Karnataka High Court
Tavanappa Malasarja Patil vs Vanamala on 13 June, 2017
Equivalent citations: 2017 (3) AKR 765
Bench: B.S Patil, K.Somashekar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JUNE, 2017
R
PRESENT
THE HON'BLE MR.JUSTICE B.S.PATIL
AND
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
REGULAR FIRST APPEAL No.273/2004
BETWEEN:
1. TAVANAPPA MALASARJA PATIL,
AGE: 72 YEARS, OCC: AGRICULTURE,
R/O 380, TANAJI GALLI,
ANGOL, BELGAUM.
(SINCE DEAD, APPELLANT 2 AND 3
ARE TREATED AS LR.S.)
2. SUMITRA W/O TAVANAPPA PATIL,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O 380, TANAJI GALLI,
ANGOL, BELGAUM.
3. PADMARAJ S/O TAVANAPPA PATIL,
AGE: MAJOR, OCC: AGRICULTURE,
R/O 380, TANAJI GALLI,
ANGOL, BELGAUM. ... APPELLANTS
(BY SRI.V.P.KULKARNI & SRI.GIRISH YADWAD,
ADVS. FOR APPELLANT,
SRI.RAVIRAJ C PATIL & SRI NITIN BOLBANDI,
ADVS. FOR APPELLANTS 2 & 3
SRI.VIJAYA R HANAMANTGAD,
FOR A2, A3 ARE LRS OF DECEASED A1)
2
AND
1. VANAMALA W/O PADMARAJ DUNDASHI,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O CHIKKABASUR, TAL: BYADAGI,
DIST: DHARWAD.
(SINCE DEAD BY LR.S.)
1(a) PAMMANNA DUNDASI,
R/O. CHIKKABASURU,
TALUKA & DIST: HAVERI.
1(b) SUNEEL @ RAJU
S/O PAMMANNA DUNDASI,
AGE: MAJOR, R/O. CHIKKABASURU,
TALUKA & DIST: HAVERI.
1(c) MAHAVEER S/O PAMMANNA DUNDASI,
AGE: MAJOR, R/O. CHIKKABASURU,
TALUKA & DIST: HAVERI.
1(d) LAXMIBAI D/O PAMMANNA DUNDASI,
AGE: MAJOR, R/O. CHIKKABASURU,
TALUKA & DIST: HAVERI.
2. VILASMATI D/O SHRIPAL PATIL,
AGE: 53 YEARS, OCC:AGRICULTURE
AND TEACHER, R/O H. NO. 374,
KANGALI GALLI, BELGAUM. ... RESPONDENTS
(BY SMT. HEMALEKHA K.S., ADV.
FOR SRI.G.B.SHASTRY AND
R.M.KULKARNI, ADV. FOR R1A-R1D & C/R2)
THIS APPEAL IS FILED UNDER SECTION 96 CPC AGAINST
THE JUDGMENT AND DECREE DATED:12.12.2003, PASSED IN
O.S.NO.193/1993, ON THE FILE OF THE III ADDL. CIVIL JUDGE
(SR.DN.), BELGAUM, DECREEING THE SUIT FOR THE RELIEF OF
DECLARATION AND CONSEQUENTIAL RELIEF OF PERMANENT
INJUNCTION.
THIS APPEAL COMING ON FOR FURTHER CONSIDERATION,
THIS DAY, B.S.PATIL J., DELIVERED THE FOLLOWING:
3
JUDGMENT
Defendants 1 to 3 in O.S.No.193/1993 have filed this regular first appeal under Section 96 of the Code of Civil Procedure, challenging the judgment and decree dated 12th December 2003, passed by the learned III Additional Civil Judge (Sr.Dn.), Belgaum, thereby decreeing the suit filed by the plaintiffs-respondents 1 and 2 herein. Respondent No.1-Vanamala having died, her LR's have come on record during the pendency of this appeal as respondents 1(a) to 1(c).
2. For the sake of convenience the parties are referred to by their rank in the trial Court.
3. Plaintiffs instituted the suit seeking relief of declaration that they were absolute owners in actual possession of suit properties. They also sought for a consequential relief of permanent injunction. The suit properties consist of agricultural lands bearing Sy.Nos.592/1, 329/2 and 105/1/1, measuring 1 acres 31 4 guntas, 0-26 guntas and 0-17-08 annas respectively. All these lands are situated at Anagol village, outskirt of Belgaum city.
4. Facts leading to the case briefly stated are that, originally suit properties were owned by grandfather of the plaintiffs by name Malasaraj Kallappa Patil. He died in the year 1961. He left behind his widow-Padmawwa, three sons by name Nagappa, Shripal and Tavanappa and a daughter by name Gangubai. He had one more son by name Kallappa, who was given in adoption. The present plaintiffs are the daughters of Shripal Patil. Whereas, defendant No.1 Tavanappa is the brother of Srhipal and second defendant Sumitra is the wife of Tavanappa Patil. Defendant No.3-Kum.Padmaraj is the son of defendant No.1 Tavanappa.
5. Father of plaintiffs-Shripal had filed a suit in O.S.No.84/1968 against his mother, brothers and sisters. The said suit was decreed. In final decree proceedings the 5 suit schedule properties were allotted to the share of Shripal-father of plaintiffs. As a result, name of Shripal came to be entered in the revenue records in respect of suit properties. After the death of Padmawwa-wife of propositus Malasaraj Kallappa Patil, father of plaintiffs Shripal instituted another suit in O.S.No.106/1979 claiming his share in the properties that had fallen to the share of his mother Padmawwa. The said suit was also decreed on 27.01.1983. This decree was confirmed ultimately by the High Court.
6. Shripal-father of plaintiffs died on 01.01.1992 leaving behind plaintiffs 1 and 2 as his sole legal heirs. Plaintiffs gave a varadi to the Tahasildar, Belgaum, requesting to enter their names in the revenue records in respect of suit properties. The first defendant Tavanappa-brother of deceased Shripal also made an application asserting that Shripal had left behind a Will bequeathing the suit properties in favour of defendant 6 No.3-Padmaraj. The Deputy Tahasildar, Belgaum, rejected the application filed by plaintiffs and ordered to enter the names of defendants 2 and 3, vide his order dated 10.12.1992 on the strength of the alleged Will dated 03.12.1991 said to have been executed by Shripal-father of the plaintiffs. This was challenged by plaintiffs by filing an appeal before the Assistant Commissioner, Belgaum, under Section 136 (2) of Karnataka Land Revenue Act. The Assistant Commissioner passed an order on 13.07.1993 directing both parties to approach Civil Court to establish their title over the suit properties.
7. It is in this background, plaintiffs instituted the present suit seeking the relief of declaration of their title and for permanent injunction. The defendants contested the suit by filing written statement. The written statement filed by first defendant was adopted by defendants 2 and 3. They urged that deceased Shripal was residing alone. Plaintiffs never resided with him. Shripal had no 7 love and affection towards his wife and children. It was the defendants who looked after him until he died: out of love and affection deceased Shripal had executed a Will bequeathing his half portion in the suit properties in favour of third defendant-Padmaraj. Therefore, Padmaraj- defendant No.3 became absolute owner in possession of suit properties.
8. Based on these pleadings, the trial Court framed as many as seven issues, which are extracted hereunder:
1. Whether defendants prove that deceased Shripal has bequeathed half portion of R.s.No.105/1/1, Northern side 13 gunthas out of R.S.No.329/2 and Western side 35 gunthas out of R.S.No.592/2 in favour of defendant No.3 by a Will dated 3.12.1991?
2. Do they prove that deceased Shripal was in sound and disposing state of mine as on 3.12.1991?
3. Whether the plaintiffs prove that they are in lawful and actual possession of the whole extent of suit lands on the date of suit?
4. Whether they prove alleged obstruction by the defendants?8
5. Whether they are entitled to the relief of declaration?
6. Do they entitle to the relief of injunction?
7. What decree or order?
9. Vilasmati-daughter of Shripal Patil-plaintiff No.2 examined herself as PW.1. Exs.P.1 to 73 were produced and marked. Defendant No.1 Tavanappa examined himself as DW.1. Exs.D.1 to 3 were produced and marked.
10. Based on the oral and documentary evidence on record, the trial Court has answered the issues framed in favour of plaintiff and against defendant.
11. Insofar as proof of bequest made by Shripal of his half portion in the suit properties in favour of defendant No.3 as per Will dated 03.12.1991, the trial Court has found that the original Will was not produced before the Court: defendants had not made any effort to place the Will before the Court: the proof of Will, as required under Section 63 of Indian Succession Act had not been done: 9
similarly, the rule embodied in Section 68 of Indian Evidence Act for proof of document required by law to be attested by calling one of the attesting witnesses was not adhered to and followed by defendants: that, nothing was stated either in the written statement or during the course of evidence as to who attested the Will nor was there any mention regarding the scribe of the Will and his details.
12. Though DW.1 during the course of his evidence deposed that, he had lost the original Will, he had not laid any foundation by stating as to when he lost the same, whether he had made any bonafide efforts to search and locate the Will so as to lay foundation for producing the secondary evidence, nor the defendants had made any effort to place secondary evidence to prove the contents of the Will.
13. In such circumstance, the trial Court has held that while the plaintiffs were able to establish that their father Shripal had absolute title over suit properties and that 10 upon his death plaintiffs succeeded to the same and were in physical possession and enjoyment of suit properties and further that under the garb of the Will the defendants were trying to obstruct plaintiffs possession, defendants failed to establish execution of the Will and the alleged bequest made in favour of defendant No.3 by late Shripal. Thus, the trial Court has found that plaintiffs were entitled for the declaratory relief regarding their title over the property.
14. Insofar as relief of permanent injunction was concerned and as regards the issue whether plaintiffs proved that they were in lawful and actual possession of the whole extent of the suit lands on the date of suit and the alleged obstruction by the defendants, the trial Court after discussing the evidence on record has come to the conclusion that neither the fact of rejection of the application filed by the plaintiffs seeking temporary injunction nor the stray sentence elicited in the cross- 11 examination of PW.1, wherein she has stated regarding the joint possession of the plaintiffs along with the defendants could be taken to hold that plaintiffs were not in possession of the property. The Court below has held that as it was nobodies case, particularly, not of the defendants that they were in joint possession of properties with the plaintiffs and as the plaintiffs had specifically contended they were in exclusive possession of suit properties after the death of their father and in the wake of defendants failing to prove the alleged Will said to have been executed by deceased Shripal in favour of defendant No.3, the issue regarding lawful and actual possession of suit properties by the plaintiffs had been proved and also the obstruction caused by the defendants. Accordingly the relief of permanent injunction has been also granted.
15. Learned counsel appearing for the appellants Shri.V.P.Kulkarni has vehemently contended that the suit itself was not maintainable as the plaintiffs did not seek 12 for decree of possession having admitted in the course of her evidence that she was not in exclusive possession. Reliance is placed on the judgment in AIR 2007 KAR 91 in the case of Sri Aralappa Son of Sri Chowrappa, Major Vs Sri Jagannath Son of late Sri Chikka Hullurappa, Major and Others.
16. The next contention urged by him is that, as per Ex.D.1-letter written by Shripal Patil addressed to defendant No.1-Tavanappa, it was clear that while Shripal was staying with his daughters he was apprehending danger to his life and had therefore made a request to defendant No.1 to take him out of the clutches of his daughters so that he could execute a Will in favour of defendants.
17. According to the learned counsel for appellants, this letter written by Shripal establishes the fact that he had indeed executed the Will. He also placed reliance on Ex.D.2-communication addressed by Police Sub-Inspector, 13 Byadagi to Tavanappa-defendant No.1 thereby informing him to take his brother deceased Shripal to his native from the company of his daughters.
18. Learned counsel for the appellants takes us through the application filed under Order XLI Rule 27 of CPC in I.A.No.1/2016 seeking permission to produce additional evidence. By this application the appellants-defendants have sought permission to produce Xerox copy of the Will executed by Shripal on 03.12.1991. Permission is sought to examine the attesting witness one G.S.Kulkarni and the son of second attesting witness Parashuram Kharde. Permission has been also sought to examine one Dr.Rai to show that the testator was in sound physical and mental health at the time of execution of the Will.
19. We have elaborately heard the learned counsel for both parties on this application and perused the Xerox copy of the Will, which is enclosed to the application along with its translation in English. Upon hearing the learned 14 counsel for both parties, the points that arise for our consideration are:
1. Whether the judgment and decree passed by the trial Court decreeing the suit suffers from any illegality warranting interference by this Court in exercise of the appellate jurisdiction?
2. Whether the appellants have made out a case for grant of permission to adduce additional evidence as sought for in the application I.A.No.1/2016?
3. What order?
20. Point Nos.1 to 3: As all the points are interconnected, we have considered them together.
Relationship between the parties is not in dispute. Fact that father of the plaintiffs-Shripal became the absolute owner of suit schedule properties by virtue of decree passed in the suit filed by him for partition and separate possession against the other members of the family in O.S.No.84/1968 is also not in dispute. That, 15 Shripal-father of the plaintiffs got actual possession of properties that fell to his share by instituting final decree proceedings is not in dispute. That, late Shripal instituted O.S.No.106/1979 claiming his share out of the share left behind by his mother Padmawwa upon her death on 29.07.1977, which was eventually decreed is also not in dispute.
21. Dispute between the parties started after the death of Shripal, when plaintiffs requested the revenue authorities to enter their names in the revenue records in respect of properties left behind by their father. This request was resisted. The first defendant gave application to the revenue authorities (Deputy Tahasildar, Belaum) to enter the name of third defendant in the revenue records based on the alleged Will dated 03.12.1991. The Tahasildar ordered to enter the name of defendants 2 and 3. On appeal the Assistant Commissioner directed the parties to approach the Civil Court to establish their 16 title. Therefore, when the plaintiffs filed the present suit seeking declaration of their title as sole and lawful owners having succeeded to the estate of their deceased father and sought the relief of permanent injunction, the burden was on the defendants to establish their defence that Shripal had executed a Will bequeathing his properties in favour of defendant No.3. Though such a contention was specifically taken in the written statement, absolutely no evidence was lead. The least that was expected of the defendants was to produce the Will allegedly executed by Shripal. Neither the original Will was produced nor any foundation was laid to produce the Xerox copy of the Will by way of secondary evidence alleging that the original Will had been produced before the revenue authorities or had been lost. Defendants did not even make any application to summon the Will from the revenue authorities (Deputy Tahasildar, Belgaum), where, it is now asserted, that it had been produced while seeking entries in their favour. 17
22. It is will established that mere production of the Will even if it is original would not prove the due execution of the Will. For proof of Will the proponder of the Will has to examine at least one of the attesting witnesses alive. Therefore, in the instant case the due execution of the Will was not proved by producing the Will and by examining the attesting witnesses. Except making assertion that a Will had been executed in favour of defendant No.3 by Shripal nothing was done by the defendants to prove the Will. Therefore, the trial Court has rightly held that defendants had failed to establish their crucial defence regarding the Will alleged to have been executed on 03.12.1991 by Shripal bequeathing the suit properties in favour of defendant No.3.
23. The next question that immediately arises for our consideration at this stage is, whether the defendants/appellants have to be provided an opportunity to produce additional evidence in the form of Xerox copy of 18 the Will and to lead evidence of the so-called attesting witnesses, the scribe and the doctor as sought in the application I.A.No.1/2016.
24. Order XLI Rule 27, which deals with production of additional evidence in the appellate Court states that, parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. The three exceptions provided being that (1) if the trial Court had refused to admit evidence which ought to have been admitted, or (2) if the party seeking to produce additional evidence, establishes that despite exercising due diligence, such evidence was not within his knowledge and could be produced by him and that (3) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment; or for any other substantial cause.
25. A perusal of the affidavit filed in support of the application seeking production of additional evidence 19 shows that they had indeed produced the Will in the revenue proceedings and based on the said Will only entry was made in the name of the deponent Sri.Padmaraj/defendant No.3: the original Will had been lost: therefore, his father defendant No.1 could not produce the same before the trial Court. It is further stated that Tavanappa/defendant No.3 was an agriculturist and was not properly guided by his advocate, hence, he could not produce the xerox copy of the Will nor could examine the attesting witnesses. Defendant No.3 further states in his affidavit that he was very young during the relevant period of time and therefore he could not participate in the suit effectively. He urges that only after the death of his father Tavanappa(defendant No.1) he started prosecuting the appeal and learnt about non- production of the xerox copy of the Will and non- examining of the witnesses before the trial Court. Hence, he had moved the application.
20
26. Defendant No.3/applicant in IA.No.1/2016 has enclosed a xerox copy of the Will which is stated to have been notarized. Its translation in English is also enclosed. We are of the considered view that at the stage of appeal, based on such explanation offered by one of the defendants such an application seeking production of the crucial evidence on which the entire case of the defendant rested and which was not placed before the Court cannot be allowed. This is not a case where the defendants have searched and located now the original Will, which had been misplaced or lost. This is a case, where in the appeal the defendant wants to produce the xerox copy of the Will contending that original Will had been lost. As rightly contended by the learned counsel for the respondents by placing reliance on the judgment of the Apex Court in the case of ANDISAMY CHETTIAR VS A SUBBURAJ CHETTIAR, AIR SC 2016 (79), it is the trial Court before whom the parties were required to adduce their evidence and only in three exceptional circumstances the additional 21 evidence could be adduced before the Appellate Court as provided under Order XLI Rule 27 of CPC. In the aforesaid judgment the Apex Court after referring to several earlier judgments on the point has laid down in paragraph Nos.6 to 9 as under;
6. The plaintiff got examined himself as PW-1 Andisamy Chettiar and he also got examined PW-2 Selvarajan, stated to be attesting witness of the Will. Nine documents (including Will Ex.A-4) were filed by the plaintiff. On behalf of the defendant, he got himself examined as DW-1 Subburaj Chettiar, and filed three documents. The trial court, after hearing the parties, decided issue No.1 against the plaintiff holding that the plaintiff failed to prove that Ayyappan Chettiar executed the Will relied on by him. On the basis of finding on issue No.1, issue Nos. 2 and 3 are also decided in favour of the defendant, and the suit was dismissed vide judgment and order dated 05.02.2007.
7. Aggrieved by the decree passed by the trial court, the plaintiff field appeal (A.S.No.55 of 2007) before the first appellate court, i.e. Subordinate Judge, Virudhunagar.
8. During the pendency of A.S.No.55 of 2007 before the first appellate court, an application (I.A.No.3 of 2008) was moved on behalf of the plaintiff with following prayer:- 22
" Therefore it is just and necessary that this Hon'ble Court be graciously pleased to direct a scientific investigation to find out whether the signature of Ayyappan Chettiar, my father in Ex.A-4 is genuine by comparing the signature of Ayyappan Chettiar, in Ex.A- 4 with his admitted signatures, in Ex.B-1 to B-3, by a competent hand-writing expert, and further direct him to file a report to the scientific investigation done by him and justice thus rendered."
9. The first appellate court, vide order dated 12.03.2008, allowed the I.A.No. 3 of 2008, and directed the appellant to deposit a sum of Rs.5000/- as fee".
27. Therefore, it is clear from the law laid down that only when a case has been made out which falls within the four corners of Order XLI Rule 27 of CPC, the Appellate Court can permit the party to produce additional evidence. In the instant case, as already held by us, the applicant/defendant No.3 and also other defendants had ample opportunity to produce copy of the Will, if they were entitled in law, by way of secondary evidence and prove the same by examining the attesting witnesses and other witness whom they now want to examine. The reason 23 assigned for not producing the important document and not adducing the evidence of the attesting witness stating that father of defendant No.3 was an agriculturist and he was not properly guided by his advocate is absolutely untenable and unacceptable. This does not fall within the permissible grounds mentioned under Order XLI Rule 27 CPC to allow such evidence to be produced as additional evidence at the appellate stage. If the same is allowed, it will tantamount to permitting the defendants to fill up the lacuna in their case. In the face of specific issue framed regarding the proof of Will and the bequest made by Sripal in favour of the defendants casting burden on the defendants, they cannot be heard to say that they be permitted to prove the said issue at the appellate stage by producing additional evidence. Such a process is unheard of. Therefore, in view of the language employed in Order XLI Rule 27 CPC and the interpretation placed on the same by the Apex Court, the application filed by the 24 appellants/defendants to produce additional evidence has to be dismissed and the same is hereby dismissed.
28. The other point that is canvassed by the learned counsel for the appellants is that the suit itself is not maintainable as the plaintiffs had not sought for a decree of possession of the suit property. We do not find any substance in this contention. Plaintiffs have clearly stated that they being the daughters and sole surviving heirs of deceased Sripal had succeeded to the properties and were in lawful and actual possession of the same. Even though, a stray sentence appears in the evidence of PW.1 in the course of cross examination that they were in joint possession along with defendant, that doesn't mean that plaintiffs were not in possession at the time of filing of the suit. Therefore, the trial Court has rightly held that based on such deposition it could not be held that plaintiffs were not in possession. It is also not the case of the defendants that they were in joint possession along with plaintiffs. 25 On the other hand, their specific case is that they were in exclusive possession of the suit property based on the Will. The revenue entries which were recorded in the name of defendants based on the Will cannot have any sanctity because the Will itself is not proved. Therefore, the so-called exclusive possession claimed by the defendants is based on no legal evidence. Therefore, findings recorded by the trial Court that plaintiffs have proved their actual and lawful possession of the suit properties cannot be found fault with. Hence, the contention that suit filed seeking declaration of title was not maintainable in the absence of plaintiffs seeking relief of the possession is wholly untenable. The judgment in ARALAPPPA S/O SRI CHOWRAPPA, MAJOR AND OTHERS Vs SRI JAGANNATH SON LATE SRI CHIKKA HULLURAPPA, MAJOR AND OTHERS, AIR 2007 KAR 91 is not applicable to the facts of the present case. 26
29. Insofar as contention urged based on Ex.D1 letter and Ex.D2 communication are concerned, it is necessary to observe that there is no evidence to show that Ex.D1 letter is written by Sripal. On the other hand, it appears to have been got written through somebody. Signature of Sripal on the said letter is not proved. The person who wrote the said letter allegedly at the instance of Sripal has not been examined.
30. Similarly, Ex.D2, communication addressed by the Police Sub Inspector Byadagi to defendant No.1, Tavanappa is not proved by examining the author of the said letter. Indeed, it is not known how and under what circumstances the Police Sub Inspector could write such a letter to Tavanappa, father of defendant No.1, in the absence of any case registered by him and investigation carried out in accordance with law. How the said letter could originate is itself unsubstantiated and is shrouded in mystery. Therefore, reliance placed by the learned 27 counsel for the appellants on Ex.D1 and Ex.D2 is of no consequence.
31. For all the reasons stated above, we are of the view that the judgment and decree passed by the Court below does not suffer from any illegality or perversity warranting our interference in exercise of the appellate jurisdiction. Hence, the appeal fails and the same is dismissed.
In the peculiar facts and circumstances of this case, we direct both the parties to bear their respective costs.
Sd/-
JUDGE Sd/-
JUDGE Sh/msr