Karnataka High Court
Sri Dhareppa vs Sri Shankar on 17 March, 2020
Author: Nataraj Rangaswamy
Bench: Nataraj Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
REGULAR SECOND APPEAL NO.2245 OF 2005 (DEC)
C/W
REGULAR SECOND APPEAL NO.2244 OF 2005 (DEC)
BETWEEN:
[SRI DHAREPPA
S/O GURUPADAPPA DESHTHOT
AGED ABOUT 59 YEARS
R/O TERDAL - 587 315
TALUKA :JAMKHANDI
DIST: BAGALKOT 587301]
SINCE DECEASED BY HIS LRs
1. LAKSHMAVVA
W/O MAGEPPA MASUTI
AGE: 60 YEARS,
OCC: HOUSEHOLD WORK & AGRICULTURE
R/O KALLATTI GALLI,
TERDAL-587315,
TALUKA: JAMKHANDI
DIST: BAGALKOT.
2. PARAVVA
W/O SUBHASH BELAGALI
AGE: 44 YEARS,
2
OCC: HOUSEHOLD & AGRICULTURE
R/O VENKATAPUR ONI,
LOKAPUR-587313
TALUKA: MUDHOL
DIST: BAGALKOT.
(AMENDED AS PER ORDER DATED 12.12.2018
ON IA NO.1/2018)
... APPELLANTS COMMON
(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
AND:
[SRI. SHANKAR
S/O SIDDAPPA HOLIKAMMANAVAR
SINCE DECEASED BY HIS
LEGAL REPRESENTATIVE DECEASED
KASHAWWA BY LEGAL REPRESENTATIVES]
1. SRI. PARASAPPA
S/O SHANKAR HOLIKAMANNAVAR
AGED ABOUT 31 YEARS,
R/O: KURUBAR ONI,
KALLATTI, TERDAL-587315
TALUKA: JAMKHANDI
DISTRICT: BAGALKOT
2. [SRI. TIPPANNA
S/O SHANKAR HOLIKAMMANAVAR
AGED ABOUT 30 YEARS
R/O: KURUBAR ONI,
KALLATTI, TERDAL-587315
TALUKA: JAMKHANDI
DIST: BAGALKOT ]
3
2a. SMT. TANGAWWA
W/O TIPPANNA HOLIKAMANNAVAR
@ HUDDAR
AGE: 38 YEARS
OCC: HOUSEHOLD WORK
R/O: KURUBAR ONI,
KALLATTI-TERDAL-587315
TALUKA: JAMKHANDI
DIST: BAGALKOT
2b. PRAVEEN
S/O TIPPANNA HOLIKAMANNAVAR
@ HUDDAR
AGE: 11 YEARS
OCC: STUDENT
R/O: KURUBAR ONI,
KALLATTI-587315
TERDAL
TALUKA: JAMKHANDI
DIST: BAGALKOT
SINCE MINOR REPRESENTED BY
NATURAL GUARDIAN MOTHER
SMT. TANGAWWA
W/O TIPPANNA HOLIKAMANNAVAR
@ HUDDAR
AGE: 38 YEARS
OCC: HOUSEHOLD WORK
R/O: KURUBAR ONI,
KALLATTI TERDAL-587315
TALUKA: JAMKHANDI
DIST: BAGALKOT
3. SMT. TAYAWWA
D/O SHANKAR HOLIKAMANNAVAR
AGED ABOUT 28 YEARS
R/O: KURUBAR ONI,
KALLATTI-TERDAL-587315
4
TALUKA: JAMKHANDI
DIST: BAGALKOT
SINCE DEAD BY HER
LEGAL REPRESENTATIVES
3a. PRABHU HANAMANT HALALLI
AGED ABOUT 14 YEARS,
OCC: STUDENT
3b. PREMA HANAMANT HALALLI
AGED ABOUT 10 YEARS,
OCC: STUDENT
BOTH RESPONDENT NO.3(a) & 3(b) ARE
RESIDING WITH RESPONDENT NO.1
PARASAPPA
S/O SHANKAR HOLIKAMANNAVAR
AGE ABOUT 42 YEARS,
OCC: AGRICULTURE
R/O: KURUBARA ONI,
KALLATTI - TERDAL 587315
TALUKA: JAMKHANDI
DIST: BAGALKOT
(AMENDED AS PER ORDER DATED 17.12.2018
ON IA NOs.1/2017 to 6/2017)
... RESPONDENTS COMMON
(BY SRI. ASHOK R. KALYANASHETTY, ADVOCATE FOR
RESPONDENT NOs.1 and 2(a), 3(a and b);
RESPONDENT NOs.3(a and b) ARE MINORS REPRESENTED
BY RESPONDENT NO.1;
RESPONDENT NO.2(b) MINOR REPRESENTED BY
RESPONDENT NO.2(a)]
5
IN RSA NO. 2245 OF 2005
THIS RSA IS FILED UNDER SECTION 100 OF THE
CIVIL PROCEDURE CODE AGAINST THE JUDGMENT AND
DECREE DATED 12.08.2005 PASSED IN R.A.NO.72/1997
ON THE FILE OF THE DISTRICT AND SESSIONS JUDGE
AND PRESIDING OFFICER, FAST TRACK COURT,
JAMAKHANDI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 31.3.1997 PASSED
IN O.S.NO.104/1984 ON THE FILE OF THE MUNSIFF AND
JMFC, BANHATTI.
IN RSA NO.2244 OF 2005
THIS RSA IS FILED UNDER SECTION 100 OF THE
CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT
AND DECREE DATED 12.08.2005 PASSED IN
R.A.NO.71/1997 ON THE FILE OF THE DISTRICT AND
SESSIONS JUDGE, PRESIDING OFFICER, FAST TRACK
COURT, JAMAKHANDI, DISMISSING THE APPEAL AND
CONFIMRING THE JUDGMENT AND DECREE DATED
31.3.1997 PASSED IN O.S.NO.69/1985 ON THE FILE OF
THE MUNSIFF AND JMFC, BANHATTI.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 19.12.2019 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
6
JUDGMENT
RSA No.2245/2005 was filed by the defendant No.2 in O.S.No.104/1984 challenging the Judgment and Decree dated 31.03.1997 passed by the Munsiff and JMFC, Banhatti and the concurring Judgement and Decree of the First Appellate Court (District and Sessions Judge and Presiding Officer, Fast Track Court, Jamakhandi) dated 12.08.2005 in R.A.No.72/1997. Both the Courts held that the defendant No.1 (Smt.Bhowrawwa / Bhourawwa / Bourawwa) had a limited interest in the suit property and that the sale deed executed by her as such limited owner in favour of the defendant No.2 did not bind the right, title and interest of the Plaintiff in the suit property.
2. The plaint filed in O.S.No.104/1984 disclose that the defendant No.1 was the maternal aunt of the plaintiff and she was given in marriage to Basalingappa Uttappa Gallapagol. After the death of her husband, the defendant No.1 lived with Tippanna / Thippanna Girimallappa Huddar (henceforth referred as 'Thippanna') 7 as his mistress, till his death. The plaintiff, as a boy then aged 8-10 years, lived with the defendant No.1 and Thippanna. The plaintiff claimed that the said Thippanna executed a settlement deed dated 01.07.1946 (Ex.P8), in terms of which, the said Thippanna handed over 18 guntas of land in R.S.No.29/1 for the maintenance of the defendant No.1. In the said settlement deed, the defendant No.1 was referred to as Thippanna's mistress. The plaintiff stated that the said Thippanna sold a house to the defendant No.1 and in the sale deed, the defendant No.1 was referred as Bhourawwa, D/o Kashawwa Jagadal of Navalagi. He further stated that from the sworn statement recorded by defendant No.1 in P & SC. No.5/76 before the Principal Munsiff, Jamakhandi, and the evidence adduced by the defendant No.1 in O.S. No.152/1980 on the file of the learned Munsiff, Banahatti, it was impossible to consider defendant No.1 as the legally wedded wife of the said Thippanna. He further stated that the deceased Thippanna was a chronic patient, many years, before his death and he was completely under the control of the 8 defendant No.1. Under those circumstances, the defendant No.1 allegedly obtained a Will on 11.05.1965, which was duly registered. By the aforesaid Will, the suit property was to be held by defendant No.1 during her lifetime and after her, it was to go to the plaintiff. After the death of Thippanna, on 06.10.1974, the plaintiff and the defendant No.1 were allegedly in actual possession and cultivation of the suit schedule property.
3. The plaintiff alleged that the defendant No.1 arranged the marriage of her niece with the plaintiff. However, later, she despised the wife of the plaintiff and expected the plaintiff to divorce his wife, which he refused. This irked the defendant No.1 and as a reprisal, she executed a deed of absolute sale dated 22.05.1984 in favour of the defendant No.2 conveying the suit schedule property. Therefore, the plaintiff filed the present suit seeking for a declaration that the plaintiff had a life interest in the suit property in terms of the Will dated 11.05.1965 and therefore the sale deed dated 22.05.1984 9 executed by the defendant No.1 in favour of the defendant No.2 did not bind the interest of the Plaintiff in the suit property.
4. The defendant No.1 filed her written statement and contended that she was the wife of the deceased Thippanna and she had succeeded to the estate of the deceased as a Class I heir. She contended that the plaintiff and the deceased Thippanna were not related. She also contended that she had filed P & SC No.5/76 before the Court of Prl. Munsiff and JMFC., Jamakhandi, and obtained a succession certificate in respect of a claim for Rs.3500/-, following which she filed O.S.No.152/1980 to recover a sum of Rs.3,500/- from the defendant No.2 herein. She contended that these two cases indicated that she was the wife of Thippanna. She averred in her written statement as follows "It is false to allege that the deceased Thippanna was completely under the thumb of defendant No.1 and as such he has bequeathed the property by Will dated 11.05.1965. It is further false to say that after the 10 death of Thippanna, the plaintiff began to cultivate the land along with the defendant No.1." She contended that after the death of Thippanna, she succeeded to the suit property as the only surviving Class I heir of Thippanna and became the absolute owner of the suit property. She also contended that the plaintiff could not derive any right, title or interest in terms of the Will dated 11.05.1965 and stated that the said Will was revoked by the deceased Thippanna during his lifetime and this fact was fully known to the plaintiff. She alleged that Thippanna had made another Will dated 31.12.1972 declaring his intention to revoke the earlier Will dated 11.05.1965. The later Will dated 31.12.1972 was the last and valid Will of deceased Thippanna. She claimed that Thippanna during his lifetime had entered into an agreement of sale in favour of defendant No.2. She contended that she being the wife of Thippanna and Class I legal heir, was entitled to succeed to the suit property and being the sole successor to the suit property, she had concluded a sale in favour of the defendant No.2 for lawful consideration and handed over 11 possession of the suit property to defendant No.2. She thus contended that the plaintiff did not have any right, title or interest in the suit property. Alternatively, she contended that if the Will dated 11.05.1965 were to be held as legal and valid and subsisting then she being a limited owner under the Will dated 11.05.1965, her title blossomed into full interest in view of Section 14(1) of the Hindu Succession Act, 1956 (hereinafter referred to as 'the Succession Act'). She therefore sought for the dismissal of the suit.
5. The defendant No.2 filed a memo adopting the written statement of the defendant No.1.
6. Based on the aforesaid contentions, the Trial Court framed the following Issues:
"1. Whether the plaintiff proves that defendant No.1 kept mistress of deceased Tippanna Girimallappa Huddar?12
2. Whether the plaintiff proves that the defendant no.1 was not absolute owner of the suit land R.S.No.271/2/4 measuring 16 acres 4 guntas?
3. Whether the plaintiff proves that defendant No.1 has only life interest as per the Will dated 11-5-1965?
4. Whether the plaintiff further proves that alienation made by defendant No.2 is not binding on the plaintiff's interest?
5. Whether this Court has pecuniary jurisdiction to try the suit?
6. Whether the court-fee paid proper and correct?
7. Whether the present suit is not maintainable as contended in para 12 of written statement?
8. Whether the plaintiff is entitled for relief sought for?
9. What Order? What decree?"13
7. It is relevant to note that the suit in O.S.104/1984 was dismissed by the Trial Court in terms of the Judgment and Decree dated 20.01.1989. By the aforesaid Judgment, the Trial Court had though held that it did not possess pecuniary jurisdiction to try the suit, yet had answered other issues and dismissed the suit. This was challenged in R.A.No.15/1989 by the plaintiff which was allowed by the First Appellate Court in terms of the Judgment dated 08.09.1989. The defendants then challenged the Judgment and Decree in R.A.No.15/89 before this Court in RSA No.70/1990. This Court noticed that the pecuniary jurisdiction of the Trial Court was enhanced by that time and thus held that the question of returning the plaint for presentation before the proper Court did not arise. This Court in terms of the Judgment dated 02.03.1990, remanded the suit to the Trial Court for "de-novo enquiry and disposal of the suit in accordance with law".
14
8. After such remand, the records indicate that defendant No.1 died in the first week of February 1992 and both the plaintiff and defendant No.2 filed two separate applications, I.A. No.15 and I.A. No.14 respectively, seeking that they should be treated as the legal heir of deceased defendant No.1. The Trial Court by its order dated 07.10.1993, rejected I.A. No.14 and allowed I.A.No.15. Feeling aggrieved by the same, defendant No.2 preferred CRP Nos.3176 and 3222 of 1993. This Court by order dated 13.12.1993, set aside the order dated 07.10.1993 passed by the Trial Court on I.A. Nos.14 and 15 in the suit and the said applications were dismissed on the ground that they did not survive for consideration for the reasons stated therein. Accordingly, both the Civil Revision Petitions were disposed of.
9. It is found that issue No.5 relating to pecuniary jurisdiction was deleted in terms of the order dated 08.12.1994 passed by the Trial Court. Thereafter, the Trial Court framed the following Additional Issues: 15
1. Whether the defendants prove that deceased Tippanna Girimallappa Huddar has executed his last Will on 31.12.1973 and said will is legal and valid ?
2. Whether the defendants prove that the deceased Tippanna through his will dated 31.12.1973 has revoked his earlier will dated 11.5.1965 ?
3. Whether defendant no.1 proves that she becomes absolute owner of the suit property bequeathed to her by her deceased husband under will dated 11.5.1965 providing her for life estate for maintenance having regard to the provisions of sec 14(1) of Hindu Succession Act 1956?"
10. The plaintiff was examined as PW.1 and a witness as PW.2 and they marked Ex.P.1 to P8. While for the defendants, the defendant No.2 was examined as DW1 and 6 other witnesses were examined as DWs.2 to 7 and they marked Ex.D1 to D14.16
11. Upon consideration of the pleadings, evidence on record, the Trial Court by its common Judgment and Decree dated 31.03.1997 held that the Will dated 11.05.1965 executed by Thippanna was not revoked by his later Will dated 31.12.1973 and declared that the defendant No.1 had only life interest in the suit property and that the alienation of suit property by the defendant No.1 in favour of the defendant No.2 did not bind the interest of the plaintiff in the suit property. However, the plaintiff was restrained by an order of perpetual injunction from interfering with the possession of the defendant No.2 over the suit property until possession was obtained by due process of law.
12. Aggrieved by the aforesaid Judgment and Decree of the Trial Court, the defendant No.2 filed R.A. No.72/1997 before the District and Sessions Judge and Presiding Officer, Fast Track Court, Jamakhandi. The First Appellate Court in terms of its Judgment and Decree dated 12.08.2005, dismissed the Appeal and also the cross- 17 objection filed by the plaintiff under Order 41 Rule 22 of the Civil Procedure Code. Thus, the First Appellate Court upheld the Judgment and Decree of the Trial Court in O.S. No.104/1984.
13. Being aggrieved by the aforesaid Judgment and Decree of the Courts below Court, the defendant No.2 had preferred R.S.A. No.2245/2005 before this Court. R.S.A. No.2244/2005
14. This appeal is filed by the plaintiff in O.S. No.69/1985 challenging the Judgment and Decree dated 31.03.1997 passed by the Munsiff and JMFC., Banahatti, as well as the concurring Judgment and Decree of the First Appellate Court in R.A.71/1997, by which both the Courts held that the plaintiff was not entitled to declaration of title and perpetual injunction in respect of the suit property.
15. The averments contained in O.S. No.69/1985 disclose that the suit property originally belonged to 18 Tippanna Girimallappa Huddar of Terdal who died on 06.10.1974. It is stated that the said Tippanna Girimallappa Huddar left behind him, his only wife (Smt.Bhowrawwa) as class I heir to his estate. The said Tippanna prior to his death, had entered into an agreement of sale of the suit property with the plaintiff on 29.12.1973 and it was agreed that the sale deed would be executed within three years. However, the said Tippanna died within the said three years. It is stated that the wife of the said Tippanna (Smt.Bhowrawwa) being the sole successor of the estate of her husband, executed a sale deed and conveyed the suit property to the plaintiff. It is stated that the defendant (Plaintiff in O.S.No.104/1984) was a stranger to the suit property and that the vendor of the plaintiff (Smt.Bhowrawwa) had filed a suit in O.S. No.22/1984 before the Court of Munsiff, Banahatti and obtained an order of perpetual injunction against the defendant (Plaintiff in O.S.No.104/1984) on 06.02.1984. Thereafter, the said Smt.Bhowrawwa sold the suit property to the plaintiff and that the plaintiff was in actual 19 possession and enjoyment of the suit land without obstruction from anybody. It is stated that the defendant had filed the suit in O.S. No.104/1984 which was for declaration that the sale deed dated 22.05.1984 was not binding upon his interest based on the Will dated 11.05.1965, though Smt.Bhowrawwa was then alive. The plaintiff claimed that the defendant was not a reversioner of the estate of Thippanna and as such he had no chance of succession to the suit property. It is further claimed that the defendant by filing such a vexatious suit, (O.S.No.104/1984) had attempted to claim the suit property based on the Will dated 11.05.1965. He stated that the Will dated 19.05.1965 was not the last Will of Thippanna Huddar and that the said Will was replaced by the Will dated 31.12.1973. He further stated that the defendant based on the aforesaid Will was attempting to interfere with the peaceful possession and enjoyment of the plaintiff in the suit property. Thus, the plaintiff sought for declaration of his title to the suit property and for perpetual injunction restraining the defendant from 20 interfering with the possession of the plaintiff in the suit property.
16. The defendant entered appearance and filed his written statement and disputed the execution of the sale deed by Smt. Bhowrawwa in favour of the plaintiff. He contended that Thippanna had executed a Will on 11.05.1965 and had bequeathed the suit property to Smt.Bhowrawwa during her lifetime and later, to the defendant. He claimed that the Will dated 31.12.1973 set up by the plaintiff contained a reference to an earlier Will dated 11.05.1965 and thus contended that the valid execution of the Will dated 11.05.1965 was proved. He further claimed that the Will dated 31.12.1973 did not confer any title on Smt.Bhowrawwa and consequently, the plaintiff had no title to the suit property. He further claimed that Smt.Bhowrawwa did not succeed to the suit property after the death of Thippanna as the property had vested in him. He further claimed that the defendant was not a stranger to the suit property as alleged but he was 21 the nephew of Smt.Bhowrawwa and was brought up and treated by Smt. Bhowrawwa and Thippanna as their own son. He claimed that he was cultivating the suit land since his childhood. Further, he stated that the agreement dated 29.12.1972 set up by the plaintiff was not signed by the deceased Thippanna. He further contended that Smt.Bhowrawwa had filed a suit in O.S.No.152/1980 wherein Bhowrawwa had pleaded that Thippanna had not executed such an agreement of sale of the suit property and that Bhowrawwa later compromised the said dispute in R.A.No.84/1980. He therefore contended that the Will dated 11.05.1965 was valid and that the plaintiff did not derive any title to the suit property.
17. Based on the above pleadings of the parties, the Trial Court framed the following Issues:
"1) Whether the plaintiff proves that he is the owner of the suit land RS No.271/2/4 measuring 16 acres 4 Gs. assessed at Rs.44.27 by virtue of the Registered sale deed dated 22 24-02-1984 executed by Smt.Bouravva Huddar?
2) Whether the defendant proves that he is the owner of the suit land by virtue of the Will dated 11-05-1965 executed by deceased Tippanna Huddar?
3) Whether Smt.Bouravva Huddar is necessary party to the suit as contended in para 13 of the written statement?
4) Whether the plaintiff is entitled for declaration and for permanent injunction against the defendant?
5) What decree or Order?"
18. The Trial Court in terms of its common Judgment and Decree dated 31.03.1997, dismissed the suit of the plaintiff in so far as the relief of declaration is concerned. However, the defendant was restrained from interfering with the possession of the plaintiff until possession was obtained by due process of law. 23
19. Feeling aggrieved by the aforesaid Judgment and Decree of the Trial Court in O.S. No.69/1985, the plaintiff filed R.A. No.71/1997. The First Appellate Court dismissed the appeal filed by the plaintiff.
20. Being aggrieved by the aforesaid common Judgments and Decrees of the Trial Court and the First Appellate Court, the plaintiff has filed RSA No.2244/2005.
21. These two appeals were admitted on 08.01.2008 to consider the following substantial question of law:
"Whether the Courts below were justified in holding that the first defendant is not a wife and only a kept mistress ignoring her description in the Wills which is not in dispute coupled with the fact that Thippanna had no other wife?"
22. These two appeals arise out of the common Judgment and Decree passed by the Trial Court in 24 O.S.No.104/1984 and O.S.No.69/1985 and the concurring Judgment of the First Appellate Court in R.A.No.72/1997 and R.A.No.71/1997 respectively. The Trial Court had treated the suit filed in O.S.No.104/1984 as the main suit and had recorded evidence in O.S.No.104/1984. Thus, in the course of this Judgment, I would refer to the parties as they were arrayed before the Trial Court in O.S.No.104/1984. The defendant No.1 in O.S.No.104/1984 was not a party in O.S.No.69/1985 and therefore, she shall henceforth be referred by name "Bhowrawwa".
23. The gravamen of the case of the plaintiff is that Thippanna had by his Will dated 11.05.1965 bequeathed suit property and other two properties to Bhowrawwa to be held during her life time and these properties were to ultimately vest in the plaintiff. The subsequent Will executed by Thippanna dated 31.12.1973 was only an alteration of the Will dated 11.05.1965. The plaintiff claimed that the Will dated 11.05.1965 in respect of the suit property remained undisturbed notwithstanding 25 the subsequent Will dated 31.12.1973. He also claimed that Bhowrawwa was not the wife of Thippanna but his concubine and therefore her limited interest in the suit property as per the Will dated 11.05.1965 would not blossom into absolute right but she was entitled to a restricted estate.
24. The learned counsel for the plaintiff relied upon the following Judgments of the Hon`ble Apex Court to contend that in the facts of the case, Smt.Bhowrawwa would be entitled to limited interest by operation of Section 14 (2) of the Act.
1. (1994) 2 SCC 511 (Gumpha (smt.) and others vs. Jaibai)
2. AIR 2003 SC 160 (Gulabrao Balwantrao Shinde and others vs. Chhabubai Balwantrao Shinde and others)
3. AIR 2006 SC 3282 (Sadhu Singh vs. Gurdwara Sahib Narike)
4. AIR 2006 SC 1993 (Sharad Subramanyan vs. Soumi Mazumdar and others) 26
5. AIR 2008 SCW 4857 (Smt. G. Rama vs. T.G. Seshagiri Rao (deceased by LRs.))
6. AIR 2013 SC 3099 (Ramji Gupta and Anr. Vs. Gopi Krishan Agrawal (D) and Ors.)
7. Laws (SC)-2013-3-44 (Shivdev Kaur vs. RS Grewal)
8. AIR 2018 SC 62 (Ranvir Dewan vs. Mrs. Rashmi Khanna and another)
9. AIR 2019 SC 2122 (Ajit Kaur @ Surjit Kaur vs. Darshan Singh (dead) through LRs.)
10. AIR 2019 SC 3000 (Dr. R.S. Grewal and Ors.
vs. Chander Parkash Soni and Anr.)
11. Judgment of the HC Andhra Pradesh in Kallakuri Pattabhiramaswamy vs. Kallakuri Kamaraju (Laws (APH)-2009-3-6)
12. Judgment of this Court in the case of Krishna Shankar Mirajankar vs. Vasantalata (RFA 1549/2003)
25. Contrarily, Bhowrawwa claimed that the first Will dated 11.05.1965 was substituted by the later Will dated 31.12.1973 by which Thippanna bequeathed one item each to Bhowrawwa and the plaintiff. She thus 27 contended that as there was no testament in respect of the suit property, she being the wife of Thippanna, had succeeded to the suit property and therefore, was the absolute owner of the suit property and she later sold it to defendant No.2 to meet the commitment under Ex-D1 (agreement of sale dated 29.12.1973 executed by Thippanna in favour of defendant No.2). The defendant No.2 who adopted the written statement of Bhowrawwa relied upon the following Judgments in support of his contention that Section 14(1) of the Hindu Succession Act, 1956 was applicable:
1. 2010 (10) SCC 235 (Subhan Rao and other vs Parvathi Bai and others);
2. AIR 2013 SC 1620 (Shivdev Kaur vs. R.S.Grewal);
and
3. (2006) 8 SCC 75 (Sadhu Singh vs. Gurdwara Sahib Narike and others).
28He also relied upon the Judgment of the Apex Court in Madan Mohan Singh and others vs. Rajni Kant and another reported in (2010) 9 SCC 209 to contend that there is a presumption under Section 114 of the Evidence Act regarding valid marriage of a man and a woman living under a same roof for continuous long period.
26. In the light of the above, the following additional substantial questions of law arise for consideration:
i) Whether the Will dated 11.05.1965 was altered / substituted / revoked by Thippanna by his later Will dated 31.12.1973 ?
ii) If the Will dated 11.05.1965 was not revoked, whether the limited interest created in favour of Bhowrawwa blossomed into an absolute estate by virtue of Section 14(1) of the Hindu Succession Act or whether she was entitled to a restricted interest by virtue 29 of Section 14(2) of the Hindu Succession Act?
27. A reading of the plaint and the written statement throws up the following facts that are not in dispute.
Smt. Bhowrawwa was given in marriage to Basalingappa Uttappa Gallapagol and after his death, Bhowrawwa lived with Thippanna as his mistress. The Plaintiff, who was the nephew of Bhowrawwa, lived with Bhowrawwa and Thippanna. The said Thippanna in order to provide for the maintenance of Bhowrawwa had executed a settlement deed dated 01.07.1946 (Ex-P8) wherein he referred Bhowrawwa as his "mistress" and gave away a property for her maintenance but was subject to the condition that in the event of her death, the property should go back to Thippanna and in his absence, to the legal heirs of said Thippanna. This therefore faintly indicates that the wife of Thippanna was alive during 1946 and as they had no children, the reference to legal heirs of 30 Thippanna in Ex.P8, invariably meant his wife. In the settlement deed dated 01.07.1946 executed in respect of a property in favour of Bhowrawwa, she was referred to as 'Bowrawwa D/o Kasawwa Jagadala Navalagi'. Thippanna later executed a Will on 11/05/1965 (Ex.P2) by which, he bequeathed the following properties to his wife Smt.Bhowrawwa, for her life time and later to the plaintiff.
i) R.S.No.271/2/4 (suit property) ii) R.S.No.559/8
iii) House No.2379 Following this, Thippanna executed another Will on 31.12.1973 (Ex.D2) by which he altered his earlier Will dated 11.05.1965 and gave away land in R.S.No.559/8 to his wife Smt.Bhowrawwa absolutely and R.S.No.24/1 to the plaintiff. Thippanna died on 06.10.1974.
28. Now that the undisputed facts are captured, the documentary evidence placed on record would disclose the following facts:
31
a) Ex.P1 is the RTC of Sy. No.271/2/4 which indicates the total extent of the land as 16 Acres 04 guntas.
b) Ex.P2 is the Will dated 11.05.1965 executed by Thippanna in favour of Bhowrawwa by which he created a life interest in favour of Bhowrawwa in respect of R.S.No.271/2 and R.S.No.559/8 and a house No.2379. Ex.P2(a) is the transcript of Ex.P2.
The plaintiff was appointed as the ultimate beneficiary and the relevant portion of Ex.P.2(a) is extracted below:
"EzÀPÉÌ ZÀPï§A¢ ¥ÀÆ- ©üêÀÄ¥Àà ºÀÄ°PÀÄAzÀ ªÀÄ£É ¥À-¨ÉÆüÀºÁj, zÀ - ¸ÀgÀPÁj ºÁ¢, G -CtÚ¥Àà£ÁUÀgÉrØ ªÀÄ£É F ¥ÀæPÁgÁ ZÀPÀ§A¢AiÀÄ°ègÀĪÀ ªÀÄ£É ªÀÄvÀÄÛ RįÁè eÁUÉ F ¥ÀæPÁgÁ ªÉÄÃ¯É ªÀtð£É ªÀiÁrzÀ «Ä¼ÀPÀwUÀ½zÀÄÝ £Á£ÀÄ £À£Àß ºÀAiÀiÁwªÀgÉUÉ G¥À¨sÉÆÃUÀ ªÀiÁqÀÄvÉÛãÉ. £À£ßÀ ¥À±ÁÑvÀ £À£Àß ºÀAqÀw ¨sËgÀªÀé PÉÆÃA w¥ÀàtÚ¥àÀ ºÀÄzÁÝgÀ ¸Á vÉÃgÀzÁ¼À vÁ. dªÀÄRAr EªÀ¼ÀÄ G¥À¨Æ És ÃUÀ ªÀiÁqÀĪÀzÀÄ.
CzÉ ¸ÀzÀj ¨sÉÊgÀªÀé PÉÆÃA w¥ÀàtÚ¥àÀ ºÀÄzÁÝgÀ EªÀ¼À ¥À±ÁÑvÀ ªÉÄÃ¯É £ÀªÀÄÆzÀ ªÀiÁrzÀ «Ä¼ÀPÀwUÀ¼ÀÄ ±ÀAPÀgÀ²zÀÝ¥Àà ºÉÆý PÁªÀÄtÚªÀgÀ ¸Á. vÉÃgÀzÁ¼À vÁ. dªÉÄRAr EªÀ£ÀÄ vÀªÀÄä vÁ¨ÁzÀ°è ªÀiÁ°PÀ£Áw¬ÄAzÀ vÀPÉÆÌAqÀÄ ¸ÀzÀj 32 «Ä¼ÀPÀwUÀ¼À£ÀÄß vÀªÀÄä ªÀÄfð ¥ÀæPÁgÁ G¥À¨sÉÆÃUÀ ªÀÄvÀÄÛ «¤AiÉÆÃUÀ ªÀiÁqÀ¨ÉÃPÀÄ."
c) Ex.P3 is the deposition of Bhowrawwa in O.S. No.152/1980, the relevant portion of which is extracted as under:
"Deceased Tippanna has not executed any agreement deed in favour of Deft. It is false to say that deceased Tippanna agreed to sell his land in favour of Deft. And agreement produced by the deft. is fabricated one and forged document."
d) Ex.P4 is the relevant portion of deposition of defendant No.2 (Dhareppa-DW.1) in O.S. No.152/1980 wherein he had deposed as follows:
"I know the Plff. Plff. is a kept mistress of deceased Thippanna Huddar. Ptff. was given in marriage to Hunnur village to one Basappa Alnapur. He has died about 3 years back. It is true to say that Ptff. is the wife of deceased Tippanna Huddar."33
e) Exs.P5 and P6 are portions of the deposition of Dhareppa - DW.1 in O.S. No.152/1980 and the same is extracted below:
"It is not true to say that Sy.No.271/2 is worth Rs.50,000/-. The possession of the land agreed to be sold by deceased Tippanna is with Plff. till today."
"The recital in the agreement deed to the effect that possession of land handed over to me, but I did not took the possession of land and I voluntarily I have given up the possession of the land as no sale deed has taken place."
f) Ex.P7 is the relevant portion of deposition of a witness (Nagayya - DW.2) in O.S. No.152/1980 which is extracted below:
"The thumb mark on the agreement deed Ex.D.1 is not that of Tippanna Huddar which I had taken. I have taken the thumb mark of Tippanna in a blue ink and not a black ink. "34
g) Ex.P8 is the settlement deed dated 01.07.1946 executed by Thippanna in favour of Bhowrawwa which discloses that Bhowrawwa was referred as a mistress of Thippanna.
h) Ex.P8(a) is a translation of Ex.P8 and the relevant portion is extracted below:
"¤Ã£ÀÄ £À£Àß gÀArAiÀiÁUÀ¨ÉÃPÀÄ. ¤Ã£ÀÄ £À£ßÀ PÀqÉUÉ 10-12 ªÀµÀðUÀ¼ÀªÀgÉUÉ EgÀÄwÛÃ. ¤£Àß ºÉÆmÉÖ§mÉÖAiÀÄ ªÀåªÀ¸ÉÜ ªÀiÁqÀ¨ÉÃPÉAzÀÄ ªÀÄvÀÄÛ ¤£Àß ºÀAiÀÄUÀAiÀĪÁUÀ¨ÁgÀzÉAzÀÄ w½zÀÄ ªÀÄvÀÄÛ E£ÀÄß ªÀÄÄAzÉ ¸ÀºÀ ¤Ã£ÀÄ £À£Àß ºÀvÀÛgÀ EgÀÄwÛà CAvÁ w½zÀÄ PɼÀUÉ «ªÀj¹zÀ D¹ÛAiÀÄÄ £Á£ÀÄ ¤£Àß £À£ßÀ ºÀAiÀiÁwªÀgÉUÉ PÉÆlÄÖ ªÀåªÀ¸ÉÜ ªÀiÁrzÉÝãÉ. CzÀgÀ «ªÀgÀ 1 ªÀĺÁ® vÉÃgÀzÀ¼À ¥ÉÊQ ªÀÄdgÀ PÀ®ºÀnÖAiÀÄ°èAiÀÄ £À£ßÀ ªÀiÁ°Ì d«ÄãÀÄ j.¸À.£ÀA.29, 1 ¥ÉÆÃ. 0-18 UÀÄAmÉ 1 DPÁgÀ gÀÆ........."
"¸À¢æ d«ÄãÀÄ £Á£ÀÄ ¤£ÀUÉ ¤£Àß ºÉÆmÉÖ §mÉÖAiÀÄ ªÀåªÀ¸ÉÜ ¸À®ÄªÁV ¤£Àß ºÀAiÀiÁwªÀgÉUÉ PÉÆnÖgÀÄvÉÛãÉ. ¸À¢æ d«ÄãÀÄ ¤Ã£ÀÄ ºÀAiÀiÁwªÀgÉUÉ G¥À¨sÉÆÃUÀ ªÀiÁr £À£ßÀ PÀ§eÁPÉÌ PÉÆqÀvÀPÀÌzÀÄÝ. ¸À¢æ d«ÄãÀzÀ ¨sÀÆ PÀAzÁAiÀÄ ¤Ã£Éà PÉÆqÀvÀPÀÌzÀÄÝ."35
"MAzÀÄ ªÉÃ¼É £Á£ÀÄ ºÀAiÀiÁvïgÁzÀgÉ ¤Ã£ÀÄ £À£Àß ªÁgÀ¸ÀzÁgÀjUÉ d«ÄãÀÄ ¹UÀvÀPÀÌ¢ÝzÉ."
i) Ex.D1 is the sale agreement dated 29.12.1973 that is stated to have been executed by Thippanna in favour of the defendant No.2 in respect of the suit property.
j) Ex.D2 is the Will dated 31.12.1973 that was executed by Thippanna in favour of Bhowrawwa in respect of R.S. No.559/8 and in favour of the plaintiff in respect of R.S. No.24/1.
k) Ex.D3 is the sale deed dated 22.05.1984 executed by Bhowrawwa in favour of defendant No.2.
l) Ex.D4 is the certified copy of the order in Cr.R.P No.55/1985 which discloses that Crime No.19/1985 was registered by Terdal Police Station, on a complaint of defendant No.2 for an offence under Section 379 of the Indian Penal Code and that the plaintiff had challenged the taking of cognizance in the aforesaid revision petition and that the revision petition was dismissed in terms of the order dated 06.06.1988.
36
m) Exs.D5 to D8 are the land revenue receipts and Ex.D9 is the receipt patta in respect of the lands bearing Sy. Nos.559/8 and 271/2/4 in the name of Bhowrawwa Thippanna Huddar.
n) Ex.D10 is the certificate issued by the Assistant Controller of Estate Duty and this indicates that Thippanna had paid the estate duty as on 08.04.1976 in respect of the properties held by him.
o) Ex.D11 is the succession certificate that was granted by the Court of the Additional Munsiff, Jamkhandi, on 23.07.1979 in respect of a debt of Rs.3,500/- recoverable from the defendant No.2 in favour of Thippanna.
p) Ex.D12 is the certified copy of the order sheet in R.A. No.84/1980 which discloses that the appeal was dismissed on 13.03.1984 based on a joint memo. The relevant portion of the joint memo dated 13.03.1984 is extracted as follows:
"The appellant and Respondent have compromised their suit dispute and the appellant has amicably settled and satisfied the suit claim by payment to the respondent through their community elders and that there 37 is nothing due from the appellant to the respondent. Both parties have agreed to bear their own costs of this appeal."
q) Ex.D13 is the decree passed in O.S. No.138/1984 filed by defendant No.2 against strangers for perpetual injunction in respect of the suit property which was decreed on 21.12.1991.
r) Ex.D14 is the certified copy of the deposition of Bhowrawwa that was earlier recorded in O.S. No.104/1984 which disclosed that her marriage with Thippanna was in Udiki form.
29. Now adverting to the oral evidence, the evidence of the plaintiff was recorded as PW.1 and the relevant portions of his deposition is extracted below:
"£Á£ÀÄ ªÁ¢, ¥ÀæwªÁ¢AiÀÄgÀ ¥ÀjZÀAiÀÄ EzÉ, ªÀÄÈvÀ w¥ÀàuÁÚ VjªÀÄ®è¥Àà ºÀÄzÁÝgÀ £À£ßÀ vÁ¬Ä CPÀÌ£À UÀAqÀ. £Á£ÀÄ 8 ªÀµÀðzÀªÀ£ÀÄ EzÁÝUÀ £À£Àß vÁ¬Ä-vÀAzÉ wÃjPÉÆArzÀÝgÀÄ. CzÀPÁÌV ¸À¢æà w¥ÀàuÁÚ £À£ÀߣÀÄß vÀ£Àß ªÀÄ£ÉAiÀÄ°è ElÄÖPÉÆArzÁÝ, DvÀ£À ªÀÄ£É vÉÃgÀzÁ¼ÀzÀ°èvÀÄÛ. DV¤AzÁ DvÀ £À£ÀUÉ vÀ£Àß ªÀÄUÀ£ÀAvÉ eÉÆÃ¥Á£À ªÀiÁqÀÄvÁÛ EzÁÝ. DvÀ ¸ÀÄ.21 ªÀµÀðzÀ »AzÉ wÃj PÉÆArzÁÝ£É. 1£Éà ¥ÀæwªÁ¢ 38 ªÉÆzÀ°UÉ ªÀÄzÀ£ÀªÄÀ nÖAiÀÄ M§â UÀƼÀ¥ÀàUÉÆüÀ£À eÉÆvÉUÉ ªÀÄzÀÄªÉ ªÀiÁrPÉÆArzÀݼÄÀ . DPÉAiÀÄ UÀAqÀ wÃjPÉÆAqÀ £ÀAvÀgÀ DPÉ ªÀÄÈvÀ w¥ÀàuÁÚ£À eÉÆvÉUÉ EgÀÄwÛzÀݼÄÀ . w¥ÀàuÁÚ ¨ËgÀªÀé¼À eÉÆvÉUÉ ªÀÄzÀÄªÉ ªÀiÁrPÉÆArgÀ°¯Á,. ªÀÄzÀĪÉAiÀiÁUÀzÉà CªÀj§âgÀÆ PÀÆr EgÀÄwÛzÀÝgÀÄ."
"ªÉÆzÀ®£Éà ªÀÄÈvÀÄå ¥ÀvæÀzÀ ¥ÀæPÁgÀ £À£ÀUÉ ¹QÌzÀ ªÀÄ£ÉAiÀÄ£ÀÄß PÀÆqÁ ªÀiÁjPÉÆArzÉÝãÉ."
"MAzÀ£ÉAiÀÄ ¥ÀæwªÁ¢ ªÀÄÈvÀ w¥ÀàtÚ£À ºÉAqÀw CAvÁ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è"
"w¥ÀàtÚ ªÀåªÀ¸ÁÜ ¥ÀvæÀ §gÉzÄÀ PÀ®ènÖAiÀÄ°èAiÀÄ MAzÀÄ ªÀÄ£É ªÀÄvÀÄÛ 559:8 £ÀA§j£À d«ÄãÀ£ÀÄß ¨ËgÀªéÀ½UÉ PÉÆnÖzÝÀ CAvÁ ºÉüÀĪÀÅzÀÄ ¸Àj¬ÄzÉ."
"PÀgÁgÀÄ ¥ÀvÀæ §gÉzÄÀ PÉÆnÖzÝÀ PÁÌV ªÉÆzÀ®£ÉAiÀÄ ªÀÄÈvÀÄå ¥ÀvÀæªÀ£ÀÄß gÀzÀÄÝ ªÀiÁqÀĪÀ ¥Àæ¸ÀAUÀ §A¢vÀÄÛ CAvÁ ºÉüÀĪÀÅzÀÄ ¸ÀļÀÄî."
"w¥ÀàtÚ ¸ÁAiÀÄĪÀªÀgÉUÉ zÁªÁ d«ÄãÀÄ DvÀ£À PÀ©ÓAiÀÄ°èAiÉÄà EvÀÄÛ CAvÁ ºÉüÀĪÀzÀÄ ¸Àj EzÉ. D£ÀAvÀgÀ MAzÀ£ÉAiÀÄ ¥ÀæwªÁ¢ zÁªÁ d«ÄãÀ£ÀÄß JgÀqÀ£ÉAiÀÄ ¥ÀæwªÁ¢AiÀÄjUÉ ªÀiÁgÁl ªÀiÁqÀĪÀªÀgÉUÉ DPÉAiÀÄ PÀ¨ÉÓ ªÀ»ªÁn£À°èvÀÄÛ CAvÁ ºÉüÀĪÀÅzÀÄ ¸ÀļÀÄî."39
"JgÀqÀ£ÉÃAiÀÄ ªÀÄÈvÀÄå ¥ÀvæÀ ªÀiÁqÀĪÁUÀ, w¥ÀàtÚ vÀ£Àß ªÉÆzÀ°£À ªÀÄÈvÀÄå ¥ÀvÀæªÀ£ÀÄß ºÀjzÀÄ ºÁQzÁÝ£É CAvÁ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è."
30. PW.2 who was related to Thippanna deposed as follows:
"DzÀgÉ DvÀ AiÀiÁjUÀÆ ¨ÁQ EgÀ°¯Áè. w¥ÀàuÁÚ ¸ÁAiÀÄĪÁUÀ DvÀ¤UÉ ¸ÀÄ.80 ªÀµÀð ªÀAiÀĸÀÄì DVvÀÄÛ, DvÀ£À ºÉArÛ ¨ËgÀªÀéUÉ ªÀAiÀĸÀÄì DVvÀÄÛ CAvÁ ºÉüÀĪÀzÀÄ ¸Àj EzÉ. CªÀgÀÄ ¸ÀévÀB zÀÄrAiÀÄĪÀ ¥Àj¹ÜwAiÀÄ°ègÀ°¯Áè. DzÀgÉ CªÀjUÉ d«ÄäAzÁ GvÀà£Àß §gÀÄwÛgÀ°¯Áè CAvÁ ºÉüÀĪÀÅzÀÄ ¸ÀļÀÄî."
31. DW.1 who was defendant No.2 deposed as follows:
"CzÉà ¢ªÀ¸À zÁªÁ d«Ää£À PÀ¨ÉÓAiÀÄ£ÀÄß w¥ÀàuÁÚ £À£ÀUÉ PÉÆnÖzÁÝ."
"ªÉÆzÀ°£À ªÀÄÈvÀÄå ¥ÀvÀæzÀ ªÀÄÆ® ¥Àæw ¨ËgÀªéÀ£À PÀqÉ EvÀÄÛ CAvÁ ªÁ¢ ºÉüÀÄwÛgÄÀ ªÀÅzÀÄ ¸ÀļÀÄî. CzÀ£ÄÀ ß w¥ÀàtÚ£Éà ºÀjzÀÄ ºÁQzÁÝ£É."40
"ªÉÆzÀ°£À zÁªÉAiÀÄ°è ¨ËgÀªÁé ¸ÀļÀÄî ¸ÁQë ºÉýzÁݼÉ."
"PÀgÁgÀ ¥ÀvÀæ §gÀ¹PÉƼÀÄîªÁUÀ ¸ÀĪÀtðTAr ºÀwÛgÀ ºÉ¨ÉânÖ£À UÀÄvÀð ¥ÀqÉzÀÄPÉƼÀÄîªÀ ¥ÁåqÄÀ EvÀÄÛ."
"w¥ÀàuÁÚ ªÀÄgÀt ¥ÀmÁÖV¤AzÀ zÁªÁ d«ÄãÀÄ ªÁ¢AiÀÄ PÀ©Ó ªÀ»ªÁnAiÀÄ°èvÄÀ Û CAvÁ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è."
"w¥ÀàtÚ ªÀÄvÀÄÛ ¨ËgÀªÀégÀ°è GqÀÄQ
ªÀÄzÀĪÉAiÀiÁUÀĪÀÅzÀQÌAvÀ ªÀÄÄAa¤AzÀ®Æ CªÀj§âgÀÆ
PÀÆrAiÉÄà EgÀÄwÛzÀÝgÀÄ; C£ÀAvÀgÀ CªÀgÀ GqÀÄQ
ªÀÄzÀĪÉAiÀiÁVvÀÄÛ."
32. DW.2 was the owner of the land adjacent to the suit property and he deposed as follows:
"zÁªÁ d«ÄäUÉ vÁVPÉÆAqÀÄ GvÀÛgÀ §¢UÉ £À£Àß d«ÄãÀÄ EzÉ. £À£Àß d«ÄãÀÄ ªÀÄvÀÄÛ zÁªÁ d«ÄãÀÄ MAzÉà ¸ÀªÉð £ÀA§j£À ¨sÁUÀUÀ¼ÁVªÉ."
"w¥ÀàuÁÚ ¸ÁAiÀÄĪÀªÀgÉUÉ zÁªÁ d«Ää£À ¸ÁUÀĪÀ½AiÀÄ£ÀÄß DvÀ ªÀiÁqÀÄwÛzÁÝ ªÀÄvÀÄÛ DvÀ£À £ÀAvÀgÀ CzÀgÀ ¸ÁUÀªÀ½AiÀÄ£ÀÄß 2£Éà ¥ÀæwªÁ¢ ªÀÄqÀÄwÛzÁÝ£É."41
"w¥ÀàtÚ EzÁÝUÀ¯Éà DvÀ zÁªÁ d«Ää£À §UÉÎ 2£Éà ¥ÀæwªÁ¢ ºÉ¸ÀjUÉ E¸ÁgÀ ¥ÀvÀæ §gÉzÄÀ PÉÆnÖzÝÉ Ã£É CAvÁ ºÉýzÁÝ."
33. DW.3 is the owner of the land bearing No.273 and he deposed that it was defendant No.2 who was cultivating the suit property.
34. DW.4 is the witness to the sale deed (Ex.D3) and DW.5 is the scribe of the sale agreement at Ex.D1. DW.6 is the scribe of the Will at Ex.D2. DW.7 is a resident of Terdal village who deposed about the marriage of Bhowrawwa with Thippanna.
35. The evidence of Bhowrawwa (DW.1 in O.S. No.104/1984 marked as Ex.D14) is available as recorded on 05.09.1988 and the relevant portion is extracted below:
"£Á£ÀÄ ¥ÀAZÀªÀıÁ°AiÀÄ °AUÁAiÀÄvÀ eÁwAiÀĪÀ¼ÀÄ C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî, ªÀiÁ®UÁgÀ eÁw ªÀÄvÀÄÛ ¥ÀAZÀªÄÀ eÁwAiÀÄ°è ªÀÄzÀÄªÉ DUÀĪÀÅ¢¯Áè C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî. £À£Àß GqÀQAiÀÄÄ UÁA¢ü ZÀ¼ÀĪÀ½AiÀÄ°è DVzÉ. JgÀqÀ£Éà ®UÀß 42 w¥ÀàtÚ£À eÉÆvÉUÉ DUÀĪÀ PÁ®PÉÌ £À£ßÀ ©qÀÄUÀqÉ DV¯Áè C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî. ªÉÆzÀ®£É UÀAqÀ£À eÉÆvÉUÉ ©qÀÄUÀqÉ DzÀ §UÉÎ PÁUÀzÀ ¥ÀvÀæUÀ¼À£ÀÄß UÉÆvÀÄÛ E¯Áè, ¸ÀzÀjà PÁUÀzÀ ¥ÀvÀæUÀ¼À£ÀÄß F zÁªÉAiÀÄ°è ºÁdgÀ ¥Àr¹¯Áè C£ÀÄߪÀÅzÀÄ ¤d. 1946gÀ°è w¥ÀàtÚ £À£Àß ºÉ¸Àj£À°è ¹.2gÀ ¥ÀæPÁgÀ Rjâ ¥ÀvÀæ ªÀiÁr¹PÉÆnÖzÁÝ£É C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî ªÀÄvÀÄÛ ¸ÀzÀjà ªÀÄ£ÉAiÀÄ£ÀÄß 8 ªÀµÀðUÀ¼À »AzÉ ªÀiÁgÁl ªÀiÁrzÉÝÃ£É C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî. ¤¦-2 gÀ°è £À£Àß vÁ¬ÄAiÀÄ ºÉ¸ÀgÀÄ PÁ±ÀªÀé ¸Á: dUÀzÁ¼À CAvÁ §gɬĹzÁÝ£É C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî. £À£Àß ªÀÄzÀÄªÉ w¥ÀàtÚ eÉÆvÉUÉ DV¯Áè C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî. ¤¦.2£ÀÄß ªÀiÁr¹PÉÆAqÀÄ CªÀ£À ªÀÄ£ÉAiÀÄ°è ºÉÆQÌzÝÉ Ã£É C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî. w¥ÀàuÁÚ JgÀqÀÄ ªÀÄÈvÀÄå ¥ÀvæÀ ªÀiÁrzÁÝ£É C£ÀÄߪÀÅzÀÄ ¤d. ªÉÆzÀ®£Éà ªÀÄÈvÀÄå ¥ÀvÀæzÀ°è J¯Áè D¹ÛAiÀÄ£ÀÄß £ÀªÀÄÆzÀ ªÀiÁrzÀÝ£ÀÄ, ªÉÆzÀ®£ÉAiÀÄ ªÀÄÈvÀÄå ¥ÀvÀæzÀ°è 33 UÀÄAmÉ PÀÄtð ¥ÀnÖAiÀÄ£ÀÄß ªÀiÁr¯Áè C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî. ªÉÆzÀ®£ÉAiÀÄ ªÀÄÈvÀÄå ¥ÀvÀæzÀ°è J¯Áè D¹Û ªÁ¢UÉ ºÉÆÃUÀ¨ÉÃPÀÄ CAvÁ §gÉ¢zÉÝÃ£É C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî. CzÀgÀ°è ªÁ¢ ¸ÀtÚªÀ¤zÁÝUÀ¤AzÀ®Æ £À£Àß PÀÆqÁ EzÁÝ£É CAvÁ §gɬĹzÉÝÃªÉ C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî. ªÀÄvÀÄÛ CzÀgÀ°è ªÁ¢AiÀÄÄ £À£ßÀ ªÀÄUÀ£À ¥ÀæPÁgÀ ¦æÃw EzÉ CAvÁ §gÉ¢zÉ C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî. JgÀqÀ£Éà ªÀÄÈvÀÄå ¥ÀvæÀ ¸ÁAiÀÄĪÀÅzÀQÌAvÀ 1 ªÀµÀð ªÉÆzÀ®Ä ªÀiÁrzÁÝ£É. JgÀqÀ£Éà ¥ÀvÀæzÀ°è zÀÄgÀ¹ÛAiÀiÁV §gÉzÀÄ ªÀiÁrzÁÝ£É C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî.43
2£Éà ªÀÄÈvÀÄå ¥ÀvÀæzÀ°è 1 JPÀgÉ 1 UÀÄAmÉ £À£ÀUÉ ¥ÀÆgÁ PÉÆnÖzÁÝ£É C£ÀÄߪÀÅzÀÄ ¤d."
36. I am conscious of the fact that the evidence of Bhowrawwa cannot be looked into in view of the Judgment dated 02.03.1990 passed by this Court in R.S.A No.70/1990 directing a de-novo enquiry. However, as Bhowrawwa died thereafter and her evidence was not recorded, having regard to the fact that Bhowrawwa was extensively cross examined, the same is adverted, for the limited purpose of ascertaining the status of relationship between Bhowrawwa and Thippanna.
37. Upon a careful consideration of the oral and documentary evidence, it clearly emerges that Thippanna was the absolute owner of the suit property and he had taken Bhowrawwa as his mistress from the year 1936 and had settled some properties for her maintenance, subject however to the condition that in the event of her death, the properties were to revert back to Thippanna and in the event of his death, the said properties were to revert back 44 to the legal heirs of Thippanna. The way in which this settlement was executed indicates that Thippanna was a shrewd man who measured his moves. This also probabilize the fact that Thippanna's wife was alive in the year 1946 when he settled the properties to Bhowrawwa for her maintenance. For the first time in the year 1965, Bhowrawwa was referred to as his wife by Thippanna when he executed the Will dated 11.05.1965 (Ex.P2) by which he bequeathed three items of properties to be held by Smt.Bhowrawwa during her life time and later by the plaintiff as the ultimate beneficiary. This pre-supposed that Bhowrawwa and Thippanna lived together from 1946 till the year 1965.
38. It is stated that Thippanna had agreed to sell suit item No.1 to the defendant No.2 in terms of the agreement of sale dated 29.12.1973 (Ex.D.1). Consequently, Thippanna executed another Will dated 31.12.1973 (Ex.D2), in terms of which he gave away R.S.No.559/8 to Smt.Bhowrawwa and R.S. No.24/1 to the 45 plaintiff. It is seen from Ex.D.10 (Estate duty certificate dated 08.04.1976) that Thippanna had declared that he was the owner of 17 Acres of agricultural land and a residential house at Terdal. He also claimed a sum of Rs.3,500/- as the amount receivable / recoverable in terms of a promissory note. In order to recover the said amount, Bhowrawwa filed P & SC 5/1976 on 12.04.1976, where she described herself as "Bourawwa wife of Tippanna Huddar". In respect of the said amount of Rs.3,500/- receivable, Smt.Bhowrawwa sought and obtained a succession certification which was granted by the Court of Additional Munsiff, Jamakhandi in terms of the Order dated 23.07.1979 (Ex.D.11). Smt. Bhowrawwa later filed a suit for recovery of a sum of Rs.3,500/- against the defendant No.2 in O.S No.152/1980 which was decreed. This was challenged by the defendant No.2 in the present suit in R.A.84/1980 which was compromised. Later, Smt.Bhowrawwa being the wife of Thippanna sold the suit property to the defendant No.2 in terms of a sale deed dated 22.05.1984 (Ex.D3). Based upon this sale deed, the 46 defendant No.2 filed a suit for bare injunction in original suit No.138/1984 against strangers which was decreed on 21.12.1991- (Ex.D.13).
39. The contention of Bhowrawwa is that she was the wife of Thippanna and that the Will dated 11.05.1965 (Ex.P2) was revoked by Thippanna by the subsequent Will dated 31.12.1973 (Ex.D2) which did not cover the suit property and therefore, she in order to honour the commitment of Thippanna to the defendant No.2, in terms of the sale agreement dated 29.12.1973 (Ex.D1), disposed off the suit property to the defendant No.2 in terms of the sale deed dated 22.05.1984.
40. On the contrary, the plaintiff contends that the Will dated 11.05.1965 was not revoked by the Will dated 31.12.1973, but Thippanna had reallotted the properties without affecting the prior Will dated 11.05.1965. He claimed that in terms of the Will dated 11.05.1965, Smt.Bhowrawwa had a life interest in the suit property but he was the ultimate beneficiary. He also contended that 47 Smt. Bhowrawwa was never the wife of Thippanna and the deposition of Smt. Bhowrawwa in O.S.No.152/1980 (Exs.P.3 and 4) indicated that Thippanna had not executed any agreement of sale in favour of defendant No.2 and the defendant No.2 had admitted that Smt.Bhowrawwa was the mistress of Thippanna. He relied on Section 30 of the Act which permitted the testamentary disposition of property by Thippanna. He contended that the life interest created by Thippanna in favour of Bhowrawwa under the Will dated 11.05.1965 did not blossom into full interest and therefore, she could not become the absolute owner of the suit property so as to convey the suit property to defendant No.2.
41. The defendant No.2 on the other hand contends that even if a restricted estate was given to Smt.Bhowrawwa, as she was the wife of Thippanna, the limited estate blossomed into absolute right by operation of Section 14(1) of the Act and that therefore, she was 48 entitled to encumber the suit property to the defendant No.2.
42. The oldest document available on record is Ex.P.8, which is a settlement deed between Thippanna and Smt.Bhowrawwa dated 01.07.1946. This document indicates that Sri Thippanna was aged 40 years while Smt.Bhowrawwa was aged 30 years. It also discloses that Smt.Bhowrawwa was the mistress of Thippanna for more than 10-12 years prior thereto and therefore, Thippanna had conditionally settled R.S.No.29/1 measuring 18 guntas to Smt.Bhowrawwa for her maintenance. The condition was that the property should revert back to Thippanna if Smt.Bhowrawwa predeceased him or to the legal heirs of Thippanna in the event of the death of Thippanna. Thus, Thippanna was conscious and always treated Smt.Bhowrawwa as his mistress and never treated her as his wife. The fact that Smt.Bhowrawwa continued to live with Thippanna till 1965 is proved beyond doubt as is evident from Ex.P.2. In Ex.P.2 (Will dated 11.05.1965) 49 Thippanna referred Smt.Bhowrawwa as his wife and the plaintiff was treated like his son. In terms of Ex.D.2 (Will dated 31.12.1973), Thippanna again referred Smt.Bhowrawwa as his wife. Therefore, there is documentary evidence on record that Smt.Bhowrawwa lived with Thippanna initially as his mistress and later on as his wife. If Thippanna had treated Bhowrawwa as his wife which is evident from the documents that are not in dispute, it is well nigh impossible for this Court to rule otherwise at the instance of the plaintiff. Hence, the substantial question of law framed by this Court is held in the negative as both the Courts could not have ignored the description of Bhowrawwa as the wife of Thippanna in Ex.P2 and Ex.D2.
43. Smt.Bhowrawwa deposed as in Ex.D.14 that she was given in marriage to Thippanna in Udiki Form during the freedom struggle of India. DW.7 was a resident of Terdal village and was aged 80 years as on 01.03.1997 50 and he spoke about the marriage of Smt.Bhowrawwa with Thippanna in Udiki form.
44. Udiki form of marriage is not unknown amongst Hindus. Mr.Sripati Roy while delivering his lecture on 'Customs and Customary law relating to marriage in British India in 1908' had stated, "The second marriage of a wife forsaken by the first husband among the Lingayats is called a Serai Udiki as distinguished from the lagna or dhara, the first marriage. Such a marriage is sanctioned by custom amongst the Lingayats of South Canara and is valid."
45. The Apex Court in Shakuntala Bai and another vs. L.V.Kulkarni and another reported in 1989(2) SCC 526 considered the entire gamut of customary Hindu law relating to marriage of a widow by a man who already had a spouse living held as follows:
"26. From the above evidence on record, appreciated in the light of the case law on the 51 subject and the authoritative texts as discussed above relating to the custom of dissolution and Udiki form of marriage prevalent among the Lingayats who are a religious sect following teachings of Basava, we entertain no doubt that there has been ancient and unbroken customs of dissolution of marriage and of serai Udiki marriage among the Panchamasale Lingayats which was already judicially noticed by the courts."
46. A learned Single Judge of this Court in Smt.Gurubasawwa vs. Smt. Irawwa & Ors. reported in ILR 1996 KAR 3615 held as follows:
"14. In the decisions cited above. Their Lordships of the Supreme Court have elaborately discussed not only the evidence adduced before the Trial Court which was made available to Their Lordship, they have further discussed about the text books and other materials to hold that such a custom was prevalent in that community. In view of the definite finding of the Apex Court, it has become a law of the country and it can always 52 be relied on by the Courts without much evidence. Under those circumstances, the contention of the Learned Counsel for the appellant that there is no custom of Udiki form of marriage in Lingayath community is therefore, liable to be rejected."
47. Thippanna was a shrewd agriculturist and he therefore chose to refer Smt.Bhowrawwa as his mistress in the year 1946. It may be that his wife was alive and therefore, he did not exalt Smt.Bhowrawwa to the status of his wife. His shrewdness is evident from Ex.P.2 which was the first Will executed by him by which he bequeathed the suit property and other properties and created a life interest to Smt.Bhowrawwa and referred her as his wife and had ameliorated the plaintiff from a mistress to someone very affectionate. Therefore, if Thippanna had considered Smt.Bhowrawwa as his wife in the year 1965, and if such relationship continued till the year 1973 when Thippanna executed his second Will wherein he again referred Smt.Bhowrawwa as his wife, this Court cannot 53 give any finding to the contrary. This is also in view of Section 114 of the Evidence Act which generates a presumption in favour of a valid marriage. Therefore, I hold that the initial entry of Smt.Bhowrawwa into the life of Thippanna was as a mistress but later was exalted to the status of his wife.
48. It is seen from Ex.D.1 that Thippanna had offered to sell the suit property to the defendant No.2 on 29.12.1973. The plaintiff disputed that such an offer was never made by Thippanna and in this regard, he relied upon the deposition of Smt.Bhowrawwa in O.S.No.152/1980 (Ex.P.3) wherein Smt.Bhowrawwa had contended that Thippanna had not executed any sale agreement. However, none of the parties to the suit chose to establish that the thumb impression found on Ex.D.2 was not the thumb impression of Thippanna. However a circumstance that makes the execution of the agreement Ex.D.1 (dated 29.12.1973) probable is the recital 54 contained in the Will dated 31.12.1973 which is extracted below:
"£Á£ÀÄ F ªÉÆzÀ¯Éà ¸À£ï 1965 E¸À« gÀAzÀÄ MAzÀÄ ªÀÄÈvÀÄå ¥ÀvÀæ ªÀiÁrnÖzÝÉ . CzÀgÀ°è PÉ®ªÀÅ §zÀ¯ÁªÀuÉ ªÀiÁqÀĪÀÅzÀÄ CUÀvÀå PÀAqÀÄ §AzÀzÀÝjAzÀ F ªÀÄÈvÀÄå ¥ÀvæÀ ªÀiÁrgÀÄvÉÛãÉ. EzÀÄ £À£Àß PÉÆ£ÉAiÀÄ ªÀÄÈvÀÄå ¥ÀvæÀ EgÀÄvÀÛzÉ."
49. It is noticed from Ex.P.2 (Will dated 11.05.1965) that Thippanna had executed a Will in respect of the suit property and also R.S. No.559/8 and house No.2379. But by the subsequent Will (dated 31.12.1973), he had excluded the suit property but had bequeathed only the property bearing R.S.No.559/8 in favour of Bowrawwa and R.S.No.24/1 in favour of the plaintiff. It is therefore probable that since Thippanna had agreed to sell the suit property to the defendant No.2, he had restricted the subsequent Will to the property excluding the suit property. Even otherwise, the defendant No.2 had at an undisputed point in time contended in O.S.No.152/1980 that Thippanna had executed the sale agreement dated 55 29.12.1973. Under these circumstances, this Court would hold that Thippanna had agreed to sell the suit property to the defendant No.2 in terms of Ex.D.1.
50. The plaintiff claimed that the Will dated 11.5.1965 by which Thippanna recognised the plaintiff as ultimate beneficiary, was not revoked by the Will dated 31.12.1973. He also contended that the subsequent Will was devised by Thippanna so as to cover the other property bearing Sy.No.24/1. Thus he contended that in view of the Will dated 11.05.1965, he had become the absolute owner of the suit property. There is no dispute regarding the execution of the two Wills dated 11.05.1965 and 31.12.1973 by Thippanna. The first Will not only related to the suit property but also related to R.S.No.559/8 and a house property. By the subsequent Will R.S.No.559/8 was bequeathed absolutely to Smt.Bhowrawwa and R.S.No.24/1 was bequeathed absolutely to the plaintiff. The question that has to be 56 therefore decided is whether the subsequent will revoked the earlier will of Thippanna.
51. A Will can be revoked by the execution of another Will or Codicil or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is required to be executed or by burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.
52. Sec. 70 of the Indian Succession Act, provides for revocation of unprivileged Will and is extracted below:
"70. Revocation of unprivileged Will or codicil. - No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying 57 the same by the testator or by some person in his presence and by his direction with the intention of revoking the same."
53. A codicil is defined under Section 2(b) of the Indian Succession Act as an instrument made in relation to a will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the will.
54. In the case on hand, since Thippanna had executed the subsequent Will in respect of R.S. No.559/8 which was also one of the subject matter of the Will dated 11.05.1965 and also since Thippanna had earlier desired to create a life interest in favour of his wife but later changed it to giving away absolute rights to his wife in respect of R.S.No.559/8 and also since Thippanna mentioned in his subsequent Will that he desired to make changes in his earlier Will, it has to be invariably held that the Will dated 11.05.1965 stood revoked by the Will dated 31.12.1973. At first blush, Ex.D.2 (dated 31.12.1973) has shades of being a codicil but going through the recitals of Ex.D.2, 58 Thippanna desired to restrict his bequest only to the extent of two of his properties (R.S. No.559/8 and R.S. No.24/1) and therefore Ex.D.2 cannot be termed as a codicil. If Thippanna had an intention of altering the Will Ex.P.2 (Will dated 11.05.1965) by making a codicil, he would have stated so. Thus there are compelling circumstances to show that there was an implied revocation of Ex.P.2 by execution of Ex.D.2. Consequently, the plaintiff could not fall back upon the earlier Will to claim title to the suit property.
55. In view of my finding that Smt.Bhowrawwa was the wife of Thippanna, and that the Will dated 11.05.1965 stood revoked by the subsequent Will dated 31.12.1973, the question of invocation of Section 14(1) or 14(2) of the Act would not arise for consideration as Smt.Bhowrawwa was the only surviving legal heir of Thippanna and therefore, by virtue of Section 8 of the Act, she being the sole surviving heir of Thippanna succeeded to the estate of Thippanna in the suit property. She had for 59 consideration disposed off the suit property to the defendant No.2 in terms of the sale deed dated 22.05.1984 (Ex.D3).
56. Under the circumstances, the sale by Smt.Bhowrawwa in favour of the defendant No.2 was proper and valid. Consequently the plaintiff did not succeed to the suit property as the beneficiary under the Will dated 11.05.1965. The substantial questions of law are therefore answered accordingly.
Thus, R.S.A. No.2245/2005 is allowed and the Judgment and Decree dated 31.03.1997 passed by the Munsiff and JMFC., Banhatti in O.S.No.104/1984 and the Judgment and Decree dated 12.08.2005 passed by the District and Sessions Judge and Presiding Officer, Fast Track Court, Jamakhandi, in R.A. No.72/1997 are set aside.
The appeal in R.S.A. No.2244/2005 is allowed and the Judgment and Decree dated 31.03.1997 passed by the 60 Munsiff and JMFC., Banhatti, in O.S. No.69/1985 and the Judgment and Decree dated 12.08.2005 passed by the District and Sessions Judge and Presiding Officer, Fast Track Court, Jamakhandi, in R.A. No.71/1997 are set aside and consequently, the suit in O.S. No.69/1985 is decreed.
Sd/-
JUDGE sma