Karnataka High Court
Shivarama Shetty vs Sadashiva K Shetty on 17 September, 2012
Author: K.L.Manjunath
Bench: K.L. Manjunath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE Mr. JUSTICE K.L. MANJUNATH
REGULAR FIRST APPEAL No.945/2003 (PAR)
BETWEEN:
1. Shivarama Shetty s/o
Late Krishna Shetty, 62 years,
R/at 200, 8th A Main,
4th Block, NTI Layout,
Vidyaranyapuram,
Bangalore.
2. Premalatha R Shetty w/o
Raghava Shetty, 39 years,
3. Reshma R Shetty d/o
Raghava Shetty, 23 years,
2 & 3 are R/at Korantabettu
House, Karnad 19/25,
Mulki Post, Mangalore.
D.K. Dist. .. APPELLANTS
(By Advocate Sri.T.N.Raghupathy)
AND:
1. Sadashiva K Shetty s/o late
Krishna Shetty, 64 years,
Union Bank of India,
Gandhinagar, Bangalore.
2
2. Rakesh Shetty s/o Ragha
Shetty, 20 years,
Fish Paradise, Mill Corner,
Malleswaram, Bangalore. .. RESPONDENTS
(Advocate Sri.Kishore Shetty for R-1)
(R-2 .. Appeal dismissed)
- - - - -
This RFA is filed under Sec.96 of CPC
against the judgment and decree dated 31.1.2003
passed in OS No.138/1991 on the file of the
Addl. Civil Judge (Sr.Dn.), Udupi dismissing the
suit for partition.
This Appeal is coming on for final hearing
this day, the Court delivered the following:
J U D G M E N T
The legality and correctness of the judgment and decree passed in OS No.138/1991 dated 31.1.2003 passed by the Addl. Civil Judge (Sr.Dn.), Udupi on issue No.4 is called in question in this appeal.
2. 1st Appellant was 2nd defendant in the suit and R-1 was 1st defendant in the suit. R-2 was 3rd plaintiff before the court below. For the 3 sake of convenience parties would be referred to as per their status before the court below.
3. Legal heirs of one Raghava K Shetty filed suit for partition and separate possession claiming 1/3rd share in plaint A and B schedule properties. Plaint A-schedule property is 18 cents along with an old residential building in Udupi Taluk. B-schedule properties are movables. According to plaint averments, deceased plaintiff Ragha K Shetty and defendants 1 & 2 are the children of one Krishna Shetty and their mother late Sheshi Shedthi was the full and absolute owner of the schedule properties and that their mother died on 4.1.1991 intestate, therefore suit was filed for partition and separate possession.
1st defendant Sadashiva K Shetty filed written statement contending that his mother during her life time had executed Will bequeath- ing A schedule property under the Will dated 4 27.10.1990 and that the property was purchased by his mother out of the financial assistance made by him and thereafter he has improved the building and that plaintiff or the 2nd defendant have no right over the plaint schedule property. 2nd defendant who is the appellant herein filed separate written statement contending that the Will set up by the 1st defendant is concocted and got up and that his mother was not mentally sound and she was not keeping good health and that 1st defendant has forged the document and created Will to the exclusion of the plaintiff and 2nd defendant and therefore 1st defendant is not entitled to claim schedule property. He has also denied all other averments made in the written statement filed by the 1st defendant.
Based on the above pleadings, trial court framed the following issues:
1. Whether the plaintiff proves that he and the defendants constitute a joint family and suit property is the joint family 5 property and are in joint possession and enjoyment of the same?
2. Whether the plaintiff proves that they are entitled for partition as contended?
3. Whether the defendant No.1 proves that he has purchased the suit `A' schedule property in the name of his mother as contended and is his exclusive property?
4. Whether the 1st defendant proves the Will dated 27.10.1990 alleged to have been executed by his mother Smt.Sheshi Shedthi?
5. Whether the 1st defendant proves that he has spent more than Rs.40,000/- to maintain suit `A' schedule property as contended?
6. Whether the plaintiff proves the existence of item Nos.1 & 2 of `B' schedule property?
7. Whether the plaintiff proves cause of action for the suit?
8. Whether the plaintiff is entitled for the reliefs sought for?
9. What order or decree?
To prove the respective cases, on behalf of the plaintiffs no witnesses were examined, no documents were marked. 1st defendant got examined himself as DW-1, one Devadas Nayak, 6 attestor to the Will, was examined as DW-2, one U.Venkatesh Prabhu, scribe of the Will was examined as DW-3 and 2nd defendant was examined as DW-4, in all 46 documents were marked as Exs.D-1 to 46. Trial court, after considering the entire evidence let in by the parties held issues 1 to 3, 6 & 8 in the negative, issues 4 & 7 in the affirmative, issue No.5 partly in the affirmative and ultimately suit of the plaintiff came to be dismissed and held that by virtue of the Will executed by Sheshi Shedthi, 1st defendant has become the absolute owner of the plaint A-schedule property. Challenging the legality and correctness of the judgment and decree of the trial court, present appeal is filed only challenging the findings of the court below on issue No.4. Plaintiff who lost the suit has not filed any appeal. 2nd defendant alone has filed this appeal challenging the findings on the question of Will.
7
4. Heard the counsel for the parties.
5. The main contention of the appellants are as hereunder: That 1st defendant did not contribute any money to purchase plaint A- schedule property by his mother. The Will has been created by the 1st defendant at the instance of 1st defendant though mother was unwell and she was not mentally sound. Though 1st defendant had actively participated in getting the Will executed and DW-2 & 3 are his close friends and that 1st defendant did not contribute any money to purchase the property by his mother and appreciation of evidence by the court below is incorrect and therefore he requests the court to set aside the judgment and decree of the trial court and grant 1/3rd share to the appellant in plaint A-schedule property.
6. Per contra, counsel for the respondent submits that none of the grounds urged by the counsel for the appellant are tenable because 8 father of parties died when they were young. Mother was working only as a maid servant in the house of a Patel. She had no independent income to acquire the property in the year 1958 by paying sale consideration of Rs.1000/- and that the appellant as well as the deceased plaintiff were not even earning when the property was purchased by their mother and they were minors and it is only the 1st defendant was earning member and was working in Bombay, plaintiff as well as the appellant were under his care and custody, he had sent money to purchase the property in the name of his mother through his friend Vittal Shetty earlier he had sent a sum of Rs.900/- in cash and later before registration, a demand draft for Rs.200/- was sent by him and in the sale deed as per Ex.D-1 under which mother of the parties purchased the property amount of Rs.200/- sent through Demand Draft sent by R-1 has been recited and that 9 mother has executed the Will considering the contribution made by R-1 to acquire the property and that the same is also recited in the Will Ex.D-41. He submits that merely R-1 was present when his mother requested DW-3 to prepare the Will cannot be a ground to hold that Will was concocted at the instance of R-1. He further contends that his mother was both mentally and physically alert and she was sound when the Will was executed and that the allegation that mother was unwell and mentally unsound are all false. Taking through the evidence of DW-4 (appellant herein) he contends that the appellant himself has admitted that his mother was looking after the affairs on her own till her death she was not depending upon anyone and that she was maintaining the bank account. According to him, evidence of DW-2 & 3 is un-challenged and that R-1 has proved the execution of the Will. He further contends that findings of the court 10 below on issue No.3 is not based on proper appreciation of evidence and which finding is required to be set aside by this court. In the circumstances, he requests the court to dismiss the appeal.
7. Having heard the counsel for the parties, the points to be considered by this court in this appeal are:
1. Whether R-1 has proved the execution of the Will of his mother?
2. Whether the Will propounded by R-1 is got up one or not?
8. The relationship between the parties is not in dispute. Property in question was purchased by the mother of the parties in the year 1958 during which time deceased plaintiff and appellant were still minors. It has come in the evidence that R-1 alone was earning in Bombay and later he retired as an officer in Bank. It is also recited in Ex.D-1 that R-1 had sent a Demand Draft for Rs.200/- to purchase the 11 property in the name of his mother. The parties had lost their father at an young age in the year 1947. At that point of time, mother was working as a maid servant in Patel's house (head of the village). When mother was working as a maid servant in 1952, it was not possible for such lady to acquire the property by paying huge sum of Rs.1000/- in the year 1956. It has come in the evidence that except R-1 there were no other earning members. In the Will of the mother it is recited that she purchased the property out of the financial contribution made by R-1 and on account of the same, out of love and affection if she has bequeathed the property to R-1, it cannot be said that without any reason the other two sons are excluded without giving any share. It has also recited in Ex.D-41, that even after retirement R-1 was taking care of his mother. On the contrary, plaintiff and appellant herein were doing hotel business in Bangalore. 12 In the circumstances, if the property is bequeathed to R-1, this court cannot find fault with the conduct of the mother to exclude the appellant herein.
9. So far as the proof of document is concerned, R-1 has relied upon the evidence of DW-1 & 3. One is the attestor and another is the scribe. There are no discrepancy in the evidence of DW-1 & 3. In other words, their evidence is not seriously challenged. It is no doubt true that it has come in the evidence of DW-1 that he was also present at the time of his mother giving instructions. But he has categorically stated that he did not give any instructions to DW-3. Merely because he was present when instructions were given by his mother to the scribe, the same alone cannot be the reason to doubt the genuineness of Ex.D-42. Trial court, while giving finding on issue No.4 has also extracted the evidence of the appellant 13 wherein he has clearly stated that mental and physical condition of his mother was sound and she was capable of managing herself till her death and that she was operating bank account. If this piece of evidence is believed, the contention of the appellant that she was mentally and physically not sound cannot be accepted. Therefore, this court does not see any reasons to interfere with the well- considered judgment of the trial court. Accordingly, both the points are answered against the appellant.
10. In the result, the appeal is dismissed. Parties to bear their costs.
Sd/-
JUDGE.
R/081012