Karnataka High Court
Nagappa S/O. Channabasappa Soppin vs Sumangala @ Basavannemma on 10 June, 2020
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
RFA No.4133/2013
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF JUNE 2020
:PRESENT:
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL No.4133/2013 (PAR/POS)
BETWEEN:
NAGAPPA
S/O.CHANNABASAPPA SOPPIN
AGED ABOUT 48 YEARS
OCC: AGRICULTURE
R/AT KOTE, KAKOLADAVARA ONI
NEAR MADARAHONDA
RANEBENNUR - 581115
HAVERI DISTRICT. ... APPELLANT
(BY SRI JAGADISH PATIL, ADVOCATE)
AND:
1. SMT.SUMANGALA @ BASAVANNEMMA
W/O.UMESH SHETTAR
AGED ABOUT 51 YEARS
OCC: HOUSEHOLD WORK
R/AT ASHOK NAGAR, 1ST MAIN
3RD CROSS, RANEBENNUR - 581115
HAVERI DISTRICT.
2. SMT.LALITHAMMA
W/O.SIDDAPPA KALASAPPANAVAR
AGED ABOUT 58 YEARS
OCC: HOUSEHOLD WORK
R/AT SUCHITHA NILAYA
RFA No.4133/2013
2
MRUTHYUNJAYA NAGAR
8TH MAIN, 8TH CROSS
RANEBENNUR - 581115
HAVERI DISTRICT
3. SMT.SIDDAMMA
W/O.MANJAPPA HALLALLI
AGED ABOUT 55 YEARS
OCC: HOUSEHOLD WORK
R/AT SATTUR, HARAPANAHALLI TALUK
DAVANGERE DISTRICT - 583131
4. SMT.ANNAPOORNA
W/O.G.S.JAYAPPA
AGED ABOUT 46 YEARS
OCC: HOUSEHOLD WORK
R/AT NO.5111, RTPS COLONY
SHAKTHI NAGAR - 584101
TALUK SHAKTHI NAGAR
RAICHUR DISTRICT ...RESPONDENTS
(BY SRI N.R.KUPPELUR, ADVOCATE FOR R1;
SRI PRASHANT MATHAPATI, ADVOCATE FOR R2 TO R4)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF THE CODE OF CIVIL PROCEDURE 1908 PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 12.04.2013 PASSED BY THE
ADDITIONAL SENIOR CIVIL JUDGE, RANEBENNUR IN
O.S.NO.53/2010.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THROUGH VIDEO CONFERENCE
K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal of the first defendant arises out of the judgment and decree dated 12.04.2013 in O.S.No.53/2010 passed by the Additional Senior Civil Judge, Ranebennur. By the impugned judgment and decree the trial Court has RFA No.4133/2013 3 decreed the suit of the plaintiff for partition and separate possession of her one-fifth share in plaint schedule A properties and dismissed the suit in respect of plaint schedule B properties.
2. The appellant was the first defendant, respondent No.1 was the plaintiff and respondents No.2 to 4 were defendants No.2 to 4 before the trial Court.
3. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court.
4. The subject matter of the suit were plaint schedule A Item Nos.1 to 6 immovable properties and suit schedule B Item Nos.1 and 2 movable properties consisting of gold jewelries and silver articles.
5. The case of the plaintiff in brief was as follows:
Defendant No.1 is her brother and defendants No.2 to 4 are her sisters. Their parents were one Channabasappa Erappa Soppin and Parvathamma. Her paternal grand father Erappa purchased suit schedule item No.1 in his own name RFA No.4133/2013 4 and item Nos.2 to 6 properties in the name of Channabasappa as he was the only son and they had lot of affection for him. Therefore, suit schedule item Nos.1 to 6 are the ancestral joint family properties.
Their paternal grand mother Mahadevamma was doing butter business and out of that she had handsome income. Out of such income, she acquired suit schedule B movable properties. Their mother Parvathamma died on 16.12.1996 in a motor vehicle accident. Thereafter Channabasappa the father was under the care and custody of the first defendant. The first defendant and his wife were ill-treating Channabasappa. When plaintiff and defendants No.2 to 4 advised first defendant and his wife in that regard, they started nursing illwill against them.
Channabasappa died on 23.10.2009 leaving behind him plaintiff and defendants as his only heirs. Since suit properties were ancestral joint family properties, plaintiff and defendant Nos.1 to 4 are entitled to one-fifth share in them. However, to gulp their shares the first defendant has RFA No.4133/2013 5 concocted a gift deed and records in his favour and fraudulently got entered his name to the suit properties.
Since the first defendant did not yield to the request of the plaintiff to effect partition and give her share, she got issued notice dated 19.04.2010. The first defendant issued reply dated 04.05.2010 denying the plaintiff's share. Therefore she seeks decree for partition and separate possession of her one-fifth share in the suit schedule properties and mesne profits.
6. Defendant Nos.2 to 4 filed written statement supporting the claim of the plaintiff and sought decree for partition and separate possession of their one-fifth share each in the suit schedule properties. Defendant No.1 was the only contesting defendant and he filed the written statement. His defence in brief was as follows.
It was denied that Erappa purchased suit schedule item Nos.2 to 6 properties in the name of Channabasappa. Erappa had no income of his own. Channabasappa out of his earnings purchased plaint schedule item No.1 property in the name of Erappa which was hardly 9 guntas and was not an RFA No.4133/2013 6 agricultural land. That was being used as a thrashing floor, accommodation for tethering cattle, hay stock and cow dung etc. Channabasappa acquired item Nos.2 to 6 properties out of his own income. Therefore item Nos.1 to 6 immovable properties were the exclusive properties of Channabasappa.
It was denied that Mahadevamma was trading in butter business and had income. It was denied that she acquired the gold jewelries and silver articles as mentioned in suit schedule B. There are no such movable properties. The allegations that himself and his wife were ill-treating Channabasappa were denied. It was the plaintiff and defendants No.2 to 4 who harassed Channabasappa by filing suit in O.S.No.450/2002 claiming share in the compensation received by Channabasappa due to the death of his wife Parvathamma in motor vehicle accident.
One of the properties of Channabasappa bearing RS No.311/2 was acquired by the Government. Channabasappa on receiving the compensation from the Land Acquisition Officer filed a reference application. That was adjudicated in LAC No.25/1991. In Execution Petition No.21/2010, plaintiff RFA No.4133/2013 7 and defendants No.2 to 4 claimed share in compensation deposited regarding RS No.311/2 and they received the same. Thus it was the plaintiff and defendants No.2 to 4 who were interested in harassing the first defendant and their father Channabasappa.
Channabasappa performed the marriages of plaintiff and defendants Nos.2 to 4 lavishly spending huge amount. At the time of marriage and even thereafter plaintiff and defendant Nos.2 to 4 were given valuable jewelries. Even after the death of Parvathamma in a panchayat all the jewelries of Parvathamma were given to the plaintiff and defendants No.2 to 4. During her life time Parvathamma gave all the silver articles to plaintiff and defendants No.2 to
4. Therefore, the plaintiff and defendants No.2 to 4 have already received valuables in lieu of their shares.
Channabasappa was very affectionate towards defendant No.1 and his children. Therefore, he gifted plaint schedule No.2 to 6 properties to defendant No.1 under a registered gift deed dated 06.10.1999. Further he executed registered Will dated 06.10.1999 bequeathing item No.1 RFA No.4133/2013 8 property in favour of sons of defendant No.1. Therefore, the plaintiff is not entitled to any share in the suit schedule properties.
7. On the basis of the above pleadings the trial Court framed the following issues.
1. ªÁ¢AiÀÄÄ ªÀA±ÀªÀÈPÀëªÀ£ÀÄß ¹zÀÝ ªÀiÁqÀÄvÁÛgÉAiÉÄÃ?
2. zÁªÁ¹ÛUÀ¼ÀÄ ªÁ¢ ¥ÀæwªÁ¢AiÀÄgÀ MlÄÖ PÀÄlÄA§zÀ D¹ÛUÀ¼ÀÄ J£ÀÄߪÀzÀ£ÀÄß ªÁ¢ ¹zÀÝ ªÀiÁqÀÄvÁÛgÉAiÉÄÃ?
3. zÁªÁ C¹ÛUÀ¼ÀÄ ¥ÀæwªÁ¢AiÀÄgÀ ¸ÀéAiÀiÁfðvÀ D¹Û J£ÀÄߪÀzÀ£ÀÄß ¥ÀæwªÁ¢AiÀÄgÀÄ ¹zÀÝ ªÀiÁqÀÄvÁÛgÉAiÉÄÃ?
4. ªÁ¢AiÀÄÄ zÁªÁ¹ÛUÀ¼À°è 1:5 gÀAvÉ »¸Éì ¥ÀqÉAiÀÄ®Ä ºÀPÀÄ̼ÀîªÀgÁVzÁÝgÉ?
5. AiÀiÁªÀ DzÉñÀ ªÀÄvÀÄÛ rQæ?
ºÉZÀÄѪÀj «ªÁzÁA±À ¢£ÁAPÀ 23.06.2012:
1. ªÁ¢AiÀÄÄ vÁ¬ÄAiÀÄÄ vÁ£ÀÄ ¸ÁAiÀÄĪÀ ¥ÀƪÀðzÀ°è vÀ£Àß J®è ºÉtÄÚ ªÀÄPÀ̼À£ÀÄß PÀgɬĹ ªÁ¢AiÀÄ ¸ÀªÀÄPÀëªÀÄzÀ°èAiÉÄà J¯Áè ºÉtÄß ªÀÄPÀ̽UÉ 15-16 vÉÆ¯É ¨É½îAiÀÄ£ÀÄß PÉÆnÖzÀÄÝ EgÀÄvÀÛzÉ J£ÀÄߪÀzÀ£ÀÄß 1£Éà ¥ÀæwªÁ¢ ¹zÀÝ ªÀiÁqÀÄvÁÛgÉAiÉÄÃ?
ºÉZÀÄѪÀj «ªÁzÁA±À ¢£ÁAPÀ 22.03.2013:
1. ªÉÄ®ÌAqÀ PÉù£À°è 1£Éà ¥ÀæwªÁ¢AiÀÄÄ AiÀiÁªÀvÀÄÛ zÁªÁzÀ ±ÉqÀÆå® J2 jAzÀ 6£Éà D¹ÛUÀ¼ÀÄ ªÀÄÆ® ¥ÀÄgÀĵÀ ZÀ£Àߧ¸À¥Àà ¸ÉƦà£À ¸ÀéAiÀiÁfðvÀ D¹Û ºÁUÀÆ ¸Àé¸ÀA¥Á¢vÀ D¹ÛUÀ¼ÀÄ EgÀÄvÀÛªÉ CAvÁ 1£Éà ¥ÀæwªÁ¢AiÀÄÄ ¹zÀÝ ªÀiÁqÀÄvÁÛgÉAiÉÄÃ?
2. 1£Éà ¥ÀæwªÁ¢AiÀÄÄ AiÀiÁªÀvÀÆÛ zÁªÁzÀ C 2 jAzÀ 6£Éà D¹ÛUÀ¼À£ÀÄß ªÀÄÆ®¥ÀÄgÀĵÀ ZÀ£Àߧ¸À¥Àà ¸ÉƦà£À EªÀgÄÀ vÀ£Àß ºÉ¸ÀjUÉ
06.10.1999 gÀAzÀÄ MAzÀÄ £ÉÆAzÁ¬Ävï ¨sÀQë¸ï ¥ÀvÀæ RFA No.4133/2013 9 §gÉzÀÄPÉÆnÖzÁÝgÉ J£ÀÄߪÀzÀ£ÀÄß 1£Éà ¥ÀæwªÁ¢ ¹zÀÝ ªÀiÁqÀÄvÁÛgÉAiÉÄÃ?
3. 1£Éà ¥ÀæwªÁ¢AiÀÄÄ zÁªÁ ±ÉqÀÆå¼À C1 £Éà D¹ÛAiÀÄ£ÀÄß ªÀÄÆ®¥ÀÄgÀĵÀ ZÀ£Àߧ¸À¥Àà ¸ÉƦà£À EvÀ£ÀÄ vÀ£Àß ªÉƪÀÄäPÀ̼ÀÄ DzÀ «ÃgÉñÀ, «PÁ¸À CgÀÄt vÀAzÉ £ÁUÀ¥Àà ¸ÉƦà£À C®à ¸ÀAgÀPÀë£ÁzÁgÀ, C:¸ÁzÁgÀ gÀvÀߪÁé PÉÆÃA £ÁUÀ¥Àà ¸ÉƦà£À CªÀgÀ ºÉ¸ÀjUÉ 06.10.1999 gÀAzÀÄ MAzÀÄ £ÉÆAzÁ¬Ävï ªÀÄÈvÀÆå ¥ÀvÀæ §gÉzÀÄPÉÆnÖzÁÝgÉ JAzÀÄ 1£Éà ¥ÀæwªÁ¢AiÀÄÄ ¹zÀÝ ªÀiÁqÀÄvÁÛgÉAiÉÄÃ?
8. In support of the claim of the plaintiff, she got herself examined as PW.1 and one Malleshappa Kulenoor as PW.2 She got marked Exhs.P1 to P27. The first defendant got examined himself as DW.1 and three more witnesses as DWs.2 to 4 and got marked Exhs.D1 to D136. Other defendants did not lead any evidence.
9. The trial Court on hearing both side by the impugned judgment and decree decreed the suit in respect of suit schedule A item Nos.1 to 6 properties as aforesaid and dismissed the suit in respect of schedule B item Nos. 1 and 2 properties on the following grounds:
i) Plaintiff succeeded in proving that suit schedule A item Nos.1 to 6 properties were ancestral joint family properties.RFA No.4133/2013
10
ii) The first defendant has failed to prove that he acquired plaint schedule A item Nos.1 to 6 properties out of his earnings.
iii) The plaintiff has failed to prove the existence of suit schedule B movable properties.
iv) The first defendant has failed to prove the execution of the gift deed and the Will.
10. Learned counsel for the first defendant/appellant seeks to assail the impugned judgment and decree of the trial Court on the following grounds:
a) The burden of proving the fact that suit schedule properties were acquired out of the income of Erappa was on the plaintiff. But she failed to discharge the said burden.
b) The sale deeds of the properties were standing in the name of Channabasappa. Therefore the presumption was that he was the purchaser. It was for the plaintiff to prove that the consideration proceeded from Erappa. She failed to discharge the said burden.RFA No.4133/2013
11
c) The plaintiff failed to prove that the joint family had the nucleus to purchase the properties.
d) There was evidence on record to show that daughters were illdisposed against the father. They failed to prove that the first defendant and his family members harassed the father. Under the said circumstances, the trial Court ought to have believed that Channabasappa gifted and bequeathed the properties in favour of defendant No.1 and his children more particularly when the documents were registered documents.
e) Since schedule A item Nos.1 to 6 properties were gifted and bequeathed prior to coming into force of Hindu Succession Amendment Act No.39/2005, the trial Court was not justified in awarding shares in those properties.
In support of his arguments he relies on the following judgments:
1. D.S.LAKSHMAIAH AND ANOTHER VS.
L.BALASUBRAMANYAM AND ANOTHER -
(2003)10 SCC 310.
RFA No.4133/2013
12
2. GOVINDABHAI CHHOTA BHAI AND OTHERS
VS. PATEL RAMANBHAI MATHURBHAI -
2019 SCC OnLine SC 1245.
11. Per Contra Sri N.R.Kuppellur, learned counsel for plaintiff/respondent No.1 and Sri Prashant Mathapathi, learned counsel for defendant Nos.2 to 4 /respondent No.2 to 4 seek to justify the impugned judgment and decree on the following grounds:
i) The first defendant did not dispute that himself and his father constituted the joint family. Further he did not dispute that sale deed in respect of item No.1 property was standing in the name of Erappa and he owned another property in RS No.311/2. Thus there was material to show that Erappa owned certain properties and had nucleus to acquire further properties.
ii) The first defendant in his reply notice Ex.P20 unequivocally admitted that item Nos.1, 2 and RS No.311/2 were the properties of Erappa. He further admitted in his written statement that item No.1 was the self acquired property of Erappa. Under such circumstances, the onus RFA No.4133/2013 13 stood shifted to the first defendant to prove that he had independent income to acquire plaint schedule A item Nos.2 to 6 properties which he failed to discharge. Therefore the trial Court was justified in holding that suit schedule A properties were the ancestral joint family properties.
iii) The first defendant failed to prove the execution of the gift deed and the Will. They were surrounded with suspicious circumstances. No attestor was examined to prove the Will. Both Will and gift deed on the face of it were not credible. Therefore the trial Court was justified in holding that they were not proved.
(iv) The citations relied by the learned counsel for the appellant/defendant No.1 do not advance his case. As against that they help the respondents.
In support of his arguments, he relies upon the following judgments:
1. THAMMA VENKATA SUBBAMMA v.THAMMA RATTAMMA AND OTHERS - (1987) 3 SCC
294.
2. GANAPATHI SANTARAM BHONSLE v.
RAMACHANDRA SUBBARAO KULKARNI -
ILR 1985 KAR 1115.
RFA No.4133/201314
3. K.C.LAXMANA v. K.C.CHANDRAPPA GOWDA & ORS. - AIR 2009 KAR 112.
4. MALLESHAPPA BANDEPPA DESAI AND ANOTHER v. DESAI MALLAPPA ALIAS MALLESAPPA AND ANOTHER - (1961) 3 SCR 779.
5. ROSAMMAL ISSETHEENAMMAL FERNANDEZ |(DEAD) BY LRS AND OTHERS v. JOSSA MARIYAN FERNANDEZ AND OTHERS -
(2000) 7SCC 189.
6. K.LAKSHMANA VS THEKKEYAL PADMINI AND OTHERS - (2009)1 SCC 354
12. The trial Court dismissed the claim of the plaintiff for plaint schedule B movable properties. The plaintiff has not filed any appeal or cross objections with regard to the said properties. Therefore the findings of the trial Court with regard to plaint schedule B properties attained finality. Therefore the contest between the parties in this appeal stands confined to plaint schedule A item Nos.1 to 6 properties. Having regard to that and the rival contentions, the points that arise for determination of this Court are:
i) Whether the trial Court was justified in holding that suit schedule A item Nos.1 to 6 properties were the ancestral joint family properties ?RFA No.4133/2013
15
ii) Whether the trial Court was justified in holding that defendant No.1 failed to prove the execution of Ex.D68 the gift deed ?
iii) Whether the trial Court was justified in holding that defendant No.1 failed to prove the execution of Ex.D69 the Will ?
Reg. Nature of the properties:
13. There is no dispute that the plaintiff and defendant Nos.2 to 4 are daughters and defendant No.1 is the son of Channabasappa and Parvathamma W/o Channabasappa. There is no dispute that Channabasappa was son of Erappa Soppin and Mahadevamma Soppin. Defendant No.1 did not dispute that himself and his father Channabasappa constituted joint Hindu family.
14. Plaintiff claimed that Erappa out of his earning purchased plaint schedule item No.1 and acquired RS No.311/2 measuring 1 acre 20 guntas. She further claimed that since Channabasappa was his only son, Erappa purchased plaint schedule 'A' item Nos.2 to 6 properties in the name of Channabasappa due to his love and affection, therefore, they were all ancestral properties. Whereas defendant No.1 claimed that Channabasappa purchased RFA No.4133/2013 16 plaint schedule 'A' item No.1 property out of his income in the name of Erappa and purchased other properties out of his own income, therefore, they were all his absolute/self acquired properties of Channabasappa.
15. There is no dispute between the parties regarding date of purchase, consideration amount and the names of the purchasers shown in those documents. For the purpose of convenience and brevity, particulars of plaint schedule 'A' item Nos.1 to 6 properties, date of purchase and the document under which they were purchased, consideration amount and the purchasers name shown therein are extracted in the following table:
Sl. Property No. Village Date of Consideration Name of the No. purchase In Rupees purchaser
1. Sy.No.435/3A Ranibennur 26.11.1940 300/- Erappa 9 guntas (Ex.D67)
2. CTS 838/1-8 Ranibennur 14.07.1952 700/- Channabasappa (Ex.D66)
3. Sy.No.405/1 Ranibennur 19.05.1981 14,000/- Channabasappa 5 acres 31 (Ex.D63) guntas
4. Sy.No.405/2 Ranibennur 19.05.1981 14,000/- Channabasappa 5 acres 32 (Ex.D135) guntas
5. Sy.No.462/2B Ranibennur 29.04.1969 10,000/- Channabasappa 5 acres 16+½ (Ex.D64) guntas
6. Sy.No.86/3A Hoolihalli 27.07.1960 10,000/- Channabasappa 8 acres 10 (Ex.D136 & guntas Ex.D65) RFA No.4133/2013 17
16. Since the plaintiff came before the Court contending that all the aforesaid properties were ancestral joint family properties, the initial burden of proving that contention was on her. On discharging such burden, onus shifts to defendant No.1 to prove that, he purchased those properties out of his income. The plaintiff was expected to prove that joint family of Erappa and Channabasappa had nucleus to purchase plaint schedule 'A' item Nos.1 to 6 properties.
17. Out of the aforesaid properties, item No.1 was purchased as long back as 26.11.1940 under Ex.D67 sale deed for consideration of Rs.300/- in the name of Erappa. In Ex.D67 the age of Erappa was shown as 33 years. Item No.2 was the property purchased next in point of time i.e. on 14.07.1952 under Ex.D66 the sale deed. That sale deed shows the name of Channabasappa as purchaser and his age as 25 years. If he was 25 years old in the year 1952, in 1940 when plaint schedule 'A' item No.1 was purchased under Ex.D67, he must have been 13 years old.
RFA No.4133/201318
18. Defendant No.1 neither in his written statement nor in evidence state that at the age of 13 years, Channabasappa had some avocation and earning. Channabasappa himself during life time of Erappa did not claim that plaint schedule 'A' item No.1 was his self acquired property. Hence, it goes hard to accept that at the age of 13 years, Channabasappa purchased the said property. Therefore, the contention of defendant No.1 that Channabasappa purchased plaint schedule 'A' item No.1 property out of his income in the name of his father Erappa was highly unacceptable.
19. Plaint schedule 'A' item No.2 was substantial property which was premises situated in Ranibennur Town. That consisted of 8 tenaments which were let out. It is the contention of the plaintiff that after purchasing the property in the name of Channabasappa, Erappa got constructed building and that was yielding income. Whereas defendant No.1 in the written statement contended that Channabasappa purchased that out of his earning, therefore, that was his absolute property. There was another property bearing RS No.311/2 measuring about 1 acre 20 guntas. According to RFA No.4133/2013 19 the plaintiff, out of the income generated by the aforesaid three properties, other properties were purchased.
20. The plaintiff got issued notice Ex.P19 dated 19.04.2010 claiming that item Nos.1 to 6 of schedule A were purchased by Erappa. To the said notice defendant No.1 got issued reply as per Ex.P20 dated 04.05.2010. In para 4 of the reply, defendant No.1 unequivocally admitted that item Nos.1 and 2 belonged to his paternal grandfather Erappa. He further admitted that RS 311/2 of Ranibennur town and plaint schedule 'A' item Nos.1 and 2 devolved on Channabasappa by inheritance. Thus it is clear that at the earliest point of time, defendant No.1 himself admitted that plaint schedule 'A' item Nos.1 and 2 properties and RS 311/2 measuring 16 guntas were properties of Erappa and they devolved on his father Channabasappa by inheritance.
21. In para 15 of his written statement, defendant No.1 admitted that plaint schedule 'A' item No.1 property was self acquired property of his paternal grandfather Erappa. But he claimed that said property was not fit for cultivation, therefore, that was being used as thrashing floor, for storing RFA No.4133/2013 20 hay stock, agricultural equipments, tethering the cattle etc. The written statement was filed on 28.10.2010. Within five months from the date of issuance of reply Ex.P20, defendant No.1 takes U turn and claims that item Nos.1, 2 and RS 311/2 were acquired by Channabasappa out of his own income and he purchased item No.1 in the name of his father Erappa.
22. To prove the admission in para 4 of Ex.P20 plaintiff confronted that to DW.1/defendant No.1 in his cross examination. On such confrontation, he admitted that Ex.P20 was issued on his instructions and in that he has admitted that plaint schedule A item Nos.1, 2 and RS No.311/2 were the properties of Erappa.
23. Section 17 of the Indian Evidence Act, 1872 ('the Evidence Act' for short) states that admission is a statement which suggests an inference as to any fact in issue or relevant facts. Section 21 of the Evidence Act states that admissions are relevant and they may be proved against the persons making it. Thus, by admission of DW.1 in his cross- examination regarding contention of para 4 of Ex.P20, the RFA No.4133/2013 21 plaintiff proved the admission of defendant No.1 with regard to plaint schedule 'A' item Nos.1 and 2, RS 311/2. Thus the above admissions can be relied in evidence in view of Sections 17 and 21 of the Evidence Act.
24. Section 31 of the Evidence Act states that admissions are not conclusive proof of the matters admitted, but they may operate as estoppel. Thus, it is clear that when defendant No.1 admitted his admission regarding the above properties, it was for him to explain them. But neither in his written statement nor in his evidence, he made any attempt to explain his admission with regard to plaint schedule 'A' item Nos.1 and 2 properties and RS No.311/2. Section 58 of the Evidence Act dispenses with the proof of admitted facts.
25. Under the circumstances, the trial Court rightly relied upon such admissions. In the light of such admissions, the burden of plaintiff to prove the nature of those properties got discharged. Plaint schedule 'A' item Nos.3 to 6 properties were purchased subsequent to acquisition of plaint schedule 'A' item Nos.1, 2 and RS No.311/2. Therefore, there was material to show that joint family of Erappa and RFA No.4133/2013 22 Channabasappa had properties which generated nucleus to acquire other properties. Therefore, the onus shifted to defendant No.1 to prove that Channabasappa had some independent avocation fetching him independent income to enable him to purchase item Nos.3 to 6 properties.
26. Defendant No.1 at one breath contends that Channabasappa was doing charcoal business and at another breath states that he was doing brick business and agriculture. To prove the alleged business or income from such business, defendant No.1 did not adduce any evidence, except for the self serving testimony of himself and evidence of DW.2 and DW.3. He did not produce any licence of Channabasappa to prove that he was doing Charcoal or brick or any other business.
27. DW.2 claimed that he is the relative of Channabasappa and he was aware of their family affairs. Contrary to the evidence of DW.1 that Erappa had no income, DW.2 - in his cross-examination admits that Erappa was a reputed and leading person in the village and he was good RFA No.4133/2013 23 worker. He further admits that Erappa acquired the properties in the name of Channabasappa.
28. DW.3 though in chief examination spoke in favour of defendant No.1, in cross-examination states that he has not seen the property records, defendant No.1 told him what all to depose and he does not know what all were the properties of Erappa. He further admitted that he availed loan from defendant No.1. Though DW.3 claims to be friend of Channabasappa, he was unable to give family details. Therefore, the oral testimony of DW.1 to DW.3 did not discharge the burden of defendant No.1 to prove that Channabasappa had any independent avocation or income. As against that the admission of DW.2 shows that Erappa acquired the properties in the name of Channabasappa.
29. Having regard to the aforesaid evidence, the trial Court was fully justified in holding that suit schedule properties were ancestral joint family properties.
Reg. Gift Deed:
30. Defendant No.1 contended that suit schedule A item Nos.1 to 6 properties were the self acquired properties RFA No.4133/2013 24 of Channabasappa and Channabasappa gifted plaint schedule 'A' item Nos.2 to 6 properties in his favour under Ex.D68 the registered gift deed dated 06.10.1999. Rejecting the contention of defendant No.1 that schedule A item Nos.1 to 6 properties were the self acquired properties of Channabasappa, it is already held that they were the ancestral joint family properties.
31. The Hon'ble Supreme Court in Thamma Venkata Subbamma's case referred to supra, referring to Sections 6 and 30 of the Hindu Succession Act, 1956, Article 258 of the commentaries on Hindu Law by Mulla, Fifteenth Edition, and several other earlier judgments, in para 15 of the judgment held as follows:
"15. The rigour of this rule against alienation by gift has been to some extent relaxed by the Hindu Succession Act, 1956. Section 30 of the Act permits the disposition by way of Will of a male Hindu Mitakshara coparcenary property. The most significant fact which may be noticed in this connection is that while the legislature was aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by a Will the interest of a male Hindu Mitakshara coparcenary property. The RFA No.4133/2013 25 legislature did not, therefore, deliberately provide for any gift by a coparcener of his undivided interest in the coparcenary property either to a stranger or to another coparcener. Therefore, the personal law of the Hindus, governed by Mitakshara School of Hindu Law, is that a coparcener can dispose of his undivided interest in the coparcenary property by a Will, but he cannot make a gift of such interest."
(Emphasis supplied)
32. In view of the aforesaid judgment of the Hon'ble Supreme Court, first of all Channabasappa was not competent to execute the gift deed. Even assuming for arguments sake there was any such gift deed, the same was null and void and mere registration of the documents does not infuse any life in such document.
33. Further the plaintiff seriously opposed the signatures of Channabasappa on Ex.D68. Therefore, the burden was on defendant No.1 to prove the signatures of Channabasappa on Ex.D68 and execution of such document. Basappa Basannagoudar and Madevappa Majage were the attestors to both the gift deed and Will and they identified Channabasappa before the Sub-Registrar. Those attestors were not examined claiming that they were dead. Only DW.4 RFA No.4133/2013 26 the alleged scribe of Ex.D68 the gift deed and Ex.D69 the Will was examined to identify the signatures of Channabasappa and the alleged attestors also. It is not the case of defendant No.1 that alleged attestors have not left behind them any heirs who in the ordinary course of their lives could have seen the signatures of such attestors or familiar with their signatures and hand writings.
34. DW.1 in his cross examination states that when Channabasappa executed Ex.D68 gift deed, he was not present and he learnt about the document in the year 2010. But Ex.D68 bears his signature. DW.4 scribe states that at the time of execution of Ex.D68, defendant No.1 was also present and he signed the document. Thus, this material inconsistency in the evidence of DW.1 and DW.4 regarding execution of Ex.D68 shows the role of defendant No.1 in the alleged execution.
35. Ex.D68 gift deed contains so many corrections and scorings etc. The said corrections were not initialed and the number of corrections were not mentioned/endorsed in the document. DW.4 states that he did not go to the Sub- RFA No.4133/2013 27 Registrar's office. Therefore, there is missing link as to who identified the executant before the Sub-Registrar.
36. Next question is whether Channabasappa was in a position to execute those documents and present them for registration. Gift deed and Will were said to be executed on the same day i.e. on 06.10.1999 and for both documents the very same persons were shown as attestors and scribe. Channabasappa died on 23.10.2009. The daughters contended that Channabasappa was under the grip of defendant No.1, his wife and children and they have manipulated the gift deed and the Will. Therefore, apart from proving the signatures, defendant No.1 was expected to prove execution of Ex.D68 by Channabasappa. Execution means execution of documents in his sound disposing state of mind and health.
37. Defendant No.1 himself suggests to PW.2 that Channabasappa suffered paralytic stroke in 1997 and defendant No.1, his wife and children got him treated in Sortaur. Defendant No.1 himself further suggests to PW.2 that thereafter Channabasappa suffered two successive RFA No.4133/2013 28 paralytic strokes (in all thrice), thereafter defendant No.1, his wife and children took Channabasappa to Davanagere and Channabasappa died in the hospital.
38. When according to the suggestions of defendant No.1 himself, Channabasappa suffered three successive paralytic strokes since 1997, defendant No.1 had to prove whether he was able to give instruction to draft gift deed and go to Sub-Registrar's office for execution and registration of the documents. Except the self serving testimony of DW.1 and that of scribe DW.4, no other evidence was adduced to prove that Channabasappa was capable of executing of the document.
39. Sub-Registrar was not summoned to prove the identification of the executant. The integrity of DW.4 scribe was questionable, as he admits that Deputy Commissioner had issued him the notice to cancel the stamp writer's licence. The evidence of DW.4 regarding health condition of Channabasappa was contrary to the recitals in Ex.D68. Ex.D68 states that executant was not keeping good health. Similarly, DW.4's evidence regarding health condition of RFA No.4133/2013 29 Channabasappa was contrary to the suggestion made by defendant No.1 himself to PW.2. Apart from that, DW.4 admitted that he was tenant of a tenament in item No.2 property. There were grounds to infer that he was under the influence of DW.1.
40. Considering all these aspects, the trial Court held that execution of the gift deed Ex.D68 was not proved which was fully justifiable.
Reg. Will:
41. Defendant No.1 contends Channabasappa bequeathed plaint schedule 'A' item No.1 property in favour of his sons Veeresh and Vikas @ Arun executing Ex.D69. Plaintiff disputed execution of such document. Therefore defendant No.1 was required to prove the Will.
42. How the Will has to be proved is expounded in detail by the Bench of Four Judges of the Hon'ble Supreme Court in H. Venkatachala Iyengar vs B.N.Thimmajamma & Others (AIR 1959 SC 443). Referring to the said judgment catena of other judgments were rendered as to how the Will has to be proved. The sum and substance of the said RFA No.4133/2013 30 judgments was that having regard to Sections 67 and 68 of the Evidence Act, the signature and the handwriting of the testator must be proved and one attesting witness at least shall be examined to prove the execution of the Will. The sound disposing state of mind of the testator at the time of execution of the Will and due attestation shall be proved.
43. It was further held, ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. It was held that having regard to the solemnity of the Will, if the Will is surrounded by suspicious circumstances, even in the absence of plea of adversary regarding fraud, undue influence etc, the propounder of the Will has to satisfy the judicial conscience of the Court regarding the due execution of the Will.
44. The following were generally considered as suspicious circumstances:
RFA No.4133/201331
(i) Lack of sound disposing state of mind of the testator.
(ii) Propounder taking active role in execution of the Will and taking substantial benefits under the Will.
(iii) Unnatural disposition for example excluding/ disinheriting the natural heirs.
(iv) Lack of plausible explanation for disinheriting the natural heirs.
(v) Will surfacing its existence after long delay.
45. First of all, defendant No.1 did not examine any of the attestors to the Will to comply Section 68 of the Evidence Act or any person acquainted with the handwriting and signatures of the alleged executants as required under Section 69 of the Evidence Act. Though signatures of executant Channabasappa on Ex.D69 were disputed, defendant No.1 made no attempt to prove those disputed signatures with reference to any admitted signatures of Channabasappa or referring the same to any handwriting expert's opinion. Therefore, Ex.D69 was liable to be RFA No.4133/2013 32 out-rightly rejected for non compliance of Sections 68 and 69 of the Evidence Act.
46. Further, with regard to the sound disposing state of mind of the testator, the reasonings supplied while discussing execution of the gift deed applies to the Will also. Exclusion of other heirs from inheritance was not explained. The evidence of DW.4 scribe shows that defendant No.1 took active role in execution of Ex.D68 and Ex.D69.
47. Learned Counsel for the appellant relied upon several judgments noted above regarding Karta's powers to alienate the properties, bequeathing his interest under the Will etc. Having regard to the discussions made above and the facts and circumstances of the case, the said judgments cannot be justifiably applied to serve the case of the appellant. As against that, the ratio therein serve to the benefit of the plaintiff. Therefore, this Court does not find it necessary to further elaborate on them. Under such circumstances, the trial Court was justified in holding that execution of the Will was not proved.
RFA No.4133/201333 Reg. sustainability of the impugned judgment
48. The next defence of defendant No.1 was that since Channabasppa disposed the property under the gift and the Will prior to coming into force of amendment to Section 6 of the Hindu Succession Act, 1956, by virtue of the proviso to Section 6(1) of the Act, the daughters were not entitled to claim any share in those properties. In view of the findings that defendant No.1 failed to prove the execution of the gift deed and Will, the defence with regard to the proviso to Section 6(1) does not survive for consideration.
49. The next defence was that the shares of the daughters were satisfied by giving jewelries and valuable articles. That means there was already a partition and the shares of the plaintiff and defendant Nos.2 to 4 were given in the form of valuables. Admittedly, suit schedule item Nos.1 to 6 properties were the immovable properties worth more than Rs.100/-. Any partition or relinquishment of interest of any sharer in those properties having regard to Sections 17 and 49 of the Registration Act, 1908 must have been by way of a registered document. No such document was produced by RFA No.4133/2013 34 the first defendant. Except his self serving testimony no iota of evidence was lead to prove the said contention. Therefore the trial Court rightly disbelieved the said theory of satisfaction of shares of the plaintiff and defendant Nos.2 to 4 by giving movables in lieu of their shares.
50. Having regard to the above discussions, this Court does not find any ground to interfere with the impugned judgment and decree of the trial Court. Therefore, the appeal is dismissed with costs.
(Sd/-) JUDGE (Sd/-) JUDGE Akc/KSR