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2023 DIGILAW 835 (KAR)

Sagar v. Manjula

2023-07-03

ASHOK S.KINAGI, T.VENKATESH NAIK

body2023
JUDGMENT ASHOK S. KINAGI, J. This appeal is filed by the appellant challenging the judgment and preliminary decree dtd. 31/1/2015 passed in O.S. No.7/2008 by the learned Senior Civil Judge and JMFC, Raibag. 2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. 3. The appellant is defendant No.1. Respondent Nos.1 to 3 are the plaintiffs. Respondent Nos.4 to 18 are the defendants. The plaintiffs filed a suit for partition and separate possession in respect of lands bearing R.S. No.112/5 measuring 4 acres, Sy.No. 146/3 measuring 4 acres 7 guntas and R.S. No.147/3 measuring 5 acres 6 guntas and all situate at Mantoor village, Raibag taluk are the suit properties. It is the case of the plaintiffs that the original propositus was one Sri. Parasappa. He has two sons namely Kallappa and Yallappa and two daughters Yallawwa and Tangewwa. Kallappa died issueless. Yallappa died leaving behind the plaintiffs and defendant Nos.1 to 10. Yallawwa is defendant No.11/daughter of original propositus. Tangewwa died leaving behind defendant Nos.12 to 16. It is contended that the suit schedule properties are standing in the name of the original propositus Parasapa. After his demise, his two sons namely Kallappa and Yallappa got their names entered in the record of rights over the suit schedule properties. The suit schedule properties are the ancestral properties of the plaintiffs and the defendants. The plaintiffs and the defendants are cultivating the suit properties jointly. On 13/11/2006 defendant Nos.1 to 3 created an alleged illegal Will in the name of defendant No.1 just to dupe the valuable shares of the plaintiffs over the suit properties. The plaintiffs demanded for partition and separate possession but the defendants refused to effect a partition. Hence, cause of action arose to the plaintiffs to file a suit for partition and separate possession. 4. Defendant Nos.1 to 3 filed written statement contending that the suit filed by the plaintiffs is not maintainable for non-joinder of necessary parties. It is contended that after the demise of the original propositus Parasappa, his sons Kallappa and Yallappa got their names entered in the record of rights in respect of the suit properties who have got equal half share in the suit properties. It is contended that after the demise of the original propositus Parasappa, his sons Kallappa and Yallappa got their names entered in the record of rights in respect of the suit properties who have got equal half share in the suit properties. It is contended that the plaintiffs and the defendants are jointly cultivating the suit properties and there is no partition and separate possession by metes and bounds in the suit properties. It is denied that on 13/11/2006, defendant Nos.1 to 3 created alleged illegal deed in favour of defendant No.1. It is contended that, uncle of defendant No.3 namely Kallappa had no issues. The said Kallappa was aged about 85 years. During the old age, defendant Nos.2 and 3 have looked after Kallappa peacefully and provided treatment whenever he fell sick. Hence, Kallappa had special love and affection towards his brother Yallappa i.e. defendant No.3 namely Parashuram @ Ajjappa i.e., defendant No.3 and his wife Lata. During his life time, on 13/11/2006 executed his last will bequeathing half share in all the suit properties in favour of defendant No.1. Since he was a minor, he was represented by his mother defendant No.2. Kallappa died on 14/1/2007. After his demise, the said Will was registered before the SubRegistrar, Raibag. As per the registered Will executed by Kallappa, defendant Nos.1 to 3 submitted an application to enter their names. Accordingly, name of defendant No.1 was entered in the revenue records. The plaintiffs have no right, title or interest over the half share of Kallappa. Hence, prayed to dismiss the suit. 5. Defendant Nos.5 and 6 filed written statement and made counter claim that suit be decreed and they are also entitled for share in the suit properties. 6. Defendant No.9 filed written statement making counter claim for partition and separate possession. 7. Defendant No.10 also filed written statement praying to decree the suit of the plaintiffs and also claimed share in the suit properties. 8. The trial Court on the basis of the pleadings of the parties, framed the following issues and additional ISSUES 1. Whether plaintiffs prove that, they have 1/4th share in suit schedule 'A' properties? 2. Whether defendant No.1 to 3 prove that, deceased Kallappa Parasappa Helavi executed a will deed dtd. 13/11/2006 as alleged? If so, whether the said Will does not bind plaintiffs share in suit properties? 3. Whether plaintiffs prove that, they have 1/4th share in suit schedule 'A' properties? 2. Whether defendant No.1 to 3 prove that, deceased Kallappa Parasappa Helavi executed a will deed dtd. 13/11/2006 as alleged? If so, whether the said Will does not bind plaintiffs share in suit properties? 3. Whether suit suffer from non-joinder of necessary parties? 4. Whether plaintiffs are entitled for the reliefs sought? 5. What decree or order? Addl. Issue No.1: Whether defendant No.9 proves that, all the properties of the joint family are not included in this suit and the suit is bad on the said ground? 9. Plaintiffs in order to substantiate their case, plaintiff No.3 is examined as PW-1 and got marked at Exs.P1 to P-3. Defendant Nos.1, 3 and 9 are examined as DWs-1, 3 and 6 and 3 witnesses are examined as DWs.2, 4 and 5 and got marked documents at Exs.D-1 to D-4. 10. The trial court after recording the evidence and considering the oral and documentary evidence, answered issue Nos.1 and 4 partly in the affirmative and issue Nos.2, 3 and additional issue No.1 in the negative and consequently decreed the suit of the plaintiffs. It was ordered and decreed that the plaintiffs are entitled for 10/96th share and separate possession in the suit properties. 11. Defendant No.1 aggrieved by the impugned judgment and preliminary decree, filed this appeal. 12. Heard the learned counsel for defendant No.1 and the learned counsel for the plaintiffs. 13. Learned counsel for defendant No.1 submitted that the deceased Kallappa died issueless. Parents of defendant No.1 i.e. defendant No.3/Ajjappa @ Parashuram and defendant No.2/Lalita, W/o Ajjappa @ Parashuram(defendant No.3) were looking after him(Kallappa) and out of love and affection, he has bequeathed his half share in the undivided share in favour of defendant No.1 by a registered Will. He submits that, on the strength of the registered Will, defendant No.1 became the absolute owner of the suit schedule properties. He submitted that the trial Court has committed an error in not properly appreciating the evidence of the attesting witnesses and the scribe. Hence, on these grounds, he submits that the judgment and decree passed by the trial Court is perverse and arbitrary. Hence, prayed to set aside the judgment and decree by allowing the appeal. 14. He submitted that the trial Court has committed an error in not properly appreciating the evidence of the attesting witnesses and the scribe. Hence, on these grounds, he submits that the judgment and decree passed by the trial Court is perverse and arbitrary. Hence, prayed to set aside the judgment and decree by allowing the appeal. 14. Per contra, learned counsel for the plaintiffs submits that, defendant No.1 has failed to prove the execution of the alleged Will. The alleged Will is surrounded by suspicious circumstances. He further submits that the alleged Will was executed during the life time of Kallappa but it was registered after his demise. Further, he submits that defendant No.2 and other attesting witnesses have not supported the case of defendant No.1. He further submits that DW-5, who is the scribe to the alleged Will, has clearly admitted in the course of his cross-examination that, Kallappa not instructed him to draft the Will. Hence, on these grounds, he submits that the trial Court considering the evidence of DWs.1 to 5 has rightly held that defendant No.1 has failed to prove the execution of the alleged Will by Kallappa in favour of defendant No.1. Hence, on these grounds, he prays to dismiss the appeal. 15. Heard, perused the record and considered the submissions of the learned counsel for the parties. 16. The points that arise for our consideration are: (i) Whether the plaintiffs proves that the suit schedule properties are the ancestral properties of the plaintiffs and the defendants? (ii) Whether defendant No.1 proves that deceased Kallappa had executed a registered Will bequeathing his half share in the undivided property in his favour? (iii) Whether defendant No.1 proves that the judgment and decree passed by the trial Court is perverse and calls for interference? (iv) What order or decree? 17. Point No.(i): It is the case of the plaintiffs that original propositus was one Parasappa. He had 4 children namely Kallappa, Yallappa, Yallawwa and Tangewwa. Kallappa died issueless. Yallappa died leaving behind the plaintiffs and defendant Nos.1 to 10. Yallawwa is defendant No.11/daughter of original propositus. Tangewwa died leaving behind defendant Nos.12 to 16. Admittedly, the suit properties were standing in the name of Parasappa Helavi. The plaintiffs in order to substantiate that the suit schedule properties are the ancestral properties produced Exs.P-1 to 3. Kallappa died issueless. Yallappa died leaving behind the plaintiffs and defendant Nos.1 to 10. Yallawwa is defendant No.11/daughter of original propositus. Tangewwa died leaving behind defendant Nos.12 to 16. Admittedly, the suit properties were standing in the name of Parasappa Helavi. The plaintiffs in order to substantiate that the suit schedule properties are the ancestral properties produced Exs.P-1 to 3. Ex.P-1 is the RTC extract in respect of land bearing Sy.No.112/5 stands in the names of Helavi Kallappa, Helavi Yallappa and Helavi Parasappa, Ex.P-2 is the RTC extract in respect of Sy.No.146/3 stands in the names of Helavi Kallappa Parasappa and Helavi Yallappa Parasappa and Ex.P3 is the RTC extract in respect of land bearing Sy.No.147/3 stands in the names of Helavi Kallappa Parasappa and Helavi Yallappa Parasappa. The plaintiffs in order to prove their case examined plaintiff No.3 as PW-1. PW-1 has reiterated the plaint averments and in the course of her crossexamination nothing has been elicited from this witness. Further, PW-1 has deposed that the suit schedule properties are the ancestral properties of the plaintiffs and the defendants and the suit properties are owned by propositus Helavi Parasappa. After his demise, the suit properties were transferred in the names of Kallappa and Yallappa. In para 3 of the written statement filed by defendant Nos.1 to 3 and also D.W-1 in his examination in chief admitted that after the demise of Parasappa, his 2 sons namely Kallappa and Yallappa have got entered their names in the record of rights in the suit properties. From the said admission it is clear that the suit properties were standing in the name of Parasappa before his death and after his death it is transferred in the name of his 2 sons. We are of considered opinion that the suit properties are the ancestral properties of plaintiffs and defendants. Admittedly, no partition has been effected between Yallappa and Kallappa. Kallappa died issueless. At cost of repetition from the perusal of the evidence of the plaintiffs as well as the evidence of DW-1 and the documents produced by the parties, it disclose that the suit properties are the ancestral properties of the plaintiffs and the defendants. 18. In view of the above discussion, we answer point No.(i) in the affirmative. 19. At cost of repetition from the perusal of the evidence of the plaintiffs as well as the evidence of DW-1 and the documents produced by the parties, it disclose that the suit properties are the ancestral properties of the plaintiffs and the defendants. 18. In view of the above discussion, we answer point No.(i) in the affirmative. 19. Point No.(ii): Defendant Nos.1 to 3 have taken a specific contention in their written statement that during the life time of Kallappa in his old age, defendant Nos.2 and 3 were taking care of him and out of love and affection, Kallappa bequeathed his half share in the suit schedule properties in favour of defendant No.1 by executing a Will dtd. 13/11/2006 which came to be registered on 28/2/2007. The said fact has been denied by the plaintiffs contending that the deceased Kallappa had not executed the alleged Will bequeathing his half undivided share in the suit schedule properties in favour of defendant No.1. In order to prove the execution of the Will, defendant No.1 examined DWs.2, 4 and 5. DW-4 is the attesting witness and DW-5 is the scribe. DW-2 has deposed that Kallappa had called DWs.2 and 4 with an intention to execute the Will in favour of defendant No.1 and as requested, DWs.2 and 4 went to the house of Kallappa and Kallappa gave instructions to DW5 to draft the Will. He has further deposed that, himself and DW-4 are the son and father respectively and close relative of defendant Nos.1 to 3. In the course of cross-examination, DW-2 states that he does not know the contents of the Will but it was read over to him and pleaded ignorance as to Will is registered or not and who had brought the stamp paper to prepare the Will. DW-4 has also deposed in the similar lines of DW.2. In the course of their cross-examination, he has admitted that he does not know the contents of the Will and further he admitted that himself and DW.2 are father and son, respectively. DW-4 has stated that in the year 2006, Kallappa met them for the purpose of writing a Will. Once again Kallappa came to them for obtaining signature on the Will. He pleads ignorance with respect to the date on which Kallappa met him and the denomination value of the stamp paper and by whom it was purchased. DW-4 has stated that in the year 2006, Kallappa met them for the purpose of writing a Will. Once again Kallappa came to them for obtaining signature on the Will. He pleads ignorance with respect to the date on which Kallappa met him and the denomination value of the stamp paper and by whom it was purchased. Further he admits that he does not know the contents of the alleged Will. DW-5 is the scribe of the Will which is prepared by him on 13/11/2006. In the examination-in-chief, he has deposed that, on the instructions of the testator Kallappa he went to Mantoor village and obtained signatures of the testator Kallappa on the alleged will. The testimony of DWs.2, 4 and 5 is contrary to each other as according to DWs-2 and 4, the testator Kallappa came to Raibag on the day of execution of the Will dtd. 13/11/2006 but DW-5 has stated that he prepared the Will and after preparing the Will, he went to Mantoor village to obtain the signature of the testator on the Will. 20. Further DW-5 has categorically admitted in the course of cross-examination that he has not taken any instruction from Kallappa personally to prepare the Will and the Will was prepared on the instructions of the attesting witnesses Appasab and Jagannath. He also admits that executors of the Will give instructions to prepare the Will. 21. From the perusal of the evidence of DW-5, the deceased Kallappa did not give any instruction to DW-5 to prepare Will alleged to have been executed by Kallappa in favour of defendant No.1. Further, the said Will was drafted on the instructions of Appasab and Jagannath. Further, when the defendant No.1 has taken the defence and claims to be the owner by virtue of the Will, the burden is always on defendant No.1 to prove the execution of the Will. Further, it is the case of the parties that, as on the date of execution of the Will, the testator Kallappa was not well. He was aged about 85 years and his health was not in a good condition and he is unable to walk and he was totally bedridden and was suffering from old age ailments. DW-1 admits that, at the time death, Kallappa was aged about 95-97 years old. He was aged about 85 years and his health was not in a good condition and he is unable to walk and he was totally bedridden and was suffering from old age ailments. DW-1 admits that, at the time death, Kallappa was aged about 95-97 years old. As on the date of execution of the alleged Will, deceased Kallappa was aged about 96 years. He was totally bedridden. Defendant No.1 has failed to establish that, as on the date of execution of the Will, deceased Kallappa was hale and healthy and was in a position to understand the things. 22. Considering the evidence of DWs. 2 to 5, we are of the opinion that the Will is surrounded by suspicious circumstances on the following grounds: 1. The defendant No.1 has failed to prove the Will alleged to have been executed by deceased Kallappa in favour of defendant No.1. 2. Though the Will was alleged to have been executed on 13/11/2006 and Kallappa died on 14/1/2007 and the alleged Will came to be registered on 28/2/2007, defendant No.1 has not explained why the said Will was not registered as on the date of execution i.e., on 13/11/2006. 3. The original Will has not seen the day of light 4. DW-5 has admitted in the cross-examination that, Kallappa did not give instruction for drafting the alleged Will. He has further stated that the alleged Will was drafted on the instruction of attesting witnesses. 5. DW-1 admitted in the cross-examination that, as on the date of execution of alleged Will, Kallappa was aged about 96 years and was bedridden and Kallappa was not in position to understand things. 23. The Hon'ble Apex Court in the case of Bharpur Singh and Others Vs. Shamsher Singh reported in (2009) 3 SCC 687 , held, suspicious circumstances like the following may be found to be surrounded in the execution of the will: i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time. iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. iv. The dispositions may not appear to be the result of the testator's fee will and mind. iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. iv. The dispositions may not appear to be the result of the testator's fee will and mind. v. The propounder takes a prominent part in the execution of the will. vi. The testator used to sign blank papers. vii. The will did not see the light of the day for long. viii. Incorrect recitals of essential facts. 24. In view of the above finding, defendant No.1 failed to prove the execution of the Will alleged to have been executed by Kallappa in favour of defendant No.1 bequeathing has declaring undivided 1/2 share in favour of defendant No.1. The said Will is surrounded by suspicious circumstance. Hence we answer point No.2 in the negative. Point No.3: 25. The trial Court after considering the evidence of plaintiff as well as evidence of defendants No.1 to 5, was justified in recording a finding that the suit schedule properties are the ancestral properties of plaintiff and defendants and further defendant No.1 has failed to prove the execution of the Will alleged to have been executed by the deceased Kallappa in favour of defendant No.1 and further, that the defendant No.1 is not the absolute owner of the property of deceased Kallappa by virtue of the alleged Will. 26. Hence, in view of the above discussion, the trial Court was justified in decreeing the suit. We do not find any grounds to interfere with the impugned judgment. Accordingly, we answer point No.3 in the negative. Point No.4: 27. In view of answer to points No.2 and 3 in the negative, we proceed to pass the following: ORDER The appeal is dismissed. Judgment and preliminary decree dtd. 31/1/2015 passed in O.S. No.7/2008 by the learned Senior Civil Judge and JMFC, Raibag, is confirmed. No order as to cost.