Karnataka High Court
Smt. Girija Poojarthy vs Mayyu Poojarthy on 25 October, 2023
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.703/2007 (PAR)
BETWEEN:
1. SMT GIRIJA POOJARTHY
AGED ABOUT 61 YEARS
W/O SANKAPPA POOJARY
SINCE DEAD BY LRS
1(a) GOPALA POOJARY
S/O SANKAPPA POOJARY
AGED ABOUT 39 YEARS
1(b) KUSUMA
AGED ABOUT 42 YEARS
ALL ARE RESIDING AT
APPACHARIBETTU IN
NITTE VILLAGE
KARKALA TALUK-574 110.
2. SMT. RATHNA POOJARTHY
AGED ABOUT 40 YEARS
SINCE DEAD BY LRS.
2(a) SATHISH POOJARY
S/O NADU
AGED ABOUT 22 YEARS
2(b) SUBHAS POOJARY
S/O NADU
AGED ABOUT 20 YEARS
2
3(c) RADHIKA
D/O NADU
AGED ABOUT 19 YEARS
ALL ARE RESIDING AT
APPACHARIBETTU IN
NITTE VILLAGE
KARKALA TALUK-574 110. ... APPELLANTS
(BY SRI RAMESHCHANDRA &
SRI S.N.BASAVARAJU, ADVOCATES)
AND:
1. MAYYU POOJARTHY
AGED ABOUT 67 YEARS
W/O CHAKKA POOJARY
2. SMT. VARIJA POOJARTHY
AGED ABOUT 43 YEARS
3. SMT. INDIRA POOJARTHY
AGED ABOUT 40 YEARS
4. SMT. SUDHAKARA POOJARY
AGED ABOUT 39 YEARS
5. SMT. PUSHPA POOJARTHY
AGED ABOUT 32 YEARS
6. RAMESH POOJARY
AGED ABOUT 35 YEARS
RESPONDENTS NO.1 TO 6 ARE
R/AT APPACHARIBETTU IN
NITTE VILLAGE, KARKALA TALUK,
UDUPI DISTRICT-574 110. ... RESPONDENTS
(R1 TO R5 ARE SERVED;
SRI S.K.ACHARYA, ADVOCATE FOR R6)
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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT & DECREE DATED 12.09.2006
PASSED IN R.A.NO.118/2005 (OLD R.A.NO.59/2003) ON THE
FILE OF THE CIVIL JUDGE (SR. DN.) & ACJM, KARKALA, AND
ETC.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 03.10.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed by defendant Nos.6 and 7 praying this Court to set aside the judgment and decree dated 12.09.2006 passed in R.A.No.118/205 by the First Appellate Court and confirm the judgment and decree dated 08.082003 passed in the O.S.No.325/1999 by the Trial Court.
2. The factual matrix of the case of the plaintiff before the Trial Court is that the husband of the plaintiff and father of defendant Nos.1 to 5 i.e., late Chakka Poojary acquired plaint 'A' schedule properties through the order dated 29.08.1981 in TRL No.273/81-82 by the Land Tribunal, Karkala consequent upon his declaration filed praying confirmation of his chalageni right of tenancy by virtue of the Karnataka Land Reforms Act. It is the 4 case of the plaintiff that the said Chakka Poojary died intestate on 08.11.1991 leaving behind the plaintiff and defendant Nos.1 to 5 as his successors. The plaintiff and defendant Nos.1 to 5 are in joint possession, cultivation and enjoyment of plaint 'A' schedule properties since the death of said Chakka Poojary having joint legal right, interest and title over the same. The plaintiff is not getting her reasonable and equal income in the plaint 'A' schedule properties. Therefore, she does not wish to continue her joint possession, cultivation and enjoyment of plaint 'A' schedule properties hereafter. It is her case that she requested for amicable partition among herself and defendant Nos.1 to 5 and the same was ended with futile. It is contended that plaint 'A' schedule properties are the agricultural properties consisting of paddy fields. The entire plaint 'A' schedule properties are liable to be divided into six equal shares and the plaintiff is entitled for one such share. Defendant Nos.6 and 7, who are the younger sisters of the plaintiff's husband are in occupation of one of the farm house situated in the plaint 'A' schedule properties since they were permitted to reside therein. They had make false claim over the plaint 'A' schedule 5 properties. Hence, they were made as parties to the suit and sought for the relief of partition.
3. Defendant Nos.1 to 5 appeared and given consent to pass a decree in favour of the plaintiff by filing a written statement. Defendant Nos.6 and 7 totally resisted the suit by filing their common written statement by admitting the acquisition of plaint 'A' schedule properties by Chakka Poojary as asserted by the plaintiff. They denied the entitlement of partition by the plaintiff and defendant Nos.1 to 5 contending that the said Chakka Poojary had acquired the absolute right, interest, title over the plaint 'A' schedule properties. Defendant No.6 is the sister and defendant No.7 is the niece (Sister's daughter) of late Chakka Poojary. The said Chakka Poojary died on 08.11.1991 bequeathing the plaint 'A' schedule properties in favour of the plaintiff and defendant Nos.6 and 7 by allotting 'A' to 'C' schedule properties in the registered Will dated 28.11.1986. The property described as 'A' schedule in the registered Will is allotted in favour of the plaintiff; the property described as 'B' schedule in the Will is allotted in favour of 6 defendant No.6 and the property described as 'C' schedule in the Will is allotted in favour of defendant No.7. It is also their case that the said Chakka Poojary was governed by Aliyasanthana law for custom and usage even though the plaint 'A' schedule properties belonged to him absolutely. The female and female children are dominants in Aliyasanthana custom. As such, late Chakka Poojary had bequeathed the portion of plaint 'A' schedule properties in favour of defendant Nos.6 and 7 who are his sister and niece respectively out of love and affection. The said registered Will was executed by late Chakka Poojary with free disposing state of mind and volition. The said Will is not executed with coercion, undue influence, fraud and the same is a free Will. The respective parties of the Will have changed the Records of Rights in their names in respect of their share. The plaintiff is fully aware of the registered Will dated 28.11.1986 as there was a revenue appeal in RRT.SR.290/1995-96 on the file of the Assistant Commissioner, Kundapur. The plaintiff has contested in the revenue appeal and the same was allowed. As per the order of the Assistant Commissioner, the Records of Rights of the suit schedule properties were changed as per Will 7 in the name of the respective parties. The plaintiff has suppressed the fact of execution of Will by Chakka Poojary in the said suit. The plaintiff, defendant Nos.6 and 7 have taken possession of their respective shares in the plaint 'A' schedule properties as per the registered Will. Defendant Nos.6 and 7 denied the fact that said Chakka Poojary died intestate and also contended that the plaintiff has not challenged the said registered Will which is acted upon.
4. The Trial Court considering the pleadings of the parties framed the Issues that whether defendant Nos.6 and 7 prove that the said Chakka Poojary bequeathed the plaint 'A' schedule properties in favour of the plaintiff and defendant Nos.6 and 7 by executing a registered Will and whether the plaintiff is entitled for the partition. The Trial Court taking into note of both oral and documentary evidence placed on record i.e., the evidence of PW1 and the documents at Ex.P1 to P30 and also the evidence of DW1 to DW4 and the documents at Ex.D1 to D10 dismissed the suit in coming to the conclusion that Will has been proved by defendant Nos.6 and 7. Being aggrieved by the 8 judgment and decree of the Trial Court, an appeal was filed in R.A.No.118/2005. The First Appellate Court having re-assessed the material on record and in keeping the grounds urged in the appeal reversed the finding and granted 1/6th share in favour of the plaintiff in plaint 'A' schedule properties and also granted 1/6th share each in favour of defendant Nos.1 to 5 and came to the conclusion that Will has not been proved and also the Chakka Poojary cannot bequeath the Will since there was a provision under the Act to bequeath the property. Being aggrieved by the reversal finding of the First Appellate Court, the present appeal is filed before this Court.
5. The main contention of the counsel for the appellants is that there is a divergent finding and the suit itself is not maintainable. The First Appellate Court committed a grave error in holding that the appellants have not proved the Will when there was no challenge to the validity of the Will. In fact, though respondent No.1 is aware of the Will as it was produced in RRT proceedings, she did not seek any relief of declaration of right and she did not contend that Will is not at all executed by her 9 husband but she only filed the suit for partition simplicitor and there was no prayer for possession by the appellants and partition suit cannot be made use of to take possession of the land which are in others possession. Respondent No.1 did not even spelled out a word that how she is entitled to take possession from the appellants. The First Appellate Court completely overlooked the fact of registration of Will. The plaintiff has to prove her case without relying upon the weakness of the defendants' case.
6. This Court having considered the grounds urged in the appeal, admitted the same and framed the following substantial questions of law:
1. Whether the lower Appellate Court is justified in reversing the finding recorded by the trial Court?
2. Whether the suit filed by the respondents seeking partition of the property is maintainable when the appellants are claiming the property on the basis of the registered 'Will' dated 28.11.1986?10
3. Whether the lower Appellate Court is justified in accepting the contentions of the appellants that late Chakka Poojary executed the 'Will' in favour of appellants as well as the respondents only on the ground that the appellants have not proved the 'Will'?
7. The counsel for the appellants in his argument would vehemently contend that there was a RRT proceeding prior to filing of the suit. The suit was filed only for the relief of partition and defendant Nos.1 to 5 are the children of the plaintiff. No dispute with regard to the fact that the property was granted in favour of Chakka Poojary in the year 1981 and in the Will it is specifically mentioned that 'A', 'B', 'C' properties were given to the share of the plaintiff, his sister and also in favour of his niece respectively. There is no dispute that he died in the year 1991 and the properties were mutated based on the said Will and subsequent to the death of the said Chakka Poojary, proceeding was initiated before the Assistant Commissioner in the year 1995 itself and the suit was filed in the year 1999 and the very suit for partition is not maintainable under Sections 132, 135 of the 11 Karnataka Land Reforms Act and the plaintiff suppressed the execution of the Will and also not challenged the same and reason given by the First Appellate Court is very strange and the First Appellate Court committed an error in invoking Section 91 of the Karnataka Land Reforms Act and the very approach of the First Appellate Court is erroneous.
8. The counsel for the appellants in support of his argument has relied upon the judgment reported in (2012) 11 SCC 574 in the case of BADAMI (DECEASED) BY HER LR vs BHALI and brought to notice of this Court to the principles laid down in the judgment and referring this judgment the counsel would vehemently contend that the parties must come before the Court with clean hands and person has filed the suit based on falsehood and concealment of vital documents to gain advantage, guilty of playing fraud on Court.
9. The counsel also relied upon the judgment reported in AIR 1956 SC 593 in the case of NAGUBAI AMMAL AND OTHERS vs B SHAMA RAO AND OTHERS and the counsel referring to this judgment would vehemently contend that there 12 is a collusion between the plaintiff and defendant Nos.1 to 5 and in a collusive proceeding and fraudulent proceeding there is a fundamental distinction between a proceeding which is collusive and one which is fraudulent. Collusion in judicial proceeding is a secret agreement between two persons that one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose and the counsel submits that the same is happened in the present case.
10. The counsel also relied upon the judgment reported in ILR 2006 KAR 1985 in the case of SRIPAD EKANATH GAONKAR vs ASSISTANT COMMISSIONER wherein this Court also discussed with regard to Section 61 of the Karnataka Land Reforms Act which indicates that the provisions of Section 61 is applicable only to transfer made in respect of granted lands through a registered sale deed, gift deeds, exchange, lease or assignment. Therefore, there is no bar to bequeath the property by way of Will by a tenant, in whose favour the occupancy right has been granted by the Tribunal.
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11. The counsel also relied upon the judgment reported in (2009) 9 SCC 689 in the case of SHUB KARAN BUBNA ALIAS SHUB KARAN PRASAD BUBNA vs SITA SARAN BUBNA AND OTHERS and brought to the notice of this Court to the principles held in this judgment that partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. "Separation of share" is a species of "partition". When all co-owners get separated, it is a partition.
12. The counsel also relied upon the judgment reported in AIR 2008 SC 2033 in the case of ANATHULA SUDHAKAR vs P BUCHI REDDY (DEAD) BY L.Rs AND OTHERS and the counsel referring this judgment would vehemently contend that in a second appeal, when there is a mixed question of law and fact, firstly, whether there was oral gift and secondly, whether alleged oral gift was valid, no averment in the plaint in respect of any gift, oral or otherwise or about its validity, defendant had no opportunity to deny oral gift in his written statement. The said 14 question which has not been considered in suit, could not also have been considered in second appeal and pleas not made in the plaint, the question of denying or traversing them by the defendant does not arise, thus, in the absence of pleadings and issues, no question of law relating to it in the second appeal.
13. The counsel also relied upon the judgment reported in (2010) 2 SCC 114 in the case of DALIP SINGH vs STATE OF UTTAR PRAADESH AND OTHERS and the counsel referring this judgment would vehemently contend that in paragraph 1, the Apex Court discussed with regard to the basic values of life that is "Satya" and "Ahimsa" and also considered a drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the Court proceedings. The counsel referring this would vehemently contend that the plaintiff has set up a false suit and the aforesaid judgments referred supra are aptly applicable to the case on hand.
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14. The learned counsel for the respondents in his arguments would vehemently contend that defendant No.7 in the written statement admits that Form No.10 was filed in favour of the husband of the plaintiff. Ex.P11 is the order passed by the Tribunal and the same is not disputed and not stated as 'for family'. The Will which is marked is relied upon and the fact that the family belongs to Aliyasanthana is not in dispute and also the Will is a registered Will. The said Will is surrounded by suspicious circumstances and the Trial Court committed an error in shifting the burden on the plaintiff and the First Appellate Court rightly reversed the finding. The First Appellate Court while reversing the finding of the Trial Court relied on the evidence available on record wherein attesting witnesses have not been examined but only the scribe has been examined and no discuss in the order of the Assistant Commissioner. The First Appellate Court rightly held that the same is not binding and also considered the material on record. The First Appellate Court also taken note of Section 61 and in detail discussed the very proviso of the Land Reforms Act whether it comes within the family and 16 not committed any error even though the judgment of the First Appellate Court is divergent and the same is not perverse and explained the contents of the Will and also taken note of the evidence of DW1 to DW4 and not committed any error in appreciating both oral and documentary evidence placed on record.
15. The counsel for the respondents in support of his arguments relied upon the judgment reported in AIR 1990 SC 396 in the case of KALYAN SINGH vs SMT.CHHOTI AND OTHERS and brought to notice of this Court to the principles held in the judgment as a Will is one of the most solemn documents known to law, failure of plaintiff to remove suspicious circumstances by placing satisfactory material on record, Will could be said to be not genuine and also held that it is also essential that trustworthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In 17 order to judge the credibility of witnesses and disengage the truth from falsehood, the Court is not confined only to their testimony and demeanour. It would be open to the Court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the Court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.
16. The counsel also relied upon the judgment reported in AIR 1990 SC 1742 in the case of RAM PIARI vs BHAGWANT AND OTHERS wherein the Apex Court held that testator, father disinherited one daughter, her happy marriage or financially well settlement could not add to genuineness of Will, especially when no finding of dire circumstances of other daughter was recorded by any Courts.
17. The counsel also relied upon the judgment reported in 2001 SAR (CIVIL) 778 in the case of N.KAMALAM (DEAD) AND ANOTHER vs AYYASAMY AND ANOTHER and referring 18 this judgment the counsel would vehemently contend that to attest and attesting witness, the word attest means to bear witness to affirm the truth or genuineness of, testify, certify, the phrase attesting witness means a witness, who has seen the deed executed and who signs it as a witness and when the Will is shrouded in suspicion, it is the duty of the propounder to remove that suspicion by leading satisfactory evidence. The counsel referring this judgment would vehemently contend that the Apex Court has rightly taken note of the material on record and appreciated each and every aspect and considered the material on record and allowed the appeal.
18. In reply to the arguments of the counsel for the respondents, the counsel for the appellants would vehemently contend that the very suit for partition is not maintainable and in the plaint, the plaintiff has not disputed the Will and the very observation that Lakshminarayana is not called and examined is erroneous observation and Will has to be proved by examining the witnesses who are alive and particularly, the scribe who has 19 been examined but the First Appellate Court committed an error in coming to the conclusion that Will has not been proved.
19. Having considered the substantial questions of law and the material on record, it discloses that the question involved in this appeal is only with regard to that whether the executant has disposed the property by way of Will dated 28.11.1986. Having considered the material on record it is not in dispute that the suit schedule property is granted in favour of Chakka Poojary and also not disputed the fact with regard to the relationship between the parties. But it is the claim of the appellants herein that a Will was executed in favour of them in the year 1986 and they have already pointed out that when there is no dispute that the property is granted in favour of Chakka Poojary, hence, the said property was his absolute property. It is also not in dispute that the property was granted in the year 1981 in terms of Ex.P11 and the First Appellate Court has taken note of Section 2(12) of the Karnataka Land Reforms Act with regard to the definition of 'family' and also taken note of Section 61 of the Karnataka Land Reforms Act. In the case of 20 SRIPAD EKANATH GAONKAR referred supra wherein it is held that no bar under Section 61 of the Karnataka Land Reforms Act in order to execute the Will and the said bar is only for execution of the sale deed and categorically held that there is no bar to bequeath the property by way of Will by a tenant, in whose favour the occupancy right has been granted by the tribunal is applicable to the facts of the case on hand since the First Appellate Court comes to the conclusion that there is a bar under Section 61 of the Karnataka Reforms Act to execute a Will. It is also not in dispute that the family of Chakka Poojary is governed by Aliyasanthana that means system of inheritance in which decent is traced in the female line, but does not included the system of inheritance known as the marumakkattayam.
20. It is also important to note that the original Will at Ex.D2 is executed on 28.11.1986 and also it is not in dispute that the same is a registered document and in the said document, the properties were specifically demarcated as A, B and C schedule properties which are allotted in favour of the plaintiff and defendant Nos.6 and 7 respectively. It is also not in 21 dispute that Ex.D1 is the certified copy of the order passed in the Court of Assistant Commissioner in RRT.SR.290/95-96 and in the said appeal, the plaintiff is also a party to the proceedings and she was aware of the RRT proceedings and participated in the proceedings. It is also important to note that the case of the plaintiff before the Trial Court that the RRT proceedings was also before the Assistant Commissioner and the suit filed by the plaintiff that she had demanded for partition from her sons i.e., defendant Nos.1 to 5 when her sons did not consider her request for amicable partition and when her efforts become futile, she was constrained to file a suit for partition.
21. It is also the claim of the plaintiff that defendant Nos.6 and 7 who are the younger sister and niece of the plaintiff's husband - late Chakka Poojary are in occupation of one of the farm house situated in the plaint 'A' schedule properties since they were permitted to reside therein, when they are making false claim over the plaint 'A' schedule properties, they have been made as parties to the suit. It is rightly pointed out by the counsel for the appellants that not pleaded anything 22 about the Will and no pleadings with regard to the claim made by defendant Nos.6 and 7 based on the said Will even though having the knowledge about the RRT proceedings which was commenced in the year 1995 itself. The First Appellate Court comes to the conclusion that the Will has not been proved but the fact that the scribe has been examined is not in dispute. It is also important to note that the defendants have examined the witnesses as DW2 and DW4, who are the daughters of one of the attesting witnesses Chandayya Poojary. But no doubt, DW2 and DW4 have not identified the thumb impression of their father. DW2 claims that she does not know reading and writing. DW4 who is also the daughter of Chandayya Poojary gave the evidence that she cannot identify the thumb impression of her father and hence, she has been treated as hostile witness but in the cross-examination, she admits that the signature which was shown belongs to her father but subsequently, she denies the same but Ex.D2 is marked in view of the admission elicited from the mouth of DW4 in the cross-examination. She admits that she knows PW1 - Ramesh Poojary and DW1 - Gopala Poojary and she visited the office of the advocate of the plaintiff on the day 23 when she deposed the evidence before the Court and the Trial Court also taken note of the dispassionate evaluation of evidence of DW4 that she has admitted her father's signature and subsequently she denies the same. When DW4 was summoned by the Court to give evidence, there was no necessity for her to contact advocate for defendant No.6. In fact, DW4 appears to have won over by the plaintiff and the same has been observed by the Trial Court.
22. It is also important to note that when Chandayya Poojary was not alive, his daughters have been examined as DW2 and DW4 before the Trial Court and also Section 69 of the Evidence Act pressed into service. The material on record also discloses that it is in the knowledge of the plaintiff that based on the Will an appeal was filed before Court of the Assistant Commissioner and not sought for the relief of declaration as contended by the appellants' counsel contending that no such Will is executed and only suit is filed for the relief of partition simplicitor. It is also the contention of the appellants that the plaintiff has not pleaded with regard to the very Will since in the 24 RRT proceedings, the plaintiff is also a party to the said proceedings. The counsel for the appellants would contend that there is no prayer for possession of the appellants. The fact that defendant Nos.6 and 7 are in possession of their respective property is also not in dispute. But, the plaintiff only sought the relief of partition contending that the property belongs to her husband. No doubt, the Trial Court framed the issue with regard to whether defendant Nos.6 and 7 prove that the husband of the plaintiff and father of defendant Nos.1 to 5 by name Chakka Poojary bequeathed the plaint 'A' schedule properties in favour of the plaintiff and defendant Nos.6 and 7. In order to prove the same, the defendants relied upon the evidence of DW1, DW2 and DW4 who are the children of one of the attesting witnesses and DW3 is the scribe. In the evidence of DW3 nothing is elicited with regard to the very execution of the document. In order to comply with Section 69 of the Indian Evidence Act, the evidence of DW3 can be looked into wherein he deposed that he only prepared the Will. Admittedly, the Will is a registered document and the same was also executed in the year 1986 itself and executant passed away in the year 1991 that means the 25 executant of the Will was alive for more than five years after the execution of the Will and in that period, no attempt was made to cancel the same by the testator and the same is also taken note of by the Trial Court in paragraph 26 of the judgment. The very contention of the counsel for the appellants before this Court that the First Appellate Court has committed an error in coming to the conclusion that the Will has not been proved and it is not the case of the respondents that both the attesting witnesses are alive and with regard to the other attesting witness also, no material is placed to show that he was alive and he could have been examined before the Trial Court to prove the Will. When the attesting witnesses are no more, then the Court has to invoke Section 69 of the Indian Evidence Act and the same has been made out by the defendants examining DW2 and DW4. Apart from that the plaintiff has examined only one witness, who is the power of attorney holder of the plaintiff and DW1 is the son of defendant No.6. The fact that defendant Nos.6 and 7 are in possession of their respective share in the 'A' schedule properties as per the registered Will and the same is not in dispute. It is also important to note that 'B' and 'C' schedule 26 properties which have been mentioned in the Will dated 28.11.1986 have been allotted in favour of defendant Nos.6 and 7 and the said fact also confirms that the executant had executed the Will.
23. The main reasoning of the First Appellate Court is that defendant Nos.6 and 7 are not the family members. But fact is that the said parties are governed by Aliyasanthana law is also not in dispute and in a case of Aliyasanthana, female members of the family dominate the male members and more credence will be given to the female members in a family of Aliyasanthana and also the Will is very clear that it has been created in favour of the female members that is wife, sister and niece of the executant. When all these materials are found before the Court, there is a force in the contention of the appellants' counsel that the First Appellate Court completely erred in considering the Will. The very reasoning that Will came in a suspicious circumstances cannot be accepted though no provision is made to defendant Nos.1 to 5 and it is the contention of them that they have been disinherited the property 27 of the father but the provision is made in favour of the wife that is the plaintiff and given 'A' schedule properties and 'B' and 'C' schedule properties are given to his sister and niece. I have already pointed out that the parties are governed by Aliyasanthana law and hence, preference was given to the female members and Will was also executed in favour of the female members. All these factors were not taken note of by the First Appellate Court and hence, the First Appellate Court committed an error in reversing the finding of the Trial Court without applying Section 69 of the Indian Evidence Act. The First Appellate Court also committed an error in disbelieving the document and evidence available on record and mis-applied the law and over looked the material on record. This Court also while framing the substantial questions of law taken note of the fact of seeking the relief of partition of the property and whether the suit is maintainable when there was already a registered Will dated 28.11.1986, the third substantial question of law that whether the First Appellate Court committed an error in coming to the conclusion that the appellants have not proved the Will. 28
24. It is the case of the plaintiff that the suit was filed only for the relief of partition. I have already pointed out that there was a RRT proceedings before filing the suit and the same is also based on the Will and nothing is averred in the plaint with regard to the existence of the Will by the plaintiff in the suit and hence, it is nothing but suppression of the earlier registered Will which has been claimed by defendant Nos.6 and 7 when the said Will was executed by the Chakka Poojary in the year 1986 and he died in the year 1991 i.e., after five years of the execution of the Will and during that period, the said Chakka Poojary has not made any attempt to cancel the said Will. Under such circumstances, the burden is on the plaintiff to remove the suspicious circumstances. I have already pointed out that the Chakka Poojary has executed the Will in favour of the female members i.e., his wife, sister as well as niece and in view of the same, the question of disinheriting the property in favour of defendant Nos.1 to 5 does not arise since the executant belongs to Aliyasanthana custom. Having considered the material on record it is clear that there is a registered Will and in order to prove the same, attesting witnesses have to be examined but 29 both of them are no more. Under such circumstances, the beneficiaries have examined two daughters of one of the attesting witnesses as DW2 and DW4 with regard to identifying of the signature and the signature available is a thumb impression and DW4 identified the signature of her father. When such being the case, the beneficiaries of the Will have proved the Will by examining the witnesses invoking Section 69 of the Indian Evidence Act and hence, the very approach of the First Appellate Court that Will has not been proved is an erroneous approach. The Trial Court having taken note of the material on record appreciated the registered Will and also taken note of the fact that the registered Will was executed in the year 1986 and the executant died in the year 1991 and between that period, he did not cancel the Will. In order to prove the Will, the scribe of the Will has been examined as DW3, DW2 and DW4, who are the daughters of one of the attesting witnesses and these are the materials, which are not been considered by the First Appellate Court. The Trial Court having considered the material on record particularly, the registered Will as well as the factual aspects that the executant belonged to Aliyasanthana 30 family and he has to take care of the female heirs while bequeathing the property and having considered all these material on record, no suspicious circumstances are found in the finding of the Trial Court. But the First Appellate Court erroneously came to the conclusion that the Will is shrouded in suspicious circumstances and excluded defendant Nos.1 to 5. Here it is the case that the executant has taken care of Aliyasanthana custom and allotted 'A' schedule property in favour of his wife, 'B' schedule property in favour of his sister and 'C' schedule property in favour of his niece. When such being the case, the question that the Will is shrouded with suspicious circumstances does not arise. Hence, I am of the opinion that the suit filed by the plaintiff seeking the relief of partition is not maintainable when the appellants are claiming the property based on the Will dated 28.11.1986. Hence, the very finding of the First Appellate Court that the Will has not been proved is against the material on record and thus, the third substantial question of law is answered accordingly. 31
25. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree dated 12.09.2006 passed in R.A.No.118/2005 by the First Appellate Court is set aside and the judgment and decree dated 08.08.2003 passed in O.S.No.325/1999 by the Trial Court is confirmed in dismissing the suit of the plaintiff on the ground that the plaintiff is not entitled for any relief as sought in the plaint.
Sd/-
JUDGE SN