Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 435 (KAR)

Drakshayanamma v. Shadaksharaiah

2023-03-14

H.P.SANDESH

body2023
JUDGMENT/ORDER 1. This matter is listed for admission and I have heard the learned counsel for the appellant and learned counsel for the respondents. 2. The factual matrix of the case of the plaintiff before the Trial Court is that one Veerappa and Ramakka of Bettadahalli had no sons but only daughters, Gowramma, Veeramma, Gangamma and Drakshayanamma and that Gowramma is no more and she is survived by defendant Nos.2 to 6. It is contended that Veeramma died without marriage and issues and Gangamma is the plaintiff and Drakshayanamma is the first defendant and they are the only legal representatives of Veerappa and Ramakka. It is contended that the plaintiff and defendants constitute a Hindu Undivided Family and the suit properties are the joint family properties of the plaintiff and defendants and all are enjoying them jointly. It is contended that the plaintiff and defendants are entitled for equal share in the suit properties and that Veerappa and Ramakka died intestate. It is contended that the first defendant, being resident of Bettadahalli is looking after the joint family properties who is in a position to maintain the properties without waste and in turn the defendants are taking advantage of the fact that the plaintiff is an aged woman and residing away from the suit property and hence, wasting the income for un-necessary affairs and things with an intention to diminish the share value of the plaintiff and also she has failed to furnish any proper account to the plaintiff. It is contended that, as such the plaintiff demanded her share of 1/3rd in the suit properties about two months prior to the filing of the suit but, the defendants have refused to allot the share of the plaintiff. 3. In pursuance of the suit summons, the defendants have appeared before the Court and the defendant Nos.1 to 4 have filed a common written statement. The defendant Nos.1 to 4 have denied the plaint averments, except admitting the relationship between the parties. It is contended that the suit properties are both ancestral and self-acquired properties of late Veerappa and he was in exclusive possession and enjoyment of the same during his life time and about more than 50 years ago, the father of the plaintiff performed her marriage and thereafter, she is living in the house of her husband and she has no connection whatsoever with her parents' house. It is alleged that after 2-3 years, the marriage of Gowramma, mother of defendant Nos.2 to 6 was performed by Veerappa and after her marriage, late Gowramma was residing with her husband at Herur and she was also not having any connection with her parents. It is contended that, after the marriage of plaintiff and late Gowramma, first defendant and her sister Veeramma were living with their father and enjoying the suit properties jointly. It is also contended that as first defendant and her sister Veeramma were unmarried and their father was more than 55 years old and in a sound and healthy state of mind, in order to safeguard the interest of unmarried daughters, he had executed a registered Will dtd. 12/7/1959 bequeathing the suit properties and another property bearing Sy.No.63/1A situated at Bettadahalli in favour of first defendant and her sister Veeramma and that the father of the plaintiff died in 1962. It is contended that, at the time of death of their father, first defendant was unmarried and the plaintiff and late Gowramma, who were in their husbands' houses did not co-operate with first defendant and did not take any initiative in the welfare of first defendant and her sister. It is contended that, after the death of their father, the first defendant had to face lot of suffering and the village elders took initiative and brought the husband of first defendant and performed the marriage of first defendant with great difficulty in 1963 and that plaintiff nor late Gowramma helped first defendant in her marriage and the first defendant has taken lot of pain in maintaining the properties and her sister, who was handicapped and was able to manage with the assistance of her husband, who used to live both at Bettadahalli and Oorukere. It is contended that, in order to overcome the financial crisis, the first defendant sold one of the properties i.e., Sy.No.63/1A which she got under the Will in 1994 after getting the khatha and pahani in her name. It is contended that the plaintiff and other defendants have not questioned the above sale so far and it shows that the plaintiff has accepted the execution of Will in favour of first defendant and as such, the present suit of the plaintiff is not at all maintainable and with malafide intention, the present suit is filed. 4. It is contended that the plaintiff and other defendants have not questioned the above sale so far and it shows that the plaintiff has accepted the execution of Will in favour of first defendant and as such, the present suit of the plaintiff is not at all maintainable and with malafide intention, the present suit is filed. 4. The defendant Nos.1, 3, 4 and 7 have filed additional written statement contending that the suit is barred by limitation and that the suit for partition without seeking declaration and cancellation of document as per Specific Relief Act is not maintainable in law. It is also contended that the suit is bad for non-joinder of necessary parties and that the Court fee paid by the plaintiff is insufficient and adequate material is not disclosed regarding joint possession of the suit properties. 5. The defendant Nos.5 and 6 also filed a common written statement admitting the claim of the plaintiff and prayed to allot their shares. The defendant No.8 also filed the separate written statement denying the plaint averments. 6. The Trial Court, after considering both oral and documentary evidence placed on record and considering the pleadings of the parties, framed the issues and additional issues and allowed the parties to lead evidence and accordingly, the plaintiff examined one witness as P.W.1 and got marked the documents as Exs.P1 to P9. On the other hand, the defendants have examined three witnesses as D.Ws.1 to 3 and got marked the documents as Exs.D1 to D15. 7. The Trial Court having considered both oral and documentary evidence placed on record, answered issue Nos.1 and 2 as 'negative', in coming to the conclusion that plaintiff fails to prove that herself and defendants constitute Hindu Undivided joint family and also failed to prove that suit properties are joint family properties of herself and defendants and the Trial Court comes to the conclusion that the defendants have proved that Will was executed on 12/7/1959 in favour of the first defendant and her sister Veeramma and also answered issue Nos.3 and 4 that the defendants have sold one of the item of the suit properties in the year 1994 based on the said Will and other issues are answered as 'negative'. Hence, an appeal was filed before the First Appellate Court in R.A.No.154/2012. Hence, an appeal was filed before the First Appellate Court in R.A.No.154/2012. The First Appellate Court, on considering the grounds urged in the appeal memo, formulated the points whether the Courts below erred in holding that first defendant has proved execution of the registered Will dtd. 12/7/1959, whether the Courts below erred in holding that the suit is bared by law of limitation and whether the judgment and decree is erroneous and it requires interference. The First Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, allowed the appeal and granted the relief of partition granting 1/3rd share. Hence, the present second appeal is filed. 8. Learned counsel for the appellant would vehemently contend that the First Appellate Court committed an error in coming to the conclusion that the Will has not been proved and the First Appellate Court also committed an error in coming to the conclusion that the said Veerappa has not made any provision for other children and failed to take note of the fact that the document of Will is more than 30 years old and under Sec. 90 of Indian Evidence Act, there is a presumption and failed to take note of Exs.D10 and D11 with regard to the genuineness of the Will and hence, this Court has to frame substantial questions of law with regard to the document of Will executed on 12/7/1959 is a 30 year old document and there is a presumption under Sec. 90 of the Indian Evidence Act. The counsel would submit that, this Court has to frame substantial question of law with regard to Exs.D10 and D11 which are ignored by the First Appellate Court and failed to take note of the fact that Will is executed in favour of unmarried daughters since, other daughters are married and settled in their families. Hence, it requires interference. 9. Per contra, learned counsel for the respondents would submit that, though it is claimed that Will was executed in 1959, but the same did not see the light of the day and even after 30 years of the alleged execution of the Will, property was transferred by inheritance and not based on the Will. Hence, there is a suspicious circumstance with regard to the Will is concerned and merely because the same is a registered document, the same cannot be accepted and Ss. Hence, there is a suspicious circumstance with regard to the Will is concerned and merely because the same is a registered document, the same cannot be accepted and Ss. 63 and 68 of Succession Act and also Evidence Act has not been proved. Even assuming that attesting witnesses are not alive, ought to have proved the same in terms of Sec. 69 of the Evidence Act and even the scribe and attesting witnesses have not been examined and mandatory provisions have not been complied with. Hence, the First Appellate Court comes to the conclusion that Will has not been proved and the very reasoning given by the Trial Court that original Will is not produced and there is no need to examine the scribe and attesting witness is an erroneous approach and the same is considered by the First Appellate Court and reversed the findings of the Trial Court. 10. Having heard the respective counsel and also on perusal of the material available on record, it is not in dispute that property belongs to Veerappa and Ramakka i.e., the father and mother of the plaintiff and there is no dispute with regard to relationship between the parties and the said Veerappa and Ramakka were having four daughters. It is also not in dispute that one of the daughters passed away and she died issueless and hence, claimed 1/3rd share. It is the main contention of the learned counsel for the appellant that, Will was executed in the year 1959 and the executor died in 1962 and no dispute with regard to death of the executor in the year 1962 but, though the said Will is allegedly executed in the year 1959, the same is not produced even for transfer of khatha in favour of the first defendant but, it is contended that there was a Will in favour of defendant No.1 and another sister. Having considered the material on record, while getting the property transferred in the year 1991 also, the transfer is based on inheritance and not on the Will. No doubt, one of the item of the property was sold in favour of the prospective purchaser in the year 1994. 11. Having considered the material available on record none of the attesting witness and the scribe also examined before the Trial Court. No doubt, one of the item of the property was sold in favour of the prospective purchaser in the year 1994. 11. Having considered the material available on record none of the attesting witness and the scribe also examined before the Trial Court. It is mandatory on the part of the Court, when the propounder of the Will contended that the Will was executed and the same has to be proved and one of the attesting witness has to be examined. Even if the attesting witness is not alive, the defendants ought to have examined the persons, who are having acquaintance with the signature of the attesting witness in terms of Sec. 69 of the Evidence Act; the same is also not done. When such being the case, even the original Will is also not produced, but the original register has been summoned from the office of the Sub- Registrar and the Sub Registrar is also examined and that is only with regard to the registration of the document not with regard to proving of execution of the Will as propounded. When such being the case, I do not find any error committed by the First Appellate Court in reversing the finding of the Trial Court. 12. The very contention of the learned counsel appearing for the appellant is that this Court has to frame the substantial question of law with regard to the documents were of 30 years old. There is a presumption under Sec. 90 of the Indian Evidence Act. Hence, the said contention also cannot be accepted. None of the attesting witness has been examined in order to prove the Will and the same is mandatory under Sec. 63 of the Hindu Succession Act as well as Sec. 68 of the Evidence Act. The learned counsel would vehemently contend that this Court has to frame the substantial question of law with regard to the documents - Exs.D10 and D11 which have been marked through the witness. 13. I have already pointed out that the same is also only with regard to proving of registration of the Will, but not with regard to proving of very execution of the Will. 13. I have already pointed out that the same is also only with regard to proving of registration of the Will, but not with regard to proving of very execution of the Will. When such being the case, when the attesting witnesses were not examined and also not invoked Sec. 69 of the Evidence Act in order to prove the execution of the Will, I do not find any force in the contention of the learned counsel for the appellant that this Court has to frame the substantial question of law and admit the appeal. 14. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed. In view of dismissal of the appeal, I.As, if any do not survive for consideration, the same stands disposed of.