Karnataka High Court
Smt Sarojamma vs Smt Jayamma on 8 December, 2021
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
RSA.3124/2006
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
REGULAR SECOND APPEAL NO.3124/2006
BETWEEN:
SMT. SAROJAMMA
D/O LATE LAKSHMAMMA,
AGED ABOUT 53 YEARS,
R/A GOWRIPET,
KOLAR CITY-563101. ... APPELLANT
(BY SRI K.RAGHAVENDRA RAO, ADV.)
AND:
1. SMT. JAYAMMA
W/O LATE PILLAPPA,
AGED ABOUT 58 YEARS
2. SMT. SUSHEELAMMA
D/O LATE PILLAPPA,
ABOUT 43 YEARS,
3. SHRI PAPANNA
S/O LATE PILLAPPA,
SINCE DEAD BY LR'S.
3(A) SMT. PUTTAMMA
W/O LATE PAPANNA,
AGED ABOUT 37 YEARS,
3(B) MASTER MAHESH
S/O LATE PAPANNA,
AGED ABOUT 13 YEARS,
REPRESENTED BY HIS MOTHER
AS GURDIAN, R/AT KURUBARPET,
KOLAR CITY-563101.
4. SHRI RANGASWAMY
RSA.3124/2006
2
S/O DRIVER MUNISWAMAPPA,
AGED ABOUT 63 YEARS,
ALL ARE R/AT KURUBARPET,
KOLAR CITY.-563 101. ... RESPONDENTS
(BY SRI S.VISWESHWARAIAH, ADV. FOR
R1, R2 AND R3 (A & B),
V/O DT.05.03.2009, NOTICE TO R4 IS D/W)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 11.9.2006 PASSED IN R.A.NO.125/1998 ON THE FILE
OF THE I ADDL.CIVIL JUDGE (SR.DN.), KOLAR, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGEMENT AND
DECREE DATED 30.3.1998 PASSED IN OS.NO.286/1989 ON
THE FILE OF THE ADDL.CIVIL JUDGE (JR.DN.) & JMFC, KOLAR.
THIS APPEAL COMING ON FOR FURTHER DICTATION
THIS DAY, THE COURT DELIVERED THE FOLLOWING :
JUDGMENT
This regular second appeal is filed by the unsuccessful plaintiff challenging the judgment and decree dated 30.03.1998 passed by the court of Additional Civil Judge (Jr.Dn.) and J.M.F.C., Kolar, in O.S.No.286/1989, which has been confirmed in R.A.No.125/1998 by the court of I Additional Civil Judge (Sr.Dn.), Kolar, by its judgment and decree dated 11.09.2006.
2. For the sake of convenience, the parties to the appeal are referred to as per their rankings given before the trial court.
RSA.3124/20063
3. Brief facts of the case that would be relevant for the purpose of disposal of this appeal are:
Plaintiff had filed O.S.No.286/1989 against the defendants to declare that she is the owner of the suit schedule property and also to direct the defendants to deliver the possession of the suit schedule property and to direct the defendants to pay a sum of Rs.160/- as damages for use and occupation of the suit schedule property.
4. It is the case of the plaintiff that her mother Lakshmamma, wife of one Muniswamappa was the absolute owner in possession of the suit schedule property and he had purchased the suit schedule property from one Kichaiah Setty under a registered sale deed dated 12.03.1958 (Ex.P2) for a valuable consideration. It is her further case that Kichaiah Setty had purchased the suit schedule property from one Pillappa and his brother Muniramaiah under a registered sale deed dated 04.05.1954 as per Ex.P3. Defendant Nos.1 and 2 are the wives of Pillappa and RSA.3124/2006 4 defendant No.3 is Muniramaiah, who is the brother of Pillappa. Defendant No.4 is the brother of the plaintiff.
5. It is the further case of the plaintiff that her mother Lakshmamma had leased a portion of the suit schedule property to Pillappa and Muniramaiah and the remaining portion of the suit schedule property was in possession of her brother Rangaswamy, who is defendant No.4. Plaintiff's mother Lakshmamma had bequeathed the suit schedule property in favour of the plaintiff under a registered Will dated 02.04.1971. Smt.Lakshmamma had died on 17.11.1973. After the death of Lakshmamma, the plaintiff being the propounder of the registered Will dated 02.04.1971 executed by her mother Lakshmamma, she became the absolute owner of the suit schedule property and she was entitled to recover the rent from the defendants. Defendant Nos.1 to 3 in collusion with defendant No.4 denied payment of rent to the plaintiff and also denied plaintiff's title to the suit schedule property. It is under RSA.3124/2006 5 these circumstances, the plaintiff had approached the trial court in O.S.No.286/1989.
6. The defendants after service of suit summons had entered appearance before the trial court. Defendant Nos.1 to 3 had filed a joint written statement denying the plaint averments. They denied that Smt.Lakshmamma, who is the plaintiff's mother, was the absolute owner of the suit schedule property and they also denied that Lakshmamma had leased any portion of the suit schedule property in favour of the defendants. They also denied that the fourth defendant was in possession and enjoyment of a portion of the suit schedule property. They contended that they are the absolute owners of the suit schedule properties and therefore, there was no necessity for them to take the suit schedule property on lease. They disputed that the husband of defendant Nos.1 and 2 Pillappa and his brother defendant No.3 had executed any sale deed in favour of Lakshmamma and they also disputed that Lakshmamma was the owner of the suit schedule RSA.3124/2006 6 property under the said sale deed and that she had executed a Will in favour of the plaintiff herein. It was contended by defendant Nos.1 to 3 that the Will said to have been executed in favour of the plaintiff is a concocted and fabricated document. It is stated that the fact that defendant Nos.1 to 3 are not the tenants of the suit schedule property was decided in H.R.C.No.21/1969 and therefore, it is not open for the plaintiff to contend that the defendants-1 to 3 are the tenants of the suit schedule property. Defendant Nos.1 to 3 also contended that they have perfected their title to the suit schedule property by means of adverse possession and accordingly prayed to dismiss the suit.
7. Defendant No.4, who is the brother of the plaintiff, filed a separate written statement admitting the plaint averments and he further submitted that the plaintiff's suit may be decreed without any order as to costs against him.
RSA.3124/20067
8. On the basis of the rival pleadings, the trial court framed the following issues:
"1. Does plaintiff proves exclusive ownership and possession over the suit schedule property?
2. Does plaintiff proves alleged lease deed in respect of suit property in favour of defendant No.1, 2, 3 by late Lakshmamma as contended?
3. Does plaintiff proves defendant No.1, 2 and 3 are tenant of suit schedule property?
4. Does plaintiff proves alleged registered Will deed dt:2.4.1971 by late Lakshmamma in favour of her in respect of suit property?
5. Does plaintiff is entitled for declaration as sought for?
6. Does plaintiff is entitled for damages by way of rent as well as cost of suit as claimed?
7. Does defendant No.1, 2, 3 proves suit is not properly valued?
8. Does defendant No.1, 2, 3 proves suit is barred by law of adverse possession against plaintiff?
9. Does defendant No.1, 2, 3 proves suit is barred under the law of limitation?
10. Dose defendant No.1, 2, 3 are entitled for any exemplary cost as claimed? RSA.3124/2006 8
11. What order or decree?"
9. During the course of trial, plaintiff got herself examined as PW-1 and three other independent witnesses were examined on behalf of the plaintiff as PWs-2 to 4 and 19 documents were marked as Exs.P1 to P19. On behalf of the defendants, defendant No.3 was examined as DW-1 and two independent witnesses were examined as DWs-2 and 3 and 98 documents were marked as Exs.D1 to D98.
10. After completion of recording evidence, the trial court heard the arguments addressed on behalf of all the parties and thereafterwards having appreciated the oral and documentary evidence available on record answered issue Nos.1 to 3 and 5 to 10 in the negative, consequently by its judgment and decree dated 30.03.1998 dismissed the plaintiff's suit. Being aggrieved by the same, plaintiff had filed R.A.No.125/1998 before the court of I Additional Civil Judge (Sr.Dn.), Kolar ("the first appellate court" for RSA.3124/2006 9 short). In the said appeal, the first appellate court after hearing the arguments on both sides had framed the following points for consideration:
"1. Whether the plaintiff has made out grounds for appointment of Commissioner as prayed in the interim application u/o 26 R.10-A of CPC?
2. Whether the plaintiff has established that defendant No.3 Muniramaiah and his brother Pillappa sold the suit schedule property in favour of Kichaiah Shetty under Ex.P.3 sale deed and as such Kichaiah Shetty was the absolute owner of the suit schedule property?
3. Whether the plaintiff has establishe that her mother Smt.Lakshmamma had purchased the suit schedule property from Kichaiah Shetty under Ex.P.2 sale deed dt:12.03.1958 and thereby she was the absolute owner of the suit schedule property?
4. Whether the plaintiff has established that she became the absolute owner of the suit schedule property by virtue of the regd. Will dt:2.4.1971 executed by her mother Smt.Lakshmamma?
5. Whether the contesting defendants have established that they are the absolute owners, in possession and enjoyment of the suit schedule property on the basis of their own rights?RSA.3124/2006
10
6. Whether there is any need to interfere with the judgment and decree under appeal?
7. What decree or order?"
By answering point Nos.1, 4 and 6 in the negative and point Nos.2, 3 and 5 in the affirmative, the first appellate court by its judgment and decree dated 11.09.2006 dismissed the regular appeal filed by the plaintiff and thereby confirmed the judgment and decree passed by the trial court in O.S.No.286/1989. It is under these circumstances, the plaintiff is before this court in this regular second appeal.
11. This court had admitted this regular second appeal on 01.06.2009 to consider the following substantial questions of law:
"1. Whether the lower appellate court has committed an error in dismissing the suit in its entirety even assuming that the Will dated 02.04.1971, Ex.P1 is held as not proved, since the Lower Appellate Court itself has come to the conclusion that the mother of the plaintiff has acquired title to the property under the documents at Exs.P2 and P3? RSA.3124/2006 11
2. Whether the manner of consideration of the evidence by the Lower Appellate Court in proof of the Will dated 02.04.1971, Ex.P1 would admit of perversity, thus leading to its erroneous conclusion?"
12. Learned counsel for the appellant/plaintiff submits that the trial court has held that the execution of Ex.P2/sale deed was proved while the first appellate court had held that the execution of both the sale deeds i.e., Ex.P2 and Ex.P3 was proved and inspite of the same, the said courts have dismissed the suit of the plaintiff. He submits that since the courts below have given a finding that the mother of the plaintiff had purchased the suit schedule property under the registered sale deed Ex.P2, there was no justification for dismissing the suit of the plaintiff. He submits that defendant Nos.1 to 3 are strangers to the family and defendant no.4, who is the brother of the plaintiff, has admitted the execution of the Will by his mother in favour of the plaintiff and therefore, defendant nos.1 to 3 have no right to dispute the execution of the Will or contend that the Will has been executed under RSA.3124/2006 12 suspicious circumstances. He submits that even if it is presumed that the Will is not proved by the plaintiff since the execution of the sale deed in favour of her mother Lakshmamma has been proved, the plaintiff being a co-sharer has independent right to seek the relief of possession. He submits that the Will has been proved by the plaintiff by examining PW-4, who is the brother of one of the attesting witnesses who has identified the signature of his brother Bandeppa, the attesting witness and therefore, the requirement of Section 69 of the Indian Evidence Act is complied by the plaintiff. He submits that Kichaiah Setty, who is the vendor of the plaintiff's mother, has been examined as PW-2 and he has admitted the execution of the sale deed Ex.P2 in favour of Lakshmamma and the said sale deed has been signed by Pillappa and the third defendant Muniramaiah as the attesting witnesses and therefore, it is not open to defendant Nos.1 to 3 to contend that Pillappa and his brother Muniramaiah had never executed any sale deed in favour of Kichaiah RSA.3124/2006 13 Setty. He also submits that pursuant to the sale deed Ex.P2, the khatha in respect of the suit schedule property was changed and Ex.P4 is an endorsement issued by the local body to the said effect and therefore, it goes to show that the sale deed has been acted upon and therefore it is not open for the defendant Nos.1 to 3 to contend that the possession of the suit schedule property was not handed over to the purchaser under any of the sale deeds i.e., Exs.P2 and P3.
He has relied upon the judgment of the Hon'ble Supreme Court in the case of Madhukar D.Shende -vs- Tarabai Aba Shedage1 and contends that a stranger cannot challenge the execution of the will on the ground that it is surrounded by suspicious circumstances. He further submits that PW-3 is the widow of defendant No.4 and she has categorically admitted the execution of the will. He also submits that the other children of the deceased Lakshmamma have now filed an affidavit before this court admitting the execution of the Will and 1 AIR 2002 SC 637 RSA.3124/2006 14 therefore, it is not open for the defendant Nos.1 to 3, who are strangers, to dispute the execution of the Will.
13. Per contra, learned counsel for defendant Nos.1 to 3 submits that the courts below have recorded a concurrent finding as against the plaintiff and have refused to declare the title of the plaintiff with regard to the suit schedule property. He submits that the Will has not been executed in compliance of the requirement of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. He also submits that the evidence of PW-4 is of no assistance to the plaintiff to prove the Will because the said witness admittedly was not in a position to identify the signature of his brother for the reason that he did not know to read and write English. He further submits that though defendant nos.1 to 3 have raised a specific plea of adverse possession, the courts below have failed to appreciate the same. He submits that the very finding in the earlier HRC proceedings would go to show that the defendant nos.1 to 3 were in possession of the suit RSA.3124/2006 15 schedule property. The said HRC proceedings have been dismissed on the ground that there was no material to establish that there was a jural relationship of landlord and tenant between the parties. He submits that the Will executed by Lakshmamma does not state anything about disinheritance of other children and therefore, the courts below have rightly refused to believe the same and in the absence of proof of the Will, the plaintiff cannot be declared as the absolute owner of the suit schedule property. He has relied upon a judgment of this court reported in the case of Sri.J.T.Surappa and Another -vs- Sri Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and Others2 in support of his contention that the will has not been executed in compliance of the requirement of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act.
14. In reply, learned counsel for the plaintiff submitted that the question of adverse possession does 2 ILR 2008 KAR 2115 RSA.3124/2006 16 not arise in the case on hand as the defendant nos.1 to 3 have denied the title of the plaintiff and there is no specific plea with regard to adverse possession nor was there any evidence led in this regard. He also submitted that there was no issue framed in this regard by the trial court and therefore, the question of adverse possession cannot be gone into in this regular second appeal.
15. I have carefully considered the arguments addressed on behalf of the plaintiff and on behalf of defendant nos.1 to 3 and also perused the material evidence available on record.
16. The plaintiff in order to establish her case with regard to the title of the property has relied upon the sale deeds Ex.P2, Ex.P3 and the Will Ex.P1. Ex.P3 is the sale deed dated 04.05.1954 executed by Pillappa and his brother Muniramaiah - third defendant herein in favour of Kichaiah Setty. Kichaiah Setty in turn has executed Ex.P2, the sale deed dated 12.03.1958 in RSA.3124/2006 17 favour of plaintiff's mother Lakshmamma. The municipal record of the suit schedule property was changed in the name of Lakshmamma pursuant to Ex.P2 and an endorsement has been issued to the said effect by the jurisdictional local body as per Ex.P4. The trial court had held that execution of Ex.P2 by Kichaiah Setty in favour of plaintiff's mother Lakshmamma was proved, but it had disbelieved the execution of Ex.P3. However, the first appellate court has given a finding that execution of both the sale deeds i.e., Exs.P2 and P3 was proved by the plaintiff. It is necessary to note that PW-2 Kichaiah Setty had categorically admitted before the trial court about the execution of Ex.P2 in favour of the plaintiff's mother Lakshmamma. As rightly contended by the learned counsel for the plaintiff, Ex.P2 has been signed by Pillappa and his brother third defendant viz., Muniramaiah as the attesting witnesses and therefore, it is not open for the defendants to contend that Pillappa and his brother third defendant have not executed the sale deed/Ex.P3 in favour of RSA.3124/2006 18 Kichaiah Setty. The title of Lakshmamma in respect of the suit schedule property is, therefore, proved by the plaintiff in view of Ex.P2 and Ex.P3-sale deeds.
17. Insofar as the execution of the Will by the plaintiff's mother as per Ex.P1 in favour of the plaintiff is concerned, the wife of defendant No.4, who has been examined as PW-3, has admitted the execution of the said Will. The defendants are strangers to the plaintiff and defendant No.4. The plaintiff in order to prove the execution of the Will has examined PW-4, who is the brother of the attesting witness Bandeppa. He has categorically identified the signature of his brother Bandeppa and therefore, the plaintiff has complied the requirement of Section 69 of the Indian Evidence Act.
18. The Hon'ble Supreme Court in the case of Madhukar D.Shende (supra) has held that if there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of "not proved" RSA.3124/2006 19
merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance. It is further observed that when the near relatives of the testator and the propounder have not disputed the execution of the Will, it is not open for the stranger to the family to challenge the Will. Having regard to the pronouncement of the Hon'ble Supreme Court in the case of Madhukar D.Shende (supra), the challenge to the Will by the defendants-1 to 3 loses its significance and the courts below have failed to appreciate this aspect of the matter. The judgment of this court relied upon by the learned counsel for the defendant Nos.1 to 3 in the case of J.T.Surappa (supra) would not be applicable to the facts and circumstances of the present case. There is no dispute with regard to the proposition laid down by the co-
ordinate Bench of this court in the said case and I am in respectful agreement with the same. However, since RSA.3124/2006 20 the said judgment does not apply to the fact situation in the present case, the same has no relevance.
19. Learned counsel for the defendants has also contended that defendant Nos.1 to 3 have perfected their title by adverse possession. The material available on record would go to show that there is no specific plea in the written statement filed by the defendant Nos.1 to 3, which satisfies the requirement to claim declaration of title by adverse possession. Further, as rightly contended by the learned counsel appearing for the plaintiff, defendant Nos.1 to 3 have not admitted the title of the plaintiff/her predecessors in respect of the suit schedule property and therefore, the plea of adverse possession is not available to them.
20. It is also required to be taken note of the fact that the trial court has not framed any issue with regard to the adverse possession nor there was any oral or documentary evidence produced by the plaintiffs in order to prove their possession adverse to the interest of RSA.3124/2006 21 the plaintiff. Under the circumstances, I am of the considered view that the plea of defendant Nos.1 to 3 that they have perfected their title by adverse possession is liable to be rejected.
21. Since the first appellate court had given a categorical finding that execution of Exs.P2 and P3 was duly proved by the plaintiff, it is very clear that the mother of the plaintiff had acquired title to the suit schedule property under the said documents Ex.P2 and Ex.P3. As rightly contended by the learned counsel for the plaintiff that even if it is presumed that the Will is not proved by the plaintiff, the first appellate court was not justified in rejecting the prayer of the plaintiff to declare her title to the suit schedule property or to grant her the other reliefs sought for in the suit for the reason that the title of plaintiff's mother was proved. Further, the execution of the Will in the present case has been duly proved by the plaintiff by examining PW- 4, who is the brother of the attesting witnesses. The challenge to the Will has been thrown only by defendant RSA.3124/2006 22 Nos.1 to 3, who are strangers to the family whereas defendant No.4 has admitted the said Will and his wife, who has been examined as PW-3, has clearly deposed before the trial court admitting the Will.
22. Under the circumstances, the courts below were not justified in dismissing the suit of the plaintiff. Having regard to the judgment of the Hon'ble Supreme Court in the case of Madhukar D.Shende (supra), the courts below have completely erred in appreciating the evidence of proof with regard to the execution of the Will Ex.P1 dated 02.04.1971. Both the courts below have failed to appreciate that the challenge was being thrown with regard to the genuineness of the Will and with regard to the proof of execution of the Will by strangers and not by the family members of the plaintiff.
23. Under the circumstances, I am of the considered view that the substantial questions of law framed in this regular second appeal are required to be RSA.3124/2006 23 answered in favour of the plaintiff and in the affirmative. Accordingly, the following order:
The regular second appeal is allowed. The judgment and decree dated 30.03.1998 passed by the court of Additional Civil Judge (Jr.Dn.) and J.M.F.C., Kolar, in O.S.No.286/1989 and the judgment and decree 11.09.2006 in R.A.No.125/1998 by the court of I Additional Civil Judge (Sr.Dn.), Kolar, are hereby set aside and the suit of the plaintiff is decreed. It is declared that the plaintiff is the owner of the suit schedule property and the defendants are directed to deliver the vacant possession of the suit schedule property to the plaintiff within a period of four months from today.
In view of disposal of the appeal, the pending I.A. does not survive for consideration. Hence, they stand disposed of.
Sd/-
JUDGE KNM/-