Karnataka High Court
Smt Gangawwa W/O Madiwalappa Ilagi vs Sri Basappa S/O Madiwalappa Totagi on 9 September, 2014
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9 T H D AY OF SEP TEMBER, 2014
BEFORE
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
REGULAR SECOND APPEAL NO.5121/2008
BETWEEN:
SMT. GANGAWWA W/O. MADIWALAPPA ILAGI
AGE: 55 YEARS , OCC: HOUSEHOLD WORK
R/O. NARAYANPUR, TQ : & DIS T: DHARWAD.
...APPELLANT.
(BY SRI SHIVASAI PA TIL, ADVOCA TE.)
AND:
1. SRI BASAPPA S/O. MADIWALAPPA TOTAGI
AGE: 36 YEARS , OCC AGRICULTURE,
R/O. KUDROLLI, TQ: BAILHONGAL,
DIST: BELGAUM
2. MAHADEVAPPA S/O. MADIWALAPPA TO TAGI
AGE: 32 YEARS , OCC: AGRICULTU RE,
R/O. KADROLLI, TQ: BAILHONGAL,
DIST: BELGAUM
3. THE GOVERNMENT OF KARNA TAKA
REPRESENTED BY DEPU TY COMMISSIONER
DIST: BELGAUM
4. THE SPECIAL LAND ACQUISITION OFF ICER
MALAPRABHA PROJECT
SAUNDATTI-591504.
...RESPONDENTS.
(BY SRI V.M.SHEELAVANTH , ADVOCATE, FOR R.1 AND R.2,
SRI A .G.MALDAR, HCGP, FOR R.3 AND R.4.)
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THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAY ING TO SET AS IDE THE
JUDGMENT AND DECREE DATED 26.6.2008, PASSED IN
R.A.NO.8/2003, BY THE PRL. CIVIL JUDGE (SR.D N.),
BAILHONGAL BY REVERS ING THE JUDGMENT AND DECREE
DATED 14.2.2003, PASSED IN O.S.NO.73/2000, BY TH E PRL.
CIVIL JUDGE (JR.DN.), BAILHONGAL, AND ETC.,.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is by the defendant no.1 challenging the judgment and decree passed by the Prl. Civil Judge (Sr.Dn.), Bailhongal, in R.A.No.8/2003.
2. The suit was filed by respondents 1 and 2 before the Prl. Civil Judge (Jr.Dn.), Bailhongal in O.S.No.73/2000 for declaration that they are the legatees under the Will dated 20.11.1983 holding that defendant no.1 is entitled for only right of maintenance over the suit lands and also prayed for consequential relief of permanent injunction restraining the defendant no.1 from causing obstruction to the plaintiffs peaceful possession over the suit land. 3
3. In all, there are five properties in various survey numbers. They are all agricultural lands which are identified by survey numbers and boundaries. According to the plaintiffs, Adiveppa Fakirappa Totagi owned those properties, which are self acquired properties. He had two wives by name Doddavva and Iravva and daughter of 2 n d wife namely the defendant no.1 Gangavva has a share as Adiveppa has no male issues. The defendant no.1 has also no male issues. The deceased Adiveppa, since he was old aged, was unable to look after the landed properties and also had old aged wives and defendant no.1 was given in marriage to a person at Dharwad i.e., Narayanpur village and she was residing in her husband's house, the deceased Adiveppa had executed a registered Will dated 20.11.1983 stating that after his death the properties shall be enjoyed by his two wives and his daughter Gangavva i.e., defendant no.1 and thereafter, by his own elder brother Madivalappa's sons Basappa and Mahadevappa. As such the plaintiffs maintained 4 the deceased Adiveppa and his two wives till their death. Stating that the plaintiffs are in actual possession and peaceful enjoyment as legatees under the Will, the plaintiffs have sought for relief.
4. The defendant no.1 is also the legatee under the Will and also she has got right of maintenance over the suit lands without any absolute right. It is stated, after the death of Adiveppa, the plaintiffs performed the legal obligations imposed on them and subsequently both the wives of deceased Adiveppa died in the house of the plaintiffs and they have also taken care of the funeral rights. Their property is in actual possession and enjoyment of the plaintiffs and the plaintiffs have provided maintenance to defendant no.1 and somehow the portion of the suit lands were acquired by the Special Land Acquisition Officer, Malaprabha Project. It is their case, the name of defendant no.1 is appearing in the record of rights of the suit lands, based on which she is claiming absolute 5 ownership of the suit land and she is likely to disturb the peaceful possession and enjoyment at the instance of some persons who are not in good terms with the plaintiffs. On the death of Adiveppa and his two wives stating that the plaintiffs are paying taxes to the Government and also providing maintenance to the defendant no.1, they have filed the suit.
5. It appears, in the property bearing Sy.No.13 an extent of 32 guntas of land was acquired out of 37 guntas. So also an extent of 13 guntas was acquired out of 1 acre 22 guntas in Sy.No.11/4, during the year 1996 and to such an acquisition, the 3 r d defendant has awarded compensation to the holders of the said acquired lands. Taking advantage of the name of defendant no.1 entered in the record of rights, she tried to disturb the possession of the plaintiffs. The suit was contested by defendant no.1 and also as to execution of the Will stating that deceased Adiveppa was not in possession of the suit lands till his death 6 but the suit lands had fallen to the share of Adiveppa in the family partition, while denying the plaint averments as to the maintenance of defendant no.1 by the plaintiffs and also on other aspects.
6. The trial Court has framed as many as five issues including an issue regarding execution of the Will by the testator in their favour by Adiveppa Fakirappa Totagi in favour of the plaintiffs. The trial Court while answering the issues, held that the plaintiffs failed to prove due execution of the Will and alleged obstruction etc., and also the claim of the plaintiffs has been negated thereby dismissing the suit of the plaintiffs.
7. In the appeal filed before the Prl. Civil Judge (Sr.Dn.), Bailhongal, the lower appellate Court allowed the suit in part. However it is held that the plaintiffs are also legatees under the Will, thereby favouring the plaintiffs and ordered to draw the decree. 7
8. Being aggrieved by the same, this second appeal is by the defendant no.1 on the point of proof of Will as per Section 68 of the Indian Evidence Act read with Section 3 of the Transfer of Property Act and as to the sustainability of the decree of the lower appellate Court.
9. Heard the learned counsels for respective parties and learned HCGP for respondents 3 and 4, for some time.
10. It appears, out of five properties available, two properties are acquired i.e., in Sy.No.13 an extent of 32 guntas was acquired out of 37 guntas and in Sy.No.11/4 an extent of 13 guntas was acquired out of 1 acre 22 guntas. The remaining property in five items including the compensation amount deposited for having acquired the portion of the lands in two of the survey numbers, is the subject matter for which the plaintiffs sought declaration which came to be dismissed and later in appeal, it was held that Will was 8 proved and that the plaintiffs are the legatees under the Will, they have also performed the obligations of funeral rights of the deceased Adiveppa and his two wives. As against the same, this second appeal.
11. As regards the question of law raised, whether as per Section 68 of the Indian Evidence Act the Will has been duly proved, it is seen, the plaintiffs are none other than the children of elder brother of Adiveppa the testator. The defendant no.1 is the daughter of the 2 n d wife of Adiveppa. She had been given life interest in the Will. It is seen that there is due execution of the Will by the testator Adiveppa in favour of the plaintiffs and also in favour of the defendant no.1 as life interest. On proof of Will, as per Section 68 of the Indian Succession Act, equal share has to be there in the property between defendant no.1 along with plaintiffs 1 and 2. The life interest of course, may be confirmed on defendant no.1. She being the only daughter of Adiveppa, she would be entitled 9 for equal share on proof of the Will and also as she inherited the property of deceased Adiveppa. Though the recitals in the Will is to the extent of life interest, but after commencement of Hindu Succession Act, 1956, the life interest will be enlarged to absolute interest. So she gets 1/3 r d interest.
12. So far as the finding rendered by the lower appellate Court as to the execution of the Will is concerned, it has discussed in detail the ev idence of PWs.1 to 4 and also the evidence of DW.1 namely the defendant no.1. The stand taken is of course, the Will was not duly executed, but the lower appellate Court has re-appreciated the evidence having noted that before execution of the will this Adiveppa was keeping good health and also looking into the evidence of other witnesses, has opined that there is due execution of the Will.
13. In that view of the matter, when the Will is duly held to be executed as a m atter of fact finding by 10 the lower appellate Court on re-appreciation, the same cannot be interfered with easily on the sole contention that the Will is not in existence. So far as the division of the property amongst the plaintiffs and the defendant no.1, out of five properties, two properties to the extent of 32 guntas and 13 guntas were acquired and the compensation amount is said to have been deposited by the Special Land Acquisition Officer an d it appears, the defendant no.1 has withdrawn the entire amount of four lakh rupees and odd.
14. Now the share of the plaintiffs also has to be determined. So far as the rights of the plaintiffs are concerned, they are the appellants before the lower appellate Court. When it is said that there is due execution of the Will, right of the plaintiffs also has to be identified in the properties, apart from their share in the amount which was deposited due to acquisition of the land for Malaprabha Project.
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15. Out of five properties, an extent of 1 acre 9 guntas has already been handed over to the 'Kadrolli Math', which property is in Sy.No.15/2 and the remaining four properties to the extent of 5 guntas (after acquisition of 32 guntas) and 2½ guntas in Sy.Nos.13 and 12/2B respectively, 1 acre 09 guntas (after acquisition of 13 guntas) in Sy.No.11/4 and Sy.No.10/1A measuring 2 acres 20 guntas, are available.
16. To make it specific, out of the four properties, Sy.no.10/1A measuring 2 acres 20 guntas shall be exclusively made available to the defendant no.1 Gangavva. The remaining properties viz., Sy.No.11/4 measuring 1 acre 09 guntas (after acquisition of 13 guntas) and Sy.No.12/2B measuring 2½ guntas and Sy.No.13 measuring 5 guntas, which is remaining after acquisition of 32 guntas, sh all be made available to the respondents/plaintiffs. 12
17. Accordingly, while answering the question of law, as held by the lower appellate Court, in the division of the properties as per the entitlement mentioned in the Will, as a matter of adjustment, the appeal is allowed in part granting shares to the parties.
18. So far as the amount of compensation withdrawn by this appellant, the appellant shall deposit the amount withdrawn in four to six months with interest at the rate of 6% p.a. from the date of withdrawal of the amount till the date of deposit and the same shall be withdrawn by the respondents/plaintiffs.
19. The amount, if any, in deposit in the Court towards the compensation of acquisition of land, shall be made available to the plaintiffs/respondents.
Parties to bear their own costs.
Sd/-
Judge Mrk/-