Karnataka High Court
Sri. Ramesh S/O Narasimharao Patil vs Smt. Mangala W/O Raghavendra Kulkarni on 25 February, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
RSA NO.1092 OF 2004 (RES)
BETWEEN
1. SRI. RAMESH
S/O NARASIMHARAO PATIL
AGE:MAJOR
OCC:WORKING IN CLOTH SHOP
R/O D.R.KULKARNI COMPOUND
BEHIND NARASIMHA TEMPLE
GANDHI CHOWK, DHARWAD
2. SRI VASU
S/O NARASIMHARAO PATIL
AGE:MAJOR
OCC:PRIVATE SERVICE
R/O D.R.KULKARNI COMPOUND
BEHIND NARASIMHA TEMPLE, GANDHI CHOWK
DHARWAD
... APPELLANTS
(BY SRI S N RAJENDRA, ADV.)
AND
1. SMT. MANGALA W/O RAGHAVENDRA
KULKARNI, AGE:MAJOR
OCC:HOUSEHOLD WORK
R/O GOVERDHAN BUILDING, KOPPADA KERI
NEAR URDU SCHOOL, DHARWAD
2
2. SMT. RASHMI W/O SHARAD JAMAKHANDI
AGE 29 YRS
OCC:HOUSEHOLD WORK
R/O ASHIRWAD BUILDING, VASANT NAGAR
SAKALI, GOA.
3. SMT. RAKHI W/O RAVIKUMAR R D
AGE: MAJOR
OCC:BUSINESS
R/O SRINAGAR, 2ND MAIN, NEELA NILAYA,
DHARWAD.
4. SMT. RAKSHA W/O NEELESH JOSHI
AGE MAJOR
OCC SERVICE
R/O ADARSH COLONY, MIRAJ
5. VIJAY S/O DIGAMBAR RAO KULKARNI
AGE 45 YRS
OCC:NIL
R/O POOJA BY HIS P.A.HOLDER,
RESPONDENT NO.1
6. SMT. RAVITA W/O RAGHAVENDRA KULKARNI
AGE 57 YRS
OCC:HOUSEHOLD WORK
R/O POONA
7. SMT. MEENAXI W/O AMBESH KULKARNI
AGE 54 YRS
OCC:HOUSEHOLD WORK
R/O HUBLI
8. SMT. PUSHPALATA @ SUMEETA
W/O SURESH BENGERI
AGE 52 YRS
OCC:HOUSEHOLD
R/O BELGAUM
ALL THE RESPONDENTS 6 TO 8
3
ARE REPRESENTED BY THEIR POWER OF
ATTORNEY HOLDER SMT.MANGALA
W/O RAGHAVENDRA KULKARNI
AGE:MAJOR, OCC:HOUSEHOLD
R/O HALLIKERI CHAWL
NEAR K.C.PARK, DHARWAD.
... RESPONDENTS
(BY SRI M M KANNUR, ADV. FOR R1
R6, 7, 8 ARE SERVED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 11.8.04 PASSED IN R.A.NO.107/03
(R.A.NO.28/97) ON THE FILE OF THE PRL. DIST. JUDGE,
DHARWAD AND C/c - II ADDL. DIST. JUDGE, DHARWAD,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT
AND DECREE DTD 28.1.97 PASSED IN O.S. NO.565/92 ON THE
FILE OF THE PRL. MUNSIFF, DHARWAD, TRIAL COURT
DISMISSED THE SUIT APPELLATE COURT ALLOWED THE
APPEAL SUIT FOR POSSESSION AND COMPENSATION.
THIS APPEAL HAVING HEARD AND RESERVED FOR
JUDGMENT AND COMING FOR PRONOUNCEMENT OF
JUDGMENT ON THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
Defendant Nos.2 and 3 of an original suit bearing O.S.No.565/1992 which was pending on the file of the Court of Prl. Munsiff, Dharwad, have approached this Court, since they are aggrieved by the judgment of the First Appellate Court passed in R.A.No.107/2003 (old No.R.A.28/1997) which was pending on the file of the Court of II Addl. District 4 Judge, at Dharwad. Respondents herein were the plaintiffs in the said suit. First defendant Saraswathi is no more. Parties will be referred to as plaintiffs and defendants as per their ranking given in the trial Court. Defendants 2 and 3 are the genetic children of deceased defendant NO.1 Saraswathi through her first husband Narasimha Patil.
2. Plaintiffs had filed a suit for the relief of possession of suit property from the defendants valuing the property under Section 24(a) of The Karnataka Court-Fees and Suits Valuation Act. The said suit came to be dismissed after contest, as against, which an appeal came to be filed before the Court of II Addl. District Judge, Dharwad, in R.A.No.28/1997, subsequently, it was renumbered as R.A.No.107/2003. In the appeal filed by the plaintiffs under Section 96 CPC, several grounds had been urged challenging the judgment and decree passed in O.S.No.565/1992. Ultimately the learned Judge of the First Appellate Court has chosen to allow the appeal and thereby dismissed the suit 5 bearing O.S.No.565/1992 by a considered judgment and decree dated 11.08.2004. It is this divergent judgment passed by the learned Prl. District Judge, Dharwad, who was in concurrent charge of II Addl. District Judge, Dharwad, which is called in question on various grounds as set out in the appeal memo.
3. The case of the plaintiffs as put forth in the trial Court, is that the suit schedule property is a part of the residential house bearing CTS No.2941/M and 2950/b/M of Mangalawarpet, Dharwad City. The suit property consists of two small rooms measuring 10' x 10' each on the first floor and part of the ground floor consisting of small six rooms. In order to properly describe the schedule property handsketch is also appended to the suit. According to the plaintiffs, entire suit property belonged to one Sri V.V.Ayachit, Advocate, Dharwad. The property in question was purchased by the plaintiffs father Sri Digamberraoji Kulkarni from the above said Ayachit through a registered sale deed dated 6 27.12.1971 for a total consideration of Rs.12,000/-. Plaintiffs father had to purchase the suit schedule property and shift his house as he had suffered an eviction order of the house in which he was living earlier.
4. Mother of the plaintiffs passed away in the year 1949 and at that time plaintiffs were all minors. Sri Digamberraoji Kulkarni was serving in the Forest Department as Deputy Conservator of Forest and retired from service in the year 1955. He lost his wife when he was aged about 50-51 years. It is further pleaded that their father did not think of marrying again as plaintiffs were still minors. Since there was nobody to look after the house and cook food, one lady by name Ambakka Rollwad was engaged to cook food for the family. She cooked food for nearly 15 years and she ceased to cook food on account of her ill-health and she stopped cooking in their house in the year 1965. Two or three years later, one Kamalabai cooked food for the family. In the year 1968-69 retired Chief Engineer M.S.Kankanwadi, introduced 7 defendant No.1 Saraswathi to their father stating that she would cook food. By that time, all the plaintiffs 3 to 5 had been married and plaintiffs 1 and 2 were attending College. At that time, first defendant was maintaining herself by cooking food for others and was physically thrown out from the house where she was living near Laxmi Narayan Temple. Hence she sought shelter and the father of the plaintiffs taking pity on her allowed to occupy one room on the first floor.
5. Plaintiffs father continued to reside in the said house and he died in the year 1986. Plaintiff No.2 was still in Poona and plaintiff No.1 purchased a house in Hallikeri Chawl of Dharwad and filed an eviction petition in HRC No.90/1984 against his tenant and the proceedings came to an end in the year 1989. The possession so held by the first defendant is stated to be a permissive possession and she has no right to continue to be in possession. Inspite of request, she did not 8 handover the possession and therefore, they were forced to file a suit.
6. The suit came to be resisted by the first defendant alone by filing detailed written statement. The averment that she was only introduced as a cook by K.N.Kankanavadi, Retired Chief Engineer, is specifically denied. It is specifically averred that plaintiffs 3 to 5 were married during the lifetime of Sri Digamberraoji Kulkarni and that they were living with their husbands even during his lifetime and that they were visiting the house of the defendant and they were in cordial terms with her. It is also averred that they were living with her as though they were her natural daughters during the lifetime of Sri Digamberraoji Kulkarni. Plaintiffs had colluded with each other to knock off the suit property and had filed HRC No.96/1987 against this defendant and defendant No.2, but not against defendant No.3.
9
7. It is her case that she had filed objections to the main petition and evidence of both the parties were adduced. Ultimately the petition was dismissed as not pressed by the plaintiffs. It is her specific case that the plaintiffs were very well aware that first defendant was the wife of Sri Digamberraoji Kulkarni and property had been purchased by her out of her own money, but in the name of her husband Sri Digamberraoji Kulkarni because of love and affection and faith reposed in him. Sri Digamberraoji Kulkarni is stated to have executed a Will in her favour on 05.10.1976 and has bequeathed the entire suit properties in her favour on 10.08.1986. Suit is stated to be not maintainable.
8. It is her case that she joined along with her three children with late Sri Digamberraoji Kulkarni in the year 1967 when he was residing in the building of K.A.Nayak, Advocate, Dharwad. They led a happy married life till the end of December 1971 when the suit property was purchased through a registered sale deed by her in the name of Sri 10 Digamberraoji Kulkarni. It is her case that she had handed over all her gold ornaments for sale to her husband so that he could purchase the property. Hence she is stated to have become the absolute owner. The suit is stated to be barred by time and hence not maintainable. According to her, she has been managing the property. With these pleadings she had requested for dismissal of the suit.
9. On the basis of the above following issues came to be framed:
1. Do plaintiffs prove that they are the actual owners of the suit property on the strength of purchase for valid consideration of Rs.12,000/- under the regd. sale deed dated 27.12.1971, from V.S.Ayachit, Advocate, Dharwad by their father?
2. Whether the plaintiffs further prove that the defendants have no locus-standi to be in possession of the suit property?11
3. Whether the suit filed by the plaintiff is barred by time as contended in para-13 of W.S.?
4. Whether the defendants proves that they are the absolute owners in possession of the suit property?
5. Whether the Court Fee paid or the valuation of the suit property made is not proper?
6. To what reliefs the plaintiffs are entitled?
7. What decree or order?
Addl. Issue:
"Whether the defendants prove that the defendant No.1 is legally wedded wife of deceased Digamber rao Kulkarni?
10. Sri R.D.Kulkarni, has been examined as PW1 and on behalf of the defendants, five witnesses have been examined inclusive of Saraswathi Kulkarni, the first defendant. 11 exhibits have been got marked on behalf of the plaintiffs and 9 exhibits have been got marked on behalf of the defendants. Ultimately suit came to be dismissed. It is 12 this judgment and decree dated 28.01.1997 which was called in question by filing an appeal under Section 96 of CPC. Several grounds had been urged in the appeal memo filed on behalf of the plaintiffs. Ultimately appeal filed under Section 96 of CPC in R.A.No.107/2003 has been allowed and thus the suit is decreed as prayed for. It is this divergent judgment which is called in question on various grounds as set out in the appeal memo.
11. It is contended that the First Appellate Court has erred in allowing the appeal and that it is perverse. It is contended that the First Appellate Court has not properly reassessed the evidence in right perspective and that opinion evidence in regard to the deceased Sri Digamberraoji Kulkarni and first defendant living as husband and wife has been lightly ignored. It is further contended that when the first defendant is in possession of the property, the First Appellate Court could not have easily decreed the suit. It is further contended that there was nobody to look after Sri 13 Digamberraoji Kulkarni ever since he retired in 1955 till he died in 1986. It is further contended that lower Appellate Court has failed to notice that plaintiff No.1 was living separately and plaintiff No.2 was in service at Pune and plaintiff No.3 to 5 were residing with their respective husbands and that Digamberrao was alone with first defendant in the suit schedule house. The Will executed by Digamberrao has been lightly brushed aside and that the evidence adduced by the parties has not been tested on the touchstone of intrinsic probabilities. The First Appellate Court is stated to have adopted a wrong approach to the real state of affairs and has ignored the rent control proceedings initiated against her. Presumption available under Section 114 illustration (d) has not been drawn in respect of opinion evidence of persons who were living in the vicinity of the house of the first defendant. Hence it is prayed to allow the appeal and dismiss the suit.
14
12. My learned predecessor has framed the following substantial question of law for consideration on 28.06.2005:
"Whether the finding of the First Appellate Court reversing the finding of the trial Court regarding the due execution of the will is perverse and arbitrary, being contrary to law and material on record?"
13. Learned Advocates appearing for the parties have submitted their arguments at length. Learned Counsel for the appellants has relied upon the decision reported in the case of Nirmala Vs. Rukminibai reported in ILR 1994 KAR 1078 and the decision in the case of Tulsa And Others Vs. Durghatiya And Others reported in (2008) 4 SCC 520. Another decision in the case of M.Prithviraj and Others Vs. Leelamma N. And Others reported in 2010(1) KCCR 401 (DB), is also relied upon to draw a presumption in respect of marriage.
15REASONS:
14. Second Appellate Court has to restrict its discussion in regard to the substantial questions of law framed by my predecessor on 28.06.2005. The above substantial question of law revolves round the aspect of the due execution of the Will marked as Ex.D3. The trial Court has held Ex.D3 as a Will duly executed by late Digamberraoji Kulkarni in favour of the first defendant Smt.Saraswathi. To this effect the learned Judge of the trial Court has made discussion in paragraph-27 of the judgment rendered in O.S.No.565/1992. Issue No.1 deals with the title asserted by the plaintiffs in respect of suit schedule property based on the registered sale deed dated 27.12.1971 executed in favour of their father by Sri V.S.Ayachit, a practicing Advocate of Dharwad. Of course, no specific issue in regard to the execution of the Will is framed by the Trial Court, but even in the absence of a specific issue in regard to the execution of Will vide Ex.D3 and bequeath of the suit schedule property being made by Digamberraoji Kulkarni in favour of Saraswathi, parties have adduced 16 evidence consciously knowing the dispute in regard to the Will. In paragraph-25 of the judgment, the trial Court has made some discussion about Ex.D3. The circumstances which prevailed at the time of execution of Ex.D3 have been referred to and discussed. What is observed by the trial Court is that no suspicious circumstances surrounded the execution of the Will, more particularly, when the plaintiffs have not come out with a case that their father was not in a sound state of health (physical and mental health) at that time i..e, during August 1986. In view of the proof of Ex.D3 the learned Judge has come to the conclusion that defendants have become absolute owners of the suit property and that plaintiffs have failed to prove that they are really owners of the suit schedule property.
15. What made Digamberraoji Kulkarni to execute a Will in the form of Ex.D3 will have to be looked into. The case of the first defendant, as put forth before the trial Court in the form of written statement and the evidence, is that 17 Digamberraoji Kulkarni married her about 27 years prior to the filing of the suit and that they lived as husband and wife till Digamberraoji Kulkarni died. According to first defendant- Saraswathi, the children born to Digamberraoji Kulkarni through his first wife virtually treated her as their mother and she also treated them like her own children. The trial Court has come to the conclusion that people living in the vicinity of the house of Digamberraoji Kulkarni, had recognized them as husband and wife, more particularly, due to long co- habitation.
16. It is in this regard, the decision in the case of TULSA AND OTHERS VS. DURGHATIYA AND OTHERS reported in (2008) SCC 520, is relied upon. Discussing the provisions of Sections 50 and 114 illustration (d) of Evidence Act, Hon'ble Apex Court has held that though the presumption available under illustration (d) to Section 114 is a rebuttal presumption regarding marriage, long cohabitation as husband and wife raises such presumption. It is further 18 held that law always favours legitimacy of marriage and burden lies on the person who seeks to deprive such relationship to prove that no marriage took place. In order to raise a presumption as per illustration (d) to Section 114 of Evidence Act, evidence of persons who had seen these people living as husband and wife becomes admissible in evidence and the same will have to be properly looked into.
17. In this regard, Smt.Saraswathibai herself is examined as DW1. She is cross-examined at length by the learned Counsel for the plaintiffs with regard to her assertion in respect of providing her gold ornaments to Digamberrao in order to purchase the suit schedule property, in regard to the aspect of marriage and in regard to the aspect of execution of the Will relating to suit schedule property.
18. Sadiq who has been examined as DW2 is a photographer in Dharwad and has a photo studio. He has had been running the photo studio since several decades and almost two decades had elapsed by the time he deposed 19 before the trial court. He has identified Exs.D4 to D6 the photographs. He has produced the negatives of Exs.D4 to D6 which have been in turn marked as Ex.D4(a) to D6(a) respectively.
19. Second defendant Ramesh, who is examined as DW4 is identified by DW2 Sadiq as the person who is found in these photographs. He has identified deceased Digamberrao and first defendant, as the parents of Ramesh and Vasu found in Ex.D6. Of course, he has been cross-examined by the learned Counsel for the plaintiffs. The fact that he is running photo studio at Dharwad, since several decades and that the photographs marked as Ex.D4 to D6 had been clicked by him in his photo studio and that Ex.D4(a) to Ex.D6(a) are the negatives of Exs.D4 to D6 is not seriously disputed. He has specifically deposed that the persons found in these photographs were talking to each other at the time when he went to their place to click the photo. He has further stated that at the instance of defendant No.2, he went there 20 and took photographs. Admittedly he knows defendant No.2 since 1978-1979. He is a disinterested witness and has no axe to grind against the plaintiffs. He has personal knowledge about defendant Nos.2 and 3 and does not know much about the deceased Digamberrao and first defendant. What is argued before this Court by the learned Counsel for the respondents-plaintiffs is that there is no clinching evidence in regard to the factum of marriage and that these photographs do not help the case of the first defendant in any manner. The learned lower Appellate Court has also not attached much significance to these documents on the ground that there is no clinching evidence in regard to the factum of marriage and the form of marriage having co- habitation itself is sufficient to raise a presumption of marriage notwithstanding the inability to prove that factum of marriage with reference to the date and time of the marriage and the formalities observed in the marriage. 21
20. The case of the first defendant in regard to the alleged marriage is disbelieved on the ground that there is no Udaki form of marriage amongst Brahmins and this is an adverse circumstance to the first defendant. We cannot forget the hard realities in life. Admittedly, the deceased Digamberrao had lost his wife many years ago and by the time his wife died, marriage of his three daughters had already been performed and one son was residing in Poona and another son was residing here at Dharwad. Even first defendant Saraswathi had lost her husband Narasimhrao Patil, many years ago and had two sons at that time. All her sons had not attained majority. The fact that she was living in the schedule property, is not seriously disputed. The totality of the surrounding circumstances must be looked into in regard to the marriage.
21. Of course, DW1 is the best witness to speak about the marriage that took place between herself and late Digamberrao. In paragraph-4 of her written statement she 22 has specifically stated that she was not introduced as a cook by Kankanavadi, retired Chief Engineer, to Digamberrao, but he mediated between her and Digamberrao and arranged the marriage. It is also specifically pleaded that the marriage took place in Hanuman Temple in Nuggikeri Village, Dharwad Taluk.
22. It is her case that she led married life with Digamberrao till his death. DW2 Sadiq examined on behalf of the first defendant speaks only to the effect of taking out certain photographs vide Exs.D4 to D6 and furnishing negatives of the same and identifying defendant No.2 in the said photographs.
23. DW3 Shivashankar, has been running footwear shop in Gandhi Chowk. He is very well conversant with both late Digamberrao and first defendant. The schedule house is in the vicinity of his shop at a distance of 10-15 ft. It is his case that the house in which first defendant lived belonged to an Advocate by name Ayachit and Digamberrao and 23 Saraswathi purchased the same. Of course, he came to know of the purchase only through them and he is not a signatory to the sale deed. He is an attestor to Exs.D2 and D3, the Wills purported to have been executed by Digamberrao in favour of the first defendant. Anyhow he is not a witness to the marriage that purported to have taken place between Saraswathibai and Digamberrao. His evidence will be relevant insofar as both of them living as husband and wife for quite a reasonable length of time.
24. DW4 Ramesh, is none other than the son of the first defendant through her first husband Narasimharao Patil. Therefore he cannot speak about the marriage expect testifying to the effect that he lived with his mother and late Digamberrao in the schedule property jointly and his mother contributing some amount towards the consideration at the time of purchasing the property.
24
25. Similarly, DW5 Rajani, is the wife of DW4. She is also not a witness to the marriage. Her evidence is relevant only to the effect that talks in connection of her marriage with DW4 took place in the house of Digamberrao i.e., the suit schedule property and both of them performed the marriage of DW4.
26. Then the only evidence that survives for consideration is that of DW1 Saraswathibai. In her examination-in-chief, she has deposed that her marriage with Digamberrao took place in Hanuman Temple of Nuggikeri, Dharwad. After the marriage both of them went to the house belonging to one Naik in which Digamberrao was a tenant. She has deposed that both of them resided there for a period of four years and since landlord Naik insisted them to vacate the house, they left the house and occupied the tenement of one of the houses of Ayachit, Advocate.
27. The learned Judge of the First Appellate Court has disbelieved the alleged marriage on the ground that 'Udukki' 25 marriage is not in vogue amongst the Brahmins. What exactly is the 'Udukki' marriage is not forthcoming from the evidence placed on record. One has to see the position of Digamberrao and Saraswathibai at the time of alleged marriage. Digamberrao had already three daughters, two sons through his first wife and he had retired from the service in the year 1955. Saraswathibai had lost her husband and had two sons. Therefore one cannot expect such elderly man and woman to celebrate the marriage with pomp and show. What is stated by her is that the marriage took place in Hanuman Temple. Therefore, the word 'udaki' can only be construed as a simple marriage between them in a temple. Of course, DW1 has not deposed as to the persons who were present in the said marriage and there is no acceptable evidence in regard to the marriage that took place in Hanuman Temple, more particularly, in the light of the same being specifically denied by PW1. On this count, it is not prudent to discard the evidence in regard to the marriage. If defendant No.1 was able to prove the marriage that took place in Hanuman 26 Temple by examining some persons who attended the marriage, it would have strengthened her case. But in the light of her inability to prove the marriage that took place in Hanuman Temple, it cannot be said that there was no marriage at all.
28. Marriage can also be proved by placing evidence before the Court so that the Court can raise a presumption of marriage as per illustration (d) to Section 114 of Evidence Act. It is in this regard the learned Counsel for the appellants has relied upon the leading decision in the case of Tulsa And Others Vs. Durghatiya And Others reported in 2008(4) SCC
520. Sections 50 and 114 of Evidence Act, have been discussed at length in the said decision referring to the earlier decision reported in AIR 1927 Privy Council page 185 in the case of Andrahennedige Dinohamy Vs. Wijetunge Liyanapatabendige Balahamy, AIR 1952 SC 231 in the case of Gokal Chand Vs. Parvin Kumari, AIR 1978 SC 1557 in the case of Badri Prasad Vs. Dy. Director of Consolidation. 27 In all these decisions, it is specifically held that if a man and woman lived together as husband and wife for long spell, there would be a presumption in favour of the wedlock, though such presumption is a rebuttable presumption. What is held in Badri Prasad's case is that a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. It is further held that law always leans in favour of legitimacy and frowns upon bastardy.
29. Even in the Privy Council's decision rendered in Dinohamy's case, it is specifically held that law presumes in favour of marriage and against concubinage where a man and a woman have cohabitated continuously for a number of years. In the light of the above principles reiterated, by the Hon'ble Supreme Court will have to see as to whether acceptable evidence is placed on record in regard to the presumption that can be raised as per Section 114 of Evidence Act. In this regard the evidence of DW1 and other 28 witnesses would assume importance in the light of their opinion as found in Section 50 of Evidence Act.
30. DW1 herself has deposed in her evidence that herself and Digamberrao lived for four years in the house of Naik as tenants and later on, they shifted to the present house. This fact is not seriously disputed while cross- examining her. More focus of cross-examination of DW1 is in regard to the work done by DW1 as cook in their house. She has emphatically denied the suggestion put to her that she was appointed to cook food in the house of Digamberrao and nothing beyond that.
31. In her examination-in-chief, she has deposed that herself and her husband were treating plaintiffs and defendants 2 and 3 as their own children. By the time she started living with Digamberrao, the marriages of all the three daughters of Digamberrao through his first wife had been solemnized and they were living in the houses of their respective husbands. It is her case that after her marriage 29 with Digamberrao, marriages of plaintiffs 1 and 2 were solemnized. Plaintiff No.1 was residing in his own house near Head Post Office, Dharwad, and plaintiff No.2 was residing in Poona.
32. She has been cross-examined at length by the learned Counsel for the plaintiffs. Admittedly, first defendant does not know how to read and write except putting her signature. What is argued before this Court is that, if really she was the wife of Digamberrao, she could have got her name entered in Municipal records pertaining to this house. This does not assume much importance, more particularly, when plaintiffs chose to file a petition under the relevant provisions of Karnataka Rent Control Act, 1961, seeking eviction of defendant No.1 Saraswathibai on the ground that she was a tenant. The trial Court has taken this aspect into consideration to come to the conclusion that deceased Digamberrao and first defendant were residing in the same house as husband and wife. As pointed out by the trial 30 Court, the totality of the circumstances of the case will have to be taken into consideration in order to draw a presumption under Section 114 of Evidence Act based on the opinion evidence of the witnesses as contemplated under Section 50 of the Evidence Act. In fact suggestion put to her that the marriages of the plaintiffs 1 and 2 took place in the suit house, has been admitted. If really she had been appointed as a cook and had been given only one room, in the first floor, she would not have been in possession of the entire suit schedule property. Admittedly, her children were minors when her marriage was solemnized with Digamberrao and hence one room was quite insufficient for all of them to stay together.
33. In fact, DW4 Ramesh has specifically deposed that he also started living with deceased Digamberrao and his wife Saraswathibai, in the suit schedule property and his marriage talks were held in the same house and Digamberrao and his 31 wife took a leading part. This aspect has also been corroborated by his wife Rajani, examined as DW5.
34. We have the photographs marked as Exs.D4 to D6. DW2 Sadiq has identified Ramesh examined as DW3 and he was known. In fact PW1, has identified his father who had worn suit. He has identified DW1 also. It is to be seen that Digamberrao and first defendant were sitting side by side on a cot in the presence of DW3 and defendant NO.3-Vasu. If they had not been living as husband and wife, such photographs would not have come into being. Apart from this, Ex.D5 discloses DW3 sitting in between Digamberrao on the right side and his wife Saraswathibai on the left side. This is further corroborated by the incorporation of the names of Digamberrao, defendant No.1 Saraswathibai and her son Vijaya Kumar in the electoral roll of 1977. This is an important document which is admissible in evidence and the authenticity of the same is not seriously disputed. This has come into being at an undisputed point of time. If really 32 defendant No.1 was living as a cook in a room, her name would not have found a place in House No.34/3. Even in the electoral card of Ramesh examined as DW3 and his wife, house number is mentioned as 34/3, Dharwad. These are all attending circumstances which would fortify the stand of defendant No.1 that herself and Digamberrao were living as husband and wife.
35. We have the evidence of DW3 Shivashankar Benagi. As on 03.07.1996 he was aged 40 years. He has deposed that both Digamberrao and Saraswathi were living in the same house and that he came to know from them about their marriage in Hanuman Temple at Nuggikere. He is a disinterested witness and he had no axe to grind against the plaintiffs. He has identified Exs.D4 to D6 and he has also identified Saraswathibai, Digamberrao and DW4 Ramesh and defendant No.3 Vasu in those photographs. He is an attestor to Exs.D2 and 3, the Wills purported to have been executed by Digamberrao in favour of defendant No.1. Necessary 33 discussion would be made in regard to the point connected with the execution of the Will at a later stage. It is his specific case that he knew Digamberrao, Saraswathibai and their children 20 years prior to his deposition.
36. The evidence of DW3 Shivashankar, assumes importance in the light of the fact that he knew the family members of Digamberrao very well. He has deposed that one of the daughters of Digamberrao is living in Poona and another is living at Belgaum. He has admitted that he knew both Ramesh and Vasu i.e., defendants 2 and 3 from their childhood and he had acquaintance with Saraswathi. It is because of this acquaintance with them, he has been able to depose about Saraswathi living with Digamberrao in the suit property as husband and wife. Just because he is acquainted with Saraswathibai and her two sons, his evidence cannot be brushed aside treating it as a disinterested witness. He is not interested in the defendants in any manner. Nothing is placed on record to show that he has some hidden agenda in 34 being examined as DW3. But looking to the whole evidence of DW3, nothing has been culled out from his mouth to discredit his deposition insofar as it relates to Digamberrao and Saraswathi living as husband and wife and Ramesh and Vasu i.e., defendant Nos.2 and 3 living in the same house as members of the same family.
37. As already discussed, DW5 Rajani, is the wife of DW4 Ramesh. She is also a resident of Dharwad and it is her case that her marriage proposal took place in the suit schedule house of Digamberrao. At the time of betrothal she was living in the house near Mangan-Mahal at Dharwad. The distance between her parents house and the suit schedule properties is just half a furlong and she knew both Digamberrao and Sarawathibai even prior to the marriage. She has studied upto SSLC and her marriage was performed at Koppal by Digamberrao and Saraswathi on 02.04.1981. She has deposed that she was informed that Digamberrao and Saraswathi were husband and wife and that both of them 35 also informed her about the same. She is able to speak about the month and year in which Digamberrao died. Her evidence cannot be brushed aside in regard to the marriage talks that took place in the suit schedule property and at that time Digamberrao and Saraswathi were present and they performed her marriage with Ramesh at Koppal. This fact has not been disputed.
38. As already stated, taking into consideration the totality of the circumstances and the disinterestedness of the witnesses examined on behalf of defendant No.1, the approach adopted by the trial Court to draw an inference that Digamberrao and Saraswathi were living as husband and wife, cannot be found fault with.
39. On the other hand, the First Appellate Court has disbelieved this mainly on the ground that Udaki form of marriage is not in vogue amongst Brahmins and that there are no documents evidencing marriage. In fact, the First Appellate Court, being the final Court of facts has not 36 reassessed the evidence on the touchstone of intrinsic probabilities keeping in mind the totality of the case, more particularly, the presumption available under illustration (d) of Section 114 of Evidence Act. The evidence of DW2 to DW5 have not been tested on the touchstone of Section 50 of Evidence Act which speaks about the opinion of persons about the relationship of the parties.
40. In fact, in Nirmala's case as reported in ILR 1994 KAR 1078, a Division Bench of this Court has specifically held that when there is a presumption that there is a legal and valid marriage, there is also equally a presumption that all the formalities and customs have been duly performed at this time of the said marriage. It is also further held that the evidence required to rebut the presumption available under Section 114 of Evidence Act cannot be an evidence of mere probabilities but it should be evidence to prove exclusively that the possibility of such valid marriage is completely ruled out. The First Appellate Court has ignored this initial 37 presumption available under Section 114 of Evidence Act and unfortunately, burden had been virtually cast upon the first defendant to prove the same conclusively. This approach of the First Appellate Court is not consistent with the facts of the case and assertion of the first defendant who was an elderly lady having two children, more particularly, living in the house of Digamberrao.
41. In the present case, there is acceptable evidence in regard to another course of the natural events and the conduct of the parties. The participation of the first defendant in the funeral ceremony of deceased Digamberrao, is also not ruled out. It is also forthcoming that the first son of Digamberrao, through his first wife was often coming and visiting him in his house. Apart from this, DW3 Shivashankar, is an attestor to Exs.D2 and D3, the Wills under which the suit schedule property has been bequeathed. He is an attestor to these two documents. Writings found on Exs.D2 and D3 is the writing of deceased Digambarrao and 38 that has been admitted by PW1. When these were confronted to him, PW1 did not say that the writings found on Exs.D2 and D3 are not the writing of his father.
42. Plaintiffs have taken up different stand that is one stand when petition was filed under Rent Control Act and different stand when the suit was filed. This inconsistent stand taken by the plaintiffs at different levels will also have to be viewed in the light of other surrounding circumstances placed before the Court by the defendants. Taking all these into consideration, it is to be held with certainty that the trial Court has adopted right approach and has come to the conclusion that they were be living as husband and wife. The approach adopted by the First Appellate Court more particularly, to negative the factual finding given by the trial Court, is not correct and proper. Stronger and cogent reasons are required to upset such factual findings. No such attempt is made by the First Appellate Court in regard to the 39 upturn finding on the proof of marriage between Digamberrao and Saraswathibai.
43. The conduct of the plaintiffs is also very much relevant in the present case. In fact, plaintiffs had chosen to file a petition against this defendant No.1 Saraswathi seeking her eviction from the schedule property on the ground that she was a tenant. Therefore, petition had been filed under the relevant provisions of Karnataka Rent Control Act, 1961, which has stood repealed. The first defendant herein was the respondent in the said case and had taken up a specific defence stating that she was the legally wedded wife of Digambarrao and not a tenant.
44. PW1 has admitted in his cross-examination done on 03.08.1996, as found in page No.13 of his deposition, that he had filed a petition in HRC No.96/1987 and the evidence of Saraswathi was recorded in the case. He has admitted that a petition was filed under Section 21(1) (a) of Karnataka Rent Control Act, 1961, on the ground that there was arrears of 40 rent and that she was liable to be evicted as she had committed default in paying the rent at the rate of Rs.225/- p.m. In fact the entire HRC proceedings file is silent about the date, month and year in which she was inducted as a tenant. In paragraph-4 of the petition filed before the HRC Court, it is stated that the petition premises was leased out by Digambarrao to Saraswathi about 8 or 9 years back and that she had agreed to pay rent at the rate of Rs.225/- p.m. If nine years is reckoned from 1987, it would be somewhere in 1978 or 1979, but the very plaint filed would go to show that she was allowed to live in a portion of the building that is in a room by taking pity on her since she had been introduced by Kanakavadi.
45. The first defendant was the first respondent in the said case. Second defendant Ramesh herein was second respondent in HRC No.96/1987. First defendant Saraswathi had filed detailed written statement. Even there she had specifically taken up a contention that the suit schedule 41 property was purchased on 27.12.1971 and that she had given gold worth about Rs.12,000/- to purchase the property. She has also referred to the Will dated 05.10.1976 marked as Ex.D2 and the Will dated 10.08.1986 marked as Ex.D3 in the present suit. The learned Judge of the Appellate Court has come to the conclusion that there is no reference about the execution of the Will. In the objections filed by Saraswathi as against the petition filed in HRC No.96/1987, it is mentioned that on 05.10.1976 dated 10.08.1986 Digambarrao has written a lekhi stating that the property should go to her after his death. The learned Judge has adopted a wrong approach to the real state of affairs in this regard. It is not as though she has taken up a defence based on the Will for the first time when she chose to file written statement in the trial Court.
46. Even in the said objections filed in the HRC Court, it is specifically mentioned that first respondent was a tenant under one person by name Naik in Chawl area and that after sometime both of them shifted to the present property. It is 42 in this regard, the trial Court has taken serious note of the inconsistent stand taken by the plaintiffs in1987 and 1992 at the time of filing of HRC petition and filing of suit respectively. In the entire file connected with HRC proceedings, deposition of Saraswathi recorded in HRC No.96/1997 is also found and the stand taken up in her evidence is similar to the stand taken up by her in the written statement and the evidence adduced in the trial Court. Therefore, the trial Court has analysed the entire evidence on the touchstone of intrinsic probabilities keeping in mind this inconsistent stand of the plaintiffs.
47. The First Appellate Court has reversed the finding given by the trial Court in regard to the due execution of the Will. The substantial question of law is as to whether the finding of the First Appellate Court reversing the finding of the trial Court regarding the due execution of the Will is perverse and arbitrary, more particularly, being contrary to law and material on record?
43
48. Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act, only deal with the manner in which a Will is to be proved. Law of Wills does not contemplate that a Will must be in a particular form. What is expected of the testator is to unequivocally bequeath the property he has or she has. Several decisions have been relied upon by the First Appellate Court in regard to the purported inability of the propounder to prove the Will. Admittedly, the propounder viz., Saraswathi was very much alive when the evidence was recorded in the trial Court. She was not alive when the appeal was filed by the plaintiffs in R.A.No.28/1997 renumbered as R.A.No.107/2003. The established position of law is that onus proving the Will is always on the propounder and suspicious circumstances, if any, must be effectively warded off by placing acceptable evidence.
49. Ex.D2 is a Will dated 05.10.1976. S.R.Benagi, is examined as DW3 is an attestor to Ex.D2. The entire contents of the said Will marked as Ex.D2 have been referred 44 to in the judgment of the First Appellate Court. As per the contents of Ex.D2, Digamberrao, had bequeathed middle portion of the suit schedule property to the permanent ownership of Saraswathibai N.Patil. It is in the nature of a letter addressed to her bearing signature of two persons. This was confronted to PW1 during the course of cross- examination. On confronting Ex.D2, PW1 has denied the signature of his father found on Ex.D2. He has deposed that the writing found in the said document resembles with the handwriting of his father, but he has denied his signature found thereon.
50. Ex.D3 is another piece of paper. It is addressed to defendant No.1 Saraswathi Patil stating that his house would be her house after he dies. It also bears the signature of DW3 Shivashankar Benagi. It also bears the signature of another person. If really handwriting found on Exs.D2 and D3 was not in the handwriting of his father, PW1 would have denied the handwriting. Admittedly Digamberrao had retired as 45 Deputy Conservator of Forest, in the year 1955 and was a very knowledgeable man.
51. DW1 Saraswathi who was the propounder of this document has relied upon the same and she has deposed that Dr.Patil and Benagi have attested those documents. She has also deposed that her husband has executed Ex.D3. She has deposed that both these documents came to be executed on his own free will by Digamberrao. Even in her cross- examination as found in page No.9, she has deposed that Ex.D3 bears the signature of Digamberrao. So admittedly defendant No.1 was not that educated and she did not know how to write. Therefore, chances of creating the said document will have to be ruled out. Though Exs.D2 and D3 were confronted to her during the course of cross- examination she has expressed her inability to read the contents as her eyesight was weak.
46
52. The entire focus of the cross-examination was about the aspect of Digamberrao purchasing the property in his own individual capacity and the absence of proof regarding the alleged marriage of Saraswathi with Digamberrao. As such nothing has been culled out from the mouth of DW1 in regard to the execution of Exs.D2 and D3.
53. Admittedly, Ex.D2 does not have much significance in the light of Ex.D3, being the last Will. Nowhere, it is suggested to her that testator Digamberrao was not having sound mental and physical health. If a suggestion had been made to her that he did not have sound disposing state of mind as on the date of executing Ex.D3, it could have been something different.
54. DW.3-Shivashankar, is a footwear shop owner known to the family of late Digamberrao and first defendant very well. His shop is at a distance of 10-15 feet from the suit property. He knew that the property was purchased by Digamberrao from Advocate Ayachith. He has specifically 47 deposed in his examination-in-chief that a letter was addressed by Digamberrao to Saraswathi and it bears his signature as Ex.D2(a). He has also identified Ex.D3 another letter written to defendant No.1 and it also bears his signature as Ex.D3(a). He has specifically deposed that Digamberrao intended that the property should go to Saraswathi after his death. Suggestion put to him that Ex.D2 and Ex.D3 does not bear the signature of Digamberrao has been specifically denied. He has deposed that he cannot read English and that he does not know what is written in Ex.D2. As already discussed Shivashankar is a disinterested witness and he had no axe to grind against the plaintiffs. Taking into consideration the admissions culled out from the mouth of PW1 in regard to handwriting found on Exs.D2 and D3 and the evidence of Benagi examined as DW3, it can certainly be said that the document marked as Ex.D3 is a Will and it had been attested by two persons and one of the attestors has been examined by the propounder.
48
55. What is specifically held in H.Venkatachala Iyenagar Vs. B.N.Thimmajamma reported in AIR 1959 SC 443 is that suspicious circumstances surrounding the Will must be effectively warded off by examining one of the attestors and that it must be established that the testator was in sound disposing state of mind at the time of executing the Will. In the present case Digamberrao had every reason to bequeath the property in favour of defendant No.1 Saraswathi since she had lived with him as his wife and that too at an old age and looked after him and his children. Apart from that, his daughters were already married and his sons born through his first wife were well placed and living separately. Taking into consideration the vulnerability of defendant No.1 and the services rendered to him, he had chosen to execute a Will in her favour. Hence the circumstances surrounding the execution of the Will will be relevant under Section 75 of Indian Succession Act. Suffice to state that acceptable evidence in regard to the due execution of the Will is placed on record.
49
56. What is expected of the First Appellate Court dealing with an appeal under Section 96 of CPC is to come to close quarters and assign its own reasons as to how the trial Court has gone wrong. Principles to this effect have been eloquently reiterated by the Hon'ble Supreme Court in the case of Santhosh Hazari Vs. Purushotham Tiwari reported in AIR 2001 SC 965. The reasons assigned by the First Appellate Court, according to this Court, in order to upset a well considered finding on the due execution of the Will are not cogent and convincing. The learned Judge of the First Appellate Court has given undue emphasis to Ex.D2 which does not have much significance in the light of contents of Ex.D3. Earlier he had given only middle portion of the house vide Ex.D2 and later on, he chose to bequeath the entire property on 10.08.1986.
57. The learned First Appellate Court has made detailed discussion in pages 24 to 26 stating that the manner in which the attestation of the Will is to be proved is not 50 forthcoming and therefore, the due execution has been disbelieved by the First Appellate Court. As already discussed, there is no particular form in which a Will is to be written. What is expected is that the testator should be in a sound disposing state of mind on the date of executing the Will and that such document must be attested by two witnesses and its due execution to be .by one of the attestors. What is deposed by DW3 is that Digamberrao himself wrote Ex.D3 and put his signature and he has also attested the same on the same day as an attestor. Nothing has been culled out from the mouth of DW3 that it was not attested by him as on that day in the presence of Digamberrao, but his signature was obtained at a later date. The fact that Ex.D3 bears the signature of DW3 is not seriously disputed.
58. Taking all these into consideration, the trial Court has come to the conclusion that the Will has stood proved and the property has been bequeathed in favour of the first defendant. The factual finding given by the trial Court is 51 based on proper assessment of evidence. In this view of the matter, the reassessment of the evidence done by the First Appellate Court is not proper and there are no valid grounds to interfere with such factual findings of the trial Court in regard to the due execution. The learned First Appellate Court has taken a too extreme view in regard to the plea dealing with the proof of the Will contrary to the materials on record. Hence, substantial question of law framed on 28.06.2005 is answered in the affirmative. Accordingly, second appeal is to be allowed and thereby the judgment of the First Appellate Court will have to be set aside. Ultimately the judgment and decree passed by the trial Court will have to be restored.
ORDER Appeal filed under Section 100 of CPC is allowed. The judgment dated 11.08.2004 passed by the Prl. District Judge, Dharwad, in R.A.No.107/2003 (Old No.R.A.28/97) on 11.08.2004 is set aside. Consequently the judgment and 52 decree dated 28.01.1997 passed by the learned Prl. Munsiff, Dharwad, in O.S.No.565/1992 is restored.
Parties to bear their own costs.
SD/-
JUDGE JT/-