendant. Having regard to the submission made on behalf of the plaintiff that proceedings have already been initiated and surveyor has been appointed for measurement of the property, we deem it appropriate to direct the defendant to adequately compensate the plaintiff. Hence, we feel it appropriate that a sum of Rs.75, 000.00 will adequately compensate the plaintiff. Therefore, we are of the considered opinion that the appeal deserves to be allowed restoring the suit to the Trial Court for adjudication on merits in accordance with law. 15. In the result, the following: ORDER (i) Appeal is allowed. (ii) The impugned judgment and decree is set aside. (iii) Suit in O.S.No.03/2017 is restored to the file of Prl. Senior Civil Judge and JMFC., Bantwal, D.K., to the stage of evidence, with a direction to dispose of the suit in accordance with law expeditiously subject to appellant paying cost of Rs.75, 000.00 to the respondent on the first day of appearance; (iv) Parties are directed to appear before the Trial Court without notice on 20/9/2023. (v) Registry shall refund the court fee in accordance with law.