Smt Sheela Vs Sri Vijayanatha @ Vijayananda I M

SRI. VIJAYANATHA @ VIJAYANANDA I M AGED ABOUT 52 YEARS, S/O KOTRAIAH R/AT 2^ND CROSS ROAD, DASAR COLONY, ANAVATTI ROAD, SIRALKOPPA TOWN SHIKARIPURA TALUK – 577 428

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Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA

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…RESPONDENT

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(BY SRI. VIJAYANATHA- RESPTD SD.,ADVOCATE)

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THIS RFA FILED UNDER SEC.96 OF CPC., R/W ORDER XLIII RULE 1 CPC., AGAINST THE JUDGMENT AND DECREE DATED 01.03.2018 PASSED IN OS.NO.40/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, AND JMFC., SORABA, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:’

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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HC-KAR

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ORAL JUDGMENT

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The appeal is filed by the plaintiff challenging the judgment and decree dated 01.03.2018 passed by the Court of Senior Civil Judge and JMFC, Soraba, in O.S.No.40/2016, thereby, the suit filed for partition and separate possession is dismissed.

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Rank of the parties is referred to as per their rankings before the trial court.

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BRIEF FACTS:

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It is the case of plaintiff that Kotraiah and

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Anasuyamma are the father and mother of the plaintiff and the defendant. It is stated that the suit schedule properties were purchased by the father Kotraiah. The schedule ‘A’ property was purchased on 18.03.1974 and the house property was purchased on 01.02.1983. The schedule properties are self acquired properties of Kotraiah. Said Kotraiah and Anusuyamma had three children namely, defendant is the elder son, one

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HC-KAR

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Rajashekaraiah is the second son and plaintiff is the daughter. Rajashekaraiah died unmarried. Therefore, the plaintiff has requested for half share in the suit properties, but the same is denied by the defendant. Therefore, the plaintiff is constrained to file the suit for partition.

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The defendant has appeared and filed written statement contending that the suit schedule properties were purchased by their father Kotraiah and admitted by the plaintiff in her pleadings in this regard, but the defendant has set up a defence that Kotraiah was suffering from heart ailment and on 24.05.1984 Kotraiah had executed a Will bequeathing the suit properties to his wife Anasuyamma for enjoyment of properties during her lifetime and after her death, the suit properties are bequeathed by the defendant. It is therefore contended that in view of the Will the defendant had become the owner of the schedule properties. Thus, contended the suit for partition is not maintainable.

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HC-KAR

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Upon considering the pleadings, the trial court

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has framed the following issue:

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(1) Whether the plaintiffs prove that she and defendant are members of joint family and suit schedule properties were joint family properties liable for partition?

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(2) Whether the defendant proves that he has become absolute owner of the suit schedule B properties on the basis of the “Will” dated 24.05.1984 executed by Kotraiah?

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(3) Whether the plaintiff is entitled for share in the suit schedule properties? If so what share?

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(4) What order or decree?

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The plaintiff is examined as PW1 and produced

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documents, which are marked as Exs.P-1 to P-9. The

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defendant is examined as DW1 and two witnesses are examined as DW2 and DW3 and produced documents, which are marked as Exs.D-1 to D-3.

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HC-KAR

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The trial court after appreciating the evidence on record has dismissed the suit for partition by assigning reasons that Kotraiah had executed a Will in favour of Anasuyamma and after her death the properties are bequeathed in favour of defendant and by attesting witnesses the execution of Will is proved. Therefore, the suit properties are not joint family properties and by virtue of the Will the defendant has become the owner of properties. Thus, dismissed the suit for partition.

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Being aggrieved by the dismissal of suit, the plaintiff has preferred this appeal by raising various grounds in the memorandum of appeal and the learned counsel for the appellant in consonance with the grounds raised has submitted that Kotraiah had purchased the suit schedule properties and he has never executed any Will during his lifetime and thus died intestate. It is submitted that Ex. D-1 - Will is created and concocted one and DW2 and DW3 are not attesting witnesses to the Will. Further submitted that DW2 attesting witness has put signature in

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HC-KAR

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English language, which is not found in similarity with the signature on the alleged Will. It is further submitted that when the plaintiff is also a daughter, there is no explanation as to why she has been excluded for not bequeathing the properties, is not stated. Therefore, submitted that Ex.D-1 - Will is shrouded with suspiciousness and does not satisfy the requirements for proving the Will as required under Section 63 of Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. Therefore, the Will is not a believable document. Thus, prays to allow the appeal by decreeing the suit by granting half share in the suit schedule properties.

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Inspite of several notice to the respondent, he remained absent. Hence, there is no representation from the respondent side.

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HC-KAR

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Heard arguments of learned counsel for the

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appellant and perused the evidence on record. The following points would arise for consideration:

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(1) Whether, under the facts and circumstances involved in the case, the plaintiff proves that suit schedule properties are joint family properties?

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(2) Whether, under the facts and circumstances involved in the case, the defendant proves that Kotraiah had executed a Will dated 24.05.1984 and bequeathed the properties to defendant?

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(3) Whether, under the facts and circumstances involved in the case, the judgment and decree passed by the trial court requires any interference?

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Upon the pleadings the relationship between

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plaintiff and defendant is not disputed. Kotraiah and Anasuyamma had three children namely, Defendant is the elder son, Rajashekaraiah is the second son and the plaintiff is the daughter. Rajashekaraiah died unmarried.

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HC-KAR

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Therefore, Kotraiah and Anasuyamma are survived by the plaintiff and the defendant only.

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It is contended by the plaintiff that the suit schedule properties are the joint family properties. Therefore, upon the death of Kotraiah and Anasuyamma as per Sections 8 and 14 of the Hindu Succession Act, 1956, the plaintiff and defendant are entitled to half share each and as such, filed the suit for partition. But it is the rival contention of the defendant that their father Kotraiah had executed a Will bequeathing properties in favour of his wife Anasuyamma to enjoy the properties during her lifetime and after her death, the suit schedule properties are bequeathed to the defendant.

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From the documents on record namely, Exs.P-1 to P-9 it is proved that the suit schedule properties are acquired by Kotraiah during his lifetime and he was the owner. Ex.D-1 is the Will dated 24.05.1984. The defendant is examined as DW1 and he desposed that

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HC-KAR

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Kotraiah had executed a Will in favour of Anasuyamma/mother for enjoyment of properties during her lifetime and after her death, the suit schedule properties are bequeathed to the defendant. DW2 and DW3 are the two attesting witnesses. DW2 and DW3 have stated that when Kotraiah had fallen ill, they gave the house for seeing Kotraiah and at that time Kotraiah expressed his willingness to execute the Will and accordingly, as per dictation of Kotraiah DW2 has taken dictation and thereafter, Kotraiah put his signature in presence of them and then DW2 and DW3 have put their signature on the Will. But upon considering the Ex.D-1 - Will dated 24.05.1984, there is no explanation as to why the plaintiff-daughter is excluded from being bequeathing any portion of the properties in her favour. Admittedly when the plaintiff is a daughter there is no explanation offered by the Kotraiah as to why the properties are not given to the plaintiff-daughter. Just because the legal requirements are complied with, that automatically does

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HC-KAR

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not prove the execution of the Will as per principle of law laid down by the Hon’ble Supreme Court in the case of H. VENKATACHALA IYENGAR vs. B.N THIMMAJAMMA

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AND OTHERS¹ .

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Further upon comparing the signatures of DW2 Shivanandaiah, attesting witness on Ex.D-1 - Will, the signature found on Ex.D-1 is in Kannada language, whereas the signature found in the deposition of DW2 is found in English. The same witness DW2 has put the signature on some pages in Kannada language and in the deposition of the last page of the cross examination the signature is found to be in English. Furthermore, in the cross examinations, the DW2 and DW3 have admitted that they were brought by the beneficiary of the Will, who is the defendant. Therefore, the evidence of DW1 is found to be suspicious with regard to due execution of the Will –

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Ex.D-1.

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1 AIR 1959 SC 443

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HC-KAR

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Furthermore the defendant in his evidence in his cross examination admitted that he does not know who are DW2 and DW3. Therefore, upon enlarging this evidence on record the execution of Will is shrouded with suspiciousness. Therefore, how far it is believable is a question to be considered in this appeal.

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When upon considering the evidence on record, as above discussed, it is clear that the defendant has not placed cogent evidence in proving the execution of Will - Ex.D-1. Therefore, the trial court has committed an error in appreciating the evidence on record and as such the judgment and decree is found to be perverse in nature and thus, it is liable to be set aside. Accordingly, I answer Point Nos.(1), 2 and 3 are answered in the negative .

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For the reasons aforestated, I proceed to pass the following:

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ORDER

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(1) The appeal is allowed .

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HC-KAR

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(2) The judgment and decree judgment and decree dated 01.03.2018 passed by the Court of Senior Civil Judge and JMFC, Soraba, in O.S.No.40/2016, is set aside.

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