M B Rajanna Vs Vanajakshamma

(BY SRI. MARUTHI G.B., ADVOCATE FOR R5, VIDE ORDER DATED 18.11.2013, NOTICE TO R2 HELD SUFFICIENT, VIDE ORDER DATED 23.10.2021, APPEAL AGAINST R7 ABATED, R1,R3,R4,& R6 SERVED AND UNREPRESENTED)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:2.1.2010 PASSED IN R.A.NO.10/2009 ON THE FILE OF THE ADDL. DISTRICT &

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NC: 2025:KHC:44436 RSA No. 1192 of 2010 C/W RSA No. 1193 of 2010

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SESSIONS JUDGE, CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:16.12.2008 PASSED IN OS.NO.171/2002 ON THE FILE OF THE I ADDL. CIVIL JUDGE (SR.DN) CHITRADURGA.

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IN RSA NO. 1193/2010

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BETWEEN:

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M B RAJANNA

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S/O MAYAKONDADA BASAPPA, AGED 48 YEARS, RESIDING AT ISAMUDRA VILLAGE, BHARAMASAGARA HOBLI, CHITRADURGA TALUK- 577 522.

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...APPELLANT

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(BY SRI. B.S. RAGHU PRASAD, ADVOCATE)

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AND:

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VANAJAKSHAMMA W/O M.B. RUDRAPPA, AGED 49 YEARS

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NAGAVENI W/O NAGARAJ, AGED 28 YEARS.

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GEETHA D/O M.B. RUDRAPPA, AGED 26 YEARS

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SIDDESHI S/O M B RUDRAPPA, AGED 22 YEARS,

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RESPONDENTS 1 TO 4 ALL RESIDING AT ISAMUDRA VILLAGE, BHARAMASAGARA HOBLI, CHITRADURGA TALUK- 577 522.

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HALAMMA W/O R. RUDRAPPA, AGED 57 YEARS RESIDING AT HORAKERE, JAGALUR TOWN, DAVANGERE DISTRICT- 577 001.

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6. SIDDAMMA

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W/O THORIYAPPA, AGED 53 YEARS RESIDING AT BHARAMASAGARA, CHITRADURGA TALUK - 577 522.

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BASAMMA W/O SIDDABASAPPA, AGED 67 YEARS RESIDING AT ISAMUDRA VILLAGE BHARAMASAGARA HOBLI, CHITRADURGA TALUK- 577 522.

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...RESPONDENTS

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(BY SRI. R. SHASHIDHARA AND KALLESH K., ADVOCATES FOR R5,

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VIDE ORDER DATED 26.02.2013, NOTICE TO R1 IS HELD SUFFICIENT,

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VIDE ORDER DATED 18.11.2013, NOTICE TO R2 HELD SUFFICIENT, VIDE ORDER DATED 23.10.2021, APPEAL AGAINST R7 ABATED, R3, R4, AND R6 SERVED AND UNREPRESENTED)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 02.01.2010 PASSED IN R.A.NO.11/2009 ON THE FILE OF THE ADDL. DISTRICT AND SESSIONS JUDGE, CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED16.12.2008 PASSED IN OS.171/2002 ON THE FILE OF THE I-ADDL. CIVIL JUDGE (SR.DN), CHITRADURGA.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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The plaintiff has preferred this second appeal under Section 100 of Code of Civil Procedure challenging the judgment and decree dated 02.01.2010 passed by the Addl.District and Sessions Judge, Chitradurga in R.A.No.10/2009, which was filed against the judgment and decree dated 16.12.2008 passed by the I Additional Civil Judge (Sr.Dvn), Chitradurga in O.S.No.171/2002.

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The plaintiff filed the suit for partition and separate possession. The suit was partly decreed by order dated 16.12.2008 that was challenged by the plaintiff in R.A.Nos.10/2009 and 11/2009, which was disposed of by the learned Addl.District and Sessions Judge, Chitradurga by judgment and decree dated 02.01.2010. The same is challenged in the present appeals.

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The brief facts of the case are that, one Mayakondada Basappa had four children namely

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M.G. Rudrappa, Halamma - defendant No.5, Siddamma - defendant No.6 and M.B. Rajanna - plaintiff No.1. The said Rudrappa, died leaving behind his legal representatives defendant Nos.1 to 4. The plaintiff contended that the suit schedule properties were self acquired properties of the said Mayakondada Basappa. It is further contended that Mayakondada Basappa was permanent resident of Isamudra. The plaintiff and his elder son deceased Rudrappa were looking after their father Mayakondada Basappa, during his life time. Only ten days prior to his death, defendant No.5 – Halamma (daughter) took him to her house and got executed the alleged will dated 20.08.1983. The said will was not executed by Mayakondada Basappa but was fabricated by defendant No.5. By virtue of the said document, defendant No.5 does not acquire any right in the property. With these reasons, plaintiff prayed for partition and separate possession of the 1/2 share in the suit schedule properties.

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Defendant Nos.1, 3 and 8 remained ex-parte before the trial Court. Defendant Nos.1 and 4 filed written statement accepting the case of the plaintiff and prayed to allot a share to

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them in accordance with law. They pleaded ignorance regarding the Will executed in favour of defendant No.5 as well as sale of one of the property by defendant No.5.

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Defendant No.5 - Halamma admitted the relationship between the plaintiff and defendants. She contended that a registered Will was executed by her father Mayakondada Basappa in her favour on 20.08.1983 bequeathing 3 acres 8 guntas in Sy.No.37/2 and a house property at suit item No.4 of the plaint. She further contended that she sold the property bearing Sy.No.37/1A measuring 3 acres 8 guntas under the registered sale deed. She also contended that plaintiff and other defendants are not entitled for share in her property, as it was bequeathed in her favour. She also sought relief of possession as a counter claim to direct the plaintiff to vacate possession of suit item No.4 of the suit schedule properties. She further contended that plaintiff had knowledge about the Will in the year 1983 itself and he filed the suit at a belated stage. The suit is bad for non-joinder and mis-joinder of necessary parties. With these reasons prayed to dismiss the suit.

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The trial Court framed the following issues;

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Issues

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i. Whether plaintiff proves that the suit properties are the joint family properties?

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ii. Whether plaintiff proves that he has got Share in the suit properties? If so what is the extent of his share?

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iii. Whether 5^th defendant proves that the suit properties were self acquired properties of Mayakondada Basappa earned out of his exclusive skill and enjoyed by him exclusively?

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iv. Whether 5^th defendant proves that the plaintiff is in permissive possession of one item No.4 of the schedule?

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v. Whether 5^th defendant proves that suit properties were bequeathed in her favour by Mayakonda Basappa out of his free will and wish?

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vi. Whether plaintiff and defendants 1 to 4 are entitled for share in suit properties?

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vii. Whether 5^th defendant is entitled for possession of 4^th item of schedule?

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viii. Whether 5^th defendant proves that, suit is barred by time

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ix. Whether suit is bad for non-joinder of H. Siddabasappa as a party?

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x. To what relief parties are entitled to?

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xi. What decree or order?

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The trial Court recorded the evidence of the parties

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to the suit. The plaintiff examined three witnesses as PW-1 to PW-3 and marked Exs.P1 to P9. Defendant No.1 is examined

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as DW-1, defendant No.5 is examined as DW2 and further examined three witnesses on their behalf as DW3 to 5 and marked documents at Exs.D1 to D18.

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The trial Court after hearing both the parties and appreciating the materials on record, answered issue Nos.1, 8 and 9 in the negative, issue No.2 partly-in-affirmative, issue No.3, to 7 and 10 in the affirmative and ultimately partly decreed the suit.

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The trial Court held that plaintiff is entitled for 1/4^th share in the suit property excluding the properties mentioned in the Will. It also held that defendant Nos.1 to 4 together and defendant Nos.5 and 6 individually are entitled for 1/4^th share in the suit schedule properties excluding the properties mentioned in the Will. The counter claim filed by defendant No.5 was decreed and plaintiff was directed to surrender vacant possession of item No.4 of the property to defendant No.5 within two months from the date of decree.

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Being aggrieved by the said judgment and decree, plaintiff preferred two appeals before the Court of Addl.District

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and Sessions Judge, Chitradurga in R.A.No.10 and 11/2009.

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The first appellate Court reheard the matter on merits.

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The first appellate Court framed the following points

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for determination:

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i. Whether the judgment and decree passed by the learned 1^st Addl.Civil Judge (Sr.Dvn), Chitradurga in O.S.No.171/2002 dated 16.12.2008 is perverse, capricious and liable to be interfered by this Court?

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ii. Whether Court below is incorrect in granting the counter claim against plaintiff?

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The first appellate Court answered both the points

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against appellants and dismissed the appeal by the impugned judgment and decree and confirmed the judgment and decree passed by the trial Court in O.S.No.171/2002 dated 16.12.2008.

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Being aggrieved by the said judgment and decree

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passed by the Courts below, the plaintiff preferred aforesaid two appeals.

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This Court by order dated 21.01.2020 admitted the

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appeal to consider the following substantial questions of law:

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1. Whether on the basis of the effect of execution of will both on execution and competency, the defendant - brother of the plaintiff can resist the claim for eviction?

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2. When the reply to the counter claim is not filed, whether the suit of the defendant under counter claim deemed to have been admitted, matter can to be disposed of without referring to plaint averments?

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It appears by the typographical mistake instead of

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defendant No.5, it is mentioned as plaintiff.

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During the course of trial, it is not a serious dispute that the suit schedule properties were self acquired properties of Mayakondada Basappa. The relationship between the parties are also not in dispute. There is a serious dispute regarding the alleged Will said to have been executed by Mayakondada Basappa in favour of defendant No.5 on 20.08.1983. It is not in

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dispute that Mayakondada Basappa passed away on 29.08.1983.

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The contention of the plaintiff/appellant is that several suspicious circumstances surrounded the execution of the Will. The deceased father has not discussed the reasons for not giving any share to his other sons and daughter. All the while, the deceased Mayakondada Basappa was residing with his sons at Isamudra. Defendant No.5 - Halamma is the permanent resident of Jagaluru, Davanagere Taluk. According to her own admission, just ten days prior to the execution of the alleged Will, she had taken Mayakondada Basappa to her village under the pretext of providing him with medical treatment, and after the execution of the alleged Will dated 20.08.1983, Mayakondada Basappa passed away on 29.08.1983. This circumstance also creates doubt regarding execution of the will by the Mayakondada Basappa, in a sound state of mind.

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It is further contended that the attestors of the Will

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were not permanent residents of Isamudra, and the others were residents of Jagaluru, the village of defendant No.5. These

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strong circumstances create serious doubt regarding the execution of the Will. In support of the said contention, the learned counsel for the appellant relied on the judgment of the Hon'ble Apex Court in the case of Ram Piari v. Bhagwant¹ ,

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he has refers to paragraph No.2 of the said judgment:

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"2. Soft corner for grandchildren or like ability for a son or daughter or their issues is not uncommon to our society. Rather at times it becomes necessary either to provide for the lesser fortunate or to avoid the property from passing out of the family. But when dispute arises between heirs of same degree, and the law beneficiary even chooses to deny the blood ties, and that too unsuccessfully, then Court's responsibility of performing its duties carefully and painstakingly multiplies. Unfortunately it was not properly comprehended by any of the Courts, including the High Court which was swayed more by happy marriage of appellant, a consideration which may have been relevant for testator but wholly irrelevant for Courts as their function is to judge not to speculate. Although freedom to bequeath one's own property amongst Hindus is absolute both in extent and person, including rank stranger, yet to have testamentary capacity or a disposable mind what is required of propounder to establish is that the testator at time of disposition knew and understood the property he was disposing and persons who were to be beneficiaries of this disposition. Prudence, however, requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him. Absence of it may not invalidate a Will but it shrouds the disposition

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1 AIR 1990 SC 1742

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with suspicion as it does not give any inkling to the mind of testator to enable the Court to judge if the disposition was voluntary act. Taking active interest by propounder in execution of Will raises another strong suspicion. In H. Venkatachala v. B.N.Thimmajamma, AIR 1959 SC 443, it was held to render the Will infirm unless the propounder cleared the suspicion with clear and satisfactory evidence. Mere execution of Will, thus, by producing scribe or attesting witness or proving genuineness of testator's thumb impressions by themselves was not sufficient to establish validity of Will unless suspicious circumstances, usual or special, are ruled out and the Courts conscience is satisfied not only on éxecution but about its authenticity. See Kalyan Singh v. Smt. Chhoti, (1989) 4 JT 439 : (AIR 1990 SC 396)."

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He also relied on the judgment of Hon'ble Apex

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Court in the case of Murthy and Others vs. C. Saradambal and others² , he refers to paragraph No.35 of the said judgment, which reads as under:

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In Bharpur Singh v. Shamsher Singh, this Court has narrated a few suspicious circumstance, as being illustrative but not exhaustive, in the following manner: (SCC p. 699, para 23)

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"23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will:

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(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.

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(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.

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2 (2022) 3 SCC 209

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(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.

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(iv) The dispositions may not appear to be the result of the testator's free will and mind.

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(v) The propounder takes a prominent part in the execution of the will.

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(vi) The testator used to sign blank papers.

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(vii) The will did not see the light of the day for long.

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(viii) Incorrect recitals of essential facts ."

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19. He further contends that, in respect of Substantial

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Question No.2, the mere non-filing of a rejoinder to the counter-claim, by itself, is not a ground for granting relief. It is for the parties to prove the case stated in the counter-claim, as if it were a plaint. The findings of the First Appellate Court in this regard are erroneous. He further contend that in the division Bench of this Court in the case of B.R.Rangaswamy vs. D.Syed Younous and others³ i t is held that the non-filing of a rejoinder by the plaintiff contesting a claim made by the defendant in the written statement does not amount to an admission, and relief cannot be granted in favor of the defendant on that ground alone. For these reasons, the learned

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3 ILR 1999 KAR 2539

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counsel for the appellant urged this Court to answer the substantial question of law in favor of the appellant.

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Learned counsel for respondent No.5 contends that respondent No.5 examined other witnesses along with attesting witnesses and all the attesting witnesses supported the execution of the Will, the said Will was registered document.

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The deceased, Mayakondada Basappa, did not execute the Will in respect of all his properties; on the contrary, he executed the Will only in respect of the portion of the property at suit item No.2 and the house property at item No.4, taking care of the other legal representatives. Therefore, the contention of the appellant that no reasons were assigned in the Will for not giving shares to the other legal heirs, and that this creates serious doubt regarding the Will, is not tenable. It is further contended that, on the strength of the Will, respondent No.5 executed a registered sale deed in respect of the portion of the property at Sl. No.2 during the year 1983, and the plaintiff was one of the witnesses to the said document. The plaintiff did not raise any objection at that time regarding the execution of the Will. After a lapse of about 8 to 9 years, he

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filed the present suit challenging the Will executed by his father. The conduct of the appellant thus indicates that he has not approached the Court with clean hands.

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It is further contended that, according to the case of defendant No.5, she had been residing in Isamudra and running a hotel. Moreover, defendant No.5 was taking care of Mayakondada Basappa, whereas their sons, i.e., the plaintiff and the deceased Rudrappa, were not attending to him, as mentioned in the Will. The said Will was attested by two witnesses who were known to the deceased Basappa. On the basis of this evidence, defendant No.5 proved the execution of the Will. The Court below concurrently held that, during the cross-examination of the attesting witnesses, nothing was brought out to discredit their evidence, and there is no substantial question of law involved in this appeal concerning the said Will. Therefore, it is prayed that the appeal be dismissed with costs.

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Learned counsel for respondent No.5 in

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RSA.No.1193/2010 is present and he reiterated the arguments

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advanced by the learned counsel for respondent No.5 in RSA.No.1192/2010.

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From the materials available on record, it is not seriously in dispute that Mayakondada Basappa acquired the suit properties. In the absence of the Will, alleged to be executed in favour of Halamma, all the sons and daughters are entitled for equal share in the said property. Therefore, the contention of the plaintiff that he is entitled for 1/2 share in the suit property is not tenable. The parties are claiming share in the suit property under Section 8 of the Hindu Succession act. The genealogy is not in dispute. Therefore, each branch of the Mayakondada Basappa are entitled for 1/4 share of the property.

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The Defendant No.5 claims right over Sl.No.2 of the

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suit schedule properties to an extent of 3 acres 8 guntas as mentioned in the will and entire extent of property in Sl.No.4. The trial Court as well as first appellate Court on appreciating and re-appreciating the evidence held that Mayakondada Basappa executed Will dated 20.08.1983. It is a registered Will and the same is produced before the Court. To comply the

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provision of Section 68 of Indian Evidence Act, the attesting witnesses were examined. As rightly noted by the Courts below, the attesting witnesses as well as propounder of the will withstood the cross-examination regarding the execution of the Will.

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The learned counsel for the appellant contends regarding the suspicious circumstances surrounding the Will. Ex.D1 is the original registered Will. In the said document, it is mentioned that the testator was about 80 years old and, due to his age, and since his two sons were not taking proper care of him, he executed the Will in favour of Halamma, who had been attending to him. Out of the properties mentioned in the suit schedule, the Will was executed only in respect of two properties: Property No.37/2, measuring 3 acres and 8 guntas, and the house property bearing No.128 with specified boundaries. Therefore, the testator did not execute the Will in respect of all the properties belonging to him and took care of the other legal heirs, who would succeed to the remaining properties.

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It is contended that, in order to execute the Will, the late Mayakondada Basappa went to Jagaluru, where his daughter Halamma was residing. It is true that Ex.D1 mentions that Halamma was a resident of Jagaluru town. However, it is not the case of the appellant that Mayakondada Basappa was mentally unsound or not in a disposing state of mind at the time when he was residing with him. This contention was raised only after the execution of the Will. Moreover, there is no medical evidence to suggest that Mayakondada Basappa had lost the capacity to understand effect of execution of a document. Furthermore, the Court below consistently held that, in one of the sale deeds executed by Halamma, the plaintiff himself was a witness, and that deed pertained to property included in the Will. The plaintiff did not dispute or resist the execution of the Will with respect to that property.

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It is true that both the attesting witnesses were residents of Jagaluru and were not residing in Isamudra. In their cross-examination, it was not brought out that they had any personal interest or they were unknown to Basappa. Their evidence was reliable, as held by the Courts below. Therefore,

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that cannot be considered as one of the circumstances for creating doubt about execution of the Will.

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In the case of Ram Piari (Supra), the Will was executed in favour of the grandchildren, leaving all the other legal heirs. Considering the facts and circumstances of that case, the Hon’ble Apex Court held that the Will was surrounded with doubt. However, in the present case, the reasons for execution of the will are mentioned in the Will, and not all the property belonging to the testator was bequeathed in favour of defendant No.5. Therefore, the law laid down in the aforesaid judgment is not applicable to the facts of the present case.

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In the case of Murthy and Others( Supra ) , at paragraph No.35 what are the suspicious circumstances brought out regarding the execution of the Will were stated, which were mentioned in the case of Bharpur Singh & Ors vs Shamsher Singh⁴ .

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As discussed above, in this case, the Will was executed only in favour of one of the daughters and only in

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4 2009(3) SCC 867

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respect of two items of the suit schedule properties, including one item measuring 3 acres and 8 guntas. The reasons for excluding the sons are clearly mentioned in the Will. The remaining properties could be succeeded by the other legal heirs, and the execution and attestation of the Will have been properly proved in accordance with law.

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31. Under these circumstances, there are no materials on record to hold that the said Will was not proved by defendant No.5.

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32. Defendant No.5 claimed possession over item No.4 of the suit property. The said property was bequeathed in her favour under Ex.D1. By virtue of Ex.D1 she became owner of the property. During the course of trial, she was able to prove her right over the property. In view of the same, the trial Court directed the plaintiff to hand over the possession. The trial Court while considering the relief, answered it in the affirmative. The said reasons not only based on the ground that plaintiff has not filed rejoinder against the said counter claim but also on the merits. The trial Court also relied on Order 8 Rule 6(e) of CPC for granting of such relief in case of

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non-filing of the rejoinder to counter claim. H owever, prior to that, the court had considered the merits of the case came to a conclusion. By virtue of the Will, she became the owner of the property and was entitled to claim possession thereof. Therefore, the legal principle laid down in the case of B.R. Rangaswamy and Others (supra) does not significantly support the contentions of the appellant in either of the appeals.

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33. In view of the above said reasons, this Court

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answered substantial question of law Nos.1 and 2 against the appellant and passed the following:

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ORDER

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i. The appeals No.1192/2010 and 1193/2010 are dismissed . Both the parties shall bear their costs.

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ii. The impugned judgment and decree dated 02.01.2010 passed by the I Addl. Civil Judge(Sr.Dvn),Chitradurga in OS.No.171/2002 as well as judgment and decree dated 16.12.2008 passed by the Addl.District and Sessions Judge, Chitradurga in R.A.Nos.10 and 11/2009 are confirmed.

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iii. Time granted by the trial Court directing the plaintiff to hand over the possession of item No.4 of suit property was expired long back. Therefore, three months time is granted to plaintiff/appellant to hand over the actual possession of the said property in favour of defendant No.5 - Halamma.

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Registry is directed to send the trial Court record along with the copy of this judgment.

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Sd/(UMESH M ADIGA) JUDGE

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AG

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List No.: 1 Sl No.: 30

M B Rajanna v. Vanajakshamma

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M B Rajanna v. Vanajakshamma

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