Karnataka High Court
Mastamma Lachmaiah Naik, vs Narayana Nagappa Naik on 19 August, 2011
Author: B.Manohar
Bench: B.Manohar
» U1frA'RA--.KANNADA DISTRICT.
4
LACHAMAYYA VENKATAPPA NAIK
AGED 46 YEARS, OCC:AGRIL
3- R/0 HoSAD,TQ:SAGARA
SHIMOGA DIS'I'~577 201.
NARASIMHA VENKATAPA NAIR-_ '
AGED 44 YEARS, OCC':A_GRILV,_ "
4~ R/O HoSAD,TQ:SAGARA"~~A.44
SHIMOGA DIST--577 201 A
NARAYAN1 KOM ~RAMA._ 1
AGED 48 YEARS
OCC:HOUS.EHOLD--&fAG-REL AV
5~ R /0 HQ.SA..D*_,TQ;,sAG ARA 'V _
SHIMQGA D"1S1x577':. 201,-. 1;:
SMT. NARA;YA1xI_wV/'G KARJYAPPA NAIK
S
6- R/O,MUF{UKE'RI;'=BHATKAL TQ~581 320,
UWARA I<AN:_NA'D.A1"DLSTRICT.
VSVMT W/VG NARAYANA NAIK
..{AG'E?D 44 "YEARS,
R5,/"O SHIRALIHBHATKAL TQ4381 320.
.../XPPELLANTS
I AA-...__VSRI~.'.7;vP=.KULKARNI, ADVOCATE)
'- -7NARAYAN
S/O NAGAPPA NAIK
AGED ABOUT 59 YEARS,
KARAGADDE, BHATKAL TQ-581 320.
U.K. DIST.
THIS RSA FILED UNDER SECTION IOO.j"C:=lE"--»CV'J';IVA'
AGAINST THE JUDGMENT AND DEGREE"'D'ATEjD:._I_'I.
'22.I2.2o09, PASSED IN RA.NG.273/2Q,QIj~--V.Q'Nf§jTIHE'V
FILE OF THE CIVIL JUDGEg'(S'R';DN;'.)é, .;I-LQI'«aI.A.f\{A:I2,K'
DISMISSING THE APPEAL, AGAI:'I\JS'i.'_'_'
AND DEGREE DATED ~3I4..,_DI.éoGo,V PASIVSIEDVI .?IN
O.S.NO.69/1991, ON THE FI'vf;E_x OFf THtE3-C_;:IV':IL JUDGE
(JR.DN.) 85 JMFC., BHATI<ALj D-fSIIQI'fS'SINC}VV'THVE SUIT
FILED FOR DELCARATIDN P(:§SI.S'E:7,SSION.
THESE .C§C)i\}III_\.I4(}..V (51\I""P<"'OR ADMISSION
THIS DAT}, DELIVERED THE
PoLLo*;Vv--;wI»IéI.,;:,'fl ' ' '
v_"'}?.II':1__f.'[}'1§S€ tiN"C......app€a1S, common question of law
'aITd*~invo1ved. The trial Court conducted
cemhihonhtrialttlland passed the common judgment and
V:'=.___4'¢_.;1ecree~ both the Suits. The Appellate Court also
the common judgment and decree in both the
/&
0
i
appeals. Hence, both these appeals are
together and disposed of by this common
2. The appellants in RSA 53020./20'_'10
plaintiffs in O.S.No.69/19§.1V';""-being' eggtievtgeafbye the
judgment and decree dated :."f22'i'»1eA'2-2O«O9v--..made in
R.A.N0.273/2001 pas'sed"hy_vth:e.1Ctt(i1b::Judge (SI'.DI'1.)
Honavar Confirtning j't:tdgrt1»e_n_t v'ai:tdV decree dated h
31-1-2000; passed by the Civil Judvge:;(;:.;t.i5ih;} aztd.'JM'F'G;'V:BhaytkaI, wherein the suit oiféthe dismissed have filed this appeal R_-SA vNe.5é22-/-2010 filed by defendant Nos.5, 6(a) e'1.e:tVt§;1"'e(b;:ih't' 0;'s.No.174/1992 being aggrieved by the jh0de_,§meht':t::e.h:d decree dated 22.12.2009 made in '0'-~e,j»R.A.Nott?i*76/2001 passed by the civil Judge (sr.Dn.>, u"V.AHsQn:avar confirming the judgment and decree dated W351e1e-2000 made in O.S.N0.174/1992 passed by the A l (A) Civil Judge (Jr.Dn.) and JMFC, 13hat.l{afl,iipprefeivredfliisir T appeal.
4. The plaintiffs in l:"~h_ave a suit seeking for deCv:laraytVi--on_:i» 'the 12"' defendant_y.i€:i:v4i of Durgamma Honnappa: that plaintiffs 1 and successors of deceased DurgarnmaliHorinagp.-ai"'*.Naik succeeding to the suit schedule properties and in the alternative, in case, if »t:i'1'(%'.'v(/"C)vlvill7.'["~C'7:C')"II7la€S to the conclusion that the Will set up i't.lieV.Vpl"a--i.n1j:iffs is not proved, a decree for partition g holdingiypthait plaintiffs 1 and 3 are entitled for i/5m if snare and 1/3rd share respectively in the suit schedule property and consequential partition by metes and boundsbhanding over the possession of the suit schedule property and also restraining the defendants l to 4 and 12, their agents, servants from disturbing the peaceful possessio/K/and enjoyment of the suit schedule properties, ie. Sy.No.68/B and Sy.NoVf€§i~,::5"aof Mundalli village.
5. The case of the plaintiffs igin ofs.Nofe9xri9V9;i____iis,T that on the basis of the Will' by Durgamma Honhappa mof the plaintiffs 1 and 2, the absolute owners of the,suit Item No.1 property is the deceased her father late Sri . Naryan ~i i ' "~Ugr-anirnane, Bhatkal. The house isituéateid" built by Durgamma Horiiiiappa S:l.No.2 of suit schedule property the 'exclus_ive tenanted property of the husband of Hzoinnappa Naik. On an application filed
--V by Land Tribunal, Bhatkal, granted occupancy i:f..rig1*it.s her favour. She has executed the Will dated ' %l'§li2fl--l989 in favour of plaintiffs l and 2 bequeathing suit schedule properties in their favour. The said fie Will is an unregistered Will. Since the jur;';%,Eiii¢\t~i.'c5tiaréii-"V..._"it Registered Office was situatedwtat a-'Midis-tanic'eVilofg 4OKrns., from Bhatkal, on accduntfo.f:' could not register the saidi_WVi1l. "Hcweverg Durgamrna Honnappa Naik VQn,2O-ll
6. The father' __of Naik late Sri.Naraya_nV He had four wife of eldest daughter Kuppu Jatta Naikiwas"'de'a:Ci,.. defendants 5 to 7 are the children ofiiliuppu' Jatta Naik. The second daughter is A,who 3"' plaintiff in the suit and her son. The fourth daughter of Narayan lZviA)4j'r=:\A/ianail< is no more and she left plaintiff No.1 defendant Nos. 8 to 11 as her heirs. 'V The defendant No.12 claims to be the adopted son of deceased Duifir/nma Honnappa Naik. Hence, he was made a party to the proceedings. The adoption deed set up by defendant No.12 is a frayudulent--ia'nid:_' illegal document. The deceased Durgamrna.--H'onnaioba:..V_""eA T' Naik at no point of time adopted ..ilA2'b. adopted son. The Honnappa husband of Durgamma "The defendants 1 to 4 are,--the is the brother of Both, Honnappa IraprA):§:.Nai§l_§iii separately and they The deceased i.y_'as'Vresiding in Sl.No.l of the h In the year 1979, the house had icollapsed a_nd*"newhouse was built by using «Tiles.lHlT'i"i'eiplaintiff No.1 was residing with gifl9t1gtga3w¢ia.t'"Hgor;.r1appa Naik, since the age of l4~l5 Thlejfliizusband of Durgarnma Honnappa Naik ["2-'..__i'died ab.o_ijt 25-26 years back. The occupancy rights in favour of Durgarnrna in respect of the land pearing Sy_No.339/l situated at Susgadi village by the é~ 14 Land Tribunal, Bhatkal was challenged 1 to 4 before the High Court. was-:
relation between Durgarnrna l-lo.ni'iappablV_"_Naik' atfidri defendants 1 to 4.
8. due to h€r illness expres's_ecl_. her'i'Vi/ihsli relative Krishnappa. of her Uncle to prepare xv.' appa Rama N aik prepai--i_ed._ the wishes of Durgamma Honnaphpa:'lNail{"--an"df defendant had attested the saidgjwill. 'I'h'e Will was deposited with Durgarnrna .AHon1iasp.Apa_i"«.Naik for registration in future date.
was hospitalized and died on .2o'l'ei.2«--t1fi9t39", within 16 days of execution of the said '.\.N,itl.l. "The doctors suspected that she was suffering frorri,' T.B., however, her mental status was alert and free till her death. The l2?" defendant in the guise of selling the land bearincr Sy.No.339/l of Susgadi village /1 had taken her signatures on some papersLl"-._p:Th:ei. papers are being used for prepaj*inigilt'l':e by misrepresenting and. misleading Dujrgammai Honnappa Naik and she in favour of the 12"' 121"
defendant. Taking :i'._lll~iteracy and ignorance of" Naik, some documents. V. behind her back.
I mmeciliiatelty" " wlDurgamm a H onnappa Naik changed the mutation entries» in thiei-rAn'a'mes on the basis of the Varadi. The oilbjpectedllllllfor the same and the Tahsildar ,iganicelield'-.tphelj'-said entries. On an appeal filed by the defenda._jnts.«ill to 4 before the Assistant Commissioner, TthegAssi'stant Commissioner upheld the contentions of <.'C'l_C!fi€1'1:C1aI'1tS 1 to 4 and entered their names in the "mutation register. On the basis of the said entries defendants 1 to 4 and the 12"' defendant on the basis of the adoption deed tried to interfere with the peaceful é« 17 issueless, hence the defendants 1 to 4 are enti'tle'dfl'too'vv., succeed the estate of deceased Honnappa H and the plaintiffs have no right, iintlerest respect of the suit schedule prope__rt'ies. F'u_rAtlive.t,il defendants also alleged tha't--£t'h.e is not the adopted son of and she never adopted point of time and no; V.p__r;odluced to show that any lelonVdu'cited for adoption of the 'defendant further averted that afterlthel he helped Durgamma Honnappa 'u'Vl\].,é1i'1V\x"."'tO.'V' cultivate the land and also °=p«erl'fo.rm"ed the obsecluies of his Uncle. He continued to Aunt till the completion of his B.iAu..Degteei'..:l~"ii Thereafter he went to Bombay and giciontinued his LLB course. During 1969, he returned ._lto"thle village and continued to help his Aunt in
-cultivating the lands belonging to the joint family. The relationship betweeng/D/urgamma and defendant No.1 18 was very cordial. There was a mistake the'-ii declaration given by her in respect of" p._ro.pe-:rty:"beari'nig Sy.No.339/1 of Susgadi village is excluded by the plaintiffsl'i"e«t§"include "suit schedule properties.ix/ihtile schedule properties. Under thellpr-oi}/ilgjolllnis Succession Act, defendant':iI:\lt;..l the entire properties; Honnappa Naik, who is the son of one of theilsistelrs Hence, he is not entitled vsuccee.dl'«...tihe properties of deceased DL}'f(§FalIll11§t. The..._p__liaintiffs l and 2 are residing with 'their_farnil:y.iiri--.different places. The property bearing Sy..l'Io.6i8/7:'; the Mulgeni right and subsequently, only right was given to the deceased Durgamma after the death of her father. There are three houses i"ii.uiii..ojlrie building of late Honnappa, which were built by and the same were in the name of Honnappa. After the death of Durgamma, those houses were A/ I') transferred in the name of defendants l toiill, were the direct heirs of deceasediiH'o.nnap'pa_'V 'E1ja_pp'a Naik. The deceased Durgamma Honnappa right over the said houses. are now trying to oust.th_e of temporary injunction and other concocted docuirnflentsli as well as defendant the suit schedule properties siofu'gh't.for diisimsisal of the suit. l0. The defendairu the written statement 'cont€.I_1ding"~ Vthafg. thei'"i deceased Durgamma died «--..AisS'uié'le:,sS and sheV"1's"the direct Aunt of defendant No.5. .pr'op'ert§iii'b.earing Sy.No.68/B of Puravarga village rrlAea'surin'g:'j_lilacre was the property belonging to the j motherlfloflithe deceased Durgamma and rest of the V' properties are tenanted lands of Durgarnma. The deceased sold property bearing Sy. No.339/ l urneasuring 24 guntas of Susgadi village to the third /9 20 party. The father of plaintiff No.1 is the Aunt of this defendant No.5. The plaintiff ~ Aunt of defendant No.5. Durgamma a;:a¢i;u'e1'¢1. if dated 4-12-1989 in favour of poiairimfa i»».a'n<:iy defendant No.5 has signed witness to the said are in the possession No.1 and defendants of the suit schedule the suit in faVO»'uI""O--fTl.l7ll.i€ l3e'fen'dant Nos.6 to 11 have adopted the filed by the defendant No.5 by a '"'~.._11{fl'D.€lendantil'No;'l2 has filed written statement the suit filed by the plaintiffs is ffixiolous.ari--dilnot maintainable. The Will set up by the V'-.,plaint'iffs3~ is a fraudulent one and got up document. the other hand, deceased Durgamrna executed a yiiviwpegistered Will on 7-5-1980 in favour of the 12m /iw Ex) defendant and she had taken this 12th_-de»fein~:lan:t «or; _]' adoption as per the customs and ritiualsi '1 the adoption, the 12th defendant Ab-ecame ,t1"I"if::TadiOpf€idi' V son of Durgarnrna and sue_c"eeded"'thew estate°'e~f.. the deceased. Apart from that.,_"she lia.d"'ei><ecuted a registered Will datedi:4"7v~:S--Tégggvie.:i§.'eeiVu.eathinig the suit schedule properties in:_ the other defendants in the suit schedule for dismissal of the suit.
12. ,«The defendant filed a suit in 74/ l'i9ii92v'--e--n"the file of the Civil Judge (Jr.Dr1.) el:3Vhatkal seeking for declaration declaring thatihei adopted son of Durgamma Honnappa Nail<..an.d.Vconsequently he had succeeded her estate after her death as adopted son and legatee under the
--,.W.illi.iiA'idated 76-1980 and consequently sought for relief .. permanent injunction restraining the defendants l fir 77 to 4 and plaintiffs 1 and 2 from interfering peaceful possession and enjoyment of schedule properties.
13. In the plaint, he has'i_c'o.ntendeid thatjli;e.,.i'gsgggthe adopted son of Durgamma and she executed a Will the suit schedule properties Will was registered Durgamma described The land bearing Sy.No.ivo8-_l.:3i_i .p[i'oiperty and she was the absolute' property. On filing Form No.7;"by ljurgammia, "the Land Tribunal Bhatkal iii'"grantediioccupancvurights in respect of other items of her favour. Defendants l to 4 being aggrieved the order passed by Land Tribunal :""grantin'g"occupancy rights in favour of Durgamma filed ii . 'writspetition before this court. In view of constitution Land Reforms Appellate Authority, the same was fr 23 transferred to Land Reforms Appellate Authori'ty'.*V:.f"y:«lrl'._' View of the abolition of Land Reformsj}\ppeil':l:a'te'.""--ai' Authority, the said issue is pen:ding.'be_folr.el'High V Court. The defendants l to illiteracy and ignorance of'l:D::urgarn"rn_a,' --trii'ed':'--.:to""take control over the suit s'chedu.1'e"properties'.lil7urtl"ier, the Will set up by the -- fraudulent document since' bequeathed the 8--5~l980, of the plaintiffs l and does not arise. Further, the plaintiffs v.are._th'eisolii1s and daughters of sisters of A' l)l_f(1"~ga:1"1.'A1i11"1Vva and"h.e_nce they have no right or claim over ' the-..pi'ope'rtije's._of Durgarnrna or her husband. Since the"il2tl1 is the adopted son of Durgamrna, he '1Sil€.!.I1itltl€d to succeed the said properties and sought for declaration and injunction against the iiipliaiintiffs and defendants l to 13. /5"
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14. The defendant No.1 filed the written A' similar to the written stéitemeriet V Win O.S.No.69/2001 and the 5th' defen¢_1ei~n_t:whiev_..is'~plaiiiiififfi No.1 in O.S.No.69/1991 a1lse:l'17iled.iV1¢it'te.ri"_:slteiitéfhent sirriilar to O.S.No.69/ is the second plaintiff in a memo adopting the by the 5"' defendant€'t}i}iiei -in 0 . s . No.69 / 1991.
15. TrialEctiiftelillptwilithe. basis of the pleadings of the parties,_vlfrar1r1e__di'the«.._lfbllowing issues and additional isstfesi e__O.S.lNo..69«/'1991. Further, the Trial Court the separate set of issues in I/li5ll'l992 which are as follows:
i «.1lseues1n O.S.No.69/ 1991 ii (i) Whether the plaintiffs prove that they are the owners of the suit schedule properties? M (Vi)
(viii) Whether he proves that suit Sl.No.l property Sy.No.68--B of Puravarga_p._i"-
village is the tenancy holding of late»if Smt.Durgarnma and her ii Honnappa Naik?
Whether the de,fen4_danti"N_o".5 that late Durgamrriajhas beiqiie'athed';:
the suit properties''' to: 'hirn_ under" "an" unregistered d 989?
Wfieiitliiiér the iS'uiit'"iS.:i "5ad....§for non- i'.j'oin"de'r"of ne--cjeisisa_ry parties? ._ -'Nlhie.i:h.eir< ' -Court has no 'pecuniary :'j'u__rii'sdiction to try this suit?' _ _ijW«hether the valuation made by the is not proper and the Court paid is insufficient?
Whether the plaintiff is entitled for the relief of declaration and injunction as prayed for?
k (Xi) What decree or
16. Since the diS'putes.VAinVoi1"V'ed"-in botih'"th'e suits are one and the same the suits i.e. O.S.No.69---/"i9_9lgr _o[:sfNo.«;i74/ 1992 are clubbed tQg"eth_eir'<~-and:_g----co'mrn'io1a_' evidence has been I'€COI'(:1€?'C1""E,"J."1i(V1:':. common judgment and decree. . .
17. ;The piliainatiffé support of their case examined AV iii"thre*eiiVQ*iitne'sses to P.W.3 and got marked the ~dVoCurn.ents«.a"s __EX.P.1 to Ex.P.33. On the other hand, ;%%dg%t€2§q%i;§a%<;IBr%§éwaéésses DV" to W-5
18.ii*~,The Trial Court after considering oral and ii documentary evidence adduced by the parties and 'after considering the arguments addressed by the 5» 30 parties held issue Nos.l to 4, 6 to 8 and additi-o:n'al issue No.1 in the negative, Issue affirmative in O.S.Noi69/ 1991. Issue 6 to 9 in the negative and issue i§lo.5:...iJnj.the in O.S.No.l74/1992, conseqtlentlyvhiby and decree dated 31--1--2oo0 id'i«s:n1i_ssed"both: the suits filed by the plaintiffs a:s'~we11_«"asV_tt1:é._ 1'2-vb. defendant.
19. Being and decree dated 31--€1.,;2--:oQto, in O.S.No.69 /1991 filed r§.A.Nee;;*7V3/é.ooiifand_ defendant l\lo.l2, plaintiff in O.S.No_.174/1,9912-ifil'e:d"'R'fA.No.276/2001. in O.S.No.69/l99l who are a~~.ap.pVeAi1ain~te' rn:'.i«R.A.No.273/200i contended that the jud«gme~ht.Vand decree passed by the court below is contrary to law and facts of the case. The Trial Court i"ha's':fai1ed to note that the plaintiffs' right over the wproperties in the first instance as testamentary éw L) IQ
21. The plaintiff is O.S.No.l74/1992, who appellant in R.A.No.276/2001 contended that . Court has committed serious err_or...in_ hoidingtfhatw the adoption is not Valid and opposed '*iaW'.~. Court has not considered the Court and its legal"presiugijtioni. The*Trial§ Court has not taken into 10(iv) and 11(iV) of the, Act.
The as per the custom available" the same is in accordance the Will executed by Durgamma» hieqt1';3at'hin~gC the suit schedule properties ' in''vtfavo-ur~i.of hirn""i's'iin accordance with law and the on 8--5»1980. The Trial Court ought to._have more value to the registered document. The sarne was registered at undisputed point of time. Trial Court not taking into consideration the .. ___evidence adduced by the plaintiff in O.S.No.l74/1992 to prove the will as well as the Adoption Deed has iv L...\ b.) passed the judgment and decreeWvwhich,~'is'll and sought for setting aside the same-.r A'? T
22. Further, Durgarnrna the Will in favour of him and the_.rgluestion estelcugtive one more Will beqiueathingthe lsuiitgscihleidiuleproperties in favour of plaigntiffsg 1 does not arise. of execution of the The said Will has been suspicious circumstances.
Further, the plaintigffslhave no right or interest in respfect" of ith'e.____p_ropei'ties of Durgamrna. The 'dgefend.ar1.tS.._ll"vto 4 have acted against the interest of H filed writ petition challenging the order the Land Tribunal granting occupancy V' rights. "Hence, defendants l. to 4 are also not entitled any relief and sought for allowing the appeal by lwlsetting aside the judgment and decree passed by the Trial Court.
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23. The Appellate Court after considerinigiip.trheigu arguments addressed by both the parties the' hi relevant evidence on record. l3oth"'the--, apppeals 'arei"'; arising out of the common jeudgmentiand de_cre'e 'dated i' 31-1-2000 made in "'-vr.:O--.iS.N0.69/'1.99li":,i%"'ar1d O.S.No.l74/1992. Hence, cl1j'o_be.d both._the appeals and frarned the commonfpoi:nts_for~--._corisi_deration:
(1) Whether the..p'la.in't.iflis li.l'and.';2'i'"prove in property .... Will dated __ to have been the deceased '"'Du'1'gainn';.aia"s contended?
V (i3i')= Whethermthe defendant No.12 proves " he is the adopted son of the i'il--i."Lj--jdie=ceased Durgamrna and he is the "downer in possession and enjoyment of the suit schedule property by virtue of the registered Will and Adoption Deed dated 7'5~l98O said éw
(iv) kn U1 to have been executed by the deceased Durgamrna?
Whether the plaintiffs defendant No.12 areVentitled--i_'itoi_V:the"_ relief as prayed :'fOI'i:"'if1 respective suits?' Whether the appe'l'lan_ftsii"'in. both"t*he"f appeals pr"oViie--. th"eif_ irn'p_ugned judgment vAarid_ fdecree ii of Trial Csjuiit,-'is "-.not'"' based."-on proper appreic'i'atior1--{'of i"eviV':deur.--.gceV~ available on at .Ar'eiCordiI::A.VVar1'di athe'"principle of law _ «a.pVpilicab'le W 'to_utvh_e' case? f*\;3.If1'eth.erAtheliappellants in both the .__appeals....have made out ground for '.interfering with the impugned '...iA:i*»J_JLi.dgrnent and decree of the Trial ~ _i§Court at the hands of this Court? What order and decree?
A» and
24. The Lower Appellate Court after consideringvpthe argumenfgs T: addressed by the parties .. ' _ reappreciating the oral and docurnentary'*--evAi:d'er1ceVy * produced by the parties, by its ll dated 22-12-2009 dismissed both the"appeals.l..tilecl:"by:'i--i the appellants holding that ith"e._plain'tl.ffs ha-ye":.fa'i'led': to prove the Wills and their right_l'anld~-.pAtitle o've.r the suit schedule properties. the judgment and decree _ d:atve_d plaintiffs in o.s.No.e9_;/ 'I "NVQv'l:Se§o2V,/'2Oi1O and the legal reprleser'l'te.tiAu\:/es i.e. defendants No.5, l\.lo.5322/2010. However, the plainltiffl'in_'Q.iS,tN'e'iil174/1992 who is the 12m ...in OAllilS'."No'.V69/ 1991 has not preferred any 'H25. appellants in both the appeals have V"-lcontjended that the judgment and decree passed by the court below are contrary to law and evidence on /Se record. The court below without reappreciatingfithe evidence on record erroneously dismissed the yS~!.11:lE.fll€l(;3l'ii"V. by the appellants. The reasoning of the disbelieve the Will dated law. No cogent or valid rfiasonfhas been_=_tassi'gned:_ i' That apart, the finding of t'hle:"court*bie'lo\iir the plaintiffs have no or respectiilof the property belonging Naik is also erronedllléli:i.i:ri'1q below without consideringthe_:fac't of Durgamrna i.e. had?"fotirihchiildren, Durgamma is the one. é,1\_ the Narayan Devanaik. The plaintiffs are the children of sisters ll"-of V'iDfi1r»ga.rr1ma Plonnappa Naik and after the death of Naik, the plaintiffs succeeded the..__estateifofi the Durgarnrna since she died issueless. The 'entire approach made by the court below is T --..c'o»n.t~rary to law and sought for allowing the appeal by A setting aside the judgment and decree passed court below. p
26. I have Carefully .__the_1".afgiifr1'e't1ts addressed by the app-elplantst-'andperused'the total and documentary evidence' parties.
27. counsel for the appellant, .f5'o;ints..h»t'h'a1t"arise; for consideration in this atfpefihl isd » 'V my Vmeriter thedvplaintiffs in O.S.No.69/ 1991 We proved the"WilZ dated 4-12-1989? the judgment and decree passed hy_."'theV_cod_rt:; below is erroneous on the ground that the sdrnev has been passed without reappreciating thaordl and documentary evidence produced by the pdrties. P"
éw 39
28. It is not in dispute that the plaintiffs _ right over the suit schedule properties on"th.e:~ba'sis'--ofif I the unregistered Will dated 4~lA:2--1:9Fl%A.9 I been executed by the Durgamma iri.fa'voure.oli"' l and 2 and also claiming theVili'r:i:gI:tVVonllthetground-that the item No.1 of devolve on Durgamma Honnappa_Nv:ai.l< Hence, the plaintiffsf'lllfand "toil/51" and i/3rd share In support of his examined himself as P.W.l landIdeposedthlatA_.VSy;.No.68--B property devolves on the dleceased.'I)u'rgt:aimma from her father. The &_ bearin'gliViS_y_._«Iy\Io.65 was granted to the deceased Land Tribunal, Bhatkal. In support he has produced mutation entries marked as EX.P.l and EX.P.2. He also ""=--:fp:o_dueeti Ex.P.32 ie. the Will dated 4-12-1989 if executed by Durgarnma bequeathing the suit schedule .,..properties in favour of plaintiffs I and 2. In support of A» 40 their contention, the plaintiffs have examined P..W.2 who is the scribe of the Will Ex.P.32. defendant No.5 is one of the attesting witnessesfo*f.o:'the"'------.li * said Will. P.W.2 in his evidence de.p.osedjithat':djVeee'ased'o-,_ Durgamrna is his relative and'Qsh_;_e"'iisgl'athe'1i'_s'f Uncle's daughter. He has the said Will. Howevenhe 'fflcfntioned. which date the Will has Will has been written'.va.n&:d.._on the Will has been t*hevi':iipl'ainVtiffs have examined who is Shanubhog of the he has deposed that plaintiff 1' looking after Durgamma and ..,_Ares'i__din;g.Aalong Wiithwllver. But in the cross»eXarnination the first plaintiff was residing in Keleg1ne.n1§i;:e of Mundalli village and he was looking after the? affairs of his family. However, it has come on record that Durgamma was residing at Puruvarga of _,i'B3hatka1 Taluk. Further, the alleged Will said to have Aw 41 been executed by Durgamma is just 16 dajlsl ll her death and no date has been"me'ntioned. Furth*elr, no doctor has been examined to1p1'=ove that she mentally competent to toi."p.rep.are:
The thumb impression of VD-u:rgarn...ma.lwas.. also not identified. Further on whose instructions it_*has 'place of the preparation... mentioned.
very close relative of No.5 who is one of the attesting'witnesseslis close relative. The court \ belowlre.lying"'uplon all these circumstances disbelieved Vlithe'Wil1:and«,came to the conclusion that the Will is a Further with regard to item No.1 property'isfconcerned, no material has been produced before Court to show that the said property devolve on"'Durgamma from the father. E3x.P.l and Ex.P.2 are p 'mutation entries which do not show that the said .. Wplroperty devolve from her father. In the absence of Ar"
4;.
L') produced and have been marked as Ex.D62. Insofar as Adoption Deed is co.nc:erne:d:;~ court below came to the conclusion as on .date of Adoption, the plaintiff in 19ii92yiwas. agedifi about 20 years and deceasejdV.ypDurgamma*_: about 35 years. perV.r"Se.c_:tioir'it,_.1 1i(iy')'*~ofV§Hindu Adoption and MaintenianeeiiA.ct;::'ifitfiefladoption is by a female and a male, the adoptive older than the P€FS0T1.----tQ for adoption there must person taking the child in the adop"ti:on._i father and mother of the p1ai.:§iitiff.werei"not present at the time of executing the and they have not signed the Adoption i"'oe¢-gaff. the Adoption Deed E3x.D61 is a regi--ste.1f'e'd-document, it was not proved in accordance with Though D.W.4 in his evidence has deposed he is one of the attesting witnesses to the __j'idoptiOn deed, the original adoption deed was also not A 4:.
U1 visited the sub--Registrar Office at Hon.a~v.ar.'__i_tf;Tf:i"
registering the Will as well as the Ado_pltion' Hence it is clear that the Will set upiiby l'the'Ap1ainVtiff'iVsy_ also not proved in accordance Vvith--._law. 'court V below after considering thegiolral and._°doicuir*nentary evidence clearly heldl'that_«"itlh_e both the suits failed to prove the
30. Hence, .t.ne":points framed in this appea_lila§§aicnistV hold that thereis no infirmity or i1'regulari--.ty"~~iin" the judgment and decree passed court"be'i*oiw. The Lower Appellate Court ' onrea.ppreciatinig'"'the oral and documentary evidence :t0_Ltl5e..conclusion that plaintiffs in both the suits failedato prove the Wills set up by them and also adoption deed set up by the plaintiff in W O:.iS':_No.1y74/1992. Further, i the plaintiffs in lO.S.No.69/1991 have also failed to prove that item No.1 property is the property devolves on Durgarnrna fiw 44 produced before the court below. Whereas__._the plaintiffs in O.S.No.69/1991 have contended plaintiff in O.S.No.174/1992 is also -'?§*l21vt.i/hlciliiitiiii it Durgamma and he had taken her" signa'tu1ifeSi.'iiT3 of the papers in order to alienate'.vth'e_lproperty .bea'ri'ngiiV"
Sy.No.339/l. The said e£ev.the1_hg., sifor preparing the Adoption the Will. Further, this plaintiffiihias' the Will in accordance registered Will dated 7--5--:ili9é_O. Will was not ii._*ili'heiviD.W.4 is also one of the attestiing the said Will. EXP3 produced tiheplaiiltifiis clearly disclose that usually 'iii"«v.ADu-rglaripiemaxputiilieriisignature, whereas in the Will 'viiib~y:i}.the plaintiff in O.S.No.l74/l992, Dur_gammi_af,has put her thumb impression. None of V'-«the wiitnesses have been examined to prove the alleged i Further, in respect of Ex.D27, Durgamma has __d.eposed before the Land Tribunal that she has not 5»