Karnataka High Court
Smt. Sulochana Tai Yeshwanti Ankolekar vs Sundar S/O Yashwanti Ankolekar on 12 July, 2013
Author: N.Kumar
Bench: N.Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 12TH DAY OF JULY 2013
BEFORE
THE HON'BLE MR.JUSTICE N.KUMAR
RSA No.1173/1994
BETWEEN:
SMT.SULOCHANA TAI YASHWANTI ANKOLEKAR,
SINCE DECEASED BY HER LRs
MADAN SURESH ANKOLEKAR,
AGE: MAJOR, OCC: BUSINESSMAN,
R/O SATYASAI KRUPA, BUILDING ROOM No.03,
GROUND FLOOR, PANDURANG WADI,
RAMACHANDRANAGAR, DOMBIVALI,
MUMBAI (EAST) - 421 203.
...APPELLANT
(BY SRI. SACHIN S.MAGADUM, ADV.)
AND:
1. SUNDAR S/O YASHWANTI ANKOLEKAR,
2. SMT.SUDHA W/O SUNDAR ANKOLEKAR,
(RESPONDENT No.1 AND 2 SINCE DECEASED BY HIS LRs)
1(a) SHARAD SUNDAR ANKOLEKAR,
AGED ABOUT 60 YEARS,
1(b) SMT.SHAILA KOM SOMKUMAR,
AGED ABOUT 62 YEARS,
1(c) SMT.CHANDANA UDAYAN GOVEKAR,
AGED ABOUT 51 YEARS,
1(d) SHRI.KASHAD SUNDAR ANKOLEKAR,
AGED ABOUT 50 YEARS,
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ALL ARE RESIDENTS OF KENI ROAD, ANKOLA.
...RESPONDENTS
(BY SRI ARAVIND D.KULKARNI, M.SBASAVAPRABHU S.PATIL
ASSOCIATES)
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THIS APPEAL IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 13.09.1994
PASSED IN R.A.No.10/87 ON THE FILE OF THE DISTRICT
JUDGE, KARWAR ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 11.09.1987 PASSED BY
THE CIVIL JUDGE, KARWAR IN O.S.No.10/1977.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is a plaintiff's second appeal against the judgment and decree of the lower appellate Court which has set aside the judgment and decree of the trail Court, which has declared that the plaintiff is the absolute owner in respect of "A-schedule property" having acquired right under a registered Will.
2. For the sake of convenience, the parties are referred to as they are referred to in the original plaint. :3:
3. The case of the plaintiff is the suit schedule properties constituted the self-acquired properties of this plaintiff's mother Yeshwanti tai Soiru Ankolekar, who died on 17.03.1961 at Bombay. Defendant No.1 is the genitive son of the said Smt.Yeshwanti and the plaintiff is the daughter by adoption. This plaintiff was brought up by Yeshwanti ever since she was a child of two months and she was later taken in adoption by the said Yeshwanti and thus recognised as the full daughter of the said Smt.Yeshwanti. Defendant No.2 is the wife of defendant No.1 and defendnat Nos.3 to 5 are the tenants who are occupying the 2 frontal rooms on the ground floor of the house building at plaint serial No.4.
4. Yeshwanti tai Soiru belonged to the class of prostitutes, who carried on their profession at Bombay, she having made vast earnings it was she who got built the suit house besides acquiring all the properties. By her last Will and testament dated 22.05.1957, she disposed of her properties and bequeathed the same to defendant No.1 :4: and this plaintiff respectively. As per registered deed this plaintiff got title to the properties at Serial Nos.1 to 4 of the "plaint-A schedule" and defendant No.1 got the properties at Sl.Nos.5 and 6 of "N" Schedule together with the house at No.1015. The said Will and testament was not only solemnly executed by the mother Yeshwanti but the same was duly recognised, accepted and acted upon by all the parties concerned. Accordingly, the suit house at No.1014 allotted to this plaintiff was entered in the name of this plaintiff only in the Panchayat Records of Ankola and House No.1015 allotted to defendant No.1 was mutated in his name separately as his separate property. The house tax in respect of both these houses is being separately paid by each of the respective owners. Plaintiff has been in sole occupation, enjoyment and vahiwat of the suit schedule properties in her own independent malki rights as the owner. The plaint house at No.1014, is provided with electric meter and other fittings. This meter stands in the name of the plaintiff and the electricity bills are also drawn and paid in plaintiff's name only. :5:
5. The plaintiff had to remain mostly in Bombay only, since she was the kept mistress of a businessman. She had to look after the education and upbringing of her children at Bombay. The defendant No.1 also used to be in Bombay in service, defendant No.2 also lived with him and they had their own children and family to be looked after. In Bombay defendant Nos.1 and 2 and their children occupied Room Nos.1, 2 and 3 in the same block, whereas the plaintiff and her children occupied Room Nos. 4 and 5. That way the relationship between the plaintiff and defendant Nos.1 and 2 were cordial till recently. Once in a year or during the festival times, this plaintiff used to come to Ankola, remain for some time and go back to Bombay. The plaintiff did not know to read and write Kannada whereas the defendant No.1 assured her that he knew Kannada, he was her own brother and he will look after the affairs of the property well and she need have no worry on any count. After relationship strained, when the plaintiff went through the record of rights she found to her great surprise that defendant No.1 had got the names of both :6: himself and the plaintiff as "Samaikdars" or as samaikowners in the suit lands though in fact it was the plaintiff alone who was entitled to the suit lands at Serial Nos.1 to 3 of plaint-A schedule and defendant No.1 alone was entitled to the suit serial Nos.5 and 6 of plaint-B schedule. Defendant No.1 has now reached the age of retirement and he likely to retire within a few days. 1st defendant sent his wife to Ankola during the last Deepavali time and they both not only let out their own house property at House No.1015 to others and earned rents; but over and above they secretively let out the frontal 2 rooms on the ground floor of the plaintiff's house at serial No.4 to the other defendants at No.3 to 5. Thus they began making secretive profits to themselves without the consent or knowledge of this plaintiff. Whenever the plaintiff chose to come to Ankola during the holidays, defendant Nos.1 and 2, would get the rooms vacated and outwardly show that the house property at No.1014 had been kept in good order as before only. Defendant Nos.1 and 2 are not giving the plaintiff her one half share in the income of the plaint :7: schedule property at Sl. No.5, which is a garden land yielding an income of not less than Rs.1,500/- per year out of an average yield of 3000 coconuts; Rs.400/- worth of mango fruits, jack fruits and etc., Even when the plaintiff come and resides in the suit house at No.1014, the bossing is done by defendant No.2 and she will not allow the plaintiff or her children to go into the other rooms on the ground floor. The plaintiff has got her safe (or treasury) in one of the rooms on the ground floor, the plaintiff has the key of the said safe with herself. The plaintiff has kept a list of her articles in that safe and yet defendant No.2 would not allow her either to go in to the room or to open the safe with plaintiff's key.
6. The plaintiff also put forth the claim in the alternative that being adoptive daughter of the original owner Smt.Yeshwanti tai Soiru, she and the 1st defendant would be the co-owners and she is entitled to half share in all the plaint schedule properties. Therefore, she also sought for a decree of delivery of possession against the :8: tenant over and occupation of ground floor of her property. Therefore, the plaintiff filed a suit for declaration of "A- schedule property" in the plaint exclusively belongs to her and the defendant Nos.1 and 2 have no manner of right, title and interest of the same. A decree for injunction restraining defendant Nos.1 and 2 from interfering with the plaintiff's possession over the 'A-schedule property". She also sought for a decree directing the defendant Nos.3 to 5 for depositing the future rent in the Court for mesne profit and a direction to deliver possession of the ground floor portion to the defendant Nos.3 to 5. Alternatively, she sought for partition and possession of her half share in "A & B-schedule properties", a direction to take account and for such other relief in the schedule to the plaint. She has described the plaint schedule "A and B-properties" in terms of the registered Will where her properties were allotted to their respective shares.
7. After service of summons, defendant entered appearance through the counsel, they filed a joint written :9: statement. They contended that defendant No.1 is the son of Yeshwanti, but the plaintiff is not a adopted daughter of Yeshwanti. 2nd defendant is the wife of defendant No.1. They denied that house was built up by her earnings. It is their specific case that Yeshwanti had one younger sister by name Appi. She was looking very fair and earned lot by prostitution. But unfortunately in her zeal to earn money, she had contacted the disease and died at the age of 25 years. Defendant No.1 was brought up by her and as such she left all her earning in the house of defendant No.1. Only by the help of those earnings, house No.1014 was built about 40 to 45 years back. Since defendant No.1 was minor at the time of Appi's death the acquisition of A & B schedule properties were made in the name of Yeshwanti. They denied it is self acquired properties of Yeshwanti and it is the property of defendant No.1 only. The allegation that Yeshwanti thrived in prostitution was denied. The adoption set up by the plaintiff was purely for the sake of claiming right. She was not adopted and could not be adopted also by Yeshwanti. They denied that : 10 : Yeshwanti bequeathed all her property in favour of the plaintiff and defendant No.1.
8. The Will set up was not the Will executed by Yeshwanti. Yeshwanti had not made any Will making a settlement of 'A' schedule property. Plaintiff is an illegitimate child of a widow belonging to goldsmith caste. She was in the house of defendant No.1 and his mother Yeshwanti doing household work. She was not brought up even as a fostered child. Adoption is all unknown as per prevailing law at the time. Plaintiff initially to satisfy her lust fell in bad company, but afterwards, took the prostitution. It is false to say that the Yeshwanti was in the keeping of a businessman. It is false to say that Sl.Nos.1 to 4 of the 'A' schedule property is exclusively enjoyed by her. These defendants exclusively in possession of the 'A' & 'B' schedule properties right from the death of Yeshwanti in the year 1961. Defendant No.1 is an employee at Bombay. He was not aware of the record of rights of the home tax registers entered in the name of the plaintiff. : 11 : Defendant No.2 with her children was all the while staying most of the occasion at Ankola. Neither defendant No.1 nor defendant No.2 read or write Kannada. Defendant No.2 was paying house tax assessment as and when the concerned authority demanded the same. But she never bothered to see the contents, as they are in Kannada. It is not admitted that the electricity bills were paid by the plaintiff. The defendant alone paid the electricity bill. Defendant No.2 is staying in the house No.1014. She does not know English and Kannada. She is not aware whether the meter stands in the name of defendant No.1 or in the name of the plaintiff. The plaintiff by virtue of a charity shown to her orphanage, misused her position, as such and appeared to have got created certain documents behind the back of defendant Nos.1 and 2. The defendants never stayed in the house No.1015. Since the construction of house No.1015, they are leased out from time to time. These defendants and the children alone are exclusively staying in house No.1014. Defendant No.1 since does not know Kannada and he is educated in : 12 : Marathi and English, never assured or could not assure the plaintiff on that score. It is the plaintiff who got the name entered as 'Samahikdars' in ROR behind the defendants' back. Defendant No.2 stays in Bombay for a short period of time, but her permanent residence is in house No.1014 only. The defendants have four children and some of them staying in Bombay and some stay at Ankola till last year. Since the medium of instructions in college at Ankola is mainly in Kannada, all the children were sent to Bombay last year. From last one year, defendant No.2 alone staying in the house No.1014 and doing the management of the properties. No portion of 1014 were let out, but defendant Nos.3 and 4 were allowed to stay in some portion on a condition that they have to keep a watch over the house during the absence for sometime, when defendant No.2 was out of station. They were allowed to occupy only on safe ground, but not as lessee. Defendant No.3 had already left the portion occupied by him. Defendant No.1 never drinks, smokes or gamble. The allegation that the defendant No.1 carrying all sort of : 13 : nefarious activities is a blatant lie and only prostitute like plaintiff can make such wild allegation under her jaundiced eyes. Plaintiff had not kept any of her articles in house No.1014. The safe claimed by the plaintiff is not her and none of the article found in house No.1014 in the safe at the time of inventory are hers. Plaintiff is not at all staying in the portion of house No.1014. Plaintiff has no right in the suit schedule properties either an adopted daughter of Yeshwanti or as legatee under the Will. The defendants were in exclusive possession of the suit properties after the death of defendant No.1 in 1961 for a continuous period of 12 years openly, peaceably and as a matter of right for a period of more than 12 years. The rights if any of the plaintiff is lost by adverse possession. So the suit is barred by limitation. The additional written statement came to be filed contending that the Court fee is not at all sufficient, again reiterating the plea of bar of limitation and adverse possession.
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9. On the aforesaid pleadings, the trial Court framed the following issues and additional issues:
i) Whether the plaintiff is legally adopted daughter of Yeshwanti?
ii) Whether the plaint 'A' and 'B schedule properties were the self-acquired properties of late Yeshwanti?
iii) Whether late Yeshwanti executed the suit Will?
iv) Whether the plaintiff has been in possession of the suit properties?
v) Whether the plaintiff is entitled for investing properties?
vi) Whether the suit is barred by adverse
possession?
vii) Whether the suit is time barred?
viii) Whether the court fee paid is not proper?
ix) Whether the plaintiff is entitled for permanent injunction?
x) Whether the plaintiff is entitled for mandatory injunction?
xi) Whether the plaintiff is entitled for accounting and future mesne profits?
xii) Whether the plaintiff is entitled for the delivery of the ground floor portion of the suit house?: 15 :
xiii) Whether the plaintiff is entitled for partition? If so, what is her share?
xiv) To what reliefs are the parties entitled?
Additional issues:
xv) Whether the plaintiff is entitled to the possession of the suit property? xvi) Whether the defendants 1 and 2 prove that they perfected their title to the suit property by adverse possession?
10. The plaintiff was examined herself as P.W.1 and she has also examined P.Ws.2 to 5. She has produced in all 5 documents, which are marked as Exs.P1 to P5. Defendant No.1 was examined as D.W.1. He has produced in all 57 documents, which are marked as Exs.D1 to D57.
11. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held, the plaintiff was unable to prove the factum of adoption as she failed to give the particulars of adoption. Therefore, her case that she was the adopted daughter was not accepted. It recorded a finding that 'A' and 'B' schedule properties were the self-acquired properties of Yeshwanti and they are not : 16 : the properties of defendant No.1 as contented by him. By a detailed examination of the evidence of the witnesses who are examined to prove the execution of the Will, it held, their evidence proves attestation and due examination. It also took note of the fact that the Will is a registered and it was 30 years old and therefore, the presumption flowing from Section 90 of the Evidence Act could be drawn in the instant case. Therefore, it held that the plaintiff has proved due execution of the Will and she has proved her possession over the suit properties. It also held, all the movables found in the premises 1014, exclusively belongs to the plaintiff. She is also entitled to the articles in terms of the Commissioner's report. It held, the suit is neither barred by law of limitation nor the defendants have perfected their title by adverse possession. The Court fee paid is proper. It also held, the plaintiff is entitled to possession as prayed for as she has established her title and accordingly, it decreed the suit of the plaintiff declaring that the plaintiff is the owner of the 'A' schedule properties and defendant Nos.1 and 2 have no : 17 : right, title or interest over the same. Plaintiff is also entitled to get possession of the properties and movable properties found in the Commissioner's report and defendant Nos.1 and 4 were directed to deliver possession of house No.1014 including the first floor. An enquiry was ordered regarding mesne profits under Order 20 Rule 12(c) of CPC. Aggrieved by the said judgment and decree, defendant Nos.1 and 2 preferred an appeal in R.A.No.10/1987. The lower appellate Court after hearing the parties, formulated the following points for consideration:
i) Who the plaintiff has proved the Will said to have been executed by Smt.Yeshwanti on 22.05.1957, as pleaded by the plaintiff, bequeathing plaint 'A' schedule properties in favour of plaintiff and plaint 'B' schedule properties in favour of first defendant?
ii) Whether the judgment of the trial Court, is legal, valid and sustainable in law?
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iii) Whether there is any need to interfere with the judgment of the trial Court, by this Court?
12. On re-appreciation of the entire evidence on record, the lower appellate Court held when the execution of the Will is disputed and the LTM on the Will is disputed. An obligation was on the plaintiff to get the LTM examined by Forensic experts and therefore, the Will is not proved. Therefore, setting aside the judgment and decree of the trial Court, dismissed the suit. Yet another reason given for disbelieving the evidence is, defendant No.1 being the natural son has been given less properties, when compared to the plaintiff. That would be a suspicious circumstance, it has not been cleared by the plaintiff. It is against this judgment and decree, the plaintiff is in second appeal.
13. This appeal was admitted on 13.12.1994 to consider the following substantial question of law:
"Whether the first appellate Court was justified in setting aside the decree passed by : 19 : the Trial Court in O.S.No.10/1987 while recording its findings in respect of due execution of Will said to have been executed by Yeshwanti Ankolkar in favour of the plaintiff and whether material evidence has been over looked to non suit the plaintiff's case?"
14. This Court by order dated 09.03.1998 setting aside the judgment and decree of the lower appellate Court, restored the judgment of the trial Court. Against the said judgment and decree, defendant Nos.1 and 2 preferred a Special Leave Petition before the Apex Court in Civil Appeal No.2258/1999. The said appeal came to be allowed on short ground that the High Court had no jurisdiction to hear and allow the appeal, when no substantial question of law was framed. After remand, again this Court allowed the appeal setting aside the judgment and decree of the lower appellate Court by its order dated 03.01.2005. The said judgment of this Court was recalled at the instance of respondent Nos.1 and 2 on the ground, the earlier counsel had given no objection and the present counsel has already filed power, which was not : 20 : notified and therefore, appeal came to be allowed without hearing them. Accepting the said grounds, the said judgment and decree was recalled and that is how the matter is before this Court.
15. From the facts set out above, it is clear, substantial question of law had been framed as far back as on 13.12.1994. The learned counsel appearing for the appellant assailing the impugned judgment and decree of the lower appellate Court contends, the lower appellate Court was not justified in holding whenever the signature or the thumb impression is denied, it is obligatory on the part of the profounder of the Will to get the admitted signature or the thumb impression compared with the disputed signature or the thumb impression by an expert and if that exercise is not done, the judgment is vitiated. Though witnesses were examined were acquainted with the signature of the attesting witnesses who are all dead and the trial Court which had the benefit of observing the demnor of these witnesses, having accepted their evidence : 21 : and held the Will is proved, the lower appellate Court has lightly interfered with the said finding of fact without there being any contra material on record. Thirdly, one of the factors which weighed with the lower appellate Court was, under the Will, more properties are given to the plaintiff, when compared to the natural son which is not correct. Lastly, he contended, the findings of the trial Court that plaintiff has taken active part in the preparation and execution of the Will and in the light of the aforesaid facts, suspicious circumstances did exists which has not been clarified by the plaintiff is erroneous. Therefore, the finding recorded by the lower appellate Court that the Will is not proved is contrary to the material on record.
16. Per contra, learned counsel appearing for the defendant Nos.1 and 2 submitted when evidence on record shows that the plaintiff has taken active part in the preparation and execution of the Will, none of the attesting witnesses have been examined, the witnesses were examined to prove the signature of the attesting witnesses : 22 : are all interested persons or who are not acquainted with the signature and on the basis of the said evidence, the trial Court committed a serious error in holding that the Will is proved. The subsequent correspondence and the subsequent act on the part of the authorities in mutating the name of the parties in terms of the Will would not prove due execution of the Will. Defendant No.1 admittedly is the natural son of the deceased testator whereas the plaintiff is neither adopted daughter nor has any relationship whatsoever with the plaintiff and therefore, bequeathing the properties, which are more particularly described in the 'A' schedule of the plaint creates suspicion, which has not been properly explained by the plaintiff. For the aforesaid reasons, he submits, lower appellate Court was justified in setting aside the judgment and decree of the trial Court and dismissing the suit of the plaintiff.
17. Both the trial Court as well as lower appellate Court have taken sufficient pains to look into the : 23 : pleadings, the evidence on record and the judgment on which, reliance is placed by the learned counsel for the parties and they have written a detailed order giving reasons in support of their judgment. On that score, no fault can be found in these two judgments. The trial Court which had the advantage of observing the demnor of the witnesses after appreciating the oral evidence has accepted their evidence and on that basis it has recorded a finding that the Will is duly executed, duly attested and therefore, the Will is proved. Admittedly, on the day the evidence was adduced in the suit, three attesting witnesses were dead and whereabouts of one attesting witness was not known. Under these circumstances, the plaintiff has taken pain to examine three witnesses who are acquainted with the signatures of the attesting witnesses. In fact one of those witnesses also has produced the signature of the attesting witnesses to show that the signatures found on the will is that of the person who has attested the Will by way of comparison. This evidence of the witnesses is direct evidence and it is oral. : 24 : As stated earlier, the trial Court had the advantage of observing the demnor of the witnesses. All these witnesses are from Ankola region. It is not as if they are totally strangers to the family. Even defendant No.1 admits, one of the attesting witness was Kula Purohit and all of them when came to Bombay, they used to stay with the plaintiff as well as defendant No.1. Defendant No.1's relationship with those witnesses was also cordial. It is settled law that the lower appellate Court being the final Court of facts has the jurisdiction to re-appreciate the entire evidence on record and record a finding of fact after setting aside the finding recorded by the trial Court. When the finding of the trial Court is purely based on the oral evidence and where the trial Court had the advantage of observing the demnor of the witnesses, such a finding of fact cannot be lightly interfered with by the lower appellate Court. This rule is not followed by the lower appellate Court. Though lower appellate Court has extensively looked into the evidence on record, in my view, it has failed to take note of the material portion of the oral evidence which has a bearing : 25 : on the decision of the validity of the Will. Defendant No.1 in his evidence has categorically admitted, the plaintiff was born to a widow after the death of her husband. When the plaintiff was two months old, she was given to 1st defendant's grand mother and it is his grand mother brought her up. Plaintiff studied up to 3rd standard and at the age of 16 or 17, she went to Bombay. 1st defendant's grand mother died on 07.06.1956. As this is his evidence, we have to know the plaintiff and her past. It is her case that, since she was two years old, Yeshwanti brought her up. She was her foster mother. Deceased Yeshwanti was a prostitute. She earned lot of money. She died on 17.03.1961. When she was at Bombay she was staying at Gandhi Bhavan, Girgoan, at Nos.1 to 5. She stayed most of the time in Bombay because she was a kept mistress of a businessman. Two sons and one daughter are born to her from the said businessman. The names of the sons are Chandrakanth and Madan and the name of the daughter is Saroja and she is married. She is calling the sons by name Bala and her daughter by name Baby. When : 26 : she fairly admits, Yeshwanti was a prostitute and she was also a prostitute, the defendant No.1 was not prepared to accept that his mother was a prostitute. It is his case that his mother was not a prostitute. She was working in Ankola doing household work. However, he admits his mother developed a relationship with one Palekar. The said Palaker went to Bombay to do work and he took his mother also. His mother started living with Palekar since 1940. After she living with the Palaker, she was not having any affair with others. In 1940, her mother did not marry anyone nor she was carrying on prostitution. He admits that he was born in the year 1918 and he does not know who is his father. If his mother was not married and from 1940, she started living with Palaker, when defendant No.1 was born in the year 1918, when he is not able to give the name of his father, the only inference that could be drawn is, his mother was a prostitute. In fact the material on record would clearly show that defendant No.1 was not speaking truth to the effect that his mother was a prostitute. This evidence is referred to only for this : 27 : purpose that the lower appellate Court seems to think that under the disputed Will, the natural son has not been given due share in the property of his mother and totally a stranger/a prostitute has taken away the property belonging to the 1st defendant's mother, a finding which is not supported by the legal evidence on record.
18. Now let us see whether these people are born to a prostitute or others, how they were brought up. Defendant No.1 in his evidence admits, after the death of his mother on 17.03.1961, he and the plaintiff gave a joint declaration on 11.09.1964 to the effect that the plaintiff and the defendant No.1 are the children of Yeshwanti. In the declaration, they showed they have seven children in their house and three adults. The seven children referred to, are four children of the defendant No.1 and three children of the plaintiff. Three adult members referred to, are the plaintiff, defendant Nos.1 and 2. The reason for the declaration is that Yeshwanti was in possession of five rooms at the time of her death. On the basis of the : 28 : aforesaid declaration, three rooms were allotted to the defendant No.1 and two rooms were allotted to the plaintiff. Yeshwanti was paying the rent for all these five rooms till her death. After her death, both plaintiff and defendants are paying rents separately. On the date, he was giving evidence in the Court i.e., on 13.01.1987, both of them are living in the said rooms. Till the suit was filed, they lived like brother and sister. Further, he has admitted in his cross-examination, in Bombay he was taking food along with the plaintiff. Till 1962-63, plaintiff was cooking food. Both were taking the food together. In 1953-54 he took his son Sharad to Bombay to admit him to school. Plaintiff's son Chandrakanth was born in 1950. Chandrakanth and 1st defendant's son Sharad were studying together in Sardar High School. He admits that, plaintiff was calling him as brother and his wife defendant No.2 as sister-in-law.
19. In his re-examination, it has been elicited that defendant No.2 wife of defendant No.1 is living at Ankola : 29 : from the date of her marriage. He was providing her provisions in Shaikh Mujid Trust at Bombay, where they are living together. If he had not given declaration that plaintiff was not his sister, the Trust would have thrown out the plaintiff from the premises. Therefore, he was constrained to give the declaration. As against this evidence, we have also the evidence of the plaintiff. She admits that her husband is a businessman and financially sound. All her children were born to him. Even before she came in contact with him, he was financially sound. Therefore, the financial position of her husband and children is good. This evidence on record clearly demonstrates that, plaintiff and defendant No.1 lived under a common room like brother and sister. They had a common mess. There was love and affection. They sent their children to school together. They ate together. They lived like children of Yeshwanti as brother and sister. Therefore she cannot be said to be a stranger to the family of the defendant No.1 or to Yeshwanti. The evidence on record shows, Yeshwanti was a prostitute for some time : 30 : and thereafter she lived with the person by name Palaker. Similarly, plaintiff was also a prostitute for some time and thereafter she started living with a person through whom she has got three children. But she continued to live with defendant No.1 under a common room. In this background, Yeshwanti had love and affection towards the plaintiff. One can understand the feelings of a mother, a lady who was a prostitute brought up her daughter as a prostitute and her well being after her children are grown up, if they do not take care of her, the evidence on record shows, plaintiff's daughter Saroja married and living with her husband. Her two sons also economically sound. But the tag of prostitute continued and that is what probably might have worried Yeshwanti as she understands pain and agony of being a prostitute and called a prostitute throughout the life. When we look into the evidence on record in this background, though Yeshwanti fostered this child from the age of two months, in law as a fostered daughter, she has no right in the property belonging to the Yeshwanti. Though Yeshwanti has set up a plea of : 31 : adoption, the adoption is not proved. It is quite understandable, the net result is, she would not be entitled to inherit the property belonging to Yeshwanti. The only mode by which the by Yeshwanti could give property to her foster daughter, it is by way of a Will. If a Will has come into existence, in this background and the said Will is duly registered and merely because Yeshwanti being illiterate and affixed her thumb impression, prima facie it would not create any suspicion. If one can have the background in which the Will is executed, this aspect has been completely missed by the lower appellate Court. It is not a simple Will which normally comes across before the Court for consideration, where a Will is made in favour of the natural daughter excluding natural son or a natural daughter. This is a case where a fostered daughter who lived the life as prostitute took care of her mother till her last days and on the mother wanted to give property to her, for want of a status of an natural daughter or adopted daughter, fostered daughter cannot be inherit the property. Probably on a sound advise, she did make a Will : 32 : giving roughly equal share to this fostered daughter and the natural son. The Will is executed by Yeshwanti is duly registered. The Will is executed on 22.05.1957. Yeshwanti died on 17.03.1961. All the properties are situated at Ankola. The recital of the Will is in Kannada. It is prepared by a professional writer, as could be seen from the contents of the Will. It is attested by four witnesses. It was registered on 22.05.1957. When the executant lived nearly four years from the date of execution of the document, prima facie it shows, on the date she executed the Will, she was hale and healthy and in a sound state of mind. It is not the case of the defendant that on the day Will was executed, the testator was not in a sound state of mind and that she has executed the Will under those circumstances. Therefore, the observation of the lower appellate Court, when the Will is denied, the profounder of the Will has to establish that the testator was in a sound state of mind, without which the Will cannot be said to be proved, do not have any substance. Though the propounder is expected to prove that the testator was in a : 33 : sound state of mind on the date of the execution of the Will, the evidence to be adduced varies from case to case. When the testator was not suffering from any ailment at the time of execution of the will after due execution of the Will and the registration of the same, if she has lived for nearly four long years and in the absence of any plea in the written statement that testator was suffering from any disease, the fact that she lived for four long years would be sufficient to hold that the testator was in a sound state of mind on the day the Will was executed. This aspect is completely missed by the lower appellate Court.
20. Insofar as proof regarding Will is concerned, the law on the point is well settled. If a document as required by law is to be attested, it shall not be used as evidence until one attesting witness, at least, has been called for the purpose of proving this execution, if there being attesting witnesses alive and subject to the process of the Court and capable of giving evidence. Will is a document which requires attestation. Examination of one : 34 : attesting witness is a must before the Will is said to have been proved. That is the purpose of Section 68 of the Evidence Act. Section 69 of the Evidence Act provides, if no such attesting witnesses can be found, it must be proved that the attestation of one attesting witness, at least, is in his handwriting and the signature of the person executing the document is in the hand writing of that person. In the instant case, there are four attesting witnesses. Three attesting witnesses were dead. The whereabouts of one attesting witness was not known. Therefore, the plaintiff took the trouble of examining four witnesses who are acquainted with the signatures and the handwriting of the attesting witnesses.
21. Now the question for consideration in support of the plaintiff to prove the Will is, they are chance witnesses, did they have any grudge against defendant No.1 or did they come to Court to do any undue favour to the plaintiff.
: 35 :
22. In this context, it is necessary to see what the defendant No.1 has to say about these persons. He has stated, every year he performs Tulsi Pooja in his house. He also performs Sathyanarayana Pooja. For performing Tulsi Pooja, Gajanana Bhat son of Shantaram Bhat comes to his house. He and Shantaram Bhat and his sons have no enmity. When they come to Bombay, they go to plaintiff's house and they also come to his house. There is no enmity between him and Tammanna Bhat. Insofar as Vasudev V.Shet and Narayan V.Kamath and Subray G.Shetty is concerned, he do not know them and therefore there is no enmity between him and those people. The Kula Devata of all those persons are Shanta Durga. All of them come together temple and he has seen them. He asserts that there is no ill-will between them. In fact, it is Shantaram Bhat took his signature to Ex.P7. The attesting witness to the Will are, Venkatarama S. Bhat, Tammanna Bhat, Vasudev V.Shet, Subray G. Bhat. Narayan G.S hetty is the scriber. The witnesses who are examined to prove these signatures of all these witnesses are, P.W.2- : 36 : Puroshattam V. Mahale, Shantaram S. Bhat, Govind S.Shetty and Dattaram N.Shet. Therefore, the aforesaid evidence of defendant No.1 discloses, none of them are strangers to the family. On the contrary, he has close relationship with them. When they came to Bombay, they stay with the plaintiff or with him. There is no ill-will between them and the persons who were attested the Will are all the persons who are interested in the plaintiff, defendants as well as Yeshwanti. The persons who were now come to give evidence are the persons who are closely connected with them. The attesting witnesses P.Ws.2 to 5 are fully aware of the family circumstances of the plaintiff and the defendants. Probably, they had sympathy towards them. Notwithstanding the fact they were all living in prostitution, these people did not show any disrespect to them. On the contrary, they had all love and affection and they were visiting them in Bombay at their residence, though their children are at Bombay residing happily. Therefore, when occasion arose to distribute the property of Yeshwanti, probably they were : 37 : fully conscious of the legal position, they have taken active part in the preparation of the Will, getting it registered and distribution of the property between the fostered daughter and the son.
23. The lower Appellate Judge if only had appreciated this evidence in this perspective, probably it would have understood better the feelings of Yeshwanti, the feelings of plaintiff and defendant No.1 and the persons who have attested the documents as well as the persons who have come before the Court to give evidence. They are not busy parties, they are not strangers, they are not chance witnesses, they are all interested very much in the welfare of Yeshwanti, plaintiff and the 1st defendant. Therefore, when the trial Court had the advantage of observing the demeanor of these witnesses and has recorded a finding that the evidence tendered by them is acceptable and on that basis recorded a finding that the Will is duly executed, the lower Appellate Court committed : 38 : a serious error in brushing aside the evidence of all these witnesses and in holding that the Will is not proved.
24. Now let us see how the parties have conducted themselves after the execution of the will on the date of death of Smt. Yeshwanti.
25. The evidence on record by way of documentary evidence discloses both the plaintiff and the first defendant were permanent residents of Bombay. After the death of Yeshwanti, they have filed applications before the authorities for mutating their names in respect of the properties bequeathed in their favour under the registered will. Accordingly, their names are mutated. They have been paying taxes to the portions which have fallen to their share under the will in respect of the house property. CTS 1014 is the house property which has fallen to the share of the plaintiff under the will. TMC 1015 is the property, which has fallen to the share of the first defendant. In fact an attempt was made to get the name of the first defendant along with the plaintiff in respect of : 39 : house No.1014. Accordingly, it is entered. The evidence on record shows that the plaintiff trusted the first defendant and has affixed her signature to a document which is in Kannada language which she does not know. It is also on record, whenever the plaintiff came to Ankola, she was staying in the first floor of CTS No.1014. However, in her absence, it is the first defendant and in particular the second defendant, who was managing these properties. It is their own admission that they have put defendants 3 to 5 in possession of the ground floor of CTS No.1014 for the purpose of looking after the properties in their absence. They admit that they have not created any tenancy right in their favour. Absolutely there was no dispute between the parties. They enjoyed the properties accordingly. It appears, the trouble started nearly after 16 years when the plaintiff's son was married and the new married couple were brought to the house, then for the first time, there was an obstruction. Police complaints were lodged, police came to the spot and enabled the plaintiff and her son to get into the premises. It is then : 40 : when defendants 1 and 2 started asserting their right preventing the plaintiff and her children from entering into her properties, plaintiff was constrained to file the present suit i.e., in the year 1977 nearly 20 years after due execution of the will. The evidence on record clearly shows that the parties had the best of their relationship and they enjoyed the schedule properties according to the terms of the will. The plaintiff and first defendant were living in Bombay, their children were going to the very same school. They lived like children of Yeshwanti as brother and sister and therefore this is not a case where plaintiff started asserting any right in her favour immediately after the death of Yeshwanti to deprive the first defendant of his legitimate right in his mother's properties. But after 20 years when the first defendant taking advantage of the fact that the plaintiff is residing at Bombay and her children are well of, wanted to lay his claim in the entire property, trouble started. This conduct of the first defendant clearly demonstrate that he also did not dispute the will at the earliest point of time. : 41 : Unfortunately, the lower appellate Court proceeds on the assumption, as the plaintiff did not file the suit immediately after the death of Yeshwanti her case cannot be believed. When a person acquires properties under a bequest and when that bequest is acted upon and the said bequest is not denied, there is no necessity for that person to go to Court seeking declaration on the basis of the will. Necessity for seeking declaration arose only in the year 1977 when for the first time first defendant denied the title of the plaintiff to the property. Immediately, thereafter, she has approached the Court and sought the relief. Therefore, yet another circumstance which shows the lower appellate Court has not properly appreciated the material on record. Under these circumstances, I am of the view that the lower appellate Court was not justified in interfering with the well considered judgment of the trial Court which has held the will is proved. The falsity to the claim of the first defendant to the entire property can also be gazed from the fact that it is his specific case, all these properties were purchased out of the income of his : 42 : mother's sister by name Appi, who had great love and affection towards first defendant and as he was a minor at that point of time, properties were purchased in the name of his mother. Absolutely, no evidence is placed on record to demonstrate this fact. It only shows the mind of the first defendant. He directly concedes that if the property is self acquired by his mother she has right to bequeath her property to the plaintiff and first defendant. Therefore an attempt was made to contend, the property did not belong to his mother at all and it belongs to his mother's sister and therefore his mother herself had no right in the property. The trial Court was able to see through the game and on proper appreciation of the oral and documentary evidence on record, rightly held the will is proved. The original registered will is produced before the Court and attesting witnesses were examined and the executant lived nearly for 4 years after the date of execution of the will and substantially when the property belonged to the testator is divided between the foster daughter and natural son, it cannot be said either the : 43 : execution of the will is not proved or will is surrounded by suspicious circumstances and are not properly explained or that the executant was not in a sound disposing state of mind at the time of the execution of the will. In fact, the grievance of the first defendant which has been upheld by the lower appellate Court shows that the plaintiff is given more property than a son. If the mother is more affectionate towards foster daughter and if little more property than what is given to the son is given to foster daughter, there is no justification to hold that the will is not proved. In fact out of the four items of agricultural lands, two agricultural lands are in occupation of the tenants. After coming into force of the Karnataka Land Reforms Act, tenants filed applications in Form No.7 and the Land Tribunal granted the said lands to them. Thus she is deprived of 2 agricultural lands out of 4 items of lands. In fact, one of the items given to the first defendant which is an agricultural land, also, again, has been granted to the tenants. It is understandable. Both the plaintiff and first defendant were not residing at : 44 : Ankola, they were permanently residing at Bombay and they were not personally cultivating the lands. Taking advantage of the helplessness of the plaintiff and the fact that she was residing at Bombay, in a high handed manner, defendants have dispossessed the plaintiff. Therefore, she was constrained to seek an amendment to the plaint and also sought for possession. As the plaintiff's title is upheld and the defendants have no right, title or interest in the properties which belongs to plaintiff and their possession is unlawful, they are bound to hand over the possession to the plaintiff. Therefore, decree for possession granted by the trial Court is just, valid and legal. Therefore, seen from any angle, there was no justification for the lower appellate Court to interfere with the judgment and decree of the trial Court. For the aforesaid reasons, I pass the following order:
The appeal is allowed. The judgment and decree of the lower appellate Court is hereby set aside. The : 45 : judgment of the trial Court is restored. Suit is decreed as prayed for. Consequently, I.A.4/12 is disposed of.
Parties to bear their own costs.
Sd/-
JUDGE Vnp*/mbs/kmv