Karnataka High Court
Devadas Rai vs Nayana on 25 May, 2011
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 25" DAY OF MAY 2011 0°. BEFORE _ THE HON'BLE MR.JUSTICE H.BILLAPPA R.F.A.No.442/ 1904 ). Devadas Rai, . S/o.Late Sankappa Rai, Major, Agriculturist, R/fa.Kepu House, - Kepu Village, 2) Post: Kudcupadavis, Bantwal Taluk, *_ . Dakshina Kannada Dist ri ct. 2. Janardhana @J avennatha Rai, S/o.Late Sankapoa' Rai, Major, , ee Agriculturist, <_ ~. R/a, Bala mpody, Perabe Valls j Puttur Tab Dakshina Kanac (Oo. >. Naravana Kal, ca <3 ile of the Court of the Civil Judge, Puttur, DUK. 4 the suit for partition and separate possession. =o This appeal coming on for orders this dav,' dehvered the following: eo JUDGMENT. This appeal by the defendants 1, 2 "and 5 is, directed against the judement and decree, dated 22.4.1994, passed by the Civil Judge, Puttur, in O.S.No.134/ 1988: INS shed Sy the iniouerted fuderment and decree, the Trial Court has de ed fie. suit. of the plamilf granting 1/6 rvedule properties. a ae erie ~ " oe yu vy _ ' 7 . _ ~~, 4 Q 1@ anpellants-defendants-1, 2 be referred) to with reference go om No ginal suit OLS No. iG4/ 198s "ther rank un the origine ime iirsi responaent- wlainuly fled suit im O.S.NG.1S4/ ee had ae qu uired 5 separate possession. The case of the first respondent plaintiff was that the plaintiff and the defendants -e,> the 7 appellants | to 3 herein and the respondents 2 and ra inte: ake ate a children of late Kamala who died or 6.5 Devali, the daughter of Kamala died) long "back . before. Kamala. Devaki had no issues or Neirs. Karnala left behind her the plaintiff and the defendants: ees neb, legal heirs. 6. The immovable properties fully "described in the suit 'B' schedule befonged to the piawitiff's mother late Kamala, it Wass ner sellaccuired property. KRamala registered sale-ceed dated purchased the property through the property as absolute 16.3.1947 and sne was .enjoviry OWT? and s she w as | ae posse Ssion. 7 Te plaintiff $s mother was living in the property. "She had effected various improvements in the property. She 3 HP pumpset and a huller was installed in the "suit B schedule property Re Sie &. The plaintiff married on 21.60.1970 and she has fered been residing with her husband. After the death of.sa: the plaintiff is entitled for 1/6' share in the suit 'schedule properties. The plaintiff requested the defendants. to effect partition and give her share. The defendants avoided if -On. '3.4.1988, the plaintiff sent legal totice to the defendants. The first defendant avoided notice. The other defendants have not sent reply. The defendants are-not willing to effect partition. Therefore, the plaintiff has praved for partition and separate possession ol her share Q. it is stated, 'B™. schedule property fetch annual income of 4 candies of erece, 2ZO00 coconuts, 400 muras of passy and 2. quintais of cashew-nuts. The plaintiif is in possession of only-a portion of 'B' schedule property which ts desermed in °C! seheduie under oral arrangement with her PO. Subsequently, the plaintiff has amended the glainty itis stated, aR. 'entitled for R.FLA.No.442/94 property set out in the 'D' schedule are partible properties and itern No.} of the properties are chalageni properties "of late Kamala which are lable for partition am ongst th e parties as occupancy rights have been granted in. favour of the firs, defendant which enures to the | ben efi t 'of all the, heirs-o P. Kamala and Il item properties beloriged to m oth er's family of the plaintilf and the same is availabie for partition: 'item Nol of 'D?' schedule properties were oul tivated "as fenant by late Kamala on chala geni bass and on RB er a eath, occupancy rights were granted to 'ihe first defendant in TNC.590/75-76. The said propert » partible amongst the heirs of late Kamala including the praintifi. « Similarly, item No! of 'D' schedule properties are allotted to Kamala's branch thro ugh registered 'partition dated 15.10.1970. They are partible amougst, the-.parties. The plaintiff and her children are share im item Noll of 'TDP schedule "Praperties. ifs stated, the suit is filed in respect of Kamala's apd therefore, if is not ne cessary to decide item Nol! of '2 schedule properties and because of the contest of fourth 7 i gh. 'contending that he is the RE LALNo 440 / defendant the same has been included. lt is stated, the plaintiff learnt that some sale-deeds have been exec respect of the second item of 'D' schedule properties and, the plaintiff' has not jomed the sale-deed an A she will . take appropriate steps to set aside the sale-déeds. "The fotert be defendant has contended that the said proper ties. a are pa rtible and im case, if the Court. holds. that they are parti ible, the plaintiff is entitled for 1/6%-in "item Nell of 'D° schedule properties and the plamtiff and'her children are entitled for 3/10 share in item-No.2 of "LY Se she di Ue properties. cE FT l-properties of 'D' schedule Ll. it is stated. tein fetch income of | i¢ 30 un i aso oF paddy, 200 coconuts and Il item " Dy sche chu ile prope ties fetch imcome of SO muras of paddy, 2 candi ie lies of areci-and 500 coconuts. Therefore, the plaintiff has for, share in the suit 'B' and 'D' schedule Pr op erties. 12. . The first defendant has filed his written statement arg, fOe otmers are younger to him. Kamala died intestate is false. Kamals a has executed a Will dated 25.1.1986. She was in sound disposin g state of mind and executed the Will on her own... 'In.the said Will) Kamala has clearly stated that- her pro pesties were oe oh a see a yong -
developed by her sons especially t efit 'st defendant. 4 respect of her daughters she has dohe all th at can bs V2 done by. getting them married bey ond her incan's,, Therefore, she is bequeathing her properties to her Se Ais equally and the House and compound to. the Hrs: defen dati The plaintiff and the defendants were aware 'of the wu iM ever. during the lifetime of Kamala.
rent
-
Lad it is stated } the aver 'me nts in para 4 of the plaint that the. BU it. sched ale properties are aosolute properties of late K amala are. truc im respect of item Nos.1 to 7 of the suit sc sched de. properties. . Item No.& property has been inherited Pa the defendants from their father iate post . by the piain wily and The plaintiff is in possession of the same. The ayerments that late Karnala was in possession of the he about 2 candies properties is true but, with the assistance of the first defendant and the other sons. The first defend ant, and fh is brothers out of their own efforts and also by in vesting th eit money and money of their wives have ifn proved the property:
Tiller and pumpset are the seif-acquisition of the. first. defendant. The httle income that.the properties yielded was spent on the marriage of the daughters. 'if is denieé that the plaintiff is entitled for 1/6 Share in fhe suit 'B' schedule properties. It is alsa denied. that.request' for partition was made or legal notice was-serit). Th e plamtiff and her husband and the ath er" defenda bts were, "Aware of the Will and therefore, the question of a nwillia eness for partition does not arise. The plaintiff is not en tit led for any share in the suit 'B' schedule properties except the property of late Sankappa Rai ee NO.2C572 measuring 10 cents. It is stated, the suit "schedule. properties except iter No.7 fetch annual income of of areca, 15 muras of rice and 500 cocon LUIS, laintiff im item No.7 as os a he property in possession of the ands in Poromboke "
D fs ad as go oft oy Rowavel = os Pan 3 ett o R.F.A.No 442/04 which was developed by the father of the plaintif' and the defendants late Sankappa Rai. [t is stated, there are more than 200 yielding areca trees and they fetch annual income of L'4 candies of areca and it is more than the cue Share ofthe © plaintiff even if it is held that the suit properties are divisibie along with the other properties 'of the. plaintiff. and' the - defendants. It is stated, the plaintiff is in possession of a portion of the 'B' schedule properties described in 'C' schedule which the defendants. allowed sto. buy peace amongst the relatives. The plainuff has. no right in the 'B' schedule properties and not-entitied for-any Share.
14. [t is stated; in "case of partition, iter No.7 properties along with the adjacent garden and poromboke lands are joint "properties and are lable to be divided. Therefore, the first defendant has praved for dismissal of the
-- Surt.
written statement fled by the first cefendant. "anh JAnd-enjoymeht of their respective share and therefore, th R.F.A.No.442/94
16. The third defendant has filed her written statement contending that there was oral partition. betwee! late Kamala and her children ie., the plainti® and the , ely defendants at the intervention of wellewishers 1 Sri, Manavalke Kariyappa Rai and Sri.Maniga Prafullachandra © Rai. In the said partition, different sharers were put in possession and accordingly, she iS. in. possession and enjoyment of her share which is described 'in 'B' schedule to the written statement. nes &. piaimtiff and. other sharers are in possession and enjoyment of their respective shares.
17. li.is. stated; the -plamtiff is im possession and enjoyment of her share and'as such, the suit is lable to be rlisinissed. olf is stated, "B' schedule properties fetch ann ual meome-ol-2 candies of areca, 15 muras of rice, SOO coconuts "and | quintelofcashew-nuts. The sharers are in possession ot the third defendant has.prayved for dismissal of the suit. be ROB LALNo Aa? / G4
18. The first defendant has filed additional written statement contending that the properties in SyoNe.lo2/3 measuring 2.02 acres, Sy.No.102/2A measuring 1.609 acres). i are the properties held by the first.defendamr on lease and occupancy rights have been granted in. favour of the first defendant by the Land. Tribunal, >. "Bhantwal, in TNC.No.13937/74-7 Stated 30.12.1977. {tis denied that late Kamala cultivated the properties as a tenant. It is stated, the first defendant fled applicatian under section 48-A of the K.L.R. Act in Ris individual capacity for erant of occupancy rights and the Land Trisunal granted occupancy rights. feridant paid a sum of %.2,000/- as Therearter, a F
-- premiurmto th vé.Government. The Government issued patta in Porm No.i0O in the name of the first defendant. Neither the defendants have any right, title or be "his own.earnings. He has dug up two water tank: about. 8.24, 000/- and installed S HP diesel pump-se RLF ANo.442/94 joint family and not available for partition. The claim of the plaintiff in item No.2 of 'D' schedule properties has 'been denied.
19. It is stated, that first -- item oh. De schedule properties do not fetch income of 100 muras of paddy and"
200 coconuts as alleged. The properties fctch, 50 imuras oF paddy. [t is stated, originally, theo orop € ries be longed to the famuy of Vittal Arasu. The Land' Pril bu mal er -anted occupancy rights in favour of the frst de ienda unt 'There is a deity called Doomavathi at The frst defendant has to perform The income the nemas and give freé meals to-the devotees derived is less than the expenditure. w EG coe "Tous*stated, il item of "D' schedule preperties is barren land and there is no income from the property. In the rs itern of "' schedule properties, the first defendant has ¥ effected vast 4 wiprovements worth about <.2,00,000/- out of lea at a pred Af if re jet ene fT ie fort om Baer ye pon o i sob Nad om pow.
oy mudd foo pe co Boag f Nd R.F.A.No.442/94 HP electric pump-set. It is stated, the first defendan t has 'aised GOO arecanut trees, 30 coconut plants. He has built a house and dug up a well at a cost of ©] 29,000/ . '2 nel constructed a Boothastanan worth about 215, 0v0/ . . The first defendant has dug an agalu around th é pr perey for. which he has spent about &.1 2,000) 7 In case an y'shiare has to be allotted to the plainti mh t he fitst delen dan tis entitled for compensation or equities, Therefore, the first. defendant has prayed for dismissal of the suit.
21. The -defendants. 2 and 65 have adopted the additional written statement filed by the first defendant.
22. The fourth defendant has filed additional written eres.
ae statemen: coentendmeg that the Will set up by the + defendant is mot genuine. Late Kamala has not executed any Will. The ls defendant has set up the fraudulent document. . The mother of the defendant No.4 was not in good terms with the ts and the second defendants. They were harassing the mother to give maior share in the property. The mother i "e Be
--
in R.F.A.No.442/94 desired to live with the defendant No.4. Accordingly, the defendant No.4 took his mother and she was living with-him. Occasionally she used to visit Manavalike and stay there for - few days. It is stated, Kamala was staying with the d eféndarit No.4 from 1984 onwards till May 1987. She had come to. wife and children also accompafiiec. her. There was no possibility or occasion at all for Kamala to execute the Wil in favour of the 1* defemdant.
23. it 1s, stated, "the efendant No.4 is mot tn possession anc enjoy ent. oF a ny portion of the properties belonging to his m othe c and sais father. The properties are in pos session and en} oymen t of the defendants 1 to 3, o and the plaintiff in portions. The properties have to be divided equaily and tne defendant No.4 is entitled for a share. © 24, The Trial Court has framed the following issues:
. i. Whether plaintiff proves the correctness of genealogy set outin Plaint 'A' schedule?
No rem
-. Share tn 'pl
-A Whether defendants prove that they have effected lé Whether defendants-] and 2 prove that deceased Kamala executed Will, dated 25.1.1986 and that it is true, valid and binding on the parties. improvements as averred?
improvements as set up jm. para-6 ofthe written statement?
Whether defendants prove that the suit for partition without declaration is not-maintainable? Whether Jeferdants prove that the suit is not valid he. purpose of court fee and properly for-. t jurisciction?
.'Nhether plaintiff proves that she is entitied to 1/6"
aint 'Fe' schedule properties?
. What-is the correct income of the partible properties?
What decree or order?
a R.EA.No.942/94 Additional issue:
1. Does defendant prove that late Kamala exe cuted. her last Will dated 25.1.1986 while in sound 'state af rind anc health?
be If so, is the Wi genuine, valid and binding of. tne parties?
Does defendant-4°.prove vhat such of parties as fad mentioned in Para-2 of written. statement in possession of properties?
4, Whether temo) in JD) achecule is exclusive property of defendant=1?
5. Whether Deferidant-1 has effected improvements in D-Schedule property. (Item-1) If so, whether he Is ee: aa os entivied to-tl
25. The Trial Court has answered issue No.1 stating
-. that "A' Scheduleshas to be read that defendant No | is the eldest sorand so on. Issue Nos. 2, Sa), 4, ¢ additional issue ts "Nos: 1, 2 and 4 have been answered in the negative. Issue 'he affirmative. issue wat th P "6 babe Son toed ey foetus a had pound Seed os aes
-_ A be! Senet froma es F one cao fy nary :
en 8 fain aon ry aan oF RLF LANG.442 / No.7 is left open. Consequently, the Tal Court has decreed the suit granting 1/67 share in "BY and "D" schedule properties to the plaintiff and defendants | to Svend enquiry» regarding mean profits has been di rected.
26. Aggrneved by that, the. appellants-defendants: 1,.2° and 5 have filed this appeal.
27. The learned counsél for the appellants contended that the impugn ed judgment and decree . can not be sustained inlaw. He also subrnitred that the. 'Trial Court has failed to consider the evi dence on "record "in proper perspective. Further he S ubm ited uh at 5 sch ed ule properties have been bequeathed ies favo ur. of thedefe ndants 1, 2, 4 and 5 through ; Exinibi 7 b leand the y wihas been proved in accordance with law € also suromnitted that D.W.2 is the attesting witness and DV. j & the scribe and they have deposed regarding the ~ c xecution of" the will There is no reason to dis-beheve the évidetice of DWs 2 and 3. He also submitted that the : beso, $e sig . te 1% " ay od defendants 2, 4 and o RLF A No. 442 /94 filed by the first defendant admitting the execution of the will, ¢ Thereafter, the fourth defendant has changed nis counsel and filed additional written statement denying the exec tion of the will, The will is very natural and there. " are no : suspicio us : circumstances. The capacity of the testi Sor is vot in 1 dispate. The reason for excluding the d Che has, "been explained in the will itself. All the childre n keitrow" about the execution of the will. Therefore, the Trial Court vas rn of justified in holding that the will is invedid an dit catnor be su stained inlaw. The will is valid and™ its execution. has been duly proved. Therefore, the d efendanits h? 4 and 5 who are the legatees are entitled f for. the benefit OF. E xhibit D1. The wil has been duly proved an ath crerore . thie plaintiff is not entitled for any Share inthe suit Be schedule properties. 2&. Further, the learned counsel for the appellants "contended that the occupancy rights have been granted im
- favour-of the first defendant in respect of [tem No.1 of D The suit has been filec schedule properties in the year 197 My 'submitted thatthe first defendant is not a member of the order of the land Tribunal has become final and 20 REA.No.442/94 in the vear 1988. Initially, no claim was made im respect of PD' schedule properties. Subsequently, by way of amendment ae TY schedule properties have been included. Kam dita was alive and she has not claimed any occupancy righ is. : The first defendant has filed form No.7 and the. landiore: land torah as. admitted the tenancy of the | first defendant: . "Therefore, ~ occupancy rights have been granite ds n chit will mot enure to the benefit of the plamntut oF ihe other 'defendants, The first defendant 1s exciu sively entitled for'iem No.l of "D' schedule properties. He also. submitted' that defendant No. | has filed form No.7¢in His individual capacity and occupancy rights have been granted and therefore, it will not enure to the benefit of the pleinuiff.or the other defendants. Further, he family within "the meaning of family as defined in the "Karnataka Land Reform Act. He also submitted that the Court has no jurisdiction to decide the issue of tenancy. He aiso submitted that the plaintiff and the other defendants are not entitled for anv share in Item No} of (D' schedule properties as they are not available for partition and exclusive properties of the first defendant. 29, Placing reliance on the decision of the "Hones Supreme Court reported in 1994 (2), scc page 87 in Mudakappa Vs. Rudrappa and others, the learned ¢ counsel for the appellant submittec.t | that the fieak¢ ck loim for tenancy or the nature of tenancy has to be « e decided by the 'Tribu nal alone and the jurisdiction al the Civil Court is excluded. The land lord has ad mitted ind gensitey and it is cone iuded now,
30. Placing rellance: on the decision of the Hon'ble Supreme Court reported : i 2010 {3} SCC page 214 in R.Ravindra Reddy and Others Vs. H.Ramaiah Reddy and others, th ¢ learned counsel for the appellant submitted that the igatie Ww pethet Jand was an agricultural land or the person 7 | claiming to be the tenant was in possession or mot are to be . decided by the Tribunal and the jurisdiction of the Civil Court . lee Ea om pian oh TS barred.
L R.FLANo. 442/94
31. He therefore submitted that the impuened judgment and decree cannot be sustained in law.
32. As against this, the learned counsel for the APSt respondent submitted that the impugned ; idame : t oan d decree does not call for interterence. F uit her he 'su briitted » that, the Trial Court on preper con side ratio n of the im aterial on record has rightly held that the will is n ov valid and it 1s not proved and the secupen cy Heht® gran ted in favour of the fret defendant wit-cntire to the benefit of all the heirs of Kamala an cd therefore; it cass not call for interference. He also submitted mh at thie d eferidan , No.) has failed to prove the executicn of the Will he evidence of DWs. 2 and 3 1s unteliable arid cann ot be believed. Further he submitted that the defend ant Noa has changed his counsel and filed ~ ad dition al written statement. in the additional written "statement, Ne defendant Not has denied the execution of t he Will and has stated that Kamala stayed with him = at BB yw an ees be ~ wan et en cre ee ae pe eee, ERE ESE Binge Ee omy peyry og be boy ce bare Mangalore and there was no occasion 10} Kamaia tj #0 to R - F 7 A : N oO. zal 4 2 i Oe Vittal to execute the Will. Further he submitted th ' the relationship between the first defendant and Kamala w as hot cordial and therefore, Kamala could not have be jtieaihed the properties in favour of the first defendant. He also submitted that the plaintiff, the defendant No. 3-and 4 have denied. the. signature of their mother in Exhibit D1 ; red they have' stated - that their mother was signing as 'Kaialanaruju' and not as Kamala. He also submited that nothing is. stated in the Wil about the lease bold Props erties, Further he submitted that additional pleadings, have been filed iby the parties with the permission of the. Cour t and parties nave acted upon the pleadings. i 1 e also submitted tha t the age shown in the Wi) is not correct. He Su mitted that in the Sale Deed executed in the year' 1983, the Age of Kamala is shown as 56. The Will is executed in th e-year 1986 and the age of Kamala shown as . 70 years which 4s not correct. Further he submitted that no "reason is given to exctude the daughters who are natural heirs, The properties were given to the daughters in the family arrangement and they are in possession, Nothing is La 'es, RLF _A.No. 442/94 mentioned about this in the Will. Therefore, the Wil is not genuine,
33. Further he submitted that, in Exhibits P.13,.P.14- and P.15, the name of Kamala is shown as Chalageni tenant. There is no document to show that the defendant No.1 was : cultivating the land exclusively as tenant. lias for ithe Civil Court to decide whether the. occupancy mghts granted in favour of the first -defenaant,ycnure to. the benefit of the plaintiff and the other dceferdanis,or mot. The Tribunal cannot decide this. "He also submitted that the Trial Court has rightly held that the occuparicy rights granted in favour of the first defe ndant Will enure to the benefit of the plaintiff and the ether defendants and therefore, it does not call for interference, © Fo4
34. Placing reliance om the decision of the Hon "ble S ipreme Court reported in (2000) 9 SCC page 272 in Balawwa and another Vs. Hasanabi And Others, the learned Li, submitted that the defen dant No.4 who is the beneficiary of submitted that im iorm NO rights granted in favour of the first defendant will enure to the benefit of all the children of Kamala an d therefore). the plaintiff is entitled for a share,
35. He. therefore, submilted that impugned: jue igme ent and decree does not call for interference. 36, The learned counsel: for the. second respondent submitted that the evidence. of (DW s. 2-and 3 cannot be believed. DW2 is A stranger. DWs t.and 2 are the mem bers of the Congress Party and they. know each other, He also submitte ct that éveh Usion of. natural heirs must be explained and it has not been explaised. "He also submitted that there t was divisien of prope orties and possession was given {to the dele ndain t No. 3. sand the defendant No.3 is in possession of written. statement."B' schedule prope rties which are also included iv tbe Will which is mot Correct. Further he the WHP has demec the execution of the Will. He also it is stated that SOF benefit of the plaintiff and the other defendants. Therefore, the impugned judgement and Gecree cannot be sustained: in law. He also submitted that the age of the 1* defendancwhen the will was executed was 46 yearso~ Therefore, the age of Kamala mentioned in the will is correct.
40. | have carefully considered the submissions made by the learned counse! for the parties. > 4], The points that arise for my consideration are: i. Whether. the. Trial Court was justified in ae olding. that. the.will ExD.1 has mot been "duly proved an itis invalid and the plaintiff and the defendants are entitled for 1 /6™ share in the suitB' schedule properties? 7 2. Whether the Trial Court was justified in holding that grant of occupancy rights 1 favour 'of the first defendant will enure to the benef it of all the children of Kamala i.e., the plaintiff and the defendants and they are ertitied for a share?
R.F.ANo.442/94
3. Whether the impugned judgement and decree calls for interference?
42. POINT NO.1:
It is relevant to mote, the sult fs 'for partition, "and, separate possession. The plainiiff.claims, that. the 'suit "By schedule properties are the self acquired properties of her mother Kamala who purehaséd the sun 'B' schedule Hy properties through cegistered sale.deed dated 18.3.1947 Le., Ex.P.1. The plaintfi's m othe red ied n testate. Therefore, the plaintiff and the de fe ndan ts-are entitled for 1/6 share in the suit "B' scheduic proper ties, Iter No.l of the suit '1D' schedule properties were 'te nanted, lands and occu pancey rights have been granted baane avour of the 1% defendant and it enure to the ben efit of alt, th é children of Kamala as Kamala was the ~ chalageni ten 3 nts | tem No.2 of the suit 'D° schedule property was allotted.to Kamala's branch through registered partition " deec. dated 15.10.1970. Therefore, the plaintiff is entitled for a shere. | 90 RECA No 442 /94 Cat The I* defendant has contended that suit Be schedule properties are the self acquured properties of as camala a but, Kamala has not died inestate. She has left: 2 will dlateck, 29.1.1986 bequeathing the suit 'Bo sched ul le properties. in favour of her sons and therefore. the plaineitt is be it e entitled for anv share in the suit 'B' schedule properties. In: so far as item No.l properties in DP scned ale. 18 "wonce med, the |* defendant contends. that he-was a ber ant'? | vad he filed form No.¥ and occupancy. r ight Is h ay e heen granted in his favour which will not en ure to the benefit of plainti? or the other defendants: ane cl he is the excl iisive owner of the said property. In so far as ine No.2 ¢ o "py : schedule properties is concerned, the 1» deferidant contends that the plaintiff is entitled for a share.
44. Thre ts defendant has examined D.W.2 and D.W.3 "te prove the will,
45. D.W.> has stated that he attested the will executed by Kamala. The will was written by S1 ripathl i Vittala at Vittal. At the time of writing the will himsell" Dhimmapa Shetty, the scribe and the Testatrix Kam ala wet o presen t. Major portion of the will was written ey the tim : ne reached the spot. The scribe read out the will K am ala a dim itted the contents and put her signatures." 7 pees at Ex.D.1. Ex.D lfa), (b) and (c} are the signat u res of : i Kas mala. Kamala signed in huis presence: After her signatures, in her presence Thimmappa She ny. put his Signature Le., Ex.D-l{d) and thereafter, h e attested the will in the presence of Kamala. His signature is. at Bx. Duy. 'thereafter, the scribe put his signature which is "as at. Ex. x.D . I fe). At the time of execution of : the si Kamala was aged about 7O vears and her health and mental. ¢ core dition: was normal.
46.- Ip his cross-examination, D.W.2 has stated that he knew.Kamala since about 10 years. She used to visit his " footwear shop now and then. He does not know her c--
wy Nagi eee RUF A No 442/04 husband's name. He does not know where the properties are situated. He does not know, if she was the tenant urréspect of some land at Vittala. Except her visit to his shop he had no contact with her.
A. Further D.W.2 has sta ted that he We s requested by co-attestor Thimmappa Shetty to go to the scribe 's office. It was 4 p.m. Thimmappa Shet?y req uested h im to attest the will. By the time himself an ath immappa Shet ty reached the scribe's office, the wll was - Iread ¥ written, He does not know whether any records were shown to the seribe before writing the will) He-does nat remember how many signatures himself, Kamala and Thimmeppa Shetty put on the wil. He cannot say who was the legatee under the will. He did not question Kamala the reason why she is executing the will or He has stated that he knew the _ defendant. No.1 since several vears. He has denied the suggestion that Kamala was not present and she did not ® af execute Ex.D.1. He has stated that he belongs to Corigress \ Ce bo RUF A.No.442/94 party and he is the General Secretary. He does not know if Devadas Rai le., the 1" defendant has been active Congress member. He does nat know whether Devadas Rai has "ever"
contested any election (Panchayat
48. D.W.3 is the seribe.- He has, stated chat he anew Kamala since about 20 to GO ve 1's prior to 1986. He nas written the will as per the' ee str ucti ons: oof Kamala. After writing the will, he read out che. conterits té Kamala. The will is at Eex.Dw1. Kam ala adimitted ah a covitents and put her signatures at Ex, D. Hal (0) and ic), The two attestors attested the will Le ox b. iia an nd fh Thereafter, he signed the will. His signature*is at Ext)! ( g). 'Kam ala put her signature in the willin the presence of the attesting witness. The attesting wetness and him Self put their signature in her presence, On he da te. of ex ve], the state of mind and health of Kamala _ was normal).
-- 49. In his cross-examination, D.W.3 has stated that no draft of the will was prepared. D.W.2 Vasu Naik was not Nat! way eed R.F.ANo.442/94 present when he started writing Ex.D.1. But, Thimmappa Shetty and Kamala were present. Even when he was writing the contents of Ex.D.1, Thimmappa Shetty wen out and brought D.W.2. D.W.2 is also a stamp vendor. - Him self and Devadas Rai hail from the same village. His heuse is Sto 4 miles away from the house of Devasa Rai. Two'days prior to- the will, Thimmappa Shetty had told him that Kariala wants 1 to execute the will, Devadas Rai was. avec ra "about 50 years.
He was elected to the Mandal Panchavat 6f Kepu. He was the worker of «J Congress Da tye. af © Yee snot know whether both of them
--_ working together for, the: party. He has stated that Kamala did no 7 wive any reason. He also did not ask why she . execu ted the will at Vittal, Kamala's relatives did not come to him, on th & daie-of the will. He has denied the suggestion that Kamala has not signed the will and [x.D. lla}, (b} and {(c} are not her signatures.
R_FLA.No.442/94 50, P.W.1 Le., the plaintiff has stated that 'B' schedule properties were owned by her mother Kamala and. she. had purchased the properties in the year 1947 through. EXPL Her mother died intestate. She is ertiitled for i/p0 share, :
SO cents of 'B' schedule property is in ner possession. : re i od schedule property. 'C° scheclt ile property was given, tooher by her mother. Exs.P.2 to P.& are the RTC extracts relating to suit lands. Her mother has n ot executed any will and the will is false and bogu a Exs.D. lal; 1b) and (c) are not her mother's sign ns | Her mot = was signing as Kamalana Ruy'. Atthe time of E EX D. 1, her "ot her was aged about 58 years and not 70. Her elation , with her mother was good. Her mother did trot teil 3 nos the will, Defendant No.1 used to quarrel wil hher mother demanding partition. Therefore, the» rejati on shi p between Defendant 1 and Kamala was sirai ned, ALE he time of her marriage gold ornaments were fae given but ne cash was given. Kept properties were taken on rand net defendant Ne.1. She is eniitied lease by her moti of-arshare in Tetitem of 'D' schedive property. a 'aa! oer oi R.F.A.No.442/94
51. In her cross-examination, P.W.1 has stated. taat L773 3 acres of land is in possession of Harinaskshi: since four -
years. It was given to her by her-mother. She was im possession of °C' schedule property since 15 years prior te. her mother's death. She was pul in possession un the présence of all the defendants. Harinakshi took possession ot 4 73 acres of land, There was partition' mn respect of her father's property through. 'the intervention' of | eiders like Maniga Prafulla Chandra Pai and Mandvalike Kariappa Rat. 52, DW nes. pst defendant has stated that he is the eldest son. Criginaily "B'.schedule property belonged to his mother. Kamala. She purchased the property through ix.P.1. His mother died. She executed the wil in the vear 1986. The will was. produced along with the written statement, Some _ records were kept by his mother in the drawer of the table ~ and he '@rought the Will from the drawer of the table after the . death, of Kamala. As on the date of the wil, his mother was RFLANG 442/94 aad ip sound state of mind and body. She was able fo move and talk. She died one year after the will was executed: -His mother had told all her children about the will acludi me the. plaintiff. Under the wil, the legatecs.are only male , jasties"
and the daughters have no share.
53. The daughters were no. ot. giv en ay 'share' as at the time of their marriages golds ~ornam site were given and neavy expenses were incurred and. all the. deiughiers were happy their husbands houses. The daughée ry were : given share in the properties of their fathe. "They "algp 'got properties of their husbands. Pla' nite was allot ted one share in the property of her father ancl she soll. The willis Ex.D.1. Ex.D.1 (a), {b} and (c) are. the signa tures of Kamala. One Thimmappa Shetty and Vast N Naye ika have attested the wil. Thimmappa Shetty died about two or three months back. He wasypresen t _ a oe + hye gy a when the will was executed at Vitia.
"542 Further D.W.1 has stated that first five items "shown in 'D)' schedule were leaschoid properties. He obtained i a RUF LA No 442 /O4 occupancy rights by filing declaration in his name. Plain tlt or the other defendants have no right. He is the exchisive owner. Ex.D.2 is the certified copy of the order passed by the :
and Tribunal, Ex.D.3 is the form No.10. He has effected"
improvements in the said property. Th € pai nuff as n o right in 'B' schedule properties and except iter No.2 meritioried in '1D' schedule. 'C' schedule. property "was given to the plain til during the life time of nis other: and it continues with the plaintiff. He doesnot claim ariy right. so. In nis ergss- examination, °D. W.1 has stated that one Raviverma Krishna 4 Raj was the landlord in respect of five items, im respect cf which occu pancyv rights have been a eranted. 'Vill 1968. the property which he took on lease in 1968) was cultivated by one Devaki, He does not know 1 Dev akc gave' fap her tenancy right by executing surrender deed. He. has not executed gent chit in favour of the landiord, . Heused.to pay the rent and the landlord used to acknowledge Thev are nofwith him. He naid rent to
------
Leo RLF _A.No.442 /94 the landlord from 1968 to 1972-73. He has not produced any receipt in that regard. He has denied the suggestioi: tnat.in order to dupe the brothers and sisters he fled d eelaration 'in the suggestion that the will is forged and Kamala hes not executed the will, He has stated that first he paid the rent during Vishu of 1969 and the. receipt Was 'given | in plain paper. He has not produced the: receipt before the Tribunal. He did not tell the. landlord that he should obtain gen chit from him. He has n ot obtais 20d RTC from 1968 to 1974. He does not know how hie n aime a ppears as tenant in the RTCs of 1968 to , O74. He does. not ; know if RTCs for that period showed his mother, ; Kain al a Hengsu. as tenant. [fF it is mentioned in the declaration that the land was cultivated frofa 'his forefathers time it is mot correct. He does not os remember wheth & he has stated before the Tribunal that he : took: the pr onerty on lease in the year 1968. He has denied the sugeestion that his mother was cultivating the lease hoid ne property, which are granted i his favour, xy RF .A.No. 442/94
56. Further D.W 1 has stated that on seeing Ex.D.1, he says that Sv.No.205/3, measuring [1 cents mentiogied in the will is not included in the 'B' schedule to the plaint 07 hat property iS im his possession now. He dors n at know how Fis mother acquired 11 cents of land. H e does 0 ot kniaw pie was, not purchased by his mother. Property was in possession of:
their mother and on her cea th,. the sors are re possession. 'C' schedule property is in possession of the, plaintiff. The plainuff came in possession of 'C' schedule property two years prior to the death of his mother. Out. of Sy.No.116/7, four items in 'B' schedule property, 1 acre of land is in possession of defendant No.3- Harinakshi, Smce about two years prior to the death of his mothe ro lie cannot say i Harinakshi is in possession of 1 3 acres in Sy.No.116/7. He has stated that it is ¥ rue, th ai Ha rn akshi is in possession of 60 cents in 38 cents in Sy.No.112/1, 60 cents in She had put up was residing with the time of her 40 R.P.A.No.442/94 death. The plaintiff resides in the localitv catled Manavalike. Himself and defendants 2 and 5 are in good terms. They. were not served with the lawver's notice demanding share by the plainuff. He was not acquainted wilh. the signatsire of D2 tie has deposed on behalf of J anard han a also. He is in Manavalike. He is in possession or. GS cents in' SV-No.L16O/4Al. Remaining 20 cents is with the plaintiff He is also in possession of ' acre of hilk yuarea in Sy. No.1il.
There is also a house. It was built in the year 1988. He is in possession of said property since 10 vears S57. He was not. in possession of any portion of 'B' schedule property. ~ Durine the time of his mother the defendant Nes. 2 and 5 were assisting her in cultivation of the property. His mether had pur the plaintiff, defendants 2, 3 sessién of said portion for their maintenance. She gave that property out of Jove and affection. His mother Was if good terms with all her children. His father died ip the year 1969. His father's property was divided by them j R.FA.No.442/94 about 1O vears back through registered sale deed. TI hey dic not apply for the change of RTCs and Patta by product ing the wil. Even now patta is in the name of his mother. 1 1 ne witl was mot produced before any authority _ before | filing: the :
written statement. He has denied th ¢ suggestion that E EX 1b. i is not the will executed by his 'mother. - Ex: DB is the declaration filed by him before thetand Feibunal, Ban twal. It is mentioned i the jast colar af Ex. 18 that leasehold properties were improved by the ancestors by growing coconut, areca. an cashew' trees. ' ce the last but one line in the front page, it is written: that he has been cultivating the land as tenant. since: the wine: of his forefathers. He has signed Ex, Dp. 18 without k jowing the contents.
06. D.W.G- has stated that about 16 vears back Devadas. and the.defendant No.4 claimed partition in the a.
7 P srabe property'. Her mother told them that Devadas is ¥ and Janardhana alse "aires dy '2D avin e properts on should eo there and manage the leasehold property along | OL 42 R.F.A.No.442/94 with Devadas. sshe told them that perabe property should continue. Dut, Devadas did not agree. Her mother ren teed to give share. So Devadas lodged the complaint witht the poli ce, Later on, her mother went to the pohce, station 'siong. with Prafullachandra and Kariappa Rai an d assured 'i he polies that, they will settle the matter. A week Jeter Devadas' Ral, Janardhana and her m other assembled at_perabe-h o bse. She was also present. Ultimately, herself, "Nayana, Janardhana and Devadas Rai were given | "acre-each i perabe property and it was oral.
99. Four or live years after oral partition, her mother went to the house of Janerdhana to reside there. She continued in-perabe house. Her mother used to visit perabe heuse on festival.occasions and has not executed any will.
Her reother never resided with Devadas Rai, At the time of _ her death, ner mother was aged about 56 years. During Jartuary. 1986, her mother was residing at Mangalore in the ise of Janardhana.
gs ry oA
60. In her cross-examination. D.W.6 has stated that defendant No.4 Janardhana does not have any portion. of the. property with him. But, D-2 Jagannatha @ Janardhena is in. possession of 1' acres of land compromising of areca.garden and paddy field. Three years prior to her-death; ber mother ° was permanently residing with. her younger. brother Janardhana. The plaintiff ~Navana is in-.possession of 60 cents and not 1 acre and it.was given te her by her mother. At the time of marriage of Nayana no areotitit was given to her z y or the groom. Ske vias also. offered ornamerits of 3 sovereigns. Her mother had affect on towards Nayana till her death. She has stated "how she changed her advocate and hed her written statement She has denied the signatures of her mother at. 2x D. 1 {a}, (b) and fc). Gi. DW ey is the defendant No.4. He has stated that EES, WoOS AY om DLO' Gee OF ¥ rely eo Peer. PUiS WoO tres Wrais "permanently residing with him at Mangalore from 1984 till a 44 RUPLANo 442 (94 any other place. His mother has not executed anv will on 29.01.1986 and it is forged. On 25.01.1986, his mother. WAS residing with him at Mangalore. On that day, ys she fas not gone to Vittala. He has denied the signatures at Ex 2 Lah, (by and {c}. He nas stated that his m other" u sod oO si er as. 'Kamalalana Ruju'in Kannada.
62. In his cross-examination, D py: Wi 7 has state ed that in 1978 at the intervention. of Pr afulls Chandra Rai and Kariappa some property was given to the ist defendant, Devadas Rai an a. bed J ayanitie tha Rai for maintenance. The remaining property was in 'the hands of Kamala. Defendant Nos.] and 2 had some disp ae - with b his mother and therefore, th e said arrangement was made. He has got share in the perabe property -Defenda nt No.3 Harinakshi is in possession of a portio ne of pera be property and he does not know the : exter ent. Peraire property was the absolute property of Kamala. The hi lease hole i property of Kepu was aiso family property. The
- davighters and grand daughters of Kamala also have got & R.P.A.No.442/04 share. During the lhfetime of his mother and as given by her, Nayana has been in possession of 60 cents of perebe property. When his mother was at perabe theré-used. ta be > quarreis between her and the 1s defendant. Even' police complaints were lodged. Till arrangement was made in 1% Kamala was cultivating the perabe property by herself ~~
63. This Court in ST. SURAPEA ee ANOTHER vs. Sri.SATCHIDHANANADENDRA "SARASWATHI SWAMIJI PUBLIC CHARITABL a TRUST & Others reported in 2008(3) KCCR page 1484. "in para' "ba, " xocoooe has observed as follows:
"24. Therefore: the Court has to tread a careful path im the e enquiry to be conducted with re gard to AM The said pathy consists of five steps "PANCHA PADI. thé path of enquiry anc steps to be traversed.are as under:-
(lj) Whether the Will bears the signature or mark of the testatont and | is duly attested by two witnesses @Aa whe' ter any arrest:
L .
wilness 15 examined top prove the Wile | RR AN.442/94 natural heirs. have been ~ so, what is the reason?
47 R.F.A.No.442/94 whether any records were shown to the scribe before writing the Will. He cannot remember how many signatures 'himself, Kamala and Thimmappa Shetty put on the Wills. He- sav who the legatees were. He didnot ask Kami reasons why she is executing the Will) Me knows" the defendant No.1 since several years. "He-is.the "General Secretary of Congress Party. tle does not knew if the defendant No.1] was an active member of Contress Party.
65. DW os bas stated that he wrcte the Will as per the instructions of Kemalé and Will was signed by Kamala and the attesting witnesses. When. he started writing the Will Ex.D1, Thimmappa Shetwy and Kamala were present. Even & when he was writing the Will Ex.D1, Thimmappa Shetty went out. and. brought -DW.2 who is also a stamp vendor.
"<Defendant No. l-was elected to Kepu Mandal Panchayat and the defendant No.1] is a worker of the Congress Party. DW.2 16 also-a member of the Congress part
66. The evidence of DWs.2 and 3 shows that defendant No.| and D.Ws. 2 and 3 are intimately ae OWT to each other. Therefore, the evidence of DWs.2 and 3 has to be considered carefully. PW.1 and DW 6-h ave de posed t pat th e- suit 'DB? schedule prepertics were seif-acg uired properties of their mother Kamala. There was "a family arrangemen tin the family arrangement, sult ioe seh edule | pr o snerties were given to the plainuff. The plaintiff is in. possession of °C' schedule properties. Written s latem ent B seh edule properties were given tos Diwloo ie... dete "nd lant No.3 and she is in possession. arid er] oyitt sémit oF shade properties. All the family members were aware-of | this. : . The properties given to PW. 1] and pw.e are seme OF properties in the 'B' schedule. PW.1 and D W: con sabe in posession and enjoyment of those properties, The p soperties given to PW. 1 and DW.6 have been "bequea thed in favour of the defendants 1, 2, 4 and s. [tis ~diffien ut to believe | this. The mother having given properties to "the daughters in the family arrangement has bequeathed tnose properties which is unnatural. The reason given in R.F.A.No.442/94 Ex.D1 to exchide the plaintiff and the defendant No.o is that money was spent for their marriages and soine™. old ornaments were given. The first defendant has acum ited 1h at the properties were given to the plajmtfiy and th e defendant No.3 and they are in possession. H e h as stated that he does not claim the property given to the plait tlh: It is difficult io"
beheve that the properties given to the plaintiff | and the defendant No.3 in the family.-arraneement have been bequeathed.
67. Apart fram this; Sy.No.205/3 measuring 11 cents is also bequeathed. The piaiitiff is not claiming any share in Sy.No.205/3.. lt as pot purchased through Ex.P1l. It is not clear, how Sy.Ne. 205/35 is included in the Will. It is a fad ' creumistance to indicate that the Will is not genuine. 6&. PW oo) has stated her mother nas not executed the om ems
-
it am aft ron oa toed ogg re 2A :
Wil The sisnatures in Ex.D1] are not the signatures of her ~ mrather, Simularly, DW.G also has stated that her mother has ret executed the Will Ex.D] and the signatures are not the OO R.PLA.No42/94 signatures of her mother. Her mother used to sign as Kamalana ruju. DW.7 has stated that Ex.D1 has not.been executed by his mother and the signatures ir Ss/D 1 ake not the signatures of his mother. His mether used-to sign as"
Kamalana ruju. His mother stayed with tiirn "f rom 1 G84 ull April 1987. She cid not eo to Vitla er anv other place... °
69. The defendant No.4 Le. DW 7 is a beneficiary of the Wil. [nitially he has. supported "the defendant No.1. Thereafter, he has -¢ome out and "tiled separate written statement. There was no reason for: the defendant No.4 to challenge the Will if it ~vas a genuine Wil. This clearly indicates thatthe WH ig noteenuine. No doubt DWs.2 and 3 have deposed that.Kamala signed Ex.D1. But, PW.1, we m7 ane "
and, DOW.7 have deposed that their mother used to sign as 'Kamalana rufw and the signatures in Ex.D1 te., Ex.D1 fa}, (b) and {c) are not the signatures of Kamaia, While DWs.2 and 3 _have stated Kamala signed Ex.D1, PW.1, DW.6 and D.W.7 . fave deposed that Kamala used to sign as 'Kamealana ruju' = 51 RE ANG. 442 94 and the signatures im Ex.D-} are not the signatures of Kamala. The evidence of DWs.2 and 3 is unrehable., in she family arrangement some properties have been eiven te PWAL and DW.6 and they are in possession.and enjoymen t of the - said properties and they have heen "be queathed, Tb e signature of Kamala in the W i! is cl oubtful, 7 . rhe property which does not belong to. the | family "is also bequeathed. Therefore, the Will is not genuine and it is invalid. The Trial Court has rightly b eld tha . the Willis invalid and the plaintyt is entitled for 1/6". share in-the surt "Bo schedule properties. hw Point No.1 answered, accordingly. 70, Point No.2 The defendant No.l claims that item No} or schedule properties are his exclusive properties, According to him, item: No. bof DD' schedule properties have come to him by way of grant ol occupancy rights as he was a tenant an ad flied form No.7. The landlord has stated before the Land Tribunal! that "he was the tenant and occupancy rights have been hated R.F.A.No.442/94 granted. Therefore, he is the exciusive owner of item No.) of TY schedute properties and the plaintiff or the otmer defendants cannot claim any right in item No.t of the 'Ly'. schedule properties. co
71. The plamtff, the defendants 3 and 4 have"
contended that item No.} of "D' schedule 'properties are not the exclusive properties of the defendant No. 7 and the occupancy rights eranted in. favour of t he 'defendant No.1 enures to the ben é in of 'ail the children of Kamala. The defendant No J has claimed ove pancy rights on behalf of the family. Kamala . "the nother -of the plaintitf and = the defendants was the chalagerit tenant. oe a 2. The learned counsel for the appellants contended th at the tena nev aspect has been decided by the Tribunal and "it 1s con clud ed, : Occupancy rights have been granted in rhe first defendant and the first defendant is entitled for item No.1 of 'D' schedule properties exclusiv and the grant made in favour of the first defendant will not ;
LL onl R.FLA.No.442/94 enure to the benefit of the family members te., the plaintiff or the other defendants. He placed reliance on the decistorr of the Hon'ble Supreme Court reported in (1994) 2 SEC page SF, In MUDAKAPP vs. RUDRAPPA & Others. the Hon'ble Supreme Court has held, the rival claims for tenancy rights or nature of tenancy are to be d ecid ed "by the Tribunai, "There is"
no doubt, the right to decide the nature-o [ tena rove is always with the Tribunal. isut, the otiestion involved Jn this case is, whether the oce upancy righ ts granted 10 tayo ur of the first defendant enures to 'he 'bet velit. of the family members Le., the plaintiff ang the oth er defen dants.
73. in 2610 AIR SCW page 2004 {STATE OF U.P. & OTHERS VS. My Ss. VAM ORGANIC CHEMICALS LTD.), the rlon ble Supreme Cou reveld that issues whether the suit land was, deri cultural tand or a person claiming to be occupancy oy "tenant was in possession or not are to be decided by the ~~ Fribunal and:not the Cril Court. That is not the question "involved in this case. The Tribunal has granted occuparicy rights.in favour of the first defendant. The plaintiff claims that _-
tt jee R.FLA.No, 442/94 the occupancy rights granted in favour of the first defendant enures to the benefit of all the children of Kamala.as the defendant No.l was not the tenant and her mother . K am aia .
was the tenant and the iand was ¢ ulfivated from forete th er's - time.
74. The learned counsel for the first responden t qlaced:
reliance on the decision. of th ¢ Hon 'ble 'Suprenie Court reported in 2009 SCC page 272 wherein. it has been held that the occu pancy. rights eran ted, wo wd . cwure to the benefit of other members of the. family-who are eligible for share. in the present case, thé 'question ts whether the plamtit is entitled for a share or not. The defendant No.1 has filed form No.7, Ht is Ex-P.18.° In form No.7, it is stated that the defendant Ne. 1-has beer cultivating the land from f orefathers' time. Exhibits -P/12 to P.17 are the RTC extracts. In ~ Exhibits.P.12, [4 and 15 m column No.11, it is shown that "Kamala is the chalagenidar which indicates that Kamala, the rhother of the plaintiff and defendants was the tenant. The land has been cultivated from forefathers' time. The po _ te"
_ : R.F.A.No.442/94 | defendant No. 4 has: not praduted anything to show 4 that he produced. peep the interested version. of the ashendant oe 1 sons sieee v ied, ie tral chun was... a ob RLF A.No.442 /94 enure to the benefit of all the children of Kamala and i t does not call for interference. in so far item No.2 of "D' sch ed ule property 1s concerned, the learned counsel for the appellait fairly submitted that the plaintiff is en titled for a share in the : said property. Therefore, the impugned judgement and decree does not call for interference. Theré.is ne merit in this appeal and therefore, the appeal is hable to be dismissed..
74. Accordingly, the. appeal is disimissed. The judgment and decree passed by the Trial Court in O.5.No.134/1988 stands confirmed, No costs, in tre circuimstances of the case, Bss.