Karnataka High Court
Hanumanagouda vs Thirthappa Basappa Amathepanavar on 17 August, 2012
Author: N.Kumar
Bench: N.Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 17th day of August 2012
Before
THE HON'BLE MR.JUSTICE N.KUMAR
REGULAR FIRST APPEAL No.572 /1999 (Dec)
Between:
1. Hanumagouda
S/o. Doddabasappa Goudar @
Goudappanavar, Age: Major,
Occ: Agriculture,
R/o. Bommanagi,
Tq: Badami, Dist: Bagalkot.
2. Yalaguradappa Poddabasappa Goudar @
Goudappanavar, Age: Major,
Occ: Agriculture, R/o. Bommanagi,
Tq: Bagalkot, Dist: Bagalkot.
3. Muttappa Doddabasappa
Goudar @ Goudappanavar,
Age: Major, Occ: Agriculture,
R/o. Bommanagi, Tq. & Dist: Bagalkot.
4. Gurubasavva
D/o. Doddabasappa Goudar @
Goudappanavar, Age: Major,
Occ: Agriculture, R/o. Bommanayai,
Tq. & Dist: Bagalkot.
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5. Dyamavva
W/o. Doddabasappa Goudar @
Goudappanavar, Age: Major,
Occ: Agriculture,
R/o. Bommanagi,
Tq. & Dist: Bagalkot.
6. Sannatangewwa
W/o. Toppanna Pujar,
Age: Major, Occ: Agriculture,
R/o. Bommanagi,
Tq. & Dist: Bagalkot.
...Appellants
(By Sri. Shivakumar S Badawadagi, Advocate)
And:
Thirthappa Basappa
Amatheppanavar, Age: Major,
Occ: Agriculture,
R/o. Bommanagi,
Tq. & Dist: Bagalkot.
...Respondent
(By Sri. Jagadish Patil, Advocate)
This RFA is filed under Section 96 of CPC against
the judgment and decree dated 10.06.99 passed in O.S
No.133/95 by the Prl. Civil Judge, Sr.Dn., Bagalkot,
dismissing the suit for declaration and permanent
injunction.
This RFA coming on for admission this day, the
Court delivered the following:
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JUDGMENT
1. This is plaintiffs' appeal challenging the judgment and decree of the Trial Court which dismissed the suit of the plaintiffs for declaration of title and permanent injunction. The subject matter of the suit is land bearing R.S. No.18/1 situated at Hire-Yaranakeri village, Hungund Taluk, measuring 4 acres 10 guntas, land bearing R.S. No.108/3 situated at Bommanagi village, Bagalkot Taluk and House property bearing VPC No.22, Ward No. 4 of Chikka-Yaranakeri village.
2. The case of the plaintiffs is the land bearing R.S. No. 108/3 of Bommanagi village was owned by one Hanamagouda. He died about 30 years back. His wife Yallavva died in 1992. Hanamagouda had no issues. Both Hanamagouda and Yallavva died intestate. Hanamagouda had 2 brothers namely Dyavanagouda and Doddabasappa. They died in 1995 and 1990 respectively. Dyavanagouda has left behind him 3 :4: Sannatangevva, his daughter, plaintiff no.6, as his only legal heir. His wife Karabasavva died prior to him. Another brother Doddabasappa also died. He had left behind him the plaintiffs 1 to 5 as his legal heirs. Therefore since Hanamagouda and his wife Yallawwa died intestate, after their death, it is the plaintiffs who have become the joint owners being his direct legal heirs under the provisions of Hindu Succession Act 1956.
3. Defendant is the son of the brother of Yallavva w/o Hanamagouda. It appears after the death of Yallavva he has got entered his name in the year 1994 by M.E. No. 2209. He cannot be the legal heir as the property was inherited by Hanamagouda by his father and after his death his wife Yallavva inherited it and thus, it was a property belonging to her husband. As they have no issues, it will be inherited by her husband's heirs who are the plaintiffs U/S 15 of the Hindu Succession Act. But, the defendant in collusion 4 :5: with the revenue authorities has got entered his name. He has not acquired any right, title over the suit properties. On the basis of such entry defendant is interfering with the plaintiffs' peaceful possession and enjoyment of the said lands. The land bearing R.S.No.18/1 name of the deceased Yallavva is still entered. The defendant has only got entered his name for the land bearing R.S.No.108/3. The defendant is likely to come in the way of the plaintiffs getting their names entered in the record of rights of the both the lands. The suit house also belongs to the propositus, as such, the plaintiffs have inherited it as nearest heirs. For this also one Amateppa father of defendant have falsely got entered their names without any title. Therefore the plaintiffs filed a suit for declaration that they are the owners of the suit lands by inheritance being the nearest heirs of Hanamagouda and he also sought for a decree of permanent injunction. 5 :6:
4. After service of summons, the defendant entered appearance and filed his written statement. He contended the relationship between the parties as shown in the genealogy is incomplete. Deceased Doddabasappa had another daughter by name Taravva. She was given in marriage to the defendant. She died about 9 years back at Chikka-Yaranakeri Village, Taluka Hungund. It is true that the suit land R.S.No.108/3 situated at Bommanagi village belongs to Hanamagouda. It is true that he died about 40 years back. His wife Yallavva died in the year 1992, i.e., on 23/03/1992 at Yaranakeri village. It is admitted that Hanamagouda and Yallavva had no issues. But it is false to say that both the Hanamagouda and Yallavva died intestate. Hanamagouda had two brothers Viz., Dyamanagouda and Doddabasappa. They died and the plaintiffs are their heirs.
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5. The suit land bearing R.S.No.108/3 of Bommanagi village was comprised in R.S.No.108. The entire land bearing R.S.No108 was measuring 26 acres 6 guntas. After the demise of Hamanagouda, the plaintiffs and their deceased father Dyamanagouda and Doddabasappa have started to ill-treat Yallavva. So she left Bommanagi and started to reside in Chikka- Yaranakeri Village i.e. in the defendant's house. The defendant's father Basappa was the younger brother of deceased Yallavva. Chikka-Yaranakeri village is the parental place of deceased Yallavva. Yallavva started to reside with his brother along with defendant. She used to go to the village Bommanagi and cultivate the suit land bearing R.S.No.108. In the family partition land bearing R.S.No.108/1 measuring 8 acres 29 guntas came to the branch of Doddabasappa Goudar. The land R.S.No.108/2 measuring 8 acres 17 guntas came to the share of Dyavanagouda Goudar. The land R.S.No.108/3 measuring 9 acres has came to the share 7 :8: of Yallavva. In this regard M.E. No. 2066 of Bommanagi was certified. The deceased Yallavva was the absolute owner of suit land R.S.No.108/3 of Bommanagi village. It was in her possession and enjoyment till her last breath. The another land bearing R.S.No.18/1 situated at Hire-Yaranakeri village was purchased by the defendant in the name of Yallavva. She was the elderly lady in the family. The defendant and deceased Yallavva were residing under the common roof. The deceased Yallavva had great love and affection towards defendant, who was the nearest kith and kin. The defendant was looking after the welfare of Yallavva. At no time the plaintiff and deceased Doddabasappa and Dyamanagouda have look after the welfare of Yallavva. They were never in cordial terms with Yallavva. The defendant was looking after the welfare of Yallavva. She had expressed a desire to give the properties to the defendant. The deceased Yallavva executed the Will Deed in favour of the defendant and bequeathed her 8 :9: absolute properties. She executed the Will Deed on 21/03/1992 in the presence of attesting witnesses. She died intestate. The deceased Yallavva was in sound disposing state of mind at the time of executing the Will. She executed the Will after fully knowing its contents. It was the out come of love and affection towards the defendant. The defendant nor any other persons have influenced Yallavva in executing the Will Deed. The Will Deed was written as per the wish and will of Yallavva and it was read over and explained to her, for which, she consented and put her thumb impression in the presence of Bond Writer and attesting witnesses. After the demise of Yallavva, the defendant has become the absolute owner of the suit properties. The plaintiffs have no right, title or interest in the suit schedule 'B' properties. The defendant is in possession and enjoyment of the suit schedule properties since from the days of Yallavva. The defendant is paying the land revenue. It is false to say that the defendant got entered 9 : 10 : his name for land bearing R.S.No.108/3 only. The defendant has filed an application with Village Accountant, Yaranakeri, to enter his name in the record of rights of R.S.No.18/1. At that time the plaintiff has objected to the same. So, the revenue authorities have directed the parties to approach the Civil Court. It is false to state that the plaintiffs are the heirs of deceased Yallavva u/S 15 of the Hindu Succession Act. It is false to state that the plaintiffs are in peaceful possession and enjoyment of suit land and the defendant is interfering. The defendant has become the absolute owner of the suit schedule properties and he is in possession by virtue of Will Deed executed by Yallavva. He also filed an additional written statement. In the additional written statement he contended the house bearing G.P. No. 22 belongs to one Amateppa Dorappa Dangi. He was the uncle of the defendant. He got that property from his uncle. The resolution was passed by the Panchayath on 30.12.1998 on the varadi filed by 10 : 11 : Amateppa Dorappa Dangi. The suit property is the absolute property of the defendant and it is in his possession, he is paying taxes to the Grama Panchayath. At no time the suit property was in possession of Hanamagouda, Yallavva and the plaintiff. They have absolutely no right in the said property. Hence the suit in respect of the house property is not maintainable.
6. On the aforesaid pleadings the Trial Court has framed the following issues:
1. Whether the plaintiffs prove they are the owners of the suit properties?
2. Whether the plaintiffs rove that they are in lawful possession and enjoyment of the suit properties?
3. Whether the plaintiffs prove that they are entitled for the declaration and permanent injunction?
4. Whether the defendant proves that deceased Yallavva was absolute owner of R.S.No.108/3 of Bommanagi village?
5. Whether the defendant proves that he purchased R.S.No.18/1 of Hire-Yarankeri village in the name of Yallavva?11 : 12 :
6. Whether defendant proves that Yallavva has duly executed a will dated 21/3/1992 bequeathing suit properties to her?
7. Whether the defendant proves that the suit house G.P.No.22 earlier belonged to his
8. What decree or order?
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7. The plaintiffs in order to substantiate their claim, examined the first plaintiff Hanamagouda as PW1. He has produced 4 documents, which are marked as Exs.P1 to P4. On behalf of the defendants, the defendant was examined as DW1, attesting witness to the Will Mudyappa Sangappa Konnur as DW2. The scribe of the Will Shashikant Hanamantagouda Patil was examined as DW3. He also examined two villagers as DW4 and DW5. 7 documents are produced which are marked as Exs.D1 to D7.
8. The Trial Court, on consideration of aforesaid oral and documentary evidence on record has held that the plaintiffs have failed to prove that they are owners of the suit properties. They have failed for prove that they are in lawful possession and enjoyment of the suit 12 : 13 : properties. It held that they are not entitled to the declaration sought for as well as the decree for permanent injunction. The defendant has proved that the land bearing R.S. No. 108/3 of Bommanagi village absolutely belongs to the deceased Yallavva. The defendant has failed to prove that he has purchased the land bearing R.S. No. 18/1 of Hire-Yaranakeri village in the name of Yallavva. As the sale deed stands in the name of Yallavva it is her absolute property. The defendant has proved due execution of the will on 21/03/1992 under which the suit schedule propertes 1 and 2 were bequeathed to him. The defendant has proved that the house property bearing G.P. No. 22 earlier belong to his uncle and neither the plaintiffs nor even Yallavva had any right in the suit property. Thus it dismissed the suit of the plaintiffs.
9. Learned counsel for the plaintiffs assailing the judgment and decree of the Trial Court contended the 13 : 14 : defendant has set up his title to the property under a Will; the relationship between the parties is not in dispute; if the Will is not proved, certainly the plaintiffs would be the legal heirs who are entitled to the properties belonging to Yallavva. Though the defendant has examined the attesting witnesses and scribe to the Will, their evidence runs counter to the evidence of the defendant. At any rate, the evidence on record shows the defendant was present at the time of execution of the Will, he has taken active part in the execution of the Will that constitute a suspicious circumstance and the defendant has failed to dispel the said suspicious circumstance. The Will was written in the Sub- Registrar's Office, the scribe advised them to get it registered, still it was not registered. Under these circumstances the Will set up by the first defendant is not proved and the Trial Court has committed a serious error in holding that the will is proved and consequently the plaintiffs have no right in the suit property. 14 : 15 : Therefore he submits, a case for interference is made out.
10. Per Contra the learned counsel appearing for the defendant supported the impugned order.
11. In the light of the aforesaid materials evidence on record and rival contentions of the parties, the point that arises for my consideration in this appeal is as under.
Whether the finding recorded by the Trial Court that the Will dated 21/03/1992 is duly executed, calls for interference?
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12. The subject matter of the suit consists of 3 items. The third item is the house property. The plaintiffs contend the said house property was originally belonged to their family. The said property is not bequeathed to the defendant by Yallavva. As against this, the defendant's case is, the said property belongs to his relative Amateppa, from whom he got the said house 15 : 16 : property. He has produced Ex.P4-house extracts showing that the said property stood in the name of Amateppa. The plaintiffs have not shown how they are related to Amateppa and either they are his legal heir or nearest relatives who are entitled to the said property. Yallavva herself has no right to the said property. Under these circumstances, the plaintiffs have miserably failed to prove that they have any right in the said house property. Therefore, the Trial Court was justified in declining to grant the relief of declaration in respect of the said property, which is in possession of the defendant.
13. Insofar as landed properties are concerned, the evidence on record shows that R.S. No. 108/3 of Bommanagi village was earlier a joint family property. At a partition between Yellavva's brother and Yellavva, after the death of Yallavva's husband the said property fell to the share of Yellavva. On the basis of the said 16 : 17 : partition Yellavva's name is mutated. She has been paying taxes and she is cultivating the land till her death. In so far as land bearing R.S.No.18/1 is concerned, that is not the property belonging to Yallavva's husband-Hanamant or to their family. It is Yallavva who purchased the land bearing R.S.No.18/1 situated at Hire-Yaranakeri village. Therefore, it is her self-acquisition. Yallavva bequeathed this property which she got under the partition and acquired under a sale deed in favour of defendant. Thus, the relatives of her husband who would have succeeded to the estate in the absence of the Will. Therefore, the propounder of the Will has to satisfy the Court that the said Will is duly executed in order to succeed in claiming the said properties.
14. The evidence on record shows after the death of Hanamagouda, Yallavva was ill treated in the family. As on that day there was no partition in the family. 17 : 18 : Therefore Yallavva was constrained to go to Hire- Yaranakeri village. Subsequently at a partition the land bearing R.S. No. 108/3 measuring about 9 acres was allotted to the share of Yallavva. M.E. No. 2066 of Bommanigi village shows the mutation was made in her name. It was she, who was cultivating the said land personally after the said partition. She had no issues. Therefore the defendant who is none other than her brother's son was living with her. The ration card- Ex.P.2 which is of the year 1983 shows that defendant, his wife and Yallavva as well as Davanagouda and Karabasavva lived together in Chikka-Yaranakeri village. Ex.D3is also the Voters' list of the year 1995, i.e., after the suit. It may not be of much relevance. Then we have the ration card-Ex.D4, which shows that Dyavanagouda, his wife Karabasavva, Yallavva and Thirthappa lived together. Ex.D5 is the Transfer Certificate issued to the defendant. It shows, in the year 1969 he was studying in 4th standard in Senior 18 : 19 : Primary School at Honnada Halli. Thereafter, he has produced several tax paid receipts to show Yallavva and he have paid taxes from an undisputed point of time over a considerable period. The evidence of DW4 and DW5, the villagers, shows that defendant started living with Yallavva from young days. In fact, he married. His wife is none other than one of the daughters of Doddabasappa, i.e. sister of P.W. 1. The defendant being the sole male member of the family cultivating the land. The ration card and the voters' list speak for itself. Dyavanagouda and Karabasavva did not live with Doddabasapa and his children. He chose to live with the defendant and his wife along with Yallavva. Though the plaintiff in his evidence deposed that these lands are under their personal cultivation. Even during the lifetime of Yallavva they continued to cultivate the land after her death. Not a scrap of paper is produced to substantiate the said claim. Doddabasappa's daughter Taravva, husband of second defendant, died 19 : 20 : about 9 years prior to the date of the suit. It is in this background we have to see whether the Will set up by the defendant is proved or not. Even the defendant was living with Yallavva from his younger days, he was married and he was taking care of Yallavva and her lands till her death. In the normal course certainly Yallavva would have preferred the defendant to the legal heirs of her husband. The defendant is none other than the brother's son. It is in this context Ex.P1 has come into existence. The scribe of the Will-DW3 has been examined. Not only he is the scribe, his evidence shows he witnessed the execution of the Will by the deceased testator. That apart, one of the the attesting to the Will who belongs to the same village has been examined as DW2 and his evidence in so far as the execution of the Will attestation and attestation is concerned, has remained unchallenged in spite of cross-examination. Defendant No.1 has also spoken about preparation and execution of the Will.
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15. It was urged when the deceased has taken active part in the execution of the Will and he was present at the time of execution that constitutes a suspicious circumstance, which has to be dispelled by the defendant. Plaintiff is the propounder of the Will. If the propounder of the Will took active part in the execution of the Will, though it constitute a suspicious circumstance, if that is explained, the Will could be upheld. In the instant case the propounder of the Will was living with the testator since from the age of 5 years. The testator was illiterate, she was aged, she was unable to move around independently, if she has to go to a person for preparation of a Will, she has to necessarily dependent on the defendant because no other persons around her could come. In that context, if the defendant took her to a person who is well versed in writing the Will and the evidence on record shows that it is she who gave instructions to the Scribe, who 21 : 22 : made available document which were in her possession. On that basis the scribe wrote the Will, read over the contents and being satisfied with the correctness of the contents, she has affixed her LTM. Merely because the defendant took active part in the preparation of the Will, the Will cannot be vitiated.
16. The second ground of attack is, after the death of Yallavva an application is filed for making mutation entry. The defendant has got the mutation entry as if he is a legal heir. He did not produce the Will. Therefore, it is contended the Will was not in existence on the date of her death. That circumstance by itself would not vitiate the Will. Certainly that is a circumstance coupled with other circumstances, probably would have vitiated the Will. But for that one circumstance we do not find on record any other circumstance which vitiate the Will. If the defendant in ignorance of the value of the Will which was in his possession, if he has not chosen to produce the Will and 22 : 23 : got the mutation entry in his name, that cannot be held against him. May be that he was in possession of the Will. If he has not mentioned about this Will, that by itself is not sufficient to hold that the Will is not duly executed.
17. The trial Court on appreciation of the oral and documentary evidence on record and having regard to the admitted facts and circumstances of this case, has recorded a finding that the Will set up by the defendant stands proved. The said finding is based on legal evidence. I do not see any justification to interfere with the said finding recorded by the trial Court. In that view of the matter, I do not see any infirmity in the judgment and decree which is impugned in this appeal. No merits. Appeal is dismissed.
SD/-
JUDGE bvv 23