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2025 DIGILAW 1339 (KAR)

Jayalakshmamma v. Thayamma

2025-11-21

ASHOK S.KINAGI

body2025
JUDGMENT : ASHOK S.KINAGI, J. This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 26.02.2013 passed in R.A.No.50/2008 by the learned Senior Civil Judge and Principal JMFC at Tarikere and the judgment and decree dated 30.09.2008 passed in O.S.No.6/1998 by the learned Civil Judge (Jr. Dn.) and Additional JMFC at Tarikere. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellants were the defendants, respondent No.1 was plaintiff No.1 and respondent Nos.2(a) to 2(c) were the legal representatives of the deceased plaintiff No.2. 3. Brief facts, leading rise to the filing of this appeal, are as follows: The plaintiffs filed a suit against the defendants for a declaration to declare that they are the owners to an extent of half share in the suit schedule property and also to declare that the Will dated 02.09.1993 executed in favour of defendant No.1 is not binding on them and for the grant of a permanent injunction. It is the case of the plaintiffs that, one Gangaiah is the Propositor of the family of the plaintiffs and the defendants. The husband of plaintiff No.1 and husband of defendant No.1 i.e., respondent No.2 are the sons of late Gangaiah. Late Gangaiah, during his lifetime, acquired the suit schedule property in 1978-79 and the Government has also issued saguvali chit in favour of Gangaiah. The plaintiffs and the defendants have constituted a Hindu Undivided joint family, and are in joint possession and enjoyment of the suit schedule property. The late Gangaiah sold his ancestral property and out of the said income, he developed the suit property and it became the joint family property. It is contended that late Gangaiah died on 21.09.1994 and defendant No.1 is claiming ownership over the suit schedule property based on the Will dated 02.09.1993 alleged to have been executed by the late Gangaiah in favour of defendant No.1. The plaintiffs issued a legal notice to the defendants on 20.07.1997 demanding their half share in the suit schedule property. However, the defendants did not do so. Hence, a cause of action arose for the plaintiffs to file a suit for a declaration to declare that the alleged Will executed by late Gangaiah in favour of defendant No.1 is not binding on the share of the plaintiffs. Accordingly, prays to dismiss the suit. 3.1. However, the defendants did not do so. Hence, a cause of action arose for the plaintiffs to file a suit for a declaration to declare that the alleged Will executed by late Gangaiah in favour of defendant No.1 is not binding on the share of the plaintiffs. Accordingly, prays to dismiss the suit. 3.1. The defendants filed a written statement denying the averments made in the plaint and contended that late Gangaiah was the absolute owner of the suit schedule property and he had no ancestral property. Hence, the suit schedule property is the self acquired property of the late Gangaiah. He bequeathed the suit schedule property in favour of defendant No.1 under a registered Will dated 02.09.1993. After the demise of Gangaiah, defendant No.1 became the absolute owner of the suit schedule property and the plaintiff had a knowledge regarding the execution of the alleged Will by late Gangaiah in favour of defendant No.1 and late Gangaiah was in sound disposing state of mind at the time of execution of the Will. It is also contended that the suit is barred by limitation. Hence, Hence, prays to dismiss the suit. 3.2. The Trial Court, based on the above said pleadings, framed the following issues: 1) Whether plaintiffs proves the relationship pleaded? 2) Whether plaintiffs prove that suit property is ancestral property? 3) Whether plaintiffs prove that deceased Gangaiah was not in sound mine before his death? 4) Whether defendant prove that Gangaiah has executed Will dated 02.09.1993 out of free will? 5) Whether suit is barred by time? 6) What decree or order? 3.3. The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW.1, examined one witness as PW.2, and marked 13 documents as Exs.P1 to P13. In rebuttal, defendant No.2 was examined as DW.1, examined three witnesses as DW.2 to DW.4, and marked 15 documents as Exs.D1 to D15. 3.4. The Trial Court, after recording the evidence of both the parties, hearing both sides, and after assessing the verbal and documentary evidence, answered issue Nos.1 to 3 in the affirmative, issue Nos.4 and 5 in the negative, and issue No.6 as per the final order. The suit of the plaintiffs was decreed with costs vide judgment dated 30.09.2008, and it was declared that the Will dated 02.09.1993 allegedly executed by Gangaiah is not binding on the plaintiffs and is a product of fraud and misrepresentation. The suit of the plaintiffs was decreed with costs vide judgment dated 30.09.2008, and it was declared that the Will dated 02.09.1993 allegedly executed by Gangaiah is not binding on the plaintiffs and is a product of fraud and misrepresentation. It was held that the plaintiffs are the owners of a half share in suit property. Exercising the power under Order VII Rule 7 of the CPC the trial Court directed that there shall be a partition of half share of the plaintiffs in the suit property and delivery of the same to the plaintiffs as per Section 54 of CPC, and the defendants are restrained from interfering with half share of the plaintiffs, after delivery of the share to the plaintiffs, by way of a permanent injunction. 3.5. The defendants, aggrieved by the judgment and decree passed in O.S.No.6/1998, preferred an appeal in R.A.No.50/2008 on the file of the Learned Senior Civil Judge and Prl. JMFC, Tarikere. 3.6. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: 1) Whether the findings and reasons recorded on issue No.1 to 5 by the trial Court holding that the suit schedule property is the ancestral property of Mariswamy and the defendants have failed to prove that deceased Gangaiah during his lifetime has executed registered Will dated 02.09.1993 in favour of the defendant No.1 are perverse and capricious and are required to be interfered by this Court exercising its appellate jurisdiction? 2) To what relief and decree the parties entitled to? 3.7. The First Appellate Court, on hearing the parties and after re-appreciating the verbal and documentary evidence, answered point No.1 in the negative, and point No.2 as per the final order. The First Appellate Court dismissed the appeal, and confirmed the judgment and decree passed in O.S.No.6/1998, vide its judgment dated 26.02.2013. 3.8. The defendants, aggrieved by the impugned judgments, filed this Regular Second Appeal. 4. This Court, on 09.07.2014, admitted the appeal to consider the following substantial questions of law: 1) Without recording a finding as to whether the will propounded has been proved in accordance with law, could a declaration that it will not bind the plaintiff be granted as has been done in this case? 4. This Court, on 09.07.2014, admitted the appeal to consider the following substantial questions of law: 1) Without recording a finding as to whether the will propounded has been proved in accordance with law, could a declaration that it will not bind the plaintiff be granted as has been done in this case? 2) If the will has been proved in the manner provided by law could a declaration be given declaring it would not bind a particular person or the property? 5. Heard the arguments of the learned counsel for the defendants, and also the learned counsel for the plaintiffs. 6. Learned counsel for the defendants submits that the suit schedule property is the self acquired property of late Gangaiah, and during his lifetime, he bequeathed the suit schedule property in favour of the defendant No.1 and executed a registered Will. Hence, for the said reason, the testator has not given any share in the suit schedule property in favour of the plaintiffs and he also submits that defendant No.1 took care of the testator Gangaiah. Out of love and affection, he bequeathed the suit schedule property in favour of defendant No.1. He submits that after the demise of late Gangaiah, defendant No.1 became the absolute owner of the suit schedule property. He submits that the testator was in a sound disposing state of mind at the time of execution of the Will and the Will is not surrounded by any suspicious circumstances. He also submits that the defendants have removed all the suspicious circumstances surrounded the Will. The said aspect has not been adequately appreciated by the Courts below. He also submits that the suit filed by the plaintiffs is barred by time. He submits that the plaintiffs have sought for a relief of declaration, but the trial Court moulded the relief to partition and separate possession which is erroneous. Hence, on these grounds, he prays to allow the appeal. 7. Per contra, the learned counsel for the plaintiffs submits that the Will is surrounded by suspicious circumstances like disinheritance of legal heir and the propounder of the Will participated at the time of the execution of the Will. 8. To buttress her arguments, she has placed a reliance on the judgment of the Hon'ble Apex Court in the case of B HARPUR S INGH & O RS . V S . 8. To buttress her arguments, she has placed a reliance on the judgment of the Hon'ble Apex Court in the case of B HARPUR S INGH & O RS . V S . S HAMSHER S INGH reported in AIR 2009 SC 1766 . She submits that the propounder of the Will has not entered the witness box to prove the execution of the Will and also the mental status of the testator. She submits that the Courts below have rightly recorded the finding that the Will is surrounded by suspicious circumstances and moulded the relief under Order VII Rule 7 of the CPC. Hence, on these grounds, she prays to dismiss the appeal. 9. Perused the records, and considered the submissions of the learned counsel for the parties. 10. Reg. Substantial Question of Law Nos.1 & 2 : Substantial question of law Nos.1 and 2 are interlinked and they are taken together for common discussion to avoid the repetition of facts. 11. The plaintiffs, to substantiate their case, plaintiff No.1 examined as PW.1. She deposed that late Gangaiah was the original propositor and he was the absolute owner of the suit schedule property. After the demise of Gangaiah, the plaintiffs and the defendants have succeeded to the suit schedule property. The plaintiffs and the defendants are the members of the Hindu Undivided family and the suit schedule property was acquired out of joint family funds. Late Gangaiah was aged about 80 years and he was not in sound state of mind, and was suffering from ill-health. Defendant No.1 created the alleged Will alleging that Gangaiah executed a Will in favour of defendant No.1 bequeathing the suit schedule property. Gangaiah died on 21.09.1994. It is deposed that the defendants by inpersonating Gangaiah got registered the Will. It is contended that defendant No.1 had not acquired any right over the suit schedule property by virtue of an alleged registered Will dated 02.09.1993. The execution of the alleged Will is a result of fraud, and misrepresentation and not binding on the plaintiffs. It is deposed that the defendants by inpersonating Gangaiah got registered the Will. It is contended that defendant No.1 had not acquired any right over the suit schedule property by virtue of an alleged registered Will dated 02.09.1993. The execution of the alleged Will is a result of fraud, and misrepresentation and not binding on the plaintiffs. The plaintiffs, to substantiate their case, they have produced the documents i.e., Ex.P1 is the notice, Exs.P2 and P3 are the unclaimed postal cover, Ex.P4 is a certified copy of the payment of upset price, Ex.P5 is the notice issued by the Tahsildar, Ex.P6 is the RTC extract, Exs.P7 and P8 are the grant certificate, Exs.P9 to P12 are the voters lists, Ex.P13 is the school admission certificate. 12. In the course of cross-examination, it was suggested to PW.1 that the suit schedule property was the self acquired property of Gangaiah and he executed a Will bequeathing the suit schedule property in favour of defendant No.1 out of love and affection. The said suggestion was denied by PW.1. The plaintiffs also got examined one Kullegowda as PW.2, who deposed in the same lines of PW.1. 13. In rebuttal, defendant No.2 was examined as DW.1, and he has deposed that his father was the absolute owner of the suit schedule property, and bequeathed the suit schedule property in favour of his wife i.e., defendant No.1 and after the demise of his father, defendant No.1 became the absolute owner of the suit schedule property. The plaintiff has no right, title or interest over the suit schedule property and also deposed that Gangaiah has right to bequeath the suit schedule property. To prove the defence of the defendants, the defendants have produced the documents i.e., Ex.D1 is the Will, Ex.D2 is the genealogical tree, Ex.D3 is the receipt, Exs.D4 and D5 are the RTC extracts, Exs.D6 and D7 are the MR extract, Ex.D8 is the death certificate of Gangaiah, Ex.D9 is the order in Tahsildar Court dated 11.04.1997, Ex.D10 is the RTC extract, Ex.D11 is the Patta book, Ex.D12 is the death certificate of Muniswamy, Ex.D13 is the bank receipt, Ex.D14 is the notice and Ex.D15 is the RTC extract. 14. 14. During the course of cross-examination, it was suggested to DW.1 that the said property was acquired by Gangaiah out of joint family funds and the said property is the joint family property of the plaintiffs and the defendants, and the plaintiff has a share in the suit schedule property. It was also suggested that Gangaiah has a right to execute the Will in favour of defendant No.1 and he was in sound state of mind. The said suggestions were demoed by DW.1. DW.1 admitted that at time of execution of the Will, the propounder of Will was present. To prove the execution of the Will, the defendants examined the scribe as DW.2 who has deposed that DW.1 is also one of the attester to Ex.D1. The defendants also examined the attester as DW.3, who has deposed that Gangaiah was the absolute owner of the suit schedule property and he bequeathed the suit schedule property in favour of defendant No.1 out of love and affection. After the demise of Gangaiah the suit schedule property was transferred in the name of defendant No.1. During the course of cross-examination it is denied that Gangaiah never executed a Will as deposed by him in the examination-in-chief. 15. It is the case of the plaintiffs that Gangaiah sold the ancestral property and out of the sale consideration amount he had purchased the suit schedule property. The land was granted in favour of Gangaiah for the enure of the family and not in the individual capacity. The plaintiff has denied the execution of the Will and the plaintiffs have claimed the relief of declaration that the Will executed by Gangaiah in favour of defendant No.1 is not binding on the share of the plaintiffs. Both the courts below have concurrently recorded a finding of fact that the defendants have failed to prove the execution of the Will by Gangaiah in favour of defendant No.1, and that the said Will is surrounded by suspicious circumstances like the propounder of the Will participated at the time of execution of the Will and there is no explanation offered by the testator in the alleged Will as to why the testator has excluded the natural legal heirs. The said Will is surrounded by suspicious circumstances. 16. The Hon'ble Apex Court in the case of B HARPUR S INGH & O RS . V S . The said Will is surrounded by suspicious circumstances. 16. The Hon'ble Apex Court in the case of B HARPUR S INGH & O RS . V S . S HAMSHER S INGH at paragraph 17 has held as follows : “17. 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 free will and mind. v. The propounder takes 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." 17. From the perusal of the admission of DW.1, wherein he admitted that defendant No.1 was present at the time of the execution of the Will, and also about the excluding the natural legal heir. The defendants failed to establish the execution of the Will, though the defendants examined the attesting witness i.e., DW.1, who is the husband of defendant No.1. Although the relief claimed by the plaintiffs for relief of a declaration that is a negative relief, however there are pleadings, and evidence to show that the suit schedule property was owned and possessed by late Gangaiah. 18. Admittedly, the suit is one for declaration. It is an undisputed and proved fact that the suit schedule property was owned and possessed by Gangaiah and admittedly, after his demise, there is no partition effected between the plaintiffs and the defendants. As observed above, the defendants have failed to prove the execution of the Will. In the absence of the Will, the plaintiffs and the defendants are the members of the Hindu Undivided Joint family, and the suit schedule property is the joint family property of the plaintiffs and the defendants. The Court is required to take into account the events and determine to do the justice. In the absence of the Will, the plaintiffs and the defendants are the members of the Hindu Undivided Joint family, and the suit schedule property is the joint family property of the plaintiffs and the defendants. The Court is required to take into account the events and determine to do the justice. Though, the plaintiffs did not seek for a relief, for a prayer of partition and separate possession. The relief prayed for in the suit can be moulded as long as such a relief is closed from the same cause of action, even though such a reliefs are specifically prayed or not. 19. Order VII Rule 7 of the CPC, are so widely worded that, the words "and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for" are wide enough to empower the Court to grant such a relief as the plaintiff is entitled to, on the facts established on the evidence on record, even if such a relief has not been specifically prayed for. 20. The provisions of Order VII Rule 7 of CPC, are so widely worded they do enable the Court to pass a decree for partition in a suit for declaration of title to immovable property and possession thereo,f where it turns out that the plaintiff is not entitled to all the interest claimed by him in the suit property. In such a situation there is nothing unusual in giving the relief to the parties by directing partition of the suit property, according to the shares of the parties established in the suit. The normal rule that relief not founded on the pleadings should not be granted is not without an exception. Where the substantial matters constituting the title of all the parties are touched in the issues and have been fully put in evidence, the case does not fall within the foresaid rule. The Court has to look into the substance of the claim in determining the nature of the relief to be granted to the plaintiff. Where the substantial matters constituting the title of all the parties are touched in the issues and have been fully put in evidence, the case does not fall within the foresaid rule. The Court has to look into the substance of the claim in determining the nature of the relief to be granted to the plaintiff. Of course, the Court while moulding the relief must take care to see that the relief it grants is not inconsistent with the relief which the plaintiffs claims and is based on the same cause of action on which the relief claimed in the suit, and that it occasions no prejudice or causes embarrassment to the other side, that it is not larger than one claim in the suit, even if, the plaintiff is really entitled to it, unless he amends the plaint; that it had not been barred by time on the date of presentation of the plaint. The trial Court, considering the provisions of Order VII Rule 7 of the CPC, has moulded a relief and converted the suit for declaration to partition and separate possession. The trial Court has rightly passed the impugned judgement declaring that the Will dated 02.09.1993 executed by Gangaiah is not binding on the plaintiffs and by moulding the relief, has granted a share, as the Gangaiah had two sons i.e., Basavarajappa - defendant No.2 and husband of defendant No.1 i.e., Mariswamy and father of defendant No.2. If a partition is effected between the sons of Gangaiah, the plaintiff get a half share and defendant No.2 will get a half share. The trial Court granted half share to the plaintiffs' family and half a share to defendant No.2. Both the Courts below were justified in passing the impugned judgements by moulding the relief under Order VII Rule VII of the CPC. In view of the above discussion, I do not find any error in the impugned judgments. In view of the above discussion, I answer substantial question of law Nos.1 and 2 in the affirmative. 21. Accordingly, I proceed to pass the following: ORDER i. The Regular Second Appeal is dismissed ii. The judgments and decree passed by the Courts below are hereby confirmed. iii. No order as to the costs. iv. In view of the dismissal of the appeal, pending IAs, if any, stand disposed of accordingly.