Karnataka High Court
Shidramappa vs Gangutai Alias Gangavva on 2 April, 2012
Bench: K.L.Manjunath, Ravi Malimath
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 02ND DAY OF APRIL 2012
PRESENT
THE HON'BLE MR. JUSTICE K. L. MANJUNATH
AND
THE HON'BLE MR. JUSTICE RAVI MALIMATH
o.85319
cLw
ROB.No.1120QQj
53/99.
BETWEEN:
SHIDRAMAPPA
S/0 MARJT4MMAPPA DABALI
AGE.69 YEARS, OCUAGRICULTURE
R/O VADAVI, TALUS SHIRAHATTT
DISTGADAG
SINCE DECEASED BY HIS LRS:
I tAi FASK1RAPPA SHIDRAIVIAPPA DABAL1.
Si O.SHIDRAMAPPA,
AGE D ABOUT 50 YEARS.
rr'. - -rr'
r1J Jt4 I ii,
R/ATNOJOI5/JV 4THM$3LOCK,
F.AJAJINAGAR. B.A].A4ALORE-40.
I (1131 PRAKAS-H SHIDRAMAPPA DA.BALI.
S/C). SHIDRAMA.PPA,
AGED ABOUT 44 YEARS.
DCCL AGR.ICULTURIST,
I((f) SUREIIR SI--ITDRAMAPPA DABALT,
Si O.SHIDRAMAPPA,
CLL H F R
DCC: AGRICULTURIST.
1(D) MALLIKARJUN SHIDRAMAPPA DABALI,
S/O. SHIDRAMAPPA,
AGE: ABOUT 40 YEARS.
0CC: AGRICULTURIST,
APPELLANTS 1(B) TO 1(D) ARE
P 0 \ DA\'j TAL SHIRAHFD
DIST: GADAG,
2, ANNAPURNA DEVI
W/O MURIGAPPA DABALI
AGE 55 YEARS, OCC.AGRICULTURE
AND HOUSE HOLD WORK, NATiVE OF
SHIRAHATTI, NOW R/O:KURTAKOTI
TALUK GADAG, DIST,GADAG
3. MAHADEVI W/O LINGARAJ NADAGOUDA
AGE 32 YEARS, OCCAGR1CULTURE
AND HOUSEHOLD WORK. R/ODHARWA
D
NEAR DRTAVERAGERI NURSING HOME
DHARWAD8, DISTDHARWAD
4 RAVI A/F KAMARAPPA LXMESHWAR
AGEMAJOR, OCCSERVICE
R/ OKURTAKOTI,
TALUK AND DiS1GADAG
5 GIRISH Sb MUREGEPPA DABALI
AGE29 YEARS, OCC,AGRICULTURE
R/0 KURTAKOTI, TALUK AND D1STGADAG
6. SUNIL 5/0 MURIGEPPA DABAL1
AGE27 YEARS, OCCAG.R1CULTURE
R/0,KURTAKOT1,
TALUKGADAG, DISTGADAG
(By Sri. B S KAMATE ADV FOR A1(A( TO 2.1(D)
;
SRI JFSIJABALI ADV FOR A.2A6i
GANGUTAI ALIAS GANGAVVA
W/ 0 FAKIRAPPA GULALKAI, AGE64 YEARS
OCCAGRIL, B PROPERTY MGMT, R/O SHIRAHArTI
,
D4ARWf 8 1 12S2HRCLGh TCZ)RA
F
RAPT RP SHFKHrT S/O AKIRAPPA CULALKAT
LiPS /5 CAR S 5CR
CL' SF CL'f
:3:
TA.LUK SHTRAHA'rfl, .DIST.GADAG
2. DNYANADEVA ALiAS DEVAPPA
Sb NINGAPPA DAI3ALI,
€ \1E\P CVC GRICLL KF.
RO SHIRAHATTI, TALUK SRI RAHATTI
01ST. GADAG
3. MPLLAMMA
W/Q H MALLLARJUNAGOULA
.
AGE69 YEARS. OCCAGRICULTURE AND
HOUSE HOLD WORK, R/OBELLARY, 3RD CROSS.
ROAD, PARVATHI NAGAR, BELLARY DISTRICT
BELLARY dO SHRI H MALLIKARJUNAGOUDA
ADVOCATE, PARVATINAGAR, BELLARY, DIST
4 SHRIPADAPPA
S/O VEERAPPA ABBIGERI
AGE MAJOR, 0CC. RETIRED RAILWAY SERVANT,
R/O.DHARWAD, H2B NOHYG-3O7/27 DABALI
BUILDINGS. POONAIBANGALORE. ROAD. NEAR
HUB LI NAKA, AT DHARWAD
SHRI BASAPPA 530 GURAPPA DANI
AGEMAJOR, OCCAGRICULTURE
R/O VADAVI, TALUK SHIRHATI'I
DIST GADAG
6 KARBASAPPA 3/0 GURAPPA DANI
AGEMAJOR, OCCEXTERVICEMAN 114 ARMY
R /0 VADAVJ, TALUK SHIRAHATTI
DISTGADAG
7 SARi RADDI SO GURAPPA DAN I
AGE MAJOR, OCC,AGRICUIJIURE
R/OVADAV1, TALUK SHIRAHAfI I
rJ1' GADAG
8 AKASHRADDI S/C GURAPPA DANI
AGE.MAJOFI. OCCSERVICE
P.! OSHIRAHAIT1 CLERK.
F,M,DAI3ALI, COMPOSITE JUNIOR COLLEGE
SHIRAHA'UPI, TALUK SHIRHA7T'I, DIST.GADAG
2 BHOOMARADD1 3/0 CURD PPA DANI,
AGE MAJOR 0CC AGRICULTURE
3 0 r' %'
S2 LiSAA
:4:
10, MALLIKARJUN S/O GURAPPA DAN!
AGEMAJOR, OCCAGRICULTURE
R/O VADAVI, TALUS SHIRHA'ITl
DISSGADAG
H 'DABALI TRUST SHIRAHATSI
REPRESENTED BY ITS MANAGING TRUSTEE
SHRI DNYANADEVA ALIAS DEVAPPA
S/0 NINGAPPA DABALI, AGEMAJOR,
OCCAGRICULTURE. R/O SHIRAHATTI
TALUS SHIRAHATTI, DISLGADAG
12. THE KARNATAIKA STATE GOVERNMENT
REPRESENTED
BY THE DEPUTY COMMISSIONER,
DHARWAD DISTRICT, DHARWAD
13 THE SERICULTURE EXTENSION OFFICER
TECHNICAL SERVICE CENTRE.
SHIRAHATTI, R/O SHIRHATTI
TALUK SHIRHAtH, DIStGADAG
14 SHIRIN W/O JAFFAR HARE HAR
AGE MAjOR 0CC HOUSEHOI U
R/OF CAMP F3ELGAUM
DISTJ3ELGAUM
15 SH1VAJI Sb KRISHNAJi PATIL
AGE MAJOR, OCCAGRICULTURE
RIO VADAGON, VISHN
UGALLI
HOUSE N0o195, DISTJ3ELGAUM
16 SUNANDA W/ 0 SADANANDA LATKAR
WE M;J0 CCC h0uE )ij USE
R/0ANGOL, TALUK, BELGAUM
C 0 SHR1 SAL EUS"E S 0 h A7 LTAR
4
RPJA LIANSA GALLI, AT & POST ANAGOL
TALUS, BELGAUM DISTBE•LGAUM
REEl. 06 DENT(S)
(Dv Sri. HIMDHARIG0ND ADA FOR RI;
SRI SURESH P RUDEDAGADL' I 5EV FOR R2;
R3 & ES-ABATED;
P4-RE, P, 10-P Ii, P14516 : SERVED;
SRI 1CBADHYAPAE AGA FOR P12 5 P13)
,
THIS RFA IS FILED LT/ 5 96 OF OPC AGAINST THE
JUDGMENT
A A HECPEF DT 100 SvED 4 0 0 4 A 3' AL JUDG' SR UN CADTG PARTLx DECREEING APE SUIT 0(4 PAPETION AND SEPARATE POSSESSION.
Q11OO:
BETWEEN:
SMT, GANGUTAI 6 GANGAWWA W/O FAKIRAPPA GULALKAI AGED ABOUT 65 YEARS uCC CRIL A\]) PPOPEIT ' ACLI%' OF SH1RAHAITI, TO: SHIRAHA'LfI, DIST: DHARWAD, THROUGH GPA HOLDER RAJASHEKAR S/O FAKJRAPPA ( LAT KM OF SHIRAHATTI, TQ: SHIRAHATTI, DIST: DHARWAD582 146 CROSSOBJECTOR BY SRI HM.DHARTGOND ADV.) AND:
SHRI SHIDRAMAPPA S / 0 MARITAMMAPPA DADA LI SINCE DECEASED BY HIS LR'S:
1(A) SMT, SAROJA W/ 0 SHIVAPUTRAPPA MUDALAMANI, AGE: 62 YEARS, 0CC: HOUSE HOLD WORK, NO 79 BRLND\ ' SCIET'i VA THANE, WEST. MUMBAJ 400 601.
I (B SMT, PUSHPA W/ C BASA.VARAJ KUTAKOTI AGE: 60 YEARS.
R/OKUKANO0R, TQ: YALAE3URGA, DIST: KOPPALA, 1(C) SRI FAKKIRAPPA. S/C. S1DDRAMAPPA DABALI, AGE: 58 YEARS,. ADVOCATE, 1065 4' 'FLOC KAJ\ 1UP BPN1JALORE.
1(D) SMT. PREMA W /0. SHARANAPPAGOUDA HORAPATE.
AGE: 56 YEARS.
R/O. VIANDALAUrERI, TO: YALABURGA,
DIST: KOPPALA.
I (EL SLIT. EDEMA ,
DAE3ALI LANE, WARD NCJV,
SHIRAHATTI 58120,
*
6
GIST GADAG
I (F SRI PRAKASH S 0 DIDDARAMAPPA DABAI L AGE 46 YEARS, R 0 VADA I TQ SHIRAHATrI, GIST GADAG (0) SRI SI RESH S 0 SIDDRAMAPPA DABALI, iGF 42 NEARS R/O VADAVI TQ SHIRAHATfl, GIST GADAG IH) SRI MALLIKARK N 510 SIDDARAMAPPA DABALI AGE 42 YEARS, RIO, VADAVI TQ SHIRAHATrI, GIST' GADAG
2 SMT ANNAPURNA DEW W/O MURIGEPPA DABALi AGE68 YRS, 0CC AGRL & H01 SFHOI D WORK NATIVE OF SHIRAHA'rrl, NOW, R/O KURTAKOTI TQ' QADAG 582 214 SMT MAHADEV W 0 LINGARA J NADAG )I GA AGF YRS 0CC' AGRI & H0 SF d LD W )RI RIO DHARWAD NEAR DR TA ARAQE RI M SIN 1* ME DHARWAD 8 GIST )HARWA ST RA\ A AM RAT P A P fl AGF MA )R C' SFR I PK R K ADA 8 R RS I kICPP CF. I A ' 8 tC K A OP K At S P/C). SH1RAHVI'L 01ST: DHARWADS2 14b
8. SMT MALAMMA W/0 HMALLIKARJUNAGOUDA, AGE: 70 YEARS. 0CC: AGRICLLELRE & HOUSE HOLD WORK, RU BELGAUM II C ROSS ROAD P RVA rINAGAR DIST' BELLAR\, C/U. SHRI FLMALL1KARJI NA000DA, ADVOCATE, PARVTINAGAR. BELLARY DIST: BELLARY.
SHRI SHRIPADAPPA S/0 VEERAPPA ABBIGERI AGE:MAJOR OCCRETIRED RAILWAR\ SERAN'I R/O DHARWAD. H2B NOHYG 307/27, DABAL1 BUILDINGS, POONA BANGALORE ROAD NEAR HUBLI NAKA, DHARWAD, DIST: DHARWAD U SRI BASAPPA Sb GURAPPA DANI AGE:MAJOR, OCC.EX SERVICEMAN P\ 'RM R/0 VADAVI, SH1RAHrrI TALUK DIST DHARWAD KARABASAPPA S, 0 GURAPPA I) 'UJI MEMAJOR QCC:EXSEP VICE MZ\ J\ PM'y K 0 \ \DA\ I SHIRAHATTI F'\KIRADDi S/U OLRAPP DAM 'OF MA OR U M GPL VAT SHTRUHADI DST DHARAAL) < I UD PA UE'MAjOP CO SERVICE ( 'I{1RAHA1rr C ERR F vI DAPALI (OMI ()5J7., ( >LLE E SJTIPATTVrTT \ U ID t. F 'P ITT I R 0 T P1'.T 8 DIST DHAR%AD, 5 MATLIKARJt N S 0 G JRAPPA DAM 1 AOE:MAJOR 0CC AGRL OF VADAVI SHIRAFIA'rrI TALl. K DI9T DHARWAD 16 DABAI I TRUST SHIRAHATrI, REP, BY ITS MANAGING TRUSTEE, SRI DNYANADKVA ALIAS DEVAPPA 5/0 NINGAPPA DABALI, AGE'MAJOR OCC,AGRL, OF SHIRAHATU rQ. SHIRANM'j THE KARNATAKA STATE GO T, Ril P BY THE DEPUTY COMMISSIONER R/O DHARWAD DHARWAD DISTRICT R THE SERJCULPflrRE EXTENSION uFFic jJ TECHNICAL SERVICE CENTRE SHIRAHATn, R/0 SHIRAHA'rrl TQ SHIRAHAI DIST' DHARWAD 9 SMT SHIRIN W/O JAFFAR HARIHAR AGE MAJOR 0CC' HOUSEHOLD WORK R/O CAMP, BP LGAUM DIST BEI GAC M 0 SHPvAJI S/O KRISIJNAJI PA I ACT MAJOR, 0CC AGRL P OADAGONI51p1(A11 0t51 NO49, BPICA M St NANDA A SAt ANAND4 A AK A F MA lOP 0 C HOt SEN I)t N AM IL SADANAND !ANAP t% AJA ANT CAIII A t'A , 13Y SRI 8 LZAMAT8 ADV P08 R1(AJ TO R1I9, 8288 810 R12 R16 819831 SERVED SRI *011 POR 81 SRI KB ADIIYAPAK *0* P08 817 818 )19 APPEAl DI8MEB$D 8 APPLN OlERISSED N EPS P :9: THI CROSS OBJECTION IS FiLED UNDER ORDER 41 RULE 22 OF CPC AGAINST THE JUDGMENT AND DECREE DARTED 6 09 1099 PASSED IN OSNOJ 1/1992. ON THE FILE OF THE CIVIL JUDGE (SRDN), GADAG, PARTLY DECREEING THE SUIT FILED FOR PART ITION AND SEPAR.T.E POSSESSIO N. These cases coming on br final hearing this day, KL.Manjunath, J, delivered the following:
JUDGMENT The appellants herein are challenging th.e legality and correctness of the judgment and decree passed by the Civil Judge (Sr,Dn), Gadag. dated 1609.1999 passed in OS. J\J0,7 1/1992 wherein the suit filed by the Respondent No. .1/plaintiff has been decreed in part granting 1/3rd share in certain plaint schedule properties.
2. The appellants herein were defendants I t.o 6. the respondents Nd. I is t...he plaintiff before the tried court. The remaining respondents were defendants in the suit
4. The facts leading to this case are as hereunder:
The plaintiff filed a suit claiming he.r 1/3rd share i.n the.
pia.i.nt schedule properties. According to the plaint 10:
averm(nts, nn Iakirappa was the propos itus He had 3 wife b name Mali rnnia He had two sons b name Martimmappa & Nrngappa and a daughter by n mc, Sa antrawwa Maritimmappa had a wife by name Bharamava, The plainttfl is thu only daughter ol Maritimmappa and Bharamavva, and defendants 1 & 2 are the two SOflS born to Maritimmappa and defendants 3 to 6 ire the ±ildren of the second son of Maritimmappa nameit Murigeppa. Defendant No.2 -Annapurna Dcvi is the widen f Murigeppa Defendantc & 8 are the children of Ningappa who wa-s the oungcr bro ther of Maritimmappa . Ti e ma i icre 01 f the plaintiff beforc th Lo ta below s that thu ear 3 5 i a t cr, t a ar ition rci g t t rn r ber f tin hum nn'I\ amor g Marititnmapp ir gappa nd 'tart hildrcn T r di sard i a t r r r a p ra' r ,er
-
i nd
ffr ?1i T ! rr nix cutx a Itr 1 uarr i • r
p ctij. t i 2ixr c1tt lt a
1
V
11:
6. It is the case of the plaintiff that after the partition.
Martimmappa was enjoying the properties which were allotted to him till his death and Maritimmappa died intestate on 2905. 1975 and his wife Bharmavva died on 10,10.1985. The second son of Maritimmappa. namely Murigeppa died on 27.03.1989 and therefore, the suit was filed claiming her share in the properties which were enjoyed by Maritimmappa, the properties that were allotted to him in the partition of the year 1955 which was later registered in the year 1957 and the properties subs equently acquired by him.
7. It is the case of the plaintiff that the family of Fakirappa was a welhknown rich family in and aro and Shirahatti Tam, k and. Marit.inima.ppa was also a former .emu- ui LgiiLive ase1LiLly.
8. The deferdarts contested the suit, The main contentioi. of the defendants is that all t.he pla.int. sche dule p roperties are not itvailable fOr partition and some of the properties are n.ot in existence. and it is also their case that :12: Maritimmappa Dahali did not die intestate. According to them, Maritimmappa executed a Will on 24O4. 1975 bequeathing all the properties to his two sons namely, defendant No, i-Shidramappa and deceased Murigeppa and therefore, it was contended that the suit filed by the plainti ff was not maintainable.
9. it was the specific. ease of defendants I to 6 th.at Maritimmappa Dabali excluded the plaintiff--Gangutai and did not allot any properties because, in the year 1955 , about 6O7O acres of.. land was giveh to her in the partition and thereafter, a house was got constructed fer her in Shirahatti and all the fUrniture, utensils and other articles which were required for a house befitting the status of Maritimmappa, everything was provided to the plaintiff. in addition to that, during the ti.me of marriage, she was also given jewels and gold and silver ornamerts. In the circumstances, considering the valuable properties given to his daughter in the partition of the year 1955 and constructing a house subsequent to the death of the husband of the plaintiff and providing of the ornaments to her, she was rot allotted any 13:
property in the Will. Therefore, the suit was not maintainable. Similarly, other defendants also raised different defence and they did not support the case of the plaintiff.
10. Based on the above pleadings, the trial court has framed the following issues:
1) Does plaintiff prove that Maritimmappa was absolute owner of the properties mentioned at SLNos.9 and 17 of Schedule 'A'?
2) Does she prove the existence of properties mentioned in Schedule 'G'?
3) Does she further prove the existence of properties at Sl.Nos.4 and 5 of Schedule 'A', as on the date of suit?
4) lfso,doessheprovethatsaidpropertlesat SLNos.4 and 5 of Schedule 'A' to an extent mentioned in Schedule 'A', are available for pértition?
5) Do defendant Nos.1, 2 and 7 prove that purported will dated 24.04.1975 purportedly executed by Maritimmappa in their favour in respect of suit schedule properties in :14: respect of all the properties, in which he had an undivided share as contended by them?
6) If so, do defendants No.1, 2 and 7 prove inter-separation between themselves in respect of the said properties, as contended in pare 13 of written statement?
7) If so, do defendants No.1 and 2 justify the sale of the property at Sl.No.2 of Schedule "E".in favour of defendants Nos.19 to 21?
8) Whether the plaintiff Is bound by said sale, and the gift in favour of defendant No.17 and 18 in respect of "B" Schedule Property?
9) Do defendants No.10 and 12 to 15 prove the purported Will executed in their favour by Bharmawwa in respect of the property mentioned in Schedule "F" of the plaint?
.10) Does defendant No.2 alternatively prove the gift dated 27.05.1966 in her favour, as contended in para 26 of Written Statement?
11) Does plaintiff prove her joint possession over the suit schedule properties, as & 15:
asserted?
12) If not, whether Court fee is liable to be paid under Section 35(1) of the Karnataka Court Fees and Suit Valuation Act, as contended?
13) if so, what is the Court fee payable?
14) Do defendants show that suit is beyond the period of limitation under Article 110 of Limitation Act, as contended?
15) Whether plaintiff is obliged to seek cancellation of the decree in OS.
No.10/1990 in favour of defendants Nos.1 and 2?
16) If so, what is the consequence for having not made such relief?
17) is plaintiff entitled to share?
18) if so, is she entitled to 1/31a share in the properties mentioned at SiNosI, 6 to 17 of Schedule A and the•••. properties mentioned n Schedule D, F. F and G?
19) ls she entitled to 1/15 share in he ronerties mentioned at SiNos.2. 3 to an 16 extent of one Acre, at SI.No4, 5. 18 and 19 of Schedule A, and Schedules B and C?
20) Reliefs?
ADDITIONAL ISSUES
1) Whether suit properties bearing R.S.
Noi57/A and R.S. Nol57/C of Schedule A, are registered under the Bombay Public Trust Act, 1950?
2) Whether permission under Section 50 of Bombay Public Trust Act is essential for nstitution of this suit?
3) If so, is suit not maintainable wholly or against defendant No 1 6?
4) iS Charity Commissioner a necessary party to the suit?
5) if so, what is the consequence?
Additional issue Nos,6 to 9 are framed in view of rejoinder filed on 26,10i996 61 Whether defendant Jo,7 proves that he is the absolute owner of property described in Schedule C"?
W' 17
7) Whether Defendant No.7 further proves that the property at SI.No.16 In Schedule 'A' fell to the share of his father?
8) Whether Defendant No.7 further proves that he has purchased open site bearing Panchayat No.4136 described at Sl.No.8 in Schedule W from defendant No.1 and 2 and constructed a residential house with his funds?
9) Whether defendant No.? further proves that schedule 'F property situated at Angol Village in Belgaum was acquired by family prior to 1955?
11. In order to prove their respective contentions, on behalf of the plaintiff, plaintiffs son--Rajshekhar Fakirappa Gulalkai was examined as PW-1. He relied upon Ex.P-1 to Ex.P-48. On behalf of the defendants, in all 14 witn esses were examined. Amongst them, DW-1 is the 1t def endant and DW-2 is the 2M defendant. The defendants relie d upon Ex.D-1 to Ex.D-76.
12. The trial court after appreciating the entire evidence let-in by the parties, held Issue Nos.2 to 8, 10, 12, 'I P :18:
14, 15, Additional Issue Nos. 8 & 9 in the negative; Issue Nos.9, 11, Additional Issue Nos. 1 to 4, & 7 in the affirmative; Issue Nos.1, 17 to 19, Additional Issue No.6--partly in the affirmative; Issue Nos. 13 & 16 as does not survive; and answered Additional Issue No.5 against Defendant No.16 and ultimately the suit of the plaintiff came to be decreed holding that she is entitled to 1/3rd share in the property shown at SLNos.1, 2 3, 6 to 8, 10 to 15 and half portion in property at S1.No.s.16 & 17 of Schedule 'A', Schedule 'D' and 'E', and plaintiff is entitled to get partition and separate possession of 1/15th share in the properties shown at Sl.Nos.2, 3, 18 & 19 of Schedule 'A', Sl.No.2 of Schedule 'C' and 'B'. This judgment and decree is called in question in this appeal.
13. Cross Objection No.11/2000 is filed by the plaintiff on the ground that one of the property in Schedule 7' has not been allotted to the plaintiff. Therefore, the appeal and cross-objection are heard together.
14 We have heard the learned counsel for 'h appellants nd lean-ed counsel for the i respondcnt
15. ['he main contention of the appeilants counsel before us is that the ttiil court has committed a serious eriur in holding that the defendants have failed w prove the Will dated 24.04. 197 .Ae eordin to him. Maritimmappa has executed the Will on 24.04. 1975 and that the defendants 1 and 2 han- successfully proved the execution of the Will of Mantimmappa b examining the scribe, who wrote the Will and also by the signatures of the attestors by examining the persons who arc acquainted ith heir sigi aturcs nr c I)W 3 and )W 4 c rd rg them, bod the attestors t the Wni are t no 1 a ve n the dt ,f hdn f tia- 5011 Therecwc. in dcr Oi prn not o ttt , t e ha c Itcc on em DW c W dn the F5uli rd 0tF Lokid r 1 'aJ e •t r hi un n 0flip SitC c 10 : ir F r 0 JO I 00 c r -- I 20:
the Principal of the snd (nhege and also DW 4 \diveppa \ Ce! appa Saikada1 and the ttiai eourt did nor ap-prt ciate thc videnc of DWi to 5. sinu DW 5 s none olter than rF- scribe of the Will The only reason xssignd fy the trial court to disbelieve the ease of the appellant is that the Wtll xx as not bi ought o the iiaht of the day immediately after the death of Maririmmappa. ceording to the trial nourt, the non bequeathi ig of an ropem tc the daughter is also suspicious ircumstancc Pherefoe r contrds hat he trial court has ommitted an ericr in 1 ex'ng P disbc t evidence of DWs I to 5, in the elrcumstances. he requests the Court to rex rse the Sndings oi the uurt hebxx n regard o e tic '1k' 1 a d sr i far ca ir , M I 1flgund. :ned , i air N spcnJat [a1ntf! trends liar rl-e WI f.s ioa a' Ii U ' iUfl 0 ) I V 1t h 110 t Ut Alt m 0 fljf 0 L '0t 21. iuthnntjeq within i nasonahie tinw In tilt n umstance's.
h equesto h C•ur C i4
smiss th appc al
17. He fuither cnntends that much rcliante cannot be placed to U nidenc,t of OWs 3 md 1 Sifl"t- ti C3 arc 'iiorking in the Institute of the. respondena Hc also 'submit's that the thai court has c.ommittcd an error in not granting a decree to the plain tiff in respect of the lands situated in Hosur Village of Shirahatti Taluk. Schedule 1" Property 18 Having hcnd the learncd ounsel tk oartics have to cc nsider the f illowing wo point i i this appeal.
I') Whether the defendants 1 and 2 have proved the Will dated 24.04 1975 of Maritimmappa and whether the finding' of the rial court o requesuor oivVillis usiardpcpe 'I) tether Lit. rossobje on is a re to .,y tills Court"
'- 9 -I4 ?er 'e It,Jre .
- 'u'is 'ut at ; .js
lb t ' 4
r as 1;. tat i
•
.1 '1.. .,
-- .
•il' •
later registered in the year 1Q57 the parties are alSo not
disputing the allotment of ploperlies in the partitton of the sar 1955, not inl o tlu male members but also to th lemale members of Maritimmappa and his brother Ningappa Phe plaintiff admits that in the earlier partition of 1955. she has been iiottec1 i0-70 acres of land in Shirahatti Taluk
20. PW-l IS the son of the plaintiff His father died in the ,ear 1958 He admits in his cross-exammation that a site was purchased by his grand-father tn the name of his mother, but he his dcnid the constructior of a house t y irs grand-father for the benefit of his mother Adminedit, at an oung age h lrint ff has st h lz sba d r the car a ahin otn bun PW-i fire J)•tr 4 ide I p amt w to t ii rs wtt h ni tff hr-' J5fl1 ti Mo Iriimppa f C I U 1 •1 n t ho h I 23 donated Rs. 3.00.000: for chadt purpose which would naly show the thai eta of h wc br then namch Mariummappa and his brother \ingapa and fvrthei fortifies that they tire very tic h persons arid philanthropists. When Manuminappa as a Member of Legislative Assembly when he has stated in the Will dated 2404 1975 that he has made arrangements and has provided all comforts to his only daughter--Gangutai, the said sentence in the Will cannot be brushed aside and Manumrnappa being a philanthropist md 3 noble man thought f r a allotting ary of his pcssona' properties tn his iidow daughter. considering that in the earlier partition of the !car 1955. about oU-70 acres of land was allctt Ito F r inc 't 3stqu U... ,flc,nfir sa rc gi en Jr i, (fl'tT(fl I it iF 41t Tiuk Jr the trc'i'nstartc--s if r c ic't½er k'es ev'iuiIe' Fis 1 '1wgk'ci bu1i:c ocqLa-4tlunq ni'. pf'.iOflLICS r. hi' terna'ug t'c so'is ) ) tn' vt I - .tsh c lc.tf is .. c -ii. .. '. I . i d I i C 3 ( F I 4 • I £ .1( J 24 rhe defendants who Inn e relied upon the Will have to prox e th execution the Will b xarn ning at least on of th attestors t tile \kiil 1-hit, LaitortunateR bota the artestors iiameiv \n nappa huh tnd Shankravva Lakkund imath re not alive Roth aro dead If both the attestors 'ire not ahv.
the only course open for Ihe dckndants is to examine the seribe of the Will and to prove the signatures of the attestors by examining the persons a ho tre acquainted with the signatures of the two attestors Both the attestors werc working in Dabali C rnposite Junior C liege vhicl s mr by Dabalt Trust.
23 DW 3 Basaaraj Sangapoa Nidag n s the Piineiai of the said institution He has dntfied the tn tt re of Aatnppa srno Ant appd va t kn a 1 rh 3 'Al I a api si oft AiI 3 s adrsc s to aingt a Faki:-rpa Aixt tot '1 , ':rt' 0 L)'f C i' L I' F h, .,j, t t 25 Thereafter, two witnesses have signed in his presence Thc.
trial court has clisbeicxed the evidence of these witnesses onli u the ground that th Will did not set the light f the dat immtdiately after the death of Mantir ninappa. But, the said circumstance alone cannot be a ground to disbelieve the execution of thi. Will b Manumniappa It is, no doubt, true that DWs-3 and 4 are all working in Dabali Composite Junior College which is run by Dabali Tru st Dabali Trust was created even pnor to 1955 partition by the members of Dabah family Merel) because DWs 3 and 4 tre working in Dabah C. omposite Junior College 'annot be a ground to disbelieve their evidence 24 The nafloi.u iso b 0 d eheied t thr ctidence of OW , be muse the sn , DM-' as wcrkirg i IsiC 13 i'c r whi' i Difeniat ' No 's' aS a Dirc'tc,- Tt 1% tQc) m'rh fi,y the (nt r fr' en tç '!LtS( .t8 )'t' DV 'r vis crci)p ii s. 'C Bai I( '3) if ' fJ'Usl () DC, (bid r' iii ' t t. '. i !t j.' .i I. 1 1. 'S 1 h iji! curt ha ti-c 4tI' ?t itt I 'iC .'ll i_ S •,'.C r P :26:
the proper appreciation of evidence, because there cannot be any suspicious circumstances considering the background of the case.
25. Admittedly, the deceased Maritimmappa was a well-known person in Shirahatti Taluk and he has earned a very good name and a good philanthropist. When he had given 60-70 acres of land in the year 1955 to his daughter and later on when he has provided all comforts to his daughter b3 getting constructed a house for her and in the later days, if he has excluded his daughter from giving a share, that cannot be a ground to hold that the Will has come into existence in suspicious circumstances. According to us, the evidence of DWs-3 to 5 has not been properly appreciated by. the court below.
26. Under the circumstances, we have to hold point No.1 formulated by us, in favour of the appellants and against the respondents.
27. In view of our finding on Point No. I, point No.2 does not survive for consideration.
2728. in the resuli, The appeal iS allowed. The udgrnent tad dercc aassd b the Ci 'tdg (SiDri,) adag in OS No 1 19 12 dated 16 O 19° is hcrebt sO tside i'hc suit i ttuOd bt th la ntiff 1 patti ion and separate possesslor of her shaie in all the plaint schedule properu es ts hereby dismissed.
Ph ross ohje hot is also dismissed P rties to bear thei C osts PK'