Karnataka High Court
H Maheshwarappa vs Gangamma on 15 September, 2010
Author: Ravi Malimath
Bench: Ravi Malimath
._ 1 _.
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 157" DAY OF SEPTEMBER 2(}"1{)T
BEFORE E *
THE HON'BLE MRJUSTICE RAVI -
REGULAR FIRST APPEAL NO. 1234 .Q1sf'2Q04g _
BETWEEN: V R
Sri H.}\/Iaheshwarappa
Aged about 65 years.
S / 0 Hanumaiah,
Residingzrr. P<':~5:nya'ViI1age.,,_ -- '
YeshWar1thpur_aVIr[''(3b1i',__ V. R
Bangalore North.Ta~Iu1<,.' _ " V
.- V. {By»~;.sri__R'S. Chehfiarafiyaa Reddy, Advocate]
' :1, "=SmVt'.
'~-.4"Ag§?ti' about 67 years.
/"ox Munivenkatappa.
2, AA died on 19.4.2009 leaving
* . _ "Behind R2 to R6 as her LRS
Causetitle amended as
per order dated 1.9.2010.
2. Sri M.GoVindaraju
Aged about 50 years.
S / o Gangamma.
3. Sri M.SriniVasa
Aged about 47 years,
S / o Gangamma.
4. Sri G.Venkatararnana
Aged about 41 years,
S/ o Gangamma. g.
5. Ramesha
Aged about 44 years"; v
S/o Gang_ain__ma.:' A
6. '
Aged about 4»l''''years:,~s. '
S./oVG"angarn_1_n_a.--.._" ' A'
are at
Village, YeshWa1itldp_ura Hobli.
Bangalore N ortl~1_ 'I'aluk.
...RESPONDENTS
., , Chengappa, Advocate for R1--6)
>!€**
AIARFA filed under section 96 R/W Order 41 Rule 1
CFC " against the Judgment and Decree dated 10.9.2004
passed in 0.S.No.815/1982, on the file of the 11 Add]. City
A' 'Civil 8: Sessions Judge, Bangalore, (CCH.No.17), dismissing
_ W.t.he suit for permanent injunction, declaration and
possession.
This RFA coming on for hearing this day, the court
delivered the following»
Pf
_ 3 _
JUDGMENT
Aggrieved by the Judgment & decree passed bfiithe 11 Additional City Civil & Session _ _' 4' _» '_ Banga1ore,(CCH.No.17), dismissing the suitjfltiie plaintiff iiigipsp V' filed the present appeai.
2. The parties would bedreferrred as 'per. '.1ii1€Vi.I"y rank before the trial Court.
The case of the itniatpitiieir paternai grand- fathei"'CPiorsfi:iappa"Bin.»i§/Iunififappa had three sons by name Munivy-appéa, ' h and Hanumaiah. Muniyappa died ieatfing vvbeihindclv son Chowdappa. Munivenktappa d._ieii at bae'i1ei._o_r..v Hanumaiah died leaving behind the ' 'three daughters. Muniyappa died prior to the "death piaintiffs grand father, Chowdappa Bin After the death of Chowdappa bin Muniyappa it it ai1._the properties were managed by Chowdappa son of l":1"\bd'uniyappa, since he was eldest member of the famiiy and all H the properties were undivided. Chowdappa who married Chowdamma, died in the year 1971, without any ehifiren. ,,._._,_, .. 4 _.
After the death of her husband, Smt.Chowdarnma was managing the entire properties. She executed in favour of the plaintiff and after her death, become the absolute owner in possession and~..enj:o'y1neint of f the properties. The first defendantfisfthe Wife' if of the said Chowdappa and defendants ,2 to éii.';are"tl1efvsonsof L the first defendant. Taking"'vea:ld'v.antage the relationship' with Smt.Chowdamma;..xthe defe'iidants._ are tryingfto assert a right to the properties an attempt to dispcprasseis;-=,i..:t;?if1e Ii.e'nc'el the plaintiff filed a suit seeking a 'perinanent injunction to restrain the defendantsptroin-__ trespassing etc., onto the suit schedule During_._t.he pendency of the suit, an additional ' lwasfisought for, seeking a declaration that the plaintiff " of the suit schedule property and consequently to ldirecththe defendants to quit and handover possession of if i. if the house property at plaint schedule item No.4 among other consequential reliefs. On appearance, the defendants denied H the. claim of the plaintiff. They contend that Snf1t.Chowdan1rna who inherited the properties and being rice ....5_ issueless adopted the first defendant when she was only two years old. The first defendant is the pf Smt.Chowdamma's sister. Thereafter married one Munivenkatappa j'and* if defendants 2 to 6. vThatf';__ «.
Smtchowdamma had exeeute:d~..a f favour of the first defendarit' children. They contend that there was ,_a 'status of the joint family. Sincerthere of status, the Will set up by tl1'e"p'la.initiff "concoetedf'"an'dlis created to snatch away the property to the defendants.
3.'g_ tri.a1W--C'o.urt framed as many as 12 Issues and by the Judgment and decree dismissed the ' the present appeal.
- Channaraya Reddy, the learned counsel l'a_plpeavrinfg:'3..V_ for the plaintiff contends that the impugned Judgment 8: decree is bad in law and liable to be set aside. contends that the Will executed on 20-7-1980 and V/re -5- registered on 13-4-1981, is in his favour which is marked as Ex.P--l and Ex.D--l. He therefore contends that in the Will being a registered document, the trial an error in disbelieving the same. ;E3y_plac§'ng' 'rel'ivan'eev'on the" . evidence of D.W.1 and D.W.2 heV'contei'1dlslth_atl of the first defendant by SCn1.t_V.Chow.damInaLv:lh.as.._not established. Therefore, when"._the_ adoption bad, the defendants would notfirie share in the suit schedule property. He..f=i1'ther Lgthlat the trial Court coII1n1itteda.a::1 in"t'h'at there was a severance of statusin the ccgntends that the family continues to be jointgandVhence:l*ie~'Cllbeing the sole surviving coparcener to Athevproperties. He contends that the Will as ' the defendants, is a concocted document and the C' comnutted an error in accepting the same. The relliagnlce placed on the Record of Rights and the RTC by the At trial Court is erroneous and the same should have been Adgrejected. The trial Court committed an error in placing H reliance on the report of the Commissioner to conclude that the disputed signatures with that of the admitted signatures V4"
5 2
E -7- would lead to a conclusion that Ex.P--1 is concocted. In View of the facts & circumstances of the case, the sugit*.yof the plaintiff requires to be decreed.
5. On the other hanciJ,WlM's.Anu 'the if learned counsel appearing for the'.defendants,Acoritendsythat the trial Court rightly rejecte'drEx.Pw nariiefy set by the plaintiff, as,' being 'cconc"octed,fin" View of the discrepancy in the signatluresfj' The' was referred to the handwriting the conclusion that the signatures of at Ex.D»~1 does not tally with her signatu_res__ on the vakalath filed in / 197'? V .. ..... .. n which was renumbered as " She further contends that some of the ".schedu1Vef properties were under acquisition and in the puroceeidings before the L.A.O. the defendants have stated if if that they have no objection for the same being given to the plaintiff. Since they had no claims against her, so far as the ' property under the Will is concerned, the trialw r / _ 8 __ rightly dismissed the suit of the plaintiff and hence no interference is called for.
6. Heard counsels and examined the record-s.V.
7. Ex.P-1 is the Will marked by the defend'a_nt.VAas Ex.D-1. It was executed on 20-7-1980 13-4-1981 by Srnt. Chowdamma...in__'favour:
1 to 6. The plaintiff placed relianci-eloh this"
contend'i'1haitf,thexfi-staid'~Srnt.Ch'oWda1nn1a has bequeathed all the her favour. Ex.D-2 is the Will executed Snit.{3ho\ivd.arnma in favour of the defendants on fl'he...f:.rial Court while considering the evidence ' note of the fact that even though EXP-1 was "executed-V'.jon.1'120-74980 the same was registered only on 1$l-4.-V1-98111', i.e., after the death of Smt.Chowdamma on 2 it 8-2-1981. Hence. the trial Court was of the View that it is a doubtful circumstance surrounding of the Will. W
8. In the cross--examination of P.W.1 he hacs_:lst_ated that it was only on 20~"/31980 for the first time to know about the execution of the Will Sincel on the same day, she handed o:yer:.th¢j. W presence of the attestors Chikkamuniyappa, the Will xzifaesjliregisteredron same day namely on 20--7'¥Ll'9.80..'lAl thelmul including Smt.Chowdamrna were at the time of registration; llfiziioivever, 'nefaddsll is not aware that Smt.eChowdamrnaT-: affixed herl"'ti1'i;imb impression on the Will in it :_prcsen:cele . Further, he states that Smt.ChoWdamma_ h"a,d'intimated to him that she had affixed impression on the Will before the Sub-Registrar. ' ,.l"1"i1ee of P.W.1 would therefore indicate that he was the thumb impression being ElffiX€Cl by Smt,Cho.Wxdamma and with regard to the registration of the it it Will. ;l'he records would disclose that it is an admission of plaintiff that the Will was registered only on 13--4~1981. H However, the specific plea of P.W.l was that the Will was registered on 20-7-1980 namely, the date on which it was elm _.1G_ executed. The statements are contradictory. The.4'staLe:nent of P.W.1 therefore, cannot be of any help_inp':the V' the suit. The trial Court was therefore' j.u's_tified.:_.Vin_urejectirig the evidence of P.W. 1 with regard the executiori as 'well aa the registration of the Will.
9. The second the trial Court disbelieved the of the Will was not produced? 1,.'z1owever in his evidence has Will was handed over to his Advocate died during the pendency of thetrial: to be made out that the original was either"rni.S.p.laced or lost by their counsel during the ' the trial of the suit. The reasoning does not " lend anifcredence especially in View of the fact that even in the averments what has been pleaded is only with 2 V. it 'reference to the copy of the Will and there is no reference to existence of the original Will at all.
....11_
10. The other circumstance on which the Will was disbeiieved was that, even during the pendenc_v_f,_:of.._ the proceedings before the L.A.0. there was no made by the plaintiff with regard towthe ofithe , If the plaint averments were to be conxsidereddfiitwetildeebe evident that the plaintiff had- ..__received all t1i'el' virtue of the Will dated 2o§'"7=v=9so. 'fiwefreevef; it was a registered Will. In the L.A.O., one of the award copies has beeni'_x11Varl_<V;e:cgl as and is dated 13--9p-4l'987..: ondthatdzday, Smt.Chowdamma was not alive :_and_ 'plaintiff was in a position to enforce thedweill 1'-:__1 l;.is'favour. However, the claim put forth by-3*,the_pApp1aintiffbefore the L.A.O. was not on the basis of the ' ;lWillg at4Vall;~fi)'11e Half share in the compensation in respect of " --aceqt1ired were claimed on the basis that he is the sole..s"urviving co--parcener of the undivided joint family and if not on the basis of the W111}. Therefore, when the plaintiff the possession of the Will in his favour, to set up a claim H not on the basis of the Will but on the basis as a sole _.1_-2..
surviving legal heir, would therefore not lend anycrecience to the validity of the Will.
1 1. I.A.No.19 was filed by'the'defen<iants beforewtheg trial Court, under Order 26».:R11le 1'0.__VA'- seeking appointment of a Cornrnissionergicompared the signatures of Smt.Ch0wdamma at signatures on her vakalath'i:r1Vgg:fthe The Commissioner who his report. In the report he that was given to him is not copy. He has stated that it is dift'icu1tu'to,decipher..the:.u~signature, since the same is not the original. vHov&ever.__..v.=~hile comparing the signature on the ' Dvrakalath 'inathe LAC proceedings in 83/ 1977 (renumbered as H '-1980-} the expert opines, that the impression been made by the same finger. The expert does not " suggest, that the thumb impression found on EXD-1 and thumb impression on the other documents are not by the same person. The distinction made by the expert is that the thumb impression nodoubt being at variance with one rt"
.....13....
another but it is an impression of another finger and not the impression of the same finger as found in Ex.D--l. The trial Court read the report of the Commissioner to mean,7t_hat the signatures obtained on Ex.D--1 and the admittgeti' do not tally with one another and has not been proved. I'am unable to accept the r;easo':ni1'1.g'of "
Court with regard to the opinion of handwritingCleirpertze The opinion would indicate the irnpreissions found on Ex.D--1 as well as on"'the faidmittepd.Jsignaturesfivvin the LAC proceedinggijyareli 'a "c1ifVferent"fi1'iger. There is no material to shovsvfthlat the 'e;$pei~t» .benefit of the finger prints of all the fingxersh of the deceased Smt.Chowdamma. Hence, the finding record"ed....byv the Commissioner is not sufficient to ' signatures found on E:x;.D~»l and that of the '' .adlmitteritsignatures on the Vakalath etc., are not of the same" person. Since, as per the report of the Commissioner 2 if the impression on E2x.D--1 is of a different; finger than the impression on the vakalath and other documents in the LAC case, Pain of the considered View that the conclusions arrived at by the trial Court to hold that the Will has been iii"
-14-
disproved solely on this ground is erroneous. The findings recorded by the Commissioner would therefore no4t..bc_of._any assistance to either the plaintiffs or the defend_a§r1.ts.'fv:- 1-
12. E2-;.D--8 is the voters list conta.ining:t'he'"namesof . the plaintiff and the defendants.
indicate that they are shown to 2 'bell residing<Syf;pE§ratelyli» Hence, the trial Court came toflthe conclusion. that there has been a severance of '--status;_ a:;_1d.:. thaththe plaintiff and the defendants have separa.ted--V.rn't1ch the preparation of the voters -- The piea of the plaintiff that the plaintiffland the continue to be joint is contrary to §t$x.D--8 }md_'was therefore negated. The finding recorded trialy_.courtllllon this ground is just and reasonable. I A fi-nd nogood'-ground to interfere with the same. The evidence would.' that as a consequence of the severance of AA statusl" the parties were living separately and while " Coljfisidering the division of the compensation awarded by the L.A.O., it would justify the plea of the defendants that there is _15....
has been a severance of status and eversince then, they have been living separately with their respective properties.
13. During the pendency of the proceedings in.LAC. No. 83/1977 [renumbered as L.A.C.No.I389'/_i:§S(5j'we..'the defendants had produced the copy of Ex.D--2, in order to claim a shai*e'"'oi"--.compe.nslation of: the b properties therein. The proceedingsh IiAC..WOU.1d that so far as the properties--not_men'tionedin are"
concerned_.. in-oh"'c1airn" forth by the defendants. On the llcoritrary",hthe:'T'-diefendants submitted, that the compensation-for -those'«pbroperties outside the Will, may be p_ giveifl the pla'intiffsv. The copy of the award in terms of ' clearly indicate the said fact. It is relevant . the Will did not contain all the properties. It refei'red.yonly to some of the properties. Therefore, what was being claimed by the defendants was purely in terms of and nothing more. In view of the case of the if "ldefendants that there was a severance of status and the plaintiff and the defendants were enjoying their respective we 3 I shares of the properties much earlier, the same stands corroborated by the evidence of the defendants the L.A.O. At the same time. the non--exercise of o'f;_.tuhe plaintiff in terms of the Will said to be execi.;ted"~i.n 'his._fai}oiq1i vide Ex.P--1 would also indicate s;eVeranc.e"'of the parties. The contention of the'Apla,intiff.vt£:1at thei'e"'l3asp been no partition so far aslftljie' propeiftiesv-igre';:concerned therefore stands negated. Notwithstanding the' absence of the original partition deed, the material indicating' S:é'Vera:i*:Ce of_s'tatus"an'd the factum of each one of the pvarties ergdylfng thelirpirespective shares as a consequence of such se'{erance_, therefore undoubtedly indicate that tliérei a severance of status in the joint family between ' LllZli1~E: pp.l.aii1tiffl'and the defendants which was accepted by all of AfEven on equity, it can be seen that the AA properties willed in favour of the defendants did not "c_o_nstitute all the properties that were inherited from Chowdappa bin Muniyappa. As a consequence of the _17.....
severance, some of the properties were given to the share of the plaintiff and the rest being the property of the ddecepased Smt.Chowdarnma, was willed in favour of her and the grand children. Hence, I find that.~--i.njnst.ipce haspb occurred to the plaintiff. The reasoned and in tune with the facts, t:-ircunistances andrthe, evidence led in, does not callafor interfere'1*1-fie. appeald being devoid of merits"'is_ accordingly dismissed.'