Karnataka High Court
Hazasratbi vs Abdulkhadersab on 2 December, 2022
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RFA No. 788 of 2007
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR FIRST APPEAL NO. 788 OF 2007 (PAR)
BETWEEN:
1. HAZASRATBI,
W/O. ABDUL NABISAB PATAWEGAR,
AGED ABOUT 60 YEARS,
OCC: HOUSEHOLD WORK,
R/O. HALE ASARI ONI,
LAXMESHWAR,
DIST GADAG-582116.
2. DADESAB,
S/O ABDUL NABISAB PATAWEGAR,
AGED ABOUT 40 YEARS,
OCC: PRIVATE SERVICE,
R/O. HALE ASARI ONI,
LAXMESHWAR,
DIST GADAG-582116.
3. MOHAMMADSAB,
S/O ABDUL NAIBSAB PATAWEGAR
SINCE DEAD BY HIS LR'S.
3A. SMT.JUBEDABANU,
W/O MOHAMMADSAB PATAWEGAR,
AGE: 17 YEARS.
3B. YASMEENBANU,
D/O MOHAMMADSAB PATAWEGAR,
AGED ABOUT 17 YEARS.
3C. NAYEEM,
S/O MOHAMMADSAB PATAWEGAR,
AGED ABOUT 14 YEARS.
3D. UMMISALMA,
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RFA No. 788 of 2007
D/O MOHAMMADSAB PATAWEGAR,
AGED ABOUT 11 YEARS,
ALL ARE R/O HALEASAR ONI
LAXMESHWAR,
DIST: GADAG.
4. HAJRESAB,
S/O ABDUL NABISAB PATAWEGAR,
AGED ABOUT 36 YEARS,
OCC: AGRICULTURE,
R/O HALE ASARI ONI,
LAXMESHWAR,
GADAG DIST-582116.
DIED ON 2.10.2009 HE WAS NOT MARRIED
MOTHER AND OTHER BROTHERS ARE THE
LRs OF R4. THEY ARE ALREADY PARTIES IN
THE APPEAL.
5. MIYASAB,
S/O ABDUL NABISAB PATAWEGAR,
AGED ABOUT 34 YEARS,
OCC: AGRICULTURE,
R/O. HALE ASARI ONI,
LAXMESHWAR,
DIST GADAG-582116.
6. IBRAHIMSAB,
S/O ABDUL NABISAB PATAWEGAR,
AGED ABOUT 32 YEARS,
OCC: AUTO DRIVER,
R/O. HALE ASARI ONI,
LAXMESHWAR,
DIST GADAG-582116.
7. SULEMANSAB,
S/O. ABDUL NABISAB PATAWEGAR,
AGED ABOUT 30 YEARS,
OCC: AGRICULTURE,
R/O. HALE ASARI ONI,
LAXMESHWAR,
DIST GADAG-582116.
8. MEHBOOBSAB,
S/O. ABDUL NABISAB PATAWEGAR,
SINCE DEAD BY HIS LR's.
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RFA No. 788 of 2007
8A. SMT.SHABANA,
W/O MAHBOOBSAB PATWEGAR,
AGE: 35 YEARS,
OCC: HOUSEHOLD WORK & AGRICULTURE,
R/O. HALE ASARI ONI,
LAXMESHWAR,
DIST GADAG.
8B. IRAM FATIMA,
D/O MAHBOOBSAB PATWEGAR,
AGE: 12 YEARS,
OCC: STUDENT,
R/O. HALE ASARI ONI,
LAXMESHWAR,
DIST GADAG.
8C. DANIA FATIMA,
D/O MAHBOOBSAB PATWEGAR,
AGE: 9 YEARS,
OCC: STUDENT,
R/O. HALE ASARI ONI,
LAXMESHWAR,
DIST GADAG.
8D. RAMLA FATIMA,
D/O MAHBOOBSAB PATWEGAR,
AGE: 4 YEARS, OCC: NIL,
R/O. HALE ASARI ONI,
LAXMESHWAR,
DIST GADAG.
...APPELLANTS
(BY SRI. G.N.NARASAMMANAVAR, ADVOCATE)
AND:
1. ABDULKHADERSAB,
S/O. CHOTEMIYASAB PATAWEGAR,
AGED ABOUT 50 YEARS,
OCC: COOLIE, R/OASAR MOHALLA,
R/O. LAXMESHWAR,
DIST GADAG.
2. SMT.JAINABI,
W/O. IBRAHIMSAB KANAKE,
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RFA No. 788 of 2007
SINCE DECEASED BY LRS.
2A. MANNASAB
S/O IBRAHIMSAB KANAKE,
AGED ABOUT 55 YEARS,
OCC: PRIVATE JOB,
R/O MASTANASOFA IIND CROSS
OLD HUBBALLI, TQ: HUBBALLI,
DIST: DHARWAD.
3. SMT.MARIAMBI,
W/O. KHAJESAB KAGADAGAR,
AGED ABOUT 45 YEARS,
R/O. TAJ NAGAR, HUBLI ROAD,
NEAR SWIMMING POOL ROAD,
GADAG-582116.
4. SMT.MALMABI,
W/O. IMAMJAFFER PATWEGAR,
AGED ABOUT 45 YEARS,
OCC: COOLIE,
R/O. JAWAHAR NAGAR,
GUBIHAL ROAD, WARD NO.37,
OLD HUBLI,
DIST: DHARWAD-580001.
5. ASHFAK S/O DHAM JAFFER PATWEGAR,
AGED ABOUT 25 YEARS,
OCC: BANK SERVICE,
R/O. HUBLI, JAWAHAR NAGAR,
GUBIHAL ROAD, WARD NO.3,
OLD HUBLI,
DIST: DHARWAD-580001.
6. TAHIR S/O IMAM JAFFER PATWEGAR,
AGED ABOUT 20 YEARS,
OCC: BUSINESS,
R/O. HUBLI,
DIST DHARWAD-580001.
7. SMT.PRAVINBANU,
S/O. MOINDINSAB KAGADARGAR,
AGED ABOUT 28 YEARS,
OCC: HOUSEHOLD WORK,
R/O. TAJ NAGAR,
NEAR SWIMMING POOL ROAD,
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RFA No. 788 of 2007
DIST: GADAG-582116.
8. SMT.NILOFAR W/O RAIYAZAHMED KHATIB,
AGED ABOUT 22 YEARS,
C/O. ALLASAB KAHTIB VISHALNAGAR,
CUBIHAL ROAD, SABAT COLONY,
NOOR MANZIL OLD HUBLI,
DIST DHARWAD-580001.
...RESPONDENTS
(BY SRI. HANUMANTHAREDDY SAHUKAR, ADV.FOR R1 AND R3;
SRI JAYAKUMAR S.PATIL & ASSOCIATES,
SRI MAHANTESH C.KOTTURSHETTAR AND
SRI SADIQ N.GOODWALA, ADVOCATES FOR R4 TO R8;
NOTICE TO R2(A) SERVED )
THIS RFA IS FILED UNDER SECTION 96 OF C.P.C. AGAINST
THE JUDGEMENT AND DECREE DATED 22.02.2007 PASSED IN
O.S.NO.217/2004 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AND
C.J.M., GADAG, DECREEING THE SUIT FOR PARTITION AND
SEPARATE POSSESSION AND DECLARATION REGARDING WILL.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the defendants in O.S.No.217/2004 on the file of the Civil Judge (Sr.Dn.) and C.J.M., Gadag.
2. The parties shall henceforth be referred to as they were arrayed before the trial Court.
3. The suit in O.S.No.217/2004 was filed for a declaration that the gift deed dated 30.08.2001 and 07.08.2001 executed by Chotemiyasab Patwegar were invalid -6- RFA No. 788 of 2007 and not binding upon the plaintiffs. They also sought for decree of partition of the suit properties and to hand over their legitimate share therein. The plaintiffs contended that Chotemiyasab Patwegar had three sons and two daughters namely Abdul Nabisab, Imam Jafarsab, Abdul Khadarsab, Hajarathi and Jetunbi. The plaintiff No.1 is the 3rd son, the plaintiff Nos.2 and 3 are the daughters of the said Chotemiyasab Patwegar. The plaintiff Nos.4, 5, 6, 7 and 8 are the wife and children of Imamsab. The defendants are the wife and sons of Abdul Nabisab. The plaintiffs contend that Chotemiyasab Patwegar died on 24.02.2004 and was aged 96 years at the time of his death. They claimed that he was suffering from Asthama, blood pressure and other disease and had weak eyesight. They claimed that he required the assistance of some person to move in his house and was bedridden. They further claimed that he was unable to look after himself and his routine activities without the assistance of some person. They contended that they were residing at different places and therefore, the said Chotemiyasab Patwegar was residing in the house of the defendants at Laxmeshwar and that the defendants were looking after him. They contended -7- RFA No. 788 of 2007 that Chotemiyasab Patwegar was under the control and influence of the defendants. The plaintiffs alleged that the defendants taking undue advantage of the situation and exercising undue influence over said Chotemiyasab Patwegar, got a gift deed dated 03.08.2001 executed in terms of which, 10 acres 30 guntas in R.S.No.87 of Haralgatti village was given away infavour of defendant Nos.2 to 8. Likewise, they had managed to obtain a Will on 07.08.2001 in terms of which, certain properties were given to the defendants. The plaintiffs claimed that the gift deed and the Will was not lawfully executed by Chotemiyasab Patwegar and therefore, sought for a declaration that the said documents did not bind their interest and consequently sought for partition.
4. The defendant No.3 alone filed a written statement contending that said Chotemiyasab Patwegar had no health issues and that he, out of natural love and affection had executed a gift deed dated 03.08.2001 and the Will dated 07.08.2001 bequeathing the suit properties in equal portions to the plaintiff No.1, plaintiff Nos.4 to 8. He further contended that the daughters namely plaintiff Nos.2 and 3 were given away cash and ornaments at the time of their marriage which was -8- RFA No. 788 of 2007 commensurate with their share and therefore, they were not entitled for any share in the suit properties. The written statement was adopted by other defendants.
5. Based on these rival contentions, the trial Court framed the following issues:
(1) Whether the plaintiff prove genealogy?
(2) Whether the plaintiffs prove that as they have inherited the suit properties jointly with the defendants, they are in joint possession of them?
(3) Whether the defendants prove that late Chotemiyasab while in disposing state of mind has validly executed gift deed on 3.8.2001 and will on 7.8.2001?
(4) Whether the plaintiffs prove that the
defendants by dominating and practicing
undue influence over late Chotemiyasab got created will and gift?
(5) Whether the defendants prove that they have perfected title over the suit properties by means of adverse possession as contended in para-15 of written statement?
(6) Whether the plaintiffs are entitled for reliefs?
(7) What order/decree?-9- RFA No. 788 of 2007
6. The plaintiff No.1 was examined as PW.1, while the plaintiff No.3 was examined as PW.2 and they marked Exs.P1 to P6. While the defendant No.3 was examined as DW.1 and defendant No.1 was examined as DW.2. Two attesting witnesses were examined as DW.3 and DW.4. The scribe of the Will and the gift deed was examined as DW.5 and a witness, who had allegedly witnessed the mediation of the dispute between the parties at the police station was examined as DW.6 and the Doctor, who was treating Chotemiyasab Patwegar was examined as DW.7. The defendants marked Exs.D1 to D7.
7. Based on the oral and documentary evidence, the Trial Court held that the defendants had failed to prove the lawful execution of the Will and the gift deed and consequently, decreed the suit for partition and separate possession of the plaintiffs' 1/4th share in the suit schedule properties except CTS No.1415.
8. Being aggrieved by the aforesaid judgment and decree, the defendants are in appeal.
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RFA No. 788 of 2007
9. The learned counsel for the appellants/defendants submitted that the plaintiffs unequivocally admitted that the said Chotemiyasab Patwegar was looked after by the defendants. He therefore, submitted that the said Chotemiyasab Patwegar, out of natural love and affection, had executed the gift deed as well as the Will bequeathing the suit properties equally amongst his sons and their children. He contended that two daughters were given away cash and other ornaments at the time of their marriage, which was commensurate to their share in the suit properties. He submitted that the plaintiffs also admitted the execution of the gift deed and the Will by referring to the plaint, wherein the plaintiffs contended that even if the gift deed and Will was executed by the deceased - Chotemiyasab Patwegar, the same was brought out due to undue influence. He therefore, contended that it was for the plaintiffs to establish suspicious circumstances to disbelieve the lawful execution of the Will and gift deed. The learned counsel submitted that the evidence of DW.3 and DW.4 indicated in clear terms that the deceased - Chotemiyasab Patwegar had executed a Will and the gift deed and therefore, he had satisfied the requirement of Section 68 of
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RFA No. 788 of 2007 the Indian Evidence Act, 1872. He also contended that the parties have acted upon the Will and the gift deed by getting their names entered in the revenue records and therefore, the plaintiffs cannot claim that the Will and the gift deed were not lawfully brought about. He further contended that the plaintiff Nos.1, 4 to 8 were in possession of their respective shares in the suit schedule properties as per the gift deed and Will and therefore, the plaintiffs were aware of the lawful execution of the gift deed. He also submitted that a Mohammedan is entitled to bequeath 1/3rd of the suit properties to any person of his choice and in the present case, the Will executed in favour of the plaintiffs and the defendants was only in respect of 1/3rd and what was bequeathed by way of gift related to other portion of the suit properties. He submitted that there was no embargo for Chotemiyasab Patwegar to gift the properties as all the suit properties were his absolute properties in his hands during his life time. Learned counsel therefore, contended that the impugned judgment and decree passed by the Trial Court warrants interference.
10. Per contra, the learned counsel for the plaintiffs submitted that the deceased - Chotemiyasab Patwegar was 96
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RFA No. 788 of 2007 years old at the time of his death and 93 years in the year 2001. He submitted that the said Chotemiyasab Patwegar was in the care, control and custody of the defendants, while the plaintiff Nos.2 to 8 were residing away from Lakshemshwar and taking advantage of the situation, the defendants have managed to obtain a deed of gift and the Will in respect of suit properties. He submitted that the plaintiff No.1 was residing in a house adjacent to the house of the defendants and he was neither consulted nor informed about the execution of the Will and the gift deed. He therefore, submitted that this was a strange circumstance, which showed that the defendants had a supervening role in the execution of the gift deed and the Will. Further, he contended that having regard to his age, it was incumbent upon the defendants to remove suspicious circumstance about the lawful execution of the Will by examining a person, who was aware of the physical and mental condition of Chotemiyasab Patwegar. Learned counsel submitted that the evidence of DW.7, the Doctor who was treating Chotemiyasab Patwegar was incomplete in as much as he deliberately did not place on record any material to establish the ailments, if any, suffered by Chotemiyasab Patwegar and/or
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RFA No. 788 of 2007 that he had treated him on a regular basis. He further contended that DW.5 deposed that a draft of the gift deed and the Will was prepared by DW.5 during July, 2001 and later the gift deed and the Will was prepared as per the draft. He submitted that the draft was not placed before the Court. He also submitted that DW.4 in his cross-examination admitted that when the Will and gift deed was executed, the grand children of Chotemiyasab Patwegar were present. He therefore contended that the evidence of DW.3, that nobody was present at the time of the execution of the Will and gift deed cannot be believed. Further, he contended that the documents in question were registered at Sub-registrar Office, Shirahatti, which is situate about 30-35 kilo meters from Lakshmeshwar and there was no explanation as to how Chotemiyasab Patwegar traveled from Lakshmeshwar to Shirahatti on two occasions i.e., during July 2001, when the alleged draft was prepared and in August 2001, when the same was executed. No evidence was placed on record to indicate who obtained the consent of the witnesses to attest the Will as well as the gift deed and who brought them from Lakshmeshwar to Shirahatti on two occasions. He therefore submitted that this suspicious circumstance had to be
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RFA No. 788 of 2007 purged by the defendants. He also contended that the gift deed executed by Chotemiyasab Patwegar at Ex.D4 was not accepted by the defendants or the plaintiff Nos.1, 4 to 8. Learned counsel invited the attention of the Court to Section 128 of the Transfer of Property Act, 1882 and contended that the acceptance of the gift alone makes it complete. Learned counsel invited the attention of the Court to Ex.D4, where there is no proof of the said gift being accepted. He therefore contended that the gift was incomplete and therefore unacceptable in the eye of law.
11. Having regard to the aforesaid contentions, the following points arise for consideration in this appeal:-
1) Whether the defendants had removed the suspicious circumstance that surrounded the execution of the gift deed and the Will of Chotemiyasab Patwegar?
2) Whether the gift deed dated 03.08.2001 was enforceable?
3) Whether the plaintiffs were entitled to 1/4th share in the suit schedule properties?
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RFA No. 788 of 2007
12. A perusal of the plaint clearly indicates that the plaintiffs admitted the fact that Chotemiyasab Patwegar was looked after by the defendants. The plaintiff No.1 who was residing in the adjacent house where Chotemiyasab Patwegar was residing, was a party to such a statement made in the pleadings. It therefore follows that neither the plaintiff No.1 nor other plaintiffs were looking after the said Chotemiyasab Patwegar. The plaintiff Nos.2 to 8 were not residing in Lakshmeshwar as admitted by them in their pleadings. The defendants too contend that the said Chotemiyasab Patwegar was being looked after by them. There is no dispute regarding the fact that Chotemiyasab Patwegar died on 24.02.2004 and was 96 years old at the time of his death. It is also not in dispute that the suit properties were possessed by Chotemiyasab Patwegar. In so far as house bearing CTS No.1415 (suit item No.B(d), the said property was gifted by Chotemiyasab Patwegar in favour of defendant No.3 and the said documents is marked as Ex.D3.
13. It is trite that the gift deed and a Will are compulsorily attestable documents and when questioned, the beneficiary is bound to establish before the Court that such
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RFA No. 788 of 2007 document was lawfully executed by the testator or donor. In so far as Mohammedans are concerned, the gift deed can be brought about orally in which event, the rigor of Section 17 of the Registration Act, 1908, stands exempted. However, when a gift deed is reduced in writing then it is incumbent upon the beneficiary to comply with the requirement of the Chapter VII of the Transfer of Property Act, 1882. For a gift to come into force, the same has to be accepted during the life time of the donor.
14. Section 122 of the Transfer of Property Act, 1882 defines a gift as under:-
"122. "Gift".--"Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Acceptance when to be made.--Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void."
15. Therefore, a gift is an inter vivos transfer between the donor and the donee. In the case on hand, Ex.D4 which is
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RFA No. 788 of 2007 the gift deed is allegedly executed by Chotemiyasab Patwegar in favour of the defendants. However, there is nothing to indicate that the said gift was accepted by the defendants on the date of the execution. By this gift deed, the said Chotemiyasab Patwegar is stated to have gifted 10 acre 38 guntas in Sy.No.87 in favour of the defendants. Similarly, this gift was purportedly executed on 03.08.2001 which was allegedly attested by DW.3 and DW.4. Following the above, a Will dated 07.08.2001 was purportedly executed by Chotemiyasab Patwegar which was allegedly attested by four witnesses namely, M.M. Siddi of Lakshmeshwar, R. Hattar of Lakshmeshwar, Chandrashekar - DW.3 and Gousekhan - DW.4. It is therefore, clear from the above documents that the deceased - Chotemiyasab Patwegar had visited Shirahatti on three occasions, first of which was during July 2001, the second was on 03.08.2001 and third was on 07.08.2001.
16. DW.4 in his cross-examination deposed that the defendants had accompanied Chotemiyasab Patwegar for the execution of the gift deed and Will but DW.3 and DW.5 deposed that no one had accompanied him. DW.5 who was the scribe of the Will deposed that he had prepared a draft of the gift deed
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RFA No. 788 of 2007 and the Will as per the instructions of Chotemiyasab Patwegar during July 2001. However, he deposed that he had not affixed his signature as the scribe of Exs.D4 and D5. He also deposed that he did not type out the said documents and is unaware as to who and where it was typed. As rightly contended by the learned counsel for the plaintiffs, the defendants were bound to remove the suspicious circumstances that surrounded the execution of the Will as well as the gift deed. There is no evidence on record to indicate the physical and mental health of the deceased - Chotemiyasab Patwegar. The least that the plaintiffs could have done was to place on record the photographs of the deceased - Chotemiyasab Patwegar to assess his physical health. DW.7 - the Doctor, who was treating Chotemiyasab Patwegar, deposed that he had not kept a register of the outpatients but the defendants did admit that the deceased - Chotemiyasab Patwegar used to visit the doctor whenever he was suffering from any ailments. Notwithstanding the above, the fact that the said Chotemiyasab Patwegar was 93 years old at the time of the execution of the Will and the gift deed, raises some suspicion about how he traveled from Lakshmeshwar to Shirahatti frequently and how he met up
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RFA No. 788 of 2007 DW.5 and who accompanied him to DW.5 and thereafter, to the person who typed out the documents as well as how he managed to get the same registered. Having regard to the evidence of DW.4, it is quite probable that the defendants were present along with Chotemiyasab Patwegar at the time of execution of the Will and the gift deed. Though there is mention in the Will that Chotemiyasab Patwegar had given away cash and ornaments to his daughters at the time of their marriage, DW.1 in his deposition stated that there was no proof of having paid any cash or giving away any ornaments to the daughters.
17. Yet another circumstance is that DW.3 was a manufacturer of puffed rice and incidentally the said Chotemiyasab Patwegar was also doing the same business. In his cross-examination, he stated as follows:-
"ªÀÄAqÀQÌ ¨sÀnÖ ªÀiÁqÀĪÀÅzÀgÀ°è bÉÆÃmÉëÄAiÀĸÁ§ gÀªÀjUÉ ¸ÁPÀµÀÄÖ C£ÀĨsÀªÀ EvÀÄÛ ºÁUÁV £À£ÀUÀÆ CªÀjUÀÆ §ºÀ¼À ¥ÀjZÀAiÀÄ EvÀÄÛ."
He deposed that, "bÉÆÃmÉ«ÄAiÀĸÁ¨ï EªÀgÀ£ÀÄß ªÀģɬÄAzÀ ¸À¨ï jf¸ÁÖçgï PÀZÉÃjUÉ AiÀiÁgÀÄ PÀgÉvÀA¢zÀÝgÀÄ JA§ÄzÀÄ UÉÆwÛ®è." Further, he claimed that,
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RFA No. 788 of 2007
"bÉÆÃnëÄAiÀiÁ ¸Á¨ï EªÀgÀ ªÀÄ£É ®PÉëöäñÀégÀzÀ°è zÉøÁ¬Ä §£ÀzÀ°è EzÉ. £À£Àß ªÀÄ£É §¹ÛPÉÃjAiÀÄ°èzÉ. ºÁUÀÆ £Á£ÀÄ ªÀåªÀºÁgÀ ªÀiÁqÀĪÀ ¸ÀܼÀ zÉøÁ¬Ä§£ÀzÀ°è EzÉ"
He further deposed that, "bÉÆÃmÉëÄAiÀiÁ¸Á¨ïgÀªÀgÀ E¤ß§âgÀÄ ªÀÄPÀ̼ÀÄ ¨ÉÃgÉ HgÀ°è EgÀÄwÛzÀÝgÀÄ JA§ÄzÀÄ ¸ÀjAiÀÄ®è. DzÀgÉ C§ÄݯïSÁzÀgÀ ¸Á§ (1£Éà ªÁ¢) ®PÉëöäñÀégÀzÀ°è EgÀÄwÛzÀÝgÀÄ, E£ÉÆߧâgÀÄ ºÀħâ½îAiÀÄ°è EgÀÄwÛzÀÝgÀÄ JAzÀÄ PÉýzÉÝãÉ."
"¥ÀæwªÁ¢AiÀÄgÉà bÉÆÃmÉ«ÄAiÀiÁ¸Á§ EªÀgÀ£ÀÄß £ÉÆÃrPÉƼÀÄîwÛzÀÝgÀÄ C£ÀÄߪÀÅzÀÄ ¤d. ¥ÀæwªÁ¢AiÀÄgÀÄ ªÉÆzÀ°¤AzÀ®Æ ¤ªÀÄUÉ ¥ÀjZÀAiÀÄ JA§ ¥Àæ±ÉßUÉ §ºÀ¼ÀµÀÄÖ ¥ÀjZÀAiÀÄ E®è CªÀgÀ ªÀÄPÀ̼À£ÀÄß £ÉÆÃrzÉÝÃ£É JAzÀÄ ¸ÁQë ºÉüÀÄvÁÛgÉ.
18. The above evidence makes it clear that this witness was aware of the members of the family of the deceased - Chotemiyasab Patwegar. However, when he was confronted as to who was present at the time of registration of the documents, he claimed that he was not aware. This was however explained by DW.4, who deposed that the grandsons of the Chotemiyasab Patwegar namely, defendants were present at the time of execution of the Will and gift deed.
19. Having regard to the above, there was a suspicion regarding the lawful execution of the Will as well as gift deed
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RFA No. 788 of 2007 by Chotemiyasab Patwegar as per Exs.D4 and D5. Consequently, the point No.1 for consideration framed by this Court is answered against the defendants and it is held that the defendants were unable to remove suspicious circumstance surrounding the execution of the said documents.
20. In view of the finding recorded above, point No.2 framed by this Court would not arise for consideration and it is held that the gift deed at Ex.D4 was unenforceable in law and no right, title or interest flew from the said document.
21. In so far as point No.3 framed by this Court is concerned, it is well settled that the sons of Chotemiyasab Patwegar were entitled to 2/3rd of the suit schedule properties, while two daughters were entitled to 1/3rd share. The Trial Court committed an error in declaring that the plaintiffs were entitled to 1/4th share in the suit schedule properties. Consequently, it is held that the plaintiff No.1 is entitled to 2/9th share, while plaintiff Nos.2 and 3 are entitled to 1/6th share each, while plaintiff No.4 to 8 are entitled to 2/9th share and the defendants are entitled to 2/9th in the suit schedule properties.
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RFA No. 788 of 2007
22. In view of the above, this appeal is disposed off upholding the decree of declaration passed by the Trial Court declaring that the gift deed dated 03.08.2001 and the Will dated 07.08.2001 were not lawfully executed by Chotemiyasab Patwegar and that consequently, the plaintiffs are entitled to an undivided share in the suit schedule properties.
23. The impugned judgment and decree is modified only to the extent of share of the plaintiffs and defendants in the suit schedule properties. It is declared that the plaintiff No.1 is entitled to 2/9th share, while plaintiff Nos.2 and 3 are entitled to 1/6th share each, while plaintiff No.4 to 8 are together entitled to 2/9th share and the defendants are together entitled to 2/9th in the suit schedule properties excluding the house bearing CTS No.1415, which is the suit item B(d) property.
In view of disposal of the appeal, pending I.A., if any, does not survive for consideration.
SD/-
JUDGE CLK-Paragraphs 1 to 5 PMR-Paragraphs 6 till end