Karnataka High Court
Madiwalappa vs Smt.Akkamahadevi on 14 July, 2023
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NC: 2023:KHC-D:7260-DB
RFA No. 100258 of 2016
C/W RFA No. 100259 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 14TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO. 100258 OF 2016 (INJ)
C/W
REGULAR FIRST APPEAL NO. 100259 OF 2016
IN RFA NO.100258/2016.
BETWEEN:
1. MADIWALAPPA S/O. SIDDAPPA TORGAL,
(SINCE DECEASED BRINGING LR'S)
1A. SMT. SAROJA W/O. MADIWALAPPA TORGAL,
AGE: 67 YEARS, OCC: HOUSEHOLD WORK,
R/O: GANIGER ONI, UNAKAL,
TQ: HUBBALLI, DIST: DHARWAD.
Digitally
signed by
POOJA DEELIP
SAVANUR
Location:
POOJA HIGHCOURT
OF
DEELIP KARNATAKA-
SAVANUR DHARWAD
BENCH
Date:
2023.07.18
16:29:47
1B. ARCHANA VISHWANATH ANGADI
+0530
D/O. MADIWALAPPA TORGAL,
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
R/O: SIDDAKALYANA NAGAR, SAINAGAR ROAD,
UNAKAL, TQ: HUBBALLI,
1C. BASAVENNAMMA @ VIJAYALAXMI SOMSHEKHAR,
SUREBAN, D/O. MADIWALAPPA TORGAL,
AGE: 41 YEARS, OCC: HOUSEHOLD WORK
R/O: 3RD FLOOR, DOOR NO.56, 3RD MAIN,
SYNDICATE BANK LAYOUT, ANDRA HALLI MAIN
ROAD, HEROHALLI, DIST: DHARWAD.
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NC: 2023:KHC-D:7260-DB
RFA No. 100258 of 2016
C/W RFA No. 100259 of 2016
1D. SIDDESHWAR S/O. MADIWALAPPA TORGAL,
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O: GANIGER ONI, UNAKAL, TQ: HUBBALLI,
DIST: DHARWAD.
1E. BASAVARAJ S/O. MADIWALAPPA TORGAL,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O: GANIGER ONI, UNAKAL, TQ: HUBBALLI,
DIST: DHARWAD.
...APPELLANTS
(BY SRI. V. M. SHEELVANT, & M. L. VANTI, ADVS.)
AND:
SMT. AKKAMAHADEVI W/O. MAHADEVAPPA
NANDIHALLI @ AKKAMADEVI D/O. SIDDAPPA
TORGAL, AGE: 61 YEARS, OCC: HOUSEHOLD AND
AGRICULTURE, R/O: GANIGER ONI,
UNAKAL, TQ: HUBBALLI, DIST: DHARWAD.
...RESPONDENT
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE).
THIS RFA IS FILED UNDER SEC.96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DTD:13.04.2016 PASSED IN
O.S.NO.335/2013 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE, HUBBALLI, DISMISSING THE SUIT FILED
FOR MANDATORY INJUNCTION.
IN RFA NO.100259/2016.
BETWEEN:
1. MADIWALAPPA S/O. SIDDAPPA TORGAL,
(SINCE DECEASED BRINGING LR'S)
1A. SMT. SAROJA W/O. MADIWALAPPA TORGAL,
AGE: 67 YEARS, OCC: HOUSEHOLD WORK,
R/O: GANIGER ONI, UNAKAL,
TQ: HUBBALLI, DIST: DHARWAD.
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NC: 2023:KHC-D:7260-DB
RFA No. 100258 of 2016
C/W RFA No. 100259 of 2016
1B. ARCHANA VISHWANATH ANGADI
D/O. MADIWALAPPA TORGAL,
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
R/O: SIDDAKALYANA NAGAR, SAINAGAR ROAD,
UNAKAL, TQ: HUBBALLI,
1C. BASAVENNAMMA @ VIJAYALAXMI SOMSHEKHAR,
SUREBAN, D/O. MADIWALAPPA TORGAL,
AGE: 41 YEARS, OCC: HOUSEHOLD WORK
R/O: 3RD FLOOR, DOOR NO.56, 3RD MAIN,
SYNDICATE BANK LAYOUT, ANDRA HALLI MAIN
ROAD, HEROHALLI, DIST: DHARWAD.
1D. SIDDESHWAR S/O. MADIWALAPPA TORGAL,
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O: GANIGER ONI, UNAKAL, TQ: HUBBALLI,
DIST: DHARWAD.
1E. BASAVARAJ S/O. MADIWALAPPA TORGAL,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O: GANIGER ONI, UNAKAL, TQ: HUBBALLI,
DIST: DHARWAD.
...APPELLANTS
(BY SRI. V. M. SHEELVANT & M. L. VANTI, ADVS.)
AND:
1. SMT. AKKAMAHADEVI W/O. MAHADEVAPPA
NANDIHALLI @ AKKAMADEVI D/O. SIDDAPPA
TORGAL, AGE: 61 YEARS, OCC: HOUSEHOLD AND
AGRICULTURE, R/O: GANIGER ONI,
UNAKAL, TQ: HUBBALLI, DIST: DHARWAD.
2. SMT. RATNADEVI W/O. SIDDAPPA CHANDRAPATTAN
@ RATNA D/O. SIDDAPPA TORGAL, AGE: 63 YEARS,
OCC: HOUSEHOLD & AGRICULTURE,
R/O. GANDHINAGAR, GOKUL ROAD,
HUBBALLI, DIST: DHARWAD
...RESPONDENTS
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADV. FOR R1,
SRI. SURESH S. GAIKWAD, ADV. FOR R2).
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NC: 2023:KHC-D:7260-DB
RFA No. 100258 of 2016
C/W RFA No. 100259 of 2016
THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W.
SEC.96 OF CPC, 1908, AGAINST THE JUDGMENT AND DECREE
DTD:13.04.2016 PASSED IN O.S.NO.134/2013 ON THE FILE OF
THE III ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI,
DECREEING THE SUIT FILED FOR DECLARATION, PARTITION
AND SEPARATE POSSESSION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 06.06.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, VENKATESH
NAIK T. J., DELIVERED THE FOLLOWING:
JUDGMENT
Regular First Appeal No. 100258/2016 and RFA No.100259/16 are filed by defendant No.1 challenging the judgment and decree dated 13-4-2016 passed by the III Additional Senior Civil Judge, Hubballi, in O.S. No.134/2013 connected with O.S.No.335/2013.
2. For the sake of convenience, the parties herein shall be referred to in terms of their status before the trial Court.
3. In RFA No.100258/2016, the appellant is defendant No.1 and the respondent is plaintiff in O.S. No.134/2013 and in RFA No.100259/2016, the appellant is plaintiff and respondent is defendant in O.S.No.335/2013. -5-
NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016
4. Brief facts leading to the case are as under:
The plaintiff Smt. Akkamahadevi filed a suit in O.S.No.134/2013 for declaration partition and separate possession in respect of the suit schedule properties and the defendant Sri. Madiwalappa also filed a suit for mandatory injunction in O.S. No.335/2013 againt plaintiff (Smt. Akkamahadevi). It is the case of the plaintiff in O.S. No.134/2013 that, plaintiff Smt. Mahadevi, defendant No.1 Madiwalappa and defendant No.2 Smt. Ratnadevi are the children of Siddappa and Parvathavva. The suit schedule properties bearing land Sy. No.402/2 measuring 4 acres and 392/1 measuring 4 acres 34 guntas, land bearing Sy. No.672 measuring 1 acre 32 guntas and landed property bearing Sy.No.673 measuring 2 acres 7 guntas of Schedule 'A' property and the open residential house, open site bearing Nos.703, 702, 23/1 and 24 described in Schedule 'B' of the plaint at Unkal Village. It is the case of the plaintiff that suit schedule properties belongs to their father Siddappa. After his death, plaintiff and defendants and their mother were in joint possession and enjoyment -6- NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 of the schedule properties. In the year 1972, there was a partition between plaintiff, defendants and their mother Parvathavva. In the said partition, open site and residential house shown in Schedule 'B' were not partitioned. The said partition was effected by metes and bounds with mutual consent and separate possession of the agricultural properties were given to the respective persons and in this regard, mutation entry No.7255 was effected. The said partition was final in respect of agricultural land. The suit Schedule 'A' property was allotted to the share of Parvathavva and she was enjoying the said property. Parvathavva expired on 09.02.2014 living behind plaintiff and defendants as her legal heirs and consequently, plaintiff and defendants became the joint owners of 'A' schedule property. It is contended that, plaintiff is having 1/3 share in 'A' and 'B' schedule properties. In the month of October 2011, the plaintiff came to know that defendant No.1 behind the back of the plaintiff and defendant No.2 got entered his name in the revenue records of the schedule property on the basis -7- NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 of false Will alleged to have executed by his mother Smt. Parvatevva. Thus, the plaintiff requested defendant No.1 to make partition, but defendant No.1 refused to effect the partition. Hence, the plaintiff filed suit for declaration, partition and separate possession in O.S. No.134/2013.
5. Defendant No.1 filed written statement denying the averments made in the plaint and contended that the suit filed by the plaintiff is not maintainable either in law or on facts. He admitted the relationship between the parties, but he denied that the properties shown in Schedule 'A' and 'B' are the joint family properties of plaintiff and defendants. It is contended that, property bearing Sy.No.23/1 (Sl.No.3 of 'B' Schedule) is his self acquired property. The partition held in the year 1970 is admitted, but defendant No.1 has denied that the partition was partial partition. It is further contended that, at the time of partition in the year 1970, plaintiff and defendant No.2 were unmarried and they were living in their respective house and taking into consideration that more -8- NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 fertile land bearing Sy.No.212 measuring 8 acres 6 guntas was allotted to the share of plaintiff and in addition to that, Rs.10,000/- was paid. To the share of defendant No.2, land bearing Sy.No.183 measuring 8 acres was allotted and in addition to that, Rs.10,000/- was paid. The marriage of the plaintiff was performed in the year 1971 and marriage of defendant No.2 was performed on 14.02.1979. Since then, defendant No.1 has been in exclusive possession of the house property, except property bearing No.702. Therefore, defendant No.1 became the owner of the said property by adverse possession. Plaintiff is handicapped. Hence, she stayed with defendant No.1 and later, defendant No.1 allowed the plaintiff to reside in the house bearing Sy.No.702 which was vacant. It is further contended that, the right of the plaintiff and defendant No.2 have been extinguished by lapse of time and on 15.02.1993 Parvathavva while she was in sound state of mind executed Will bequeathing 'A' schedule property in favour of defendant No.1 and plaintiff and defendant No.2 were well aware of the execution of -9- NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 the Will dated 15.02.1993. After the death of Parvathavva, defendant No.1 submitted his applications to enter his name in the revenue record of 'A' schedule property and accordingly, revenue entries were effected, but original Will not returned. It is further contended that, suit is barred by limitation and Court fee paid is insufficient. On all these grounds, defendant No.1 prayed for dismissal of the suit.
6. Defendant No.2 has filed written statement and she admitted the case of the plaintiff and denied the case set up by defendant No.1. Defendant No.2 denied that Parvathavva while sound disposing state of mind executed the Will dated 15.02.1993. It is contended that, Parvathavva was suffering both physically and mentally since 1993 and hence, there was no occasion for her to execute the Will as contended in the written statement of defendant No.1. Therefore, defendant No.2 also contended that she is entitled for 1/3rd share in the suit schedule property.
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7. The plaintiff-Akkamahadevi filed rejoinder by denying the case set up by defendant No.1 and contended that Parvathavva never executed the Will and she had no intention of disinheriting the daughters. It is further contended that, partition of house and sites did not come into effect. Hence, plaintiff is having the right to claim the partition with respect of property described in schedule 'B' of the plaint.
8. On the other hand, defendant No.1- Madivalappa also filed one more suit in O.S. No.335/2013 for the relief of mandatory injunction and reiterated the stands taken in the written statement filed by him in O.S. No.134/2013 and he further contended that, after marriage plaintiff-Akkamahadevi was residing along with him and then, he permitted the plaintiff to reside in the house property till the year 2013. It is further contended that the plaintiff filed the suit in O.S. No.134/2013 by claiming the share and started to set up hostile title over the suit schedule property. Therefore, plaintiff
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 Madivalappa revoked the license and demanded the defendant Smt. Akkamahadevi to vacant the same, but the defendant refused to vacate the premises. Hence, defendant No.1-Madivallappa filed suit for mandatory injunction.
9. Defendant in O.S.No.335/2013 Akkamahadevi (plaintiff in O.S. No.134/2013) filed written statement by denying the case of plaintiff and taken up the contention that she is residing in the suit house as a co-owner. The plaintiff is not the exclusive owner of the suit house and hence, he has no right to claim the share. It is further contended that the suit is not properly valued for the purpose of Court fee and jurisdiction. On all these grounds, she prayed for dismissal of the suit.
10. The trial Court on the basis of the pleadings of the parties framed the following issues:
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 Issues in O.S. No.134/2013 i. Whether the plaintiff proves that the suit schedule properties are the joint family properties of plaintiff and defendants?
ii. Whether the plaintiff proves that she is having 1/3rd share in the schedule properties? iii. Whether defendant No.1 proves that in the year 1972, outright partition was taken place in the family of plaintiff and defendants?
iv. Whether defendant No.1 proves that he became the owner of 'B' schedule property by adverse possession?
v. Whether defendant No.1 proves that suit of the plaintiff is barred by limitation?
vi. Whether defendant No.1 proves that late Puttavva (Parvathavva) executed the registered Will dated 15.02.1993 and by virtue of that, he became the owner of the property included in the Will?
vii. Whether defendant No.2 proves that she is having share in the schedule property?
viii. Whether the plaintiff is entitled for the relief claimed in the suit and also defendant No.2?
ix. What order or decree?
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NC: 2023:KHC-D:7260-DB
RFA No. 100258 of 2016
C/W RFA No. 100259 of 2016
Additional issue:
Whether Court fee paid is insufficient? Issues in O.S. No.335/2013 i. Whether the plaintiff proves that the defendant is in possession of the schedule property as a licensee?
ii. Whether the plaintiff proves that in view of the revocation of license, defendant is liable to handover the vacant possession of the schedule property?
iii. Whether the plaintiff is entitled for the relief claimed in the suit?
iv. What order or decree?
11. In order to prove the case, the Plaintiff- Akkamahadevi was examined as PW-1 and got marked in all ten documents as per Ex.P1 to P10. Defendant No.1- Madivallappa examined as DW-1 and he got examined three witnesses as DW-2 to 4 and got marked twenty documents as per Ex.D1 to D20. The trial Court after
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 recording the evidence and considering documentary evidence, answered issue nos.1, 2, 7, 8 in the affirmative and issue nos.3 to 6 and additional issue no.1 in the negative in O.S. No.134/2013 and answered issue nos.1 to 3 in the negative in O.S. No. 335/2013 and consequently, decreed the suit of the plaintiff in O.S.No.134/2013. It is ordered and decreed that plaintiff and defendant No.2 are having 1/3rd share each in the schedule property by metes and bounds and it is declared that revenue entries made in respect of schedule property on the basis of Will is not binding on the share of plaintiff and defendant no.2 in the schedule property. Therefore, the suit filed by defendant- Madivallappa in O.S. No. 335/2013 came to be dismissed.
12. Heard the learned counsel for plaintiff and defendants.
13. Learned counsel for defendant No.1 submitted that the judgment and decree passed by the trial Court is illegal, arbitrary and not sustainable in law and on facts.
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 It is contended that, even according to the plaintiff, the partition has been taken place in the year 1972 and the parties were enjoying the properties separately, but the trial Court has committed serious error in holding that suit schedule properties are the joint family properties. If the partition of the year 1972 is admitted by the plaintiff, the trial Court ought not to have a granted the relief in favour of the plaintiff. Schedule 'A' property was allotted in favour of the mother, Parvattavva, and she being an absolute owner of suit schedule properties had bequeathed the said property in favour of Madivalappa under the registered Will, but the trial Court has committed an error in holding that not withstanding the said partition and the Will made by mother, Parvattavva, the properties are remained to be joint family properties and the plaintiff has a right over the schedule property. It is further contended that though the plaintiff admitted the earlier partition held in the year 1972, however the learned trial Court came to the conclusion that the plaintiff and defendant no.2 also entitled for partition which is wholly illegal and not
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 sustainable in law. It is further contended that defendant No.1 has relied upon a registered Will dated 15.02.1993 executed by his mother, Parvattavva, while Parvattavva was in sound state of mind and said fact of the Will has been proved by defendant No.1 by adducing cogent evidence and DW-2, an attesting witness to the Will, also deposed that deceased Parvattavva executed registered Will bequeathing the schedule property in favour of defendant No.1, but the trial Court rejected the evidence of DW-2 on the ground that DW-2, an attesting witness, has stated that he does know the contents of the Will. It is further contended that the trial Court has committed an error in holding that recital made in Will regarding the marital status of the daughters are not correct, which creates suspicion and hence, the conclusion of trial Court is not correct and in fact, it was the specific case of the plaintiff that she was unmarried at the time of earlier partition of the year 1970. It is further contended that defendant No.1 proved his title by adverse possession, but the trial Court, without considering the fact of the earlier
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 partition and enjoyment of the property, wrongly came to the conclusion that the plaintiff and defendant No.2 are also having share in the schedule properties and accordingly, wrongly granted share to them. It is further contended that the trial Court has committed an error holding that the house and site mentioned in Schedule 'B' were also partitioned in the year 1970 and as per the memorandum of partition, Ex.D-5 the house bearing No.54/9 and vacant site bearing No.599 were allotted in favour of defendant No.1 and house bearing property Sl.No. 22/1 and 734 were allotted to the share of Parvattavva and said fact has been categorically admitted by the plaintiff and the defendants, but the order passed by the trial Court by misleading the evidence of defendant No.1 and by holding that there is an admission on the part of defendant No.1 that the house and sites were not partitioned which is wholly illegal and not sustainable in law. It is further contended that the trial Court has not properly appreciated the evidence on record and misleading the evidence has committed an error in holding
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 that house and sites mentioned in Schedule 'B' property were not partitioned and as such, the plaintiff has got right in respect of the suit property. The trial Court having noticed the fact that house, where the plaintiff- Akkamahadevi is presently residing, had in fact allotted in favour of defendant No.1, and he had permitted plaintiff- Akkamahadevi to reside in the said house and by withdrawing the said permission, he had sought for possession of the said property in question. Hence, he prays to allow the appeal and prayed for dismissal of the suit filed by the plaintiff and he also prays to allow the suit filed by him in O.S. No. 335/2013.
14. Per contra, the learned counsel for plaintiff supports the impugned judgment and decree. It is contended that the plaintiff and defendant No.2 being the daughters of Parvattavva, they being coparceners are entitled for share in Schedule 'A' and 'B' properties, as defendant No.1-Madivallappa has failed to prove the Will. It is further contended that defendant No.1 has set up
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 defence of Will, with an intention to deprive the legitimate right of plaintiff and defendant No.2 in the suit schedule properties; the trial Court after considering the material on record was justified in passing the impugned judgment and decree.
15. It is further contended that house Nos.702 and 703 were allotted to plaintiff's mother Parvathavva, therefore, the question of giving permission by defendant No.1 to plaintiff as licensee would not arise at all. It is contended that, defendant No.1-Madivalappa has not produced original Will before the Court or Revenue Authorities; in this regard the Tahsildar has clearly deposed that original Will was not produced and a photocopy was produced before him, therefore, defendant No.1-Madivalappa never sought permission by the Court to treat certificate copy of Will as secondary evidence in the Court, further, Will was marked through DW-2 subject to objection. It is contended that, The Will executed by Parvathavva appears to be created one and there exist
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 suspicious circumstances, as Parvathavva was situated at Hubballi and the properties also situated at Hubballi, but will was executed at Dharwad and DW-4 the scribe and bond writer he has stated that will drafted through Eranna Vani, Advocate of Dharwad. It is further contended that, the testator was residing in the house of defendant No.1- Madivalappa and he is beneficiary of will, thus, the Will is full of suspicion, as the natural mother i.e., testator Parvathavva excluded her natural daughter, more particularly, plaintiff is a physically handicapped lady, disinherited her share in suit schedule properties. Further, DW-2 is a clerk working in the Office of Deputy Commissioner and he has not seen the testator signing on the Will, he was in office while Will was drafted. It is contended that, On perusal of Ex.D.20, DW-4 has admitted that in Ex.D.20 at first page, the testator has not affixed her signature and DW.2 does not know the contents of Will and page numbers, there is a difference in signature of testator in Ex.D.5 and Ex.D.20, therefore, Ex.D.20-Will is outcome of fraud. It is further contended
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 that, the revenue entries made in respect of suit schedule properties on the basis of the Will is not binding on the share of plaintiff and defendant No.2 and defendant No.1- Madivalappa failed to prove that plaintiff-Akkamahadevi is in possession of suit schedule property as a licensee and defendant No.1 also failed to prove that in view of revocation of the license, plaintiff-Akkamahadevi is liable to handover vacant possession of the suit schedule property. The learned counsel relied upon the decision reported in the case of KAVITHA KANVAR v. MRS. PAMELA MEHTA AND OTHERS reported in (2021) 11 SCC 209 and prayed for dismissal of the appeal filed by defendant No.1.
16. Heard, perused the records and considered the submissions of the learned counsel for the parties.
17. The points that arise for our consideration in these appeals are:
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 i. Whether the plaintiff Smt. Akkamahadevi proves that the suit schedule properties are the joint family properties of plaintiff and defendants and plaintiff has share to an extent of 1/3rd share in the schedule properties? ii. Whether defendant No.1 proves that there was partition in the year 1972 in the family of plaintiff and defendants and he got share in schedule 'B' property, as such, he became owner thereof?
iii. Whether defendant No.1 proves that, his mother late Parvathavva executed registered Will dated 15.02.1993 wherein, she has bequeathed Suit Schedule Property in favour of D1, hence, he became the absolute owner of the suit schedule property?
iv. Whether defendant No.1-Madivalappa proves that, plaintiff-Akkamahadevi is in possession of suit schedule property as licensee and since he has revoked the license, the plaintiff is liable to handover his vacant possession of the schedule property to defendant No.1?
v. Whether defendant No.1-Madivalappa has made
out a ground for interference with the
impugned judgment and preliminary decree?
vi. What order or decree?
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RFA No. 100258 of 2016
C/W RFA No. 100259 of 2016
18. Point No.1:- It is the case of the plaintiff that plaintiff and defendants are the children of Siddappa and Parvathavva, and the suit schedule properties bearing land Sy. No.402/2 measuring 4 acres and 392/1 measuring 4 acres 34 guntas, land bearing Sy. No.672 measuring 1 acre 32 guntas and landed property bearing Sy.No.673 measuring 2 acres 7 guntas of Schedule 'A' property and the open residential house, open site bearing Nos.703, 702, 23/1 and 24 described in Schedule 'B' of the plaint at Unkal Village are the joint family properties of the plaintiff and the defendants. On the other hand, defendant No.1 denied the share to plaintiff and on the contrary, defendant No.1 has taken up contention that in the year 1970, there was partition in the family of plaintiff and defendants and 'B' suit schedule property has fallen to his share thus, he became the owner of Schedule 'B' property by adverse possession. Defendant No.1 has further taken contention that, Parvathavva executed the registered Will dated 15-2-1993 bequeathing 'A' schedule property in his favour.
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19. In the light of above pleadings, let us examine the evidence of the parties:
Plaintiff, in order to prove her contention, has examined herself as P.W.1. In her chief-examination, she has reiterated the averments made in the written statement. In support of oral evidence, she got marked 'D" entries as per Exs.P.1 and P.2- in respect of suit schedule properties, Exs.P.3 to P.6 are property register extracts and Exs.P.7 to P.10 are RTC extracts. P.W.1 has undergone cross-examination by the learned counsel for the defendant. In the cross-examination, she has admitted that there was Court of Wards in respect of torgal family properties; During that time, there was no surplus income in the family. Soon after defendant No.1 attaining the age of majority, he took up possession of all family properties. She further admits that at the time of partition, she was minor. After she attaining the age of majority, she came to know about the partition took place in the family. She further admits that when she was minor, her mother was looking after her and her mother
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 has not acted against the Will of the plaintiff. She further admits that soon after she attaining the age of majority, her name has been effected in the revenue entries and 8 acres of land was allotted to her and she is in possession of the same. She further admits that her name has been effected in the revenue entries on production of partition deed (vatani patra). She further admits that as on the date of submitting application for change of khatha, she was aware of the properties fallen to the share of each family members. She further admits that defendant No.2 was allotted 8 acres 20 guntas and plaintiff and defendant No.2 are paying taxes in respect of their shares. She denies that during partition, defendant No.1 paid a sum of Rs.10,000/- each in favour of plaintiff and defendant No.2. She further admits that she is not aware of survey numbers of the properties fallen to the share of her mother, but she states that 13 acres of land was allotted to her mother. She further admits that she does not know about the share allotted to defendant No.1. She further admits that on the basis of partition, defendant
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 No.2 also effected her name in the revenue records. She further admits that she is physically handicapped and her marriage was performed in the year 1979 and after her marriage, she was residing in the house belonged to her mother on the instructions of defendant No.1. She further admits that her mother died on 09.02.2014, her mother was in fit state of mind and her mother died naturally due to age old ailments. However, she denied the Will executed by her mother in favour of defendant No.1. She further admits that she has not pleaded anything about the Will and she is in possession of the house, which stands in the name of defendant No.1 and she has been paying taxes in the Corporation.
20. On the other hand, defendant No.1 examined himself as D.W.1. In his evidence, he has reiterated the averments made in the written statement. In support of his oral evidence, he has relied upon Ex.D.1-mutation register, Exs.D.2 and D.3-postal acknowledgements, Ex.D.4-Will, Ex.D.5-copy of apsat vatni, Ex.D.6 to 11-RTC
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 extracts, Ex.D.12-Letter dated 10.05.2013, Ex.D.13- certified copy of mutual entry No.2790, Exs.D.14 and D.15-RTCs of Block No.212 and survey No.183/1, Ex.D.16- School Certificate, Ex.D.17-notice, Ex.D.18-reply, Ex.D.19- certified copy of sale deed, Ex.D.20-certified copy of Will.
21. D.W.1 has undergone cross-examination by the learned counsel for the plaintiff. He admits that he does not remember the date of death of his father and prior to death of his father, the properties were in the custody of Court of Wards and during 1969-70, all the properties were released from Court of Wards. He further admits that he does not remember the surplus income added over by Court of Wards and the properties were added over on the basis of Court order by Courts of Wards. He denied the suggestion that at the time of taking possession of the properties from the Court of Wards, he took possession of all the properties stating that himself and sisters have equal rights in the suit schedule properties. He further admits that there was partition in the year 1970 and at
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 that time, the plaintiff was minor. He further admits that marriage of the plaintiff was performed in the year 1979 and during that time, plaintiff, defendant No.1 and their mother were living together, and till the marriage of plaintiff, he was looking after her properties. He further admits that, one year after marriage, plaintiff was residing separately in the house of her mother. He specifically admits that during the year 1970, landed properties alone were partitioned and house properties were not allotted. He further admits that suit schedule properties were at Hubbali area, but her mother got registered the Will through Eranna Vani, Advocate, at Dharwad, and the said Will was handed over to him. He further admits that after death of her mother, he did not file any case on the basis of the Will, but he got changed the khatha on the basis of said Will. He further admits that he did not inform the contents of the Will to anybody. He further admits that original Will was submitted to the Tahsildar for change of khatha, but never tried to take back the same. He specifically denied that plaintiff and defendant No.2 have
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 equal share in the suit schedule properties. He admits that after initiation of the suit by the plaintiff, he is demanding the plaintiff to vacate the house.
22. In order to corroborate his testimony, defendant No.1 got examined Sri. Ishwar Shivappa Saswihalli as D.W.2. D.W.2, in his evidence, has stated that on 15.02.1993, Parvathavva executed the Will at Unkal and he has affixed his signature as attesting witness to the Will. In the cross-examination, he has admitted that he does not know the children of Parvathavva and he does not know the properties belonged to Parvathavva. He has further admitted that he does not know the number of pages and the contents of Will and he does not know who has signed on the Will. He has further stated that Parvathavva signed on the Will before the Sub- Registrar and he also affixed his signature on the Will before the Sub-Registrar. Therefore, D.W.2 clearly admitted that at the time of execution of the Will, both
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 attesting witnesses signed the Will in the presence of the Parvathavva.
23. Defendant No.1 examined D.W.3 in order to prove the partition held in the year, 1970. She has deposed that during the year 1970 there was partition between Parvathavva, plaintiff and defendant No.1 in respect of the schedule properties and she affixed her signature as one of the witnesses to the partition deed and the partition deed is marked as Ex.D5 and she has identified her signatures on Ex.D5 (A to C). In the cross- examination, initially, she admitted that house property were not partitioned, but she changed her version and stated that one house site each were allotted to the share of defendant No.1 and Parvathavva, but in the memorandum of partition, it is not stated so. Therefore, admission given by defendant No.1 is clear and unambiguous. Admittedly, plaintiff and defendant No.1 have not challenged the partition effected under Ex.D5. Admittedly, Ex.D5 is unregistered document and there is
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 no documentary evidence to the effect that, panchayat record of 'B' Schedule property were changed as per partition deed stated in Ex.D5. However, in respect of landed properties, the revenue entries were effected and that was not challenged. Defendant No.1 got examined Scribe of the Will as DW4. In his evidence, D.W.4 has stated that after affixing signature in the Will, Parvathavva took the Will to the Sub-Registrar, but he has not stated about the presence of D.W.2, at the time of execution of Will. He has stated that he cannot remember as to whether any other persons have signed on the Will, but he has deposed that Parvathavva affixed her signature in the presence of attesting witness. Hence, it appears that the evidence of D.Ws.2 and 4 is quite contrary to each other.
24. The evidence of D.W.2 not withstood test of cross-examination and there is no consistency in the evidence. Further, D.W.2 is a Government servant and on the day, of execution of Will he was on duty.
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016
25. On perusal of oral and documentary evidence on record, it appears that there is no evidence to substantiate the contention, that defendant No.1 was given house property No.702 for the residence of plaintiff. Though P.W.1 has admitted that for couples of days, she was residing separately with permission of her mother in one of the houses belonged to the family, it cannot be held that plaintiff is residing as licensee. In fact, the said house Nos.702 and 703 was allotted to the share of Parvathavva. Therefore, defendant No.1 cannot give valid permission for the plaintiff to reside therein. Further, the evidence on record discloses that the landed properties were partitioned in the year, 1970 and house and site properties described in Schedule 'B' property continued as joint family properties. The landed properties described in Schedule 'A' were allotted to the share of Pravathavva. Hence, there is no merit in the contention of defendant No.1 that plaintiff is residing in the house bearing No.702 on the permission being accorded by him. In fact, plaintiff and defendant No.2 are also having 1/3rd share in 'A' and
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 'B' Schedule properties, in case defendant No.1 fails to prove that Parvathavva executed the Will by bequeathing her property in his favour.
26. On perusal of the Ex.D20 Will, it appears that it is the case of defendant No. 1 that suit schedule 'B' property, i.e. house property has been bequeathed to him under Will deed dated 15.02.1993 executed by Parvathavva. In order to establish the same, profounder of Will, D.W.1 examined and he has stated that Parvathavva has executed the Will bequeathing the suit schedule 'B' property in his favour. Further, in order to prove the contents of the Will, i.e. Ex.D20, D.W.1 has examined attesting witnesses, i.e., D.W.2 and D.W.4. D.W.2 is a public servant. It is alleged that Will deed dated 15.02.1993 was said to have executed by Parvattavva and signature of D.W.2 is appearing at Ex.D20. The said Will Ex.D20 was registered. On further perusal of Ex.D20, it appears that Parvathavva chosen to
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 execute the Will outside the jurisdiction. i.e. at Dharwad Sub-register office.
27. It is not the case of defendant No.1 that Parvathavva resided at Dharwad. There is contradiction in the evidence of attesting witnesses and the Scribe Admittedly, the Testator excluded plaintiff from inheriting the property and the fact that, she is physically handicapped lady, Hence this circumstances creates a reasonable doubt in the case of defendant No.1. Merely because the Will is register and Testator was healthy in disposing state of mind itself is not sufficient to prove the execution of the Will. It has to be proved that the testator had voluntarily executed the Will. From perusal of the evidence of D.Ws.1, 2 and 4, defendant No.1 has not produced any record to show that, the condition of testator mind as on the date of the execution of the Will and also about exclusion of natural legal heirs. The Will is surrounded by suspicious circumstances for the reason that defendant No.1 has not produced the original Will before
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 the Court. Further, certified copy has been produced by D.W.1 and it was marked subject to objection. Defendant No.1 has taken the contention that original Will was submitted to the Tahsildar, but he has not produced any acknowledgment to that effect and the Tahsildar examined on oath as C.W.1 and he has stated that original Will was not submitted before him and it was only shown to him. Another circumstance to raise suspicion in this case is, the testator-Parvathavva was residing at Hubbali, the suit schedule properties are situated at Hubbali, but she came to Dharwad for execution of the Will. As per the evidence of Scribe and Bond Writer, the Will was drafted through one Eranna Vani, Advocate of Dharwad.
28. In the instance case, P.W.1 is physically handicapped woman and she has been residing with Parvathavva. Being mother, Parvatavva has not made any provision for her daughter and therefore, the testator, excluded P.W.1.
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016
29. The Hon'ble Apex Court in the case of BHARPUR SINGH AND OTHERS v. SHAMSHER SINGH reported in AIR 2009 SC 1766, has held as under:
"xxx xxx xxx
17. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will:
i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time.
iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 iv. The dispositions may not appear to be the result of the testator's free will and mind.
v. The propounder takes a prominent part in the execution of the Will.
vi. The testator used to sign blank papers.
vii. The Will did not see the light of the day for long.
viii. Incorrect recitals of essential facts."
Therefore, defendant No.1 has failed to remove suspicious circumstances as pointed above.
30. In the instant case, testatrix-Parvathavva executed the Will Ex.D.5 and she died living behind two daughters and a son. Defendant No.1 is a son and he is a contesting party. The plaintiff and defendant No.2 are the two daughters. Under the Will, defendant No.1-son is a major beneficiary, but the testator has not made any
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 provision for plaintiff, who is physically handicapped woman.
31. The Hon'ble Apex Court in the case of Kavita Kanwar Vs. Ramela Mehta and Others reported in (2021) 2 SCC 209, has explained the suspicious circumstances which is as under:
i. Appellant is a major beneficiary, playing active role in execution of Will in question and attempting to conceal the said fact.
ii. No plausible reason for non-inclusion of only son and other widowed daughter from the execution of Will.
iii. Unexplained unequal distribution of property iv. Attesting witness unreliable and contradictions discernible in the evidence of the witness.
32. Whereas, in the instant case, the natural heir i.e., daughter of testatrix were disinherited in the Will and
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 the testatrix has not made provision for her physically handicapped daughter. Hence, the Will is full of suspicion. Therefore, defendant No.1 has failed to prove the execution of Will by deceased Parvathavva.
33. In view of the above discussion, we answer point No.1 in the affirmative, point Nos.2, 3 and 4 in the negative.
34. As defendant No.1 has not proved Will and there is no partition in the family of plaintiff and defendants, obviously, plaintiff being the daughter is also entitled for equal share as that of a son, in view of the ratio laid in case of Vineeta Sharma Vs. Rakesh Sharma reported in (2020) 9 SCC 01.
35. In view of our findings on point Nos.1 to 4, we are of the opinion that the trial Court has properly appreciated the evidence on record, with reference to the facts, evidence and the decisions cited supra and has rightly granted share in favour of the plaintiff and rejected
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NC: 2023:KHC-D:7260-DB RFA No. 100258 of 2016 C/W RFA No. 100259 of 2016 the claim of defendant No.1. Accordingly, the impugned judgment and decree passed by the trial Court requires no interference and hence, Point No.5 is answered in negative.
36. In view of the above, we proceed to pass the following:
ORDER i. RFA No.100258 of 2016 and RFA No.100259 of 2016 are hereby dismissed;
ii. The judgment and decree dated 13-4-2016 passed by the III Additional Senior Civil Judge, Hubballi, in O.S. No.134/2013 connected with O.S. No.335/2013 is hereby confirmed. No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE KVK/ct-abn List No.: 1 Sl No.: 32