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2023 DIGILAW 407 (KAR)

Ragavendra v. Anand

2023-03-09

ANANT RAMANATH HEGDE

body2023
JUDGMENT : Mr. Anant Ramanath Hegde, J. - Heard Sri.Sridhar Prabhu, learned counsel for the appellant. There was no representation for the respondents. 2. The appeal is filed challenging the judgement and decree passed in O.S.No.69/2002 on the file of the II Additional Senior Civil Judge, Belagavi. The said suit was one for partition and separate possession, wherein the plaintiffs claimed 1/7th share each in the suit schedule properties. The genealogy of the parties is as under: 3. One Bandopant Hanamant Mallihalli was the propositus. He had a wife by name Kamalabai. The couple had two sons, Mohan and Umesh and three daughters, Mohini, Radha and Seetha. Mohan the elder son of the propositus Bandopant died and his wife is Gangubai and they had two sons, Anand and Arun and two daughters, Smita and Kanta. The suit is filed by plaintiff No.1 the grandson of Bandopant through his deceased son Mohan. Radha the daughter of Bandopant, is the plaintiff No.2. 4. The suit properties are residential properties bearing City Survey No.1450 and 1451. Suit schedule properties were purchased in the name of Kamalabai under a registered sale deed dated 31.12.1953. The suit is filed on the premise that though the suit properties were purchased in the name of wife of Bandopant i.e., Kamalabai, Bandopant was gainfully employed, and paid the consideration amount to purchase the suit properties in the name of Kamalabai. After the purchase, the residential houses in suit properties were constructed from funds paid by propositus Bandopant and it is further contended that after the demise of Bandopant, all the plaintiffs and defendants inherited the properties as Class-I heirs. On this premise suit is filed seeking partition and separate possession. 5. Defendant No.1 who is one of the sons of Bandopant and Kamalabai contested the suit on the premise that the properties in question were purchased by Kamalabai from the money paid by her parents and the properties were the self acquired properties of Kamalabai. It is further contended that Kamalabai executed a registered Will dated 13.01.2000, registered before the Sub-Registrar, Belagavi. According to defendant No.1, he is the exclusive owner of the properties in terms of the Will executed by his mother. 6. It is further contended that Kamalabai executed a registered Will dated 13.01.2000, registered before the Sub-Registrar, Belagavi. According to defendant No.1, he is the exclusive owner of the properties in terms of the Will executed by his mother. 6. The trial Court has held that the defence of defendant No.1 that his mother purchased the properties from the money paid by her parents is not established and the trial Court has come to the conclusion that the properties in question were purchased by Bandopant in the name of his wife. The trial Court also concluded that the Will in question is not proved and decreed the suit as prayed for. Hence, defendant No.1 is in appeal before this Court. 7. The appellant has filed an application dated 15.09.2022 under Order XLI Rule 27 of Code of Civil Procedure for production of additional documents to substantiate his contention in the written statement. In addition to that, the appellant has filed one more application dated 07.03.2023, under Order XLI Rule 27 of Code of Civil Procedure and appellant seeks to produce original mortgage deed dated 15.02.1975. 8. The appellant contends that the original sale deed in the name of his mother Kamalabai does not bear the thumb impression or the signature of Kamalabai as the said document was executed in the name of Kamalabai by the vendor and the sale deed was presented for registration by the vendor himself. 9. Learned counsel for the appellant would submit that the Will which is produced by the appellant which is said to be the Will executed by Kamalabai bears the thumb impression and he would submit that the thumb impression on the Will has to be compared and examined with the thumb impression on the mortgage deed dated 15.02.1975. The learned counsel for the appellant would submit that the mortgage deed dated 15.02.1975 would go long way in proving the contention that Kamalabai executed the Will and further submits that the original mortgage deed was not produced as the same was not traced during the trial despite due diligence exercised by defendant No.1. 10. Learned counsel for the appellant would also submit that though the thumb impression of Kamalabai is not found on all the pages of the Will, it is found on the last page. It is only the last page that contains recital regarding the disposition of the properties. 10. Learned counsel for the appellant would also submit that though the thumb impression of Kamalabai is not found on all the pages of the Will, it is found on the last page. It is only the last page that contains recital regarding the disposition of the properties. The initial pages do not contain the recital relating to disposition of the properties. The first two pages contain recitals relating to the history of the family and incidental matters. Under the circumstance, he would submit that the fact that initial two pages do not contain the thumb impression or the signature of Kamalabai cannot be construed as a suspicious circumstances to hold that the Will is not proved. 11. This Court has perused the impugned judgment and decree passed by the trial Court. 12. The trial court has held that defendant no.1 failed to establish that the suit properties are purchased by Kamalabai from the funds provided by her parents. If the properties are purchased purchased by Bandopant from his own funds, in the name of his wife and if the transaction in the name of his wife is benami, then also after the demise of Bandopant, Kamalabai being his wife would inherit a share in the properties along with her children as Class-I heir. This aspect is not considered by the trial court. That being the position, the court has to consider whether the 'Will' executed by Kamalabai is valid to the extent of her share. 13. The appellant has filed the applications before this Court for production of additional documents and the respondents are not before this Court opposing the application, and more than anything else the mortgage deed dated 15.02.1975 which is sought to be produced as additional evidence allegedly contains the thumb impression of Kamalabai. The appellant contends that the other documents produced along with the application are necessary to establish the defence of self acquisition of the property by the mother. This Court deems it appropriate to allow the appeal and to remand the matter for fresh consideration in the light of additional documents sought to be produced in accordance with law. 14. The applications for production of documents are also allowed and the trial Court shall consider the proof of the said documents and the Trial Court shall be opportunity to the plaintiffs before it to lead rebuttal evidence, if any. 15. 14. The applications for production of documents are also allowed and the trial Court shall consider the proof of the said documents and the Trial Court shall be opportunity to the plaintiffs before it to lead rebuttal evidence, if any. 15. It is also relevant to note that the Trial Court if deems appropriate may also appoint an expert to give a report on the thumb impression on the 'Will' alleged to be executed by Kamalabai. 16. The Trial Court shall also give a finding as to whether the properties in the hands of Kamalabi were her self acquired properties and whether the 'Will' dated 13.01.2000 alleged to have been executed by Kamalabai is duly proved by defendant No.1 by considering the additional documents, ofcourse subject to its proof. 17. It is also made clear that this Court has not expressed anything on the nature of the properties and execution of Will and all contentions of the parties are kept open. 18. For the aforementioned reasons, the appeal is allowed. The impugned judgement and decree are set aside and the matter is remanded to the trial Court for fresh consideration in accordance with law. 19. Production of documents sought to be produced before this Court are allowed, subject to all just exceptions under law.