Karnataka High Court
Neelavva W/O Shrimanth Patil vs Mallappa S/O Fakeergouda Patil on 19 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
1 RFA No. 100108/2017
c/w RFA No. 100109/2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100108 OF 2017
C/W
REGULAR FIRST APPEAL NO. 100109 OF 2017
IN RFA NO. 100108/2017
BETWEEN:
1. NEELAVVA W/O. SRIMANT PATIL,
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O: KOLUR VILLAGE, TQ: BILAGI,
DIST: BAGALKOT-587301.
2. PRATIBHA D/O. SRIMANT PATIL,
AGE: MINOR, OCC: STUDENT,
R/O: KOLUR VILLAGE, TQ: BILAGI,
DIST: BAGALKOT-587301.
SAMREEN
AYUB SINCE MINOR REPRESENTED BY GUARDIAN MOTHER
DESHNUR i.e., APPELLANT NO.1 NEELAVVA W/O. SRIMANT PATIL.
...APPELLANTS
Digitally signed
by SAMREEN
AYUB
(BY SRI. MANJUNATH A. KARIGANNAVAR, ADVOCATE)
DESHNUR
Date:
2023.12.20 AND:
11:09:38 +0530
MALLAPPA S/O. FAKEERGOUDA PATIL,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: KOLUR VILLAGE, TQ: BILAGI,
DIST: BAGALKOT-587301.
...RESPONDENT
(BY SMT. CHITRA GOUDALKAR AND
SRI. S.B. HEBBALLI, ADVOCATES FOR SOLE RESPONDENT)
THIS REGULAR FIRST APPEAL FILED UNDER SEC. 96 OF CODE OF
CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND
2 RFA No. 100108/2017
c/w RFA No. 100109/2017
DECREE DATED: 02.12.2016 PASSED BY THE SENIOR CIVIL JUDGE AND
JMFC, BILAGI IN O.S.NO. 211/2005, AND DISMISS THE SUIT FILED BY
THE RESPONDENT, IN THE INTEREST OF JUSTICE AND EQUITY.
IN RFA NO. 100109/2017
BETWEEN:
1. NEELAVVA W/O. SRIMANT PATIL,
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O: KOLUR VILLAGE, TQ: BILAGI,
DIST: BAGALKOT-587101.
2. PRATIBHA D/O. SRIMANT PATIL,
AGE: MINOR, OCC: STUDENT,
R/O: KOLUR VILLAGE, TQ: BILAGI,
DIST: BAGALKOT-587101.
SINCE MINOR REPRESENTED BY GUARDIAN MOTHER
I.E., APPELLANT NO.1 NEELAVVA W/O. SRIMANT PATIL.
3. SOMMAVVA W/O. SRIMANT PATIL,
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O: KOLUR VILLAGE, TQ: BILAGI,
DIST: BAGALKOT-587101.
...APPELLANTS
(BY SRI. HARSH DESAI, ADVOCATE)
AND:
MALLAPPA S/O. FAKEERGOUDA PATIL,
AGE: 31YEARS, OCC: AGRICULTURE,
R/O: KOLUR VILLAGE, TQ: BILAGI,
DIST: BAGALKOT-587101.
...RESPONDENT
(BY SMT. CHITRA GOUDALKAR AND
SRI. S.B. HEBBALLI, ADVOCATES FOR SOLE RESPONDENT)
THIS REGULAR FIRST APPEAL FILED UNDER SEC. 96 OF CODE OF
CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE DATED: 02.12.2016 PASSED BY THE SENIOR CIVIL JUDGE AND
3 RFA No. 100108/2017
c/w RFA No. 100109/2017
JMFC, BILAGI IN O.S.NO. 211/2005, AND DISMISS THE SUIT FILED BY
THE RESPONDENT, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS HAVING BEEN HEARD AND RESERVED ON
06.12.2023 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, RAMACHANDRA D. HUDDAR, J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellants i.e., defendants 1(a) and 1(b) being aggrieved by the common judgment passed in O.S.No.211/2005 clubbed with O.S.No.90/2017 and O.S.No.91/2017 dated 02.12.2016 on the file of the Senior Civil Judge and JMFC, Bilagi (for short "Trial Court") have preferred these appeals.
2. For the purpose of convenience, the parties to these appeals are referred to as per their ranks before the Trial Court in O.S.No.211/2005.
3. In the impugned common judgment, the learned Trial Court has decreed the O.S.No.211/2005 and declared that, the plaintiff is the absolute owner of the suit schedule property to the extent of his half share by virtue of registered Will stated to have been executed by deceased Basalingawwa dated 07.02.2002. The said suit filed by the plaintiffs in O.S.No.90/2007 was decreed and O.S.No.91/2007 was dismissed by the Trial Court. 4 RFA No. 100108/2017 c/w RFA No. 100109/2017
4. The facts leading to passing of the common judgment by the Trial Court are as under:
a) That, O.S.No.221/2005 was filed by the plaintiff against original defendant seeking the relief of declaration to declare that he is the absolute owner of the suit schedule properties described in the plaint by virtue of the Will said to have been executed by Basalingawwa on 07.02.2002. During the pendency of the suit, Srimant Bhimappa Patil, who was arrayed as defendant No.1 died and his legal representatives were brought on record in the shape of defendants 1(a) to 1(c). Accordingly, the cause title came to be amended.
b) In the said plaint, the plaintiff alleged that, he is the sister's son of Basalingavva. The said Basalingawwa was owning and possessing the landed properties in Koluru village, Bilagi Taluk.
She was having half share in the schedule properties. About 40-50 years prior to filing of the suit, the husband of Basalingawwa died. In the wedlock between Basalingawwa and her husband, there were no issues. After the demise of her husband, it was the plaintiff who started to live with Basalingavva. He used to look after her. On account of too much love and affection towards plaintiff, during her lifetime, due to her age old, she thought of 5 RFA No. 100108/2017 c/w RFA No. 100109/2017 bequeathing her half share in the schedule properties in favour of the plaintiff.
c) It is further pleaded that, the propositus Mallappa had two sons by name Siddagondappa and Bhimappa. This Siddagondappa was the husband of Basalingavva. Bhimappa had a son by name Shrimant, who was arrayed as defendant No.1. Now he is no more. Both Siddagondappa and Bhimappa had half share each in the schedule properties. After demise of the husband of Basalingawwa and Bhimappa, his son Srimant was entitled to half share in the schedule properties.
d) It is alleged by the plaintiff that, to deprive the share of Basalingavva, when she was alive, said Shriman tried to dupe her share. Therefore, she filed a suit in O.S.No.244/2001 on the file of the Principal Senior Civil Judge, Jamakhandi seeking partition and separate possession of her half share. The said suit was decreed on 12.11.2002 in favour of Basalingavva. During the pendency of the suit, Basalingawwa thought of disposing of her entire properties in favour of this plaintiff. Therefore, she bequeathed her properties by virtue of a Will dated 07.02.2002 in favour of the plaintiff. 6 RFA No. 100108/2017 c/w RFA No. 100109/2017
e) It is alleged that, by virtue of the said Will, on demise of Basalingavva, plaintiff succeeded to the schedule properties to the extent of her half share owned and possessed by Basalingavva. He is cultivating the said half share. When plaintiff approached the revenue authorities to get his name entered in the revenue records, the authorities have denied. The defendants have no right, title or interest over the half share of Basalingawwa which was bequeathed in favour of the plaintiff.
f) It is alleged by the plaintiff that, these defendants without any right, title or interest over the schedule properties started obstructing the peaceful possession and enjoyment of half share of the plaintiff. Therefore, the plaintiff was constrained to file the suit in O.S.No.211/2005.
5. Pursuant to the suit summons, the original defendant appeared before the Trial Court but he did not file any written statement and died. His legal representatives i.e. defendants 1(a) to 1(c) appeared before the Trial Court and defendant No.1(a) filed written statement and same was adopted by defendant No.1(b). Brief contents of the written statement are as under: 7 RFA No. 100108/2017 c/w RFA No. 100109/2017
a) The entire assertions made in the plaint have been denied by these defendants. So far as relationship is concerned, they admit the same. They also admit that Basalingawwa and her husband died issueless. It is contended that Basalingawwa during her lifetime filed a suit in O.S.No.57/1964 for partition and separate possession of movable and immovable properties before the Court at Bagalkot. In the said suit, Basalingawwa had given up her share. Accordingly, decree came to be passed in O.S.No.57/1964. Based upon that, mutation entry came to be certified with Mutation Entry No.1342 in respect of schedule properties. Thereafter, Basalingawwa started residing separately.
Therefore, the plaintiff cannot maintain the present suit as deceased Basalingawwa had already given up her right in the schedule properties in favour of grandfather of these defendants.
b) Whatever, the decree passed in O.S.No.57/1964 amounts to res-judicata to the suit filed by Basalingawwa in O.S.No.244/2011, so also to the present suit. The plaintiff cannot maintain the present suit. The defendants came to know about the fraud being committed on their family. Though Basalingawwa had no right in the schedule properties has bequeathed the properties 8 RFA No. 100108/2017 c/w RFA No. 100109/2017 in favour of the plaintiff. The suit is designed to harass the family of the defendants.
c) So far as O.S.No.90/07 is concerned, the suit was filed on 22.11.2007 by the plaintiff therein. In the said suit, plaintiff prayed to declare that the decree passed in O.S.No.57/1964 decided on 28.08.1965 be set aside as decree is obtained by playing fraud and misrepresentation. It is not at all binding on deceased-Basalingavva. The compromise decree was obtained by fraud by Srimant. He has reiterated the plaint averments made in O.S.No.211/2005 in this suit. The said assertions are nothing but duplication of averments made in the plaint in O.S.No.211/2005. It is further stated by the plaintiff that as the said decree passed in 1965 was obtained by fraud, the plaintiff by virtue of said Will has become the owner of half share of deceased-Basalingavva. The said suit was contested by the father of Srimant i.e. son of Bhimappa. But he has not at all put forth his case in the said suit. It is further contended that deceased-Basalingawwa had filed suit in O.S.No.241/2001 for partition and separate possession. But in the said suit, Srimant has not defended the suit by filing written statement. The decree so passed in O.S.No.57/1964 establishes 9 RFA No. 100108/2017 c/w RFA No. 100109/2017 that, the said decree was obtained by practicing fraud on Basalingavva.
d) It is asserted by the plaintiff in O.S.No.90/2007 that, whatever the decree passed in O.S.No.244/2001 is not challenged by these defendants, though the deceased-Shirmant had knowledge about the same. Other averments are nothing but repetition of plaint averments in O.S.No.211/2005.
e) By appearing before the Court, defendant in O.S.No.90/2007 contended that, decree so obtained in O.S.No.244/2001 was in the absence of original defendant- Srimant. He had suffered paralysis and was not keeping well and hence, he did not contest the suit in O.S.No.244/2001. The said decree is not binding on these defendants as the said decree was passed without any counter by these defendants.
f) The appellants have filed O.S.No.91/2007 contending that, they are the absolute owners of the suit schedule properties in its entirety. They filed a suit for declaration as well as injunction. They have described the property as 'A' in the schedule appended to the plaint. The averments are nothing but replica to the written statement filed in O.S.No.211/2005. It is contended that as there 10 RFA No. 100108/2017 c/w RFA No. 100109/2017 was compromise entered into O.S.No.57/1964, the said Basalingawwa had lost her right and she has given up her right in the schedule properties. She has relinquished her right by taking Rs.3,500/-. Therefore, now the plaintiff cannot maintain the suit.
g) In the said suit, the defendant i.e. plaintiff in O.S.No. 211/2005 appeared and filed his written statement inter alia reiterating the plaint averments in O.S.No.211/2005.
6. Based upon the rival pleadings of both the parties, the Trial Court framed the following issues in these suits. Issues in O.S.No.211/2005
1. Whether plaintiff proves that as per the decree passed in O.S.No.244/01 dated 12.11.2002 deceased Basalingawwa was having ½ share in the suit schedule properties?
2. Whether plaintiff proves that deceased since, defendant No.1B is minor written statement is filed by defendant No.1A on his behalf and on behalf of defendant No.1B out of love and affection has bequeathed her ½ share in schedule properties by execution registered Will in favour of plaintiff on 07.02.2002?
11 RFA No. 100108/2017c/w RFA No. 100109/2017
3. Whether plaintiff further proves that he has become owner of suit property by virtue of will dated 07.02.2002 executed by Basalingawwa?
4. Whether defendants prove that deceased Basalingawwa had lost her rights over suit schedule properties in view of decree passed in O.S.No.57/1964 as contended in Para No.3 of written statement?
5. Whether plaintiff is entitled for the reliefs sought for?
6. What order or decree?
Issues in O.S.No.90/2007
1. Whether the plaintiff proves that the decree passed in O.S.No.57/64 on the file of Munsiff Court Bagalkot dated:28.08.1965 is obtained by fraud and misrepresentation?
2. Whether the plaintiff is entitled to the relief sought for?
3. What order or decree?
Issues in O.S.No.91/2007
1. Whether plaintiffs prove that one Basalingawwa had filed O.S.No.57/1964 before Munsiff Court Bagalkot for partition and separate possession of her 5/12th share in joint family properties and said suit ended in compromise decree the father in law of plaintiff No.1 12 RFA No. 100108/2017 c/w RFA No. 100109/2017 i.e. Bhimappa became the absolute owner of suit properties?
2. Whether plaintiffs prove that after the death of Bhimappa and Srimant they have become absolute owner and in possession of suit property?
3. Whether defendant proves that in view of decree passed in O.S.No.244/2001 suit of plaintiffs is not maintainable?
4. Whether defendant proves that suit of plaintiffs is barred by limitation?
5. Whether plaintiffs are entitled for the reliefs of declaration and injunction as sought for?
6. What order or decree?
7. In all the aforesaid suits, common evidence was recorded, common documents are marked.
8. To substantiate the case of the plaintiff in O.S.No.211/2005, he himself was examined as PW1. He also examined three witnesses in the share of PW2 to PW4 and got marked Ex.P1 to Ex.P21 and closed the plaintiff's evidence. To rebut the evidence of the plaintiff, defendant No.1(a) entered the witness box as DW1, one witness by name Laxman Lakkappa Naik was examined as DW2 on behalf of the defendants. Ex.D1 to Ex.D9 were marked.
13 RFA No. 100108/2017c/w RFA No. 100109/2017
9. On hearing the arguments and on evaluation of the evidence placed by both the sides, the Trial Court answered issue No.1 to 3 in O.S.No.211/2005 in affirmative and issue No.4 in negative and granted relief to the plaintiff as prayed for. The Trial Court answered the issues in O.S.No.90/2007 and 91/2007 as do not survive for consideration in view of the findings given by the Trial Court in O.S.No.211/2005.
10. We have heard the arguments of both sides at length and meticulously perused the records.
11. In view of the rival submission of both the sides and on evaluation of the evidence placed on record, both oral and documentary, the following point would arise for consideration in these appeals.
"Whether the findings of the Trial Court granting the relief of declaration, partition and separate possession to the plaintiff in O.S.No.211/2005 suffers from infirmity, illegality and require interference by this Court"
12. It is argued by the counsel Sri. Harsh Desai for the appellants 1 and 2 that, the facts of these cases do demonstrate that though the plaintiff in O.S.no.211/2005 is stated to be the sister's son of Basalingawwa, after the demise of Siddagondappa, 14 RFA No. 100108/2017 c/w RFA No. 100109/2017 her husband, she went away to her parental house. She had filed a suit in O.S.No.57/1964 against Bhimappa in the year 1964 on the file of the Civil Court, Bagalkote. The said fact of judgment and decree passed in O.S.No.57/1964 was not brought on record by the plaintiff. There is suppression of material facts by the plaintiff. He submits that as Basalingawwa took Rs.3,500/- towards her share in the properties left by her husband being legal heir of Mallappa and Lakkawwa, she has relinquished her rights in the properties in favour of Bheemappa. Therefore, it is his submission that Basalingawwa had given up her right over the properties of her husband. But surprisingly in the year 2001, she filed a suit and in the said suit defendant did not contest. By suppressing the material fact, the plaintiff obtained decree. During the pendency of the suit, she executed Will in favour of the plaintiff. Based upon that, now the plaintiff is claiming his right over the properties.
13. It is his submission that, the Trial Court has lost sight of earlier decree passed in O.S.No.57/1964 wherein Basalingawwa had relinquished her right over the suit schedule properties by taking Rs.3,500/-. It is observed by the Trial Court that whatever decree so passed in O.S.No.57/1964 came to be merged in the decree passed in the year 2002. On that count, the Trial Court has 15 RFA No. 100108/2017 c/w RFA No. 100109/2017 come to the conclusion that, the plaintiff was able to prove the Will in his favour bequeathing half share of schedule properties of Basalingawwa. He submits that, the Trial Court has committed an error in decreeing the suit of the plaintiff.
14. He submits that the merger of decree passed in O.S.No.57/1964 in the decree passed in O.S.no.244/2001 is against the provisions of law laid down by the Constitutional Courts. The Trial Court has wrongly decreed the suit of the plaintiff in O.S.No.211/2005. He submits that, fraud has been committed by Basalingawwa, so also by the plaintiff by suppressing the material facts. He submits with all force that, interference is very much required in the judgment of the Trial Court. He submits that, the so called Will set up by the plaintiff is not duly proved in accordance with law. There was active participation of plaintiff in the execution of the Will along with his father. Will so set up by the plaintiff is surrounded with suspicious circumstances. Hence, he submits that, Will so set up by the plaintiff is not proved as the suspicious circumstances are not dispelled by him.
15. He also brought to the notice of this Court that this Court while passing the judgments in RFA No.3027/2010, RFA No.3028/2010 and RFA No.3029/2010 dated 22.11.2002 has set 16 RFA No. 100108/2017 c/w RFA No. 100109/2017 aside the judgments so passed and remanded the matter to the Trial Court with direction to give finding on the Will propounded by the appellant i.e. the present plaintiff in O.S.No.211/2005 and based on the said findings, the Trial Court was directed to decide the rights of the plaintiff in accordance with law.
16. It is his further submission that even the matter also went up to the Supreme Court by filing SLP No.9179/2017 by the appellants and said SLP was withdrawn by the appellants by keeping open all contentions. The photocopies of the said order are made available passed by this Court as well as by the Hon'ble Apex Court. In support of his submission, he relied upon the following judgments.
i) Union of India and others v. Ramesh Gandhi1
ii) S.P.Chengalavaray Naidu (dead) by LRs v.
Jagannath (dead) by Lrs and others2
iii) Vijay Syal and another v. State of Punjab and others3
17. As against this submission, the counsels for the respondents with all vehemence submit that, the Trial Court is 1 (2012) 1 SCC 476 2 (1994) 1 SCC 1 3 (2003) 9 SCC 401 17 RFA No. 100108/2017 c/w RFA No. 100109/2017 right in decreeing the suit of the plaintiff in O.S.no.211/2005. It is his submission that the plaintiff is a legatee under the Will having looked after Basalingawwa during her lifetime and out of her love and affection, she has executed the Will in favour of the plaintiff during the pendency of the suit. She was in sound disposing state of mind. The Will was executed by her in the presence of attesting witnesses. She being the owner of half share in the schedule properties owned by her husband, having inherited the same after his demise, in that capacity, she has executed Will as a owner. None of the defendants had taken care of Basalingawwa. After the demise of Siddagondappa, it was the plaintiff, who looked after Basalingawwa (the testatrix). It is his submission that considering all these aspects, the Trial Court has come to the conclusion that there was valid Will in favour of the plaintiff. Therefore, the Trial Court is right in decreeing the suit of the plaintiff. It is prayed by the respondents to dismiss the appeal.
18. We have given our anxious consideration to the arguments of both the sides and perused the records.
19. Before adverting to other aspects of the case, let us analyse certain factual features which are necessary to be incorporated in this judgment. So far as genealogy so stated by the 18 RFA No. 100108/2017 c/w RFA No. 100109/2017 plaintiff and defendants is concerned, one Mallappa was the propositus. He had a wife by bame Lakkawwa. In the wedlock of Mallappa and Lakkawwa there were two sons by name Siddagondappa and Bhimappa. Siddagondappa had a wife by name Basalingawwa under whom now the plaintiff is claiming right in the property as legatee under the Will. Bhimappa has a son by name Srimant. Now he is no more. These appellants are the wife and daughter of Bhimappa and second wife is Somawwa. This genealogy so stated in the appeal memo by the appellants is not denied.
20. The events that taken place in between the family of Siddagondappa and defendants is that, after several years of death of Siddagondappa, as per the records available, Basalingawwa filed a suit in O.S.No.57/1964 seeking partition and separate possession against her mother-in-law i.e. Lakkawwa and brother-in-law and his wife i.e. Bhimappa and Bourawwa i.e. the parents of deceased defendant No.1. As per the records available, on 28.08.1965, in the said O.S.no.57/1964 there was compromise. In that compromise, Basalingawwa received Rs.3,500/- in lieu of her share. Accordingly, the said suit came to be decreed by the Munsiff 19 RFA No. 100108/2017 c/w RFA No. 100109/2017 Court, Bagalakote. Such a compromise decree was reported to the revenue authorities.
21. It is a defence of the defendants that by virtue of the said compromise decree, names of Bhimappa came to be entered in the revenue records by certification of M.E.No.1342 which is produced at Ex.D13 in O.S.No.211/2005. Bhimappa died on 27.11.1980. His son Srimant i.e. deceased defendant No.1 during his lifetime inherited the properties.
22. It is the case of the plaintiffs that, on 12.09.2001 Basalingawwa again filed a suit in O.S.No. 244/2001 claiming half share in the schedule properties. In the said suit, Srimant, the defendant No.1, though appeared, has not contested the suit. During the pendency of the said suit, on 07.02.2002 Basalingawwa said to have been executed a Will in favour of the present plaintiff bequeathing her half share in favour of the plaintiff. The said suit in O.S.No.244/2001 was decreed. It is alleged by the appellants- defendants that, the Court has mechanically decreed the said suit. Basalingawwa died on 04.05.2003. The preliminary decree was drawn. On getting knowledge of the said fact of passing the decree, the review petition was filed on 14.11.2003. Thereafter, the suit in O.S.No.211/2005 was filed by the present plaintiff 20 RFA No. 100108/2017 c/w RFA No. 100109/2017 before the Senior Civil Judge and JMFC, Bilagi seeking declaration of his half share based upon the said Will. The review petition was dismissed on 30.01.2004. Defendant No.1, Srimant, died on 10.04.2006. Thereafter, these defendants being appellants filed a suit in O.S.no.90/2007 before the Senior Civil Judge, Bilagi disputing the compromise decree passed in O.S.No.57/1964 on the ground of fraud and misrepresentation. Likewise appellants also filed a suit in O.S.No.91/2007 in the Court of Civil Judge and JMFC, Bilagi seeking declaration and injunction.
23. One more fact that is to be noticed by this Court is that the aforesaid suits were once decided by way of common judgment dated 22.11.2009. Being aggrieved and dissatisfied by the same, the legatee i.e. Mallappa S/o. Fakeerappa Patil, preferred appeals in RFA Nos.3027/2010, 3028/2010 and 3029/2010 before this Court. In the said appeals, the contesting defendants appeared. This Court vide judgment dated 22.11.2012 allowed the aforesaid appeals by setting aside the common judgment passed in the aforesaid suits and the matter was remanded to the Trial Court to give its findings on the Will propounded by the appellant in O.S.No.211/2005. It was also directed that, based on the said finding the Trial Court shall decide the rights of the parties in 21 RFA No. 100108/2017 c/w RFA No. 100109/2017 accordance with law. It was observed by this Court at paragraph 23 of the judgment, which reads as under:
"23. When the plaintiff filed O.S.No.211/2005, the defendant could not file the suit in O.S.No.91/2007 for declaration of title and for injunction, in O.S.No.57/1964 because judgment in O.S.No.57/1964 was merged in the decree passed in O.S.No.244/2001. Even otherwise, if the will propounded in O.S.No.211/2005 is not proved, the respondents are to be considered the absolute owners of the properties as reversionaries since the Basalingavva was enjoying the properties of her husband as the same was not the properties of her parents side. Therefore, the Trial Court was required to consider whether the appellant who propounded the Will of Basalingavva dated 7.2.2007 has been proved or not."
24. With this observation, all the suits were remanded to the Trial Court by allowing the aforesaid appeals.
25. Considering the directions of this Court in the aforesaid appeals, the Trial Court decided the aforesaid suits by common judgment dated 02.12.2016 decreeing the suit in O.S.No.211/2005, disposed of the suit in O.S.No.90/2007 and the suit filed by the defendants' ancestors came to be dismissed as do not survive for consideration.
22 RFA No. 100108/2017c/w RFA No. 100109/2017
26. On 11.12.2023, after hearing the arguments and reserving the present appeals for judgment, one more fact is brought to the notice of this Court by the learned counsel for respondent by filing a memo stating that, even the present appellants filed Regular Appeal No.91/2002 (Old No.29/2016) on the file of District and Sessions Judge, Bagalkote and same was transferred to the Court of Principal Judge, Family Court, Bagalkote for disposal. The Presiding Officer, Family Court, after considering the arguments of both sides passed the judgment dismissing the appeal filed by the appellants on the ground of limitation vide judgment dated 15.06.2023. Appeal was preferred by the appellants i.e. legal representatives of Srimant Bhimappa Patil being aggrieved by the judgment in O.S.No.244/2001 dated 24.07.2003 by the Senior Civil Judge, Jamakhandi. The fact of preferring of the said appeals was not brought to the notice of this Court by the appellants. After hearing the arguments and reserving the appeals for judgment, now the respondent brought to the notice of this Court by filing memo.
27. It is observed by the Appellate Court in R.A.No.91/2022 that when there is an observation of the Court in the aforesaid Regular First Appeal with regard to merger of the 23 RFA No. 100108/2017 c/w RFA No. 100109/2017 decree passed in O.S.No.57/1964 with the decree passed in O.S.No.244/2001, the said Court cannot sit over the said judgment of the High Court and pass an order. Even on the question of limitation the said appeal filed by the appellants therein came to be dismissed with costs of Rs. 5,000/-.
28. These are all calendar of events. In view of merger of decree passed in O.S.No.57/1964 with a decree passed in O.S.No.244/2001, now this Court has to consider that whether the plaintiff is able to prove the Will in the manner stated by him and by virtue of the said Will he has become owner of the schedule properties to the extent of half share held by Basalingawwa.
29. While deciding these appeals, the aforesaid calendar of events that have been brought on record play an important role. So far as oral and documentary evidence is concerned, plaintiff- Mallappa Fakeerappa Patil in O.S.No.211/2005 has reiterated the plaint averments in his evidence on oath. According to him, Basalingawwa still had half share in the suit schedule properties by virtue of decree passed in the suit so filed by her in O.S.No.244/2001.
24 RFA No. 100108/2017c/w RFA No. 100109/2017
30. During the pendency of the said suit Basalingawwa had executed Will in favour of plaintiff bequeathing her half share right in the properties. Therefore, now he is entitled for half share in the suit schedule properties. PW1 was directed to severe cross- examination by the counsel for the defendants. He denied the suggestions that, Basalingawwa during her lifetime filed a suit in the year 1964 in O.S.No.57/1964 and received Rs.3,500/- and relinquished her share in the suit schedule properties. This PW1 is consistent that by virtue of the decree passed in O.S.No.244/2001, Basalingawwa became owner of half share in the schedule properties. He speaks with regard to the mutation entries etc. He also speaks about the genealogical tree mentioned and admits the said genealogical tree stated supra throughout his cross- examination. He has deposed that, he does not know that in respect of which properties Basalingawwa had executed the Will. It is his evidence that, about 45 years prior to undergoing his cross- examination on 14.11.2003, Basalingawwa's husband Siddagondappa died. She used to reside in her parents house. But he says that she was residing in his family. This PW1 is none else than sister's son of Basalingawwa. According to him, he used to look after the affairs of Basalingawwa during her lifetime. He 25 RFA No. 100108/2017 c/w RFA No. 100109/2017 admits that in a suit so filed by Basalingawwa in the year 1964, he was not a party. Thus, he admits that in the year 1964 there was a suit filed by Basalingawwa against her mother-in-law and brother- in-law and others. But denies that Basalingawwa had received Rs.3,500/- in the said suit and compromised and she relinquished her share in the suit schedule properties of her husband. Further he states that, when Basalingawwa executed the Will, he was very much present with her. Even his father was also present. Further, it has come in his cross-examination that when the said Will was being executed, he, Subhas Hulikatti, Siddalingappa Matte, Basalingappa Guggari were present along with Basalingawwa. With regard to her physical and mental condition he states that she was mentally and physically sound.
31. On reading the evidence of PW1, though it is specifically stated by him that by virtue of the Will alleged to have been executed by Basalingawwa, he became owner to the extent of half share in the suit schedule properties. But he has not stated about earlier suit filed in O.S.No.57/1964 throughout his pleadings. He concentrates his evidence with regard to suit in O.S.No.244/2001 in which a decree was passed awarding half share to Basalingawwa.
26 RFA No. 100108/2017c/w RFA No. 100109/2017
32. PW2-Basalingappa Basappa Guggari is attesting witness to the said Will relied upon by the plaintiff. He admits that Basalingawwa used to reside at the house situated in Koluru village. The father of the plaintiff Fakeerappa used to reside in a farm house. He admits that whatever the property Srimant i.e. defendant No.1 was possessing and owning, he used to cultivate his property till his lifetime. According to him, he and Matti and Ullagaddi were together when the said document was executed by Basalingawwa. This PW2 was cross-examined at length.
33. PW3-Subhash Ullagaddi is also one of the attesting witnesses. He too speaks before the Court about he was also present and put his signature on Ex.P8-Will said to have been executed by Basalingawwa in favour of plaintiff and plaintiff was present at the time of execution of the Will by Basalingawwa. He admits that about eight years prior to 26.10.2008 Srimant i.e. defendant No.1 has suffered paralysis attack. He was unable to move. He deposed ignorance about the family history of Srimant.
34. PW4-G.M.Teggi bond writer of the Will examined before the Trial Court deposed that he is the scribe of Ex.P8. He identifies Ex.P8 and his signature on the same as Ex.P8(c). According to him, 27 RFA No. 100108/2017 c/w RFA No. 100109/2017 he wrote the said Will. He had seen only the RTC extract and he has not seen other documents.
35. So far as documentary evidence are concerned, Ex.P1 to Ex.P7 are the RTC extracts of the schedule properties so mentioned in the plaint obtained by the plaintiff in the year 2005. The material documents so produced by the plaintiff is a Will- Ex.P8. It is recited in the said Will that the schedule properties so mentioned in the Will, the deceased Basalingawwa has half share and according to her, a suit in O.S.No.244/2001 is pending on the file of Senior Civil Judge, Jamakhandi and during the pendency of the said suit, she executed the Will in favour of this plaintiff- Mallappa Fakeerappa Patil. The other documents are also produced by the plaintiff to show about the revenue proceedings in respect of suit schedule properties which are marked in evidence right from Ex.P9 to Ex.P20. By virtue of the said revenue proceedings, there was certification of mutation entries so produced. Ex.P21 is certified copy of the gift deed.
36. To rebut the evidence of plaintiff, Smt.Neelavva Srimant Patil i.e. defendant No.1(a) has entered the witness box and specifically stated that Siddagondappa died in the year 1953. Bhimappa had a son by name Srimant and he is her husband. Her 28 RFA No. 100108/2017 c/w RFA No. 100109/2017 husband-Srimant also died. She admits that Siddagondappa had a wife by name Basalingawwa. It is her specific evidence that during her lifetime Basalingawwa filed suit in O.S.No.57/1964 seeking partition. Said suit was compromised on 28.08.1965 before the Munsiff Court Bagalakote. In that compromise, deceased- Basalingawwa received Rs.3,500/- towards her share in the family properties of Siddagondappa and relinquished her all rights in the family properties in favour of Bhimappa and other defendants. The other defendants were her mother-in-law and others. After compromise was entered in the said suit, it was Bhimappa, her father-in-law became the absolute owner of the entire family properties. There is suppression of material fact by Basalingawwa while filing the suit in O.S.No.244/2001 and again she got the decree. At that time, Srimant was suffering from paralysis and could not contest the suit. Taking advantage of the same, said Basalingawwa got decree awarding half share to her.
37. This DW1 has been thoroughly cross-examined by the plaintiff's counsel. She has denied all the suggestions directed to her. It is suggested to her that, when the said Will was executed by Basalingawwa, whether her mental and physical condition was good or not? DW1 has deposed ignorance about the same. With 29 RFA No. 100108/2017 c/w RFA No. 100109/2017 regard to the revenue proceedings so initiated between both the sides she admits.
38. DW2-Laxman Naik being resident of Kolur village specifically says that there was a suit in O.S.No.57/1964 filed by Basalingawwa wherein a dispute was compromised. By receiving Rs.3,500/- from Bhimappa, Basalingawwa has relinquished all her rights in the family properties. The schedule properties so mentioned in the suit were partitioned and three shares were allotted to different persons. Though these DW1 and DW2 were intensively cross-examined, but they are consistent in their evidence.
39. Likewise the defendants also produced RTC extracts as per Ex.D1 to Ex.D6, which are not in dispute. Amongst the documents so produced by the defendants, Ex.D7 is the decree passed in O.S.No.244/2001 wherein the Principal Civil Judge (Sr.Dn) Jamakhandi has decreed the suit on 12.01.2002 awarding half share to the plaintiff i.e. respondent No.1 in these appeals, who was plaintiff in suit O.S.No.211/2005. This is a main document relied upon by the plaintiff to show that deceased Basalingawwa still had half share in the suit schedule properties. 30 RFA No. 100108/2017 c/w RFA No. 100109/2017
40. Will is a solemn document known to law. The Hon'ble Apex Court in catena of decisions has repeatedly held that it is the duty of the propounder of the Will to dispel the suspicious circumstances. Unless the propounder of the Will dispels or removes the suspicious circumstances, he/she cannot claim any right in the properties so stated in the Will.
41. In a judgment of the Hon'ble Supreme Court of India, in the case of Raj Kumari and others v. Surinder Pal Sharma4 the Hon'ble Supreme Court in paragraphs 11, 12 and 13 of the said judgment has laid down principle with regard to the Will and its proof. It reads as under;
"11. The need and necessity for stringent requirements of clause (c) to Section 63 of the Succession Act has been elucidated and explained in several decisions. In H.Venkatachala Iyengar v. B.N. Thimmajamma5, dilating on the statutory and mandatory requisites for validating the execution of the will, this Court had highlighted the dissimilarities between the will which is a testamentary instrument vis-à-vis other documents of conveyancing, by emphasising that the will is produced before the court after the testator who has departed from the world, cannot say that the will is his own or it is not the same. This factum introduces an element of 4 (2021) 14 SCC 500 5 AIR 1959 SC 443 31 RFA No. 100108/2017 c/w RFA No. 100109/2017 solemnity to the decision on the question where the will propounded is proved as the last will or testament of the departed testator. Therefore, the propounder to succeed and prove the will is required to prove by satisfactory evidence that (i) the will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and (iv) that the testator had put his signature on the document of his own free will.
Ordinarily, when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. At the same time, this Court observed that it is necessary to remove suspicious circumstances surrounding the execution of the will and therefore no hard and fast or inflexible rules can be laid down for the appreciation of the evidence to this effect.
12. In Jaswant Kaur v. Amrit Kaur6, it was held that suspicion generated by disinheritance is not removed by mere assertion of the propounder that the will bears the signature of the testator or that the testator was in sound and disposing state of mind when the will disinherits those like the wife and children of the testator who would have normally received their due share in the estate. At the same time, the testator may have his own reasons for excluding them. Therefore, it is obligatory for the propounder to remove all the 6 (1977) 1 SCC 369 32 RFA No. 100108/2017 c/w RFA No. 100109/2017 legitimate suspicions before a will is accepted as a valid last will of the testator. Earlier, in Surendra Pal v. Saraswati Arora7, this Court had observed that the propounder should demonstrate that the will was signed by the testator and at the relevant time, the testator was in a sound and disposing state of mind and had understood the nature and effect of the dispositions, that he had put his signature on the testimony of his own free will and at least two witnesses have attested the will in his presence. However, suspicion may arise where the signature is doubtful or when the testator is of feeble mind or is overawed by powerful minds interested in getting his property or where the disposition appears to be unnatural, improbable and unfair or where there are other reasons to doubt the testator's free will and mind. The nature and quality of proof must commensurate with such essentiality so as to remove any suspicion which a reasonable or prudent man may, in the prevailing circumstances, entertain. Where coercion and fraud are alleged by an objector, the onus is on him to prove the same and on his failure, probate of the will must necessarily be granted when it is established that the testator had full testamentary capacity and had in fact executed the will with a free will and mind. In Rabindra Nath 8 Mukherjee v. Panchanan Banerjee , this Court had observed that the doubt would be less significant if the will is registered and the Sub-Registrar certifies that the same was read over to the executor who, on doing so, had admitted the contents. In each case, the court 7 (1974) 2 SCC 600 8 (1995) 4 SCC 459 33 RFA No. 100108/2017 c/w RFA No. 100109/2017 must be satisfied as to the mandate and requirements of clause (c) to Section 63 of the Succession Act.
13. In Jagdish Chand Sharma v. Narain Singh Saini9, this Court referring to Section 63 of the Succession Act had illustrated that the provisions contemplate that in order to validly execute the will, the testator would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testator or signature of the person signing for him has to be so placed that it was intended to give effect to the writing as a will. Section 63 mandates that the will should be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to it or has seen some other person sign it in the presence and on the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person and each of the witnesses has signed the will in the presence of the testator, though it is not necessary that more than one witness be present at the same time and that no particular form of attestation is necessary. The execution and attestation of the will are mandatory in nature and any failure and deficiency in adhering to the essential requirements would result in invalidation of the instrument of disposition of the property."
9 (2015) 8 SCC 615 34 RFA No. 100108/2017 c/w RFA No. 100109/2017
42. In another judgment of the Hon'ble Apex Court in the case of Murthy and others v. C.Saradambal and others10 the Hon'ble Apex Court has summarised with regard to the intention of testator to make testament and it must be proved. It is the duty of the propounder of the Will to remove all the suspicious circumstances with regard to execution of the Will.
43. To substantiate the said fact, as discussed above, he himself has stated in his evidence on oath about he looking after deceased-Basalingawwa during her lifetime. It is submitted by the counsel for the plaintiff that right from the death of the husband of Basalingawwa, she used to reside in her parental house at Koluru. But his family used to take care of her needs and her health. Even PW1 states that it is he who used to take care of the affairs of Basalingawwa during her lifetime. DW1, being the wife of Srimant, never denied this aspect either in her examination in chief or in the cross-examination.
44. It is the case of the plaintiff that Basalingawwa had half share in the schedule properties by virtue of decree passed in O.S.No.244/2001. The said decree was though challenged by the present appellants-defendants by preferring the appeal in 10 (2022) 3 SCC 209 35 RFA No. 100108/2017 c/w RFA No. 100109/2017 R.A.No.91/2022 (Old R.A.No.29/2016). The said appeal has been dismissed by the Appellate Court i.e. Principal Judge, Family Court, Bagalakote to whom the said case was transferred. The said judgment was passed on 15.06.2023. Till date the dismissal was not brought to the notice of the appellants. It is respondent, who brought to the notice of this Court about dismissal of the said appeal for the first time on 11.12.2023. That means, whatever the judgment so passed in O.S.No.244/2001 in favour of Basalingawwa had become final and has attained finality.
45. Further, though this PW1 has been directed to severe cross-examination by the counsel for the defendants, but he is consistent through is cross-examination that it is his family, who took care of Basalingawwa throughout her life and it was PW1- plaintiff who used to take care of personal needs and requirements of Basalingawwa. She had love and affection towards the plaintiff and because of that, she executed Will as per Ex.P8 in his favour.
46. No doubt, it is brought on record that in a suit filed in O.S.No.57/1964, his father was not a party. Throughout the cross- examination, questions are directed with regard to proceedings in O.S.No.57/1964. When decree passed in O.S.No.57/1964 is merged in decree passed in O.S.No.244/2001 as per the 36 RFA No. 100108/2017 c/w RFA No. 100109/2017 observation in Regular First Appeals stated supra by this Court. Now once again these defendants cannot agitate their rights stating that already a decree was passed giving Rs.3,500/- to Basalingawwa and thereby they have become the owners. Whatever the decree was passed in O.S.No.244/2001 has attained finality because of dismissal of their appeal by the Appellate Court in R.A.No.91/2022 vide Judgment dated 15.06.2023.
47. No effective cross-examination is directed to this PW1. Even not even a single suggestion is directed to this PW1 stating that he has forced Basalingawwa to execute the Will. No fraud has been elicited from the mouth of any of the witnesses so examined by the plaintiff, so also no cheating. But it is elicited that PW1 and his father were very much present along with the friends of his father. Mere presence of PW1 and friends of his father at the time of execution of Will by Basalingawwa does not mean that, she was cheated by PW1 or force or fraud has been practiced on Basalingawwa to execute the Will. No such averments have been made in the written statement by the defendant.
48. It is the evidence of PW1 that Basalingawwa was having good health and she was capable to execute the Will and she was mentally and physically sound. It is suggested that 37 RFA No. 100108/2017 c/w RFA No. 100109/2017 Basalingawwa was suffering from Asthama and has no eyesight and she was dumb. But these suggestions are denied. When suggestions are denied, they have no evidentiary value.
49. It is his evidence that when the said Will was being scribed by PW4, it was she who gave instructions to write the Will. It is denied that by force she was brought to Bilagi and said Will was being got executed. This suggestion is denied.
50. PW2 and PW3 are the independent attesting witnesses to the said Will by name Basalingappa Basappa Guggari and Subhash Huchappa Ulligaddi. As per the contents of the Will as well as the evidence spoken to by these witnesses, it was Basalingawwa who executed the Will marked at Ex.P8 in their presence. She was in sound state of mind. She was physically fit. She dictated the terms of the Will. It is brought on record that the father of PW2 was elder member in Koluru village. At one breath these witnesses have admitted that when the said Will came into existence whether they enquired with regard to right in the properties, PW2 has stated that the matter was pending before the Civil Court at that time. No doubt, some ignorance have been spoken to by this PW2, but the basic evidence by PW2 and PW3 with regard to mental and physical soundness and capability of Basalingawwa is not denied 38 RFA No. 100108/2017 c/w RFA No. 100109/2017 throughout the cross-examination directed to these witnesses. PW2 and PW3 are consistent in their evidence with regard to execution of the Will by Basalingawwa during her lifetime in favour of the plaintiff bequeathing her half share in the schedule properties.
51. PW4-Scribe of the Will though states that the plaintiff and his father were not present, but with regard to writing of the said Will at the instructions of Basalingawwa he has deposed to that effect. This evidence spoken to by PW4 i.e. G.M.Teggi, Bond Writer is not denied in the cross-examination. He being a Bond Writer and experienced person to avoid any suspicion, stated that the plaintiff and his father were not present but throughout his cross-examination, he has maintained that on going through the RTC extracts placed by Basalingawwa, he wrote the Will as per her instructions. With regard to the proof of the Will requirement to be satisfied by the propounder of the Will, The Hon'ble Apex Court in catena of judgments has categorically held with regard to proof of Will. So also the High Court in Division Bench of Kerala in the case of Jose S/o. Immatty Anthony v. Ouseph and others11 has held that when a Will was executed by mother of the plaintiff, 11 AIR 2007 Kerala 77 39 RFA No. 100108/2017 c/w RFA No. 100109/2017 which was challenged by the defendants, the plaintiff being legatee under the Will has to discharge the various obligations cast on him and has to remove all the suspicious circumstances. So, the legatee under the Will as per the provisions of the Indian Succession Act as well as under the provisions of Indian Evidence Act, has to remove all the suspicious circumstances. The object is evidently to avoid the chances of possible collusion. Explanation 67 to the Indian Evidence Act states that legatee under the Will does not lose his legacy. In this case, it is the evidence of PW2 and PW3 that the plaintiff was very much present when the said Will was executed by deceased-Basalingawwa.
52. By applying the principles laid down in the aforesaid judgments, now by examining the attesting witness, as a Will is compulsorily attestable document as required under the provisions of Section 68 of the Indian Evidence Act so also under Section 63 of the Indian Succession Act, the plaintiff has complied the provisions of law. By examining these three witnesses i.e. PW2 to PW4, he has dispelled all the suspicious circumstances and also evidently he has avoided chances of possible collusion in between himself and other witnesses so examined. That means, explanation to Section 67 of the Indian Evidence Act specifically states that 40 RFA No. 100108/2017 c/w RFA No. 100109/2017 legatee under the Will do not lose his legacy. It is the evidence of PW2 and PW3 that deceased-Basalingawwa was sound state of mind at the time of execution of the Will. Thus, the propounder i.e. plaintiff has succeeded in proving the Will satisfactorily through the evidence of PW2 to PW4 who have stated in their evidence that the said Will was signed by testator and at the time of execution of the Will, the testator was sound state of mind, she understood the nature and fact of dispositions and then put signatures on the document under free will.
53. To this effect, as discussed above, the plaintiff has led evidence satisfactorily. The evidence of PW2 to PW4 coupled with the evidence of PW1 is sufficient to prove the sound and disposing state of mind of Basalingawwa. Her signatures as required by law, if taken into consideration, it can be said that the plaintiff has discharged the onus being a propounder of the Will to prove the essential facts. None of the suspicious circumstances surrounding the Will have been proved by the defendants. Whatever suspicious circumstances suggested to the witnesses about the health condition of Basalingawwa have been removed by the propounder of the Will by examining PW2 to PW4. Therefore, the propounder of the Will has demonstrated that the Will was executed by testator 41 RFA No. 100108/2017 c/w RFA No. 100109/2017 (Basalingawwa) and at the relevant time, she was sound disposing state of mind and after understanding the nature and fact of the dispositions, she has executed a very will in his favour. Therefore, now the defendants cannot contend that fraud has been practiced on the Srimant or Basappa etc., by obtaining decree in O.S.No.244/2001 cannot be accepted. No doubt, learned counsel for the defendants relied upon the judgment S.P.Chengalavaray Naidu referred to supra, because of directions given in the aforesaid Regular First Appeal filed by the plaintiff and allowing of those appeals and remanding the matter with an observation that whatever decree so passed in O.S.No.57/1964 is merged in O.S.No.244/2001, the allegations of the present defendants cannot be accepted. Therefore, in the considered view of this Court, the appeal filed by the appellants being aggrieved by the judgment passed in O.S.No.244/2001 has to be dismissed. The learned Trial Court in view of findings given in O.S.No.244/2001 has rightly considered the pleadings in O.S.No.90/2017 and O.S.No.91/2017 and has held that the suits in O.S.No.90/2017 and 91/2017 does not survive for consideration and dismissed the same. Therefore, we do not find any factual error or illegality being committed by the Trial Court in decreeing the suit of the plaintiff in 42 RFA No. 100108/2017 c/w RFA No. 100109/2017 O.S.No.211/2005. Hence, we record the findings in favour of the plaintiff. In view of our above discussions, the appeals are deserved to be dismissed. Resultantly we pass the following:
ORDER The appeals are dismissed. No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE YAN