Telangana High Court
Gopaldas Lund Since Deceased Per L.Rs vs Madhavadas Lund Died Per Llrs Rr3 4 on 8 November, 2022
Author: M.Laxman
Bench: M.Laxman
THE HONOURABLE SRI JUSTICE M.LAXMAN
CITY CIVIL COURT APPEAL No.95 of 1998
JUDGMENT:
1. The present appeal has been filed challenging the judgment and decree dated 16.02.1998 in O.S.No.1942 of 1989 on the file of the III Senior Civil Judge, City Civil Court at Secunderabad, wherein, the suit filed by the appellants against the respondents for partition, separate possession and for recovery of share of rents deposited in the bank account, was dismissed.
2. The appellants herein are plaintiffs and the respondents herein are defendants in the suit. Aggrieved by the dismissal of the suit, the present appeal is filed at the instance of plaintiffs. For the sake of convenience, the parties hereinafter are referred to as they are arrayed in the suit.
3. The sum and substance of the case of the plaintiffs is that late Smt. Dharmi Bai, W/o. Late Tarachand Lund, was owner and possessor of building bearing No.146-A (new No.1-8-264/11/1), Sindhi Colony, Sardar Patel Road, Secunderabad. The subject building consists of four 2 ML,J CCCA_95_1998 independent flats. The plaintiff No.1 and defendants are sons of Smt. Dharmi Bai and she died on 23.02.1984. During the life time of Smt. Dharmi Bai, she executed Will Deed dated 30.01.1982. In the said Will Deed she allotted the flat on the right side of the ground floor to plaintiff No.1, the flat on the left side of the first floor was bequeathed to defendant No.1, the flat on the right side of the first floor was bequeathed to defendant No.2 and the flat on the left side of the ground floor (hereinafter referred as 'suit property') was retained for herself. After her death, the rent of suit property has to be apportioned equally by the plaintiff No.1 and defendants.
4. After the death of Smt. Dharmi Bai, the defendants started apportioning the entire rent amount pertaining to the suit property among themselves, which was paid by the tenant to the joint bank account of the plaintiff No.1 and defendants. Subsequently, the said tenant vacated and the suit property was kept vacant. Though plaintiff No.1 made efforts to let out the same, the defendants refused for the same. In view of the same, the plaintiff No.1, who got 1/3rd share of the same through Will Deed of his mother got 3 ML,J CCCA_95_1998 issued legal notice demanding partition of the suit property. As there was no response from defendants, he filed the present suit.
5. The case of the defendants is that, they admitted the ownership of flat allotted to plaintiff No.1 and they also admitted relationship of the plaintiff No.1 and defendants. They also admitted the execution of Will Deed dated 30.01.1982, but contended that subsequently, their deceased mother had changed her mind and executed a codicil dated 11.11.1982. As per the said codicil, she modified the previously registered Will Deed and excluded the plaintiff No.1 from total inheritance over the subject premises. Further, as per the codicil, flats on the left side of first floor and ground floor were given to the defendant No.1 and the flats on the right side of first floor and ground floor, were given to defendant No.2.
6. According to defendants, the said codicil was kept with Smt. Mohini Bai, daughter of executant i.e., sister of plaintiff No.1 and defendants. Initially, they were not aware of the execution of codicil and they were told by their 4 ML,J CCCA_95_1998 sister and thereafter, codicil was handed over to them along with a letter. The deceased mother i.e., Smt. Dharmi Bai, denied the share to plaintiff No.1, on account of the plaintiff No.1 self-asserting title and possession over other property located in Mumbai, which was pertaining to partnership firm in which, plaintiff No.1, defendants as well as their deceased mother were partners. On account of the self-assertion over the property by the plaintiff No.1, the executant i.e., Smt. Dharmi Bai, changed her mind and executed codicil excluding him. Hence, the defendants prayed to dismiss the suit.
7. On the basis of the above pleadings, the trial Court has framed the following issues:
"1. Whether the plaintiffs are entitled for partition and separate possession of the suit schedule property?
2. Whether the plaintiffs are entitled for the sum of Rs.7033.50 paise as claimed by them?
3. Whether defendant No.1 is the owner and possessor of the suit property to the extent of left side ground floor and the first floor flat with appurtenant land by virtue of codicil dated 11.11.1982 executed by his mother and the plaintiff has no right to claim any rights over the suit property?
4. Whether defendant No.2 is owner of ground floor and first floor of suit premises by virtue of codicil dated 11.11.1982 as contended by defendant No.2?5
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5. Whether the Court fee paid by the plaintiff is insufficient since the plaintiffs are with joint in possession of the suit property ?
6. To what relief?"
8. The plaintiffs, in support of their case, examined P.W.1 and relied upon Exs.A-1 to A-10. The defendants, to support their case, examined D.Ws.1 to 3 and got marked Exs.B-1 to B13.
9. The trial Court on appreciating the evidence on record found that the defendants established genuineness of codicil and consequently, the suit filed by the plaintiffs for partition and separate possession was dismissed. Hence, the present appeal.
10. Heard both sides.
11. In the light of above submissions, the points emerged for consideration in this appeal are as follows:
"1. Whether the codicil under Ex.B-8 is true, genuine, valid document and free from all suspicion circumstances?
2. Whether the plaintiffs are entitled for partition and separate possession in respect of suit property as prayed for? and 6 ML,J CCCA_95_1998
3. To what relief ?"
Point Nos.1 and 2:
12. It is not in dispute that late Smt. Dharmi Bai was absolute owner and possessor of subject building. It is also not in dispute that the said premises contains four flats, two on the ground floor and two on the first floor and she is absolute owner of said flats. It is also not in dispute that initially, she has executed registered Will Deed under Ex.A-1/B-3, in which, her each son i.e., plaintiff No.1 and defendants were provided with one flat and the fourth flat was kept for herself for her life time and after her death, the rents derived out of her flat are to be apportioned equally among plaintiff No.1 and defendants.
13. The question revolves around the truthfulness of codicil which is allegedly executed by the mother of the parties. The plaintiffs' contention is that codicil is fabricated. The case of the defendants is that the deceased testatrix changed her mind and totally excluded plaintiff No.1 from her property. The reason for exclusion was that plaintiff No.1 was making disentitlement of right of the defendants over the property located in Mumbai, which 7 ML,J CCCA_95_1998 was originally pertaining to the partnership firm. To set off such loss, she changed her mind.
14. The plaintiffs got examined son of plaintiff No.1 as P.W.1 and from defendants' side defendant Nos.1 and 2 were examined as D.Ws.1 and 2 and one of the attestor of the codicil was examined as D.W.3. It is also not in dispute that the codicil contains reasons for exclusion. The reason given was that the plaintiff No.1 started asserting his exclusive right over the property located in Mumbai, which according to the recitals of the codicil, belongs to the partnership firm.
15. The evidence of defendants shows that the dispute between the plaintiff No.1 and defendants started in the year 1977-78. This means by the time of execution of Ex.A-1/B-3, the disputes among the plaintiff No.1 and defendants were alive and in spite of that Smt. Dharmi Bai, executed Ex.A-1/B-3 Will Deed, wherein proportionate property was conveyed giving equal shares to her sons ignoring such disputes. However, in the codicil plaintiff 8 ML,J CCCA_95_1998 No.1, who was her eldest son, was completely removed from claim over her property.
16. Now the question is whether this reason truly existed, so as to change the mind of the testatrix in between the time of executing first Will Deed and the codicil. There is no dispute that there was dispute relating to the partnership firm. The partnership firm according to the defendants owns the property located in Mumbai. Defendants produced Exs.B-4 to B-6/wealth tax returns to show the plaintiff No.1 and defendants were partners in the partnership firm and plaintiff No.1 was holding 1/4th share of the said firm. The said wealth tax returns were pertaining to the year 1966-67 and 1967-68. They clearly show that there was no dispute regarding the property located in Mumbai, which claims to be owned by the partnership firm till year 1976. Subsequent to 1976, no wealth tax returns have been filed though they have access to such files.
17. The evidence of D.W.1 establishes that the dispute among the partners i.e., plaintiff No.1, defendants and 9 ML,J CCCA_95_1998 their mother, started in the year 1977-78. Further, there is no material on record to show that such disputes were taken to aggravated form in between the execution of first Will Deed and execution of the codicil, so that, the executants of the codicil had a reason to change her mind. If this reason given under the codicil is not proved to exist then there is a suspicion circumstance surrounding the will on account of non-existence of reason which made the executant to change her mind.
18. In the present case, there is no proof filed by the defendants to show that the claims regarding the property situated at Mumbai were started subsequent to execution of the first Will Deed by their mother. They could only show that the disputes came into existence by institution of suits against each other from 1990 onwards. Prior to that, defendants claimed that disputes started from the year 1977-78. There is no evidence that such a dispute led to filing of cases or any aggravated form in her lifetime, so as to change the mind of the executant.
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19. The requirements to prove the codicil are like that of a Will Deed. In order to succeed the claim based on the codicil, the propounder of such codicil has to prove satisfactorily that 1) Will was signed by the testatrix; 2) testatrix has signed the same with sound state of mind; 3) the testatrix understood the nature and effect of the disposition and 4) the testatrix had put her signature on the document with free will. Apart from the above requirements, the propounder is obligated to remove all suspicious circumstances surrounding the execution of the codicil.
20. In the present case, the defendants set up that the execution of codicil was not known to them till it was informed to them by their sister i.e., Smt. Mohini Bai, who stays in Mumbai. According to them, in the year 1995, such a codicil under Ex.B-8 was sent to them along with letter written by their sister under Ex.B-9. The said codicil was attested by the son of Smt. Mohini Bai, who was in possession of the codicil and another attestor is son-in-law of defendant No.1. The beneficiaries under the codicil were defendants.
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21. Defendants chose to examine son of their sister, i.e., D.W.3 alone. They have not examined other attestor. The evidence of D.W.3 shows that he is a regular resident of Mumbai and this Will Deed/codicil was executed in Secunderabad by his Grand Mother in the presence of himself, his mother and son-in-law of defendant No.1. It is also not in dispute that the sister of plaintiff No.1 and defendants, is resident of Mumbai. According to defendants, the original copy of codicil under Ex.B-8 was kept with their sister. As seen from Ex.B-8, the recitals show that the original will deed/codicil is not kept with their sister, but a copy was kept with her. When the original is produced, it must not be from the sister because she was not in possession of original according to codicil itself. If suppose, in case, the original was in the custody of the sister, apart from the original, she might be holding the copy also and she has to produce both copy and original of codicil, this was not done. Further, the evidence shows that codicil came into possession of the defendants only in the year 1995 and by that time there was a serious 12 ML,J CCCA_95_1998 dispute between the parties. Such serious disputes lead to filing of cases against each other.
22. In the present case, though the evidence of D.W.3 supports the execution of Will/codicil, but the circumstances, in which the Will/codicil was produced and other circumstances such as participation of son-in-law of defendant No.1, who is the beneficiary in the execution and selecting son-in-law of defendant No.1, when the executant's own daughter, who was also competent witnesses, was present, when the codicil was executed, gives a doubt about the origination of Ex.B-8. If really, codicil was executed in the year 1982, the executant died in the year 1984, this codicil was not pressed in service till 1995. The execution of the will deed/codicil was consciously known to the son-in-law of the defendant No.1. It cannot be said that the son-in-law of the defendant No.1 did not say about the execution of codicil to his own father-in-law i.e., defendant No.1.
23. The property tax of the subject building was also paid by the defendant Nos.1 and 2 under Exs.B-10 to B-12 in 13 ML,J CCCA_95_1998 the name of their deceased mother i.e., Smt. Dharmi Bai. The circumstances like complete exclusion of the plaintiff No.1, who is also a natural successor and beneficiary under the registered Will Deed, origination of second Will Deed/codicil from the sister of plaintiff No.1 and defendants, absence of proof of reason for change of mind in between the first Will Deed and codicil, selecting a chance witness to the attestation, who was regular resident of Mumbai and also selecting the own son-in-law of defendant No.1, as another witness, are creating doubt over free state of mind of the executant and understanding of proper nature and effect of such a dispossession by the executant.
24. The letter under Ex.B-9 was not proved. It was not established that how Exs.B-8 and B9 reached to the hands of the defendants. These are circumstances, which were not at all adverted by the trial Court before accepting the codicil.
25. In view of the above, I find that the trial Court has not properly appreciated the evidence on record and other 14 ML,J CCCA_95_1998 surrounding circumstances, which creates doubt over the truthfulness of Ex.B-8 i.e., codicil. Findings of the trial Court in accepting codicil suffers from irregularity. Therefore, I find that such finding requires to be set-aside. I hold that the codicil is not properly proved and the propounder has not removed all the suspicion circumstances, so as to accept execution of codicil.
26. Once the codicil is disregarded, the admitted case of both the parties is that there is execution of Will Deed under Ex.A-1/B-3. As per the said Will Deed, plaintiff No.1 and defendant Nos.1 and 2 each get one flat in the subject building as the subject building was given joint interest. Hence, they get 1/3rd share each over the suit property. This Court is inclined to pass preliminary decree for 1/3rd share each to plaintiff No.1 and defendant Nos.1 and 2 in respect of the suit property.
27. Plaintiff No.1 also claims the unfair withdrawal of rental amounts from the joint bank accounts. There is no evidence to show that the rents pertaining to the suit property were deposited in the said joint account. No 15 ML,J CCCA_95_1998 details as to actual tenant were given and no one was examined to prove that the tenant has deposited the rent in the bank account. Therefore, the claim for 1/3rd share over the amounts lying in the joint account cannot be granted.
Point No.3:
28. In the result, the appeal is allowed setting aside judgment and decree dated 16.02.1998 in O.S.No.1942 of 1989 on the file of the III Senior Civil Judge, City Civil Court at Secunderabad, and the suit is preliminary decreed in part as follows:
a. The plaintiff No.1 and defendant Nos.1 and 2 are entitled to 1/3rd share each in the suit property.
b. The rental amounts claimed by the plaintiff No.1 pertaining to the suit property is rejected.
There shall be no order as to costs. Miscellaneous petitions, if any, pending, shall stand closed.
______________ M.LAXMAN, J Date: 08.11.2022 GVR/DUA