Chikkandani Vs Channajamma

THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 23.03.2022 PASSED IN R.A.NO.58/2021 ON THE FILE OF VI ADDITIONAL DISTRICT AND SPECIAL JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 10.12.2020 PASSED IN OS NO.277/2007 ON THE FILE OF II CIVIL JUDGE AND JMFC, MYSURU.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard the learned counsel appearing for the

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appellant-plaintiff and also the learned counsel appearing for the respondents-defendants.

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This matter is listed for admission and the appeal is

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filed against the concurrent findings.

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The factual matrix of the case of the plaintiff before the Trial Court is that, while seeking the relief of declaration to declare that the plaintiff is the absolute owner of the suit schedule property based on the Will

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dated 19.10.1989, it is contended that the father, Javaraiah, had allowed only defendant No.1 to cultivate the suit schedule property personally and to enjoy the usufructs, as she was in financial difficulties, and hence she has been in possession. Defendant No.1 appeared and filed a written statement contending that there was a partition in the year 1982 during the lifetime of the father and that she has sold 01 acre 02 guntas in favour of defendant No.3, and also taken other defences including that the suit is bad for non-joinder of necessary and proper parties.

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The trial Court allowed the parties to lead evidence and the plaintiff, in order to prove the Will, apart from the evidence of PW1, examined two witnesses as PW2 and PW3. On the other hand, defendant No.1 examined herself as DW1. The plaintiff relied upon the documents at Ex.P1 to Ex.P7, and the defendant relied upon the documents at Ex.D1 to Ex.D22. The trial Court, having considered both oral and documentary evidence, did not accept the case of

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the plaintiff that there was a Will in favour of the plaintiff, and also taken note of the evidence of PW1, as well as the evidence of PW2 and PW3. All the witnesses’ evidence was not found credible and hence not accepted. The Court came to the conclusion that the Will is surrounded by unexplained suspicious circumstances in relation to the Will in question and accordingly dismissed the suit. Even it did not accept the contention of the defendant No.1 that there was already a partition, answering Issue No.3 in the negative. Being aggrieved by the said judgment and decree dismissing the suit, an appeal is filed in R.A.No.58/2021.

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The First Appellate Court, having considered the grounds urged in the appeal memo, formulated the point as to whether the Trial Court dismissed the suit erroneously in rejecting the claim of declaration and permanent injunction, and whether it requires interference by this Court. The First Appellate Court also, having considered the pleadings of the respective parties, even

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extracted the evidence of PW1 in paragraph No.18. In paragraph No.19, it has also taken note of the burden of proof by extracting Sections 101, 102, 103 and also Section 68 of the Indian Evidence Act. In paragraph Nos.20 and 21, it has taken note of the exclusion of other family members and answered point No.1 in the negative and has come to the conclusion that the trial Court has not committed any error in appreciating the evidence of PW1 to PW3, and also taken note of the relevant provisions and confirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding, the present second appeal is filed before this Court.

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Learned counsel appearing for the appellant would vehemently contend that both the Courts have committed an error and have not considered the evidence in a proper perspective and even the witnesses, PW2 and PW3 to the Will have deposed before the Court with regard to the execution of the Will. It is contended that the First Appellate Court committed an error in re-appreciating and

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re-analysing the evidences, which resulted in a miscarriage of justice. It is further contended that the First Appellate Court erred in not obtaining an expert opinion. Once a doubt had been cast in its mind, it ought to have obtained the opinion of an expert regarding the execution of the Will. Hence, it requires reconsideration. Therefore, prayed that this Court may admit the appeal and frame substantial question of law.

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Per contra, the learned counsel appearing for the respondents would vehemently contend that both the Courts have taken note of the material on record, particularly regarding the exclusion of other family members. The counsel would also vehemently contend that the alleged Will was created for the purpose of filing the suit for declaration and that PW2 and PW3 were interested witnesses. The Will was executed in the year 1989 and the father passed away in the year 1990 and the Will did not see the light of the day till 2007, i.e. till the date of filing of the suit. Even based on the Will, the

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property was not transferred in his name and no explanation has been given, though it was contended that he came to know of the Will at the time of filing the suit. However, in the cross-examination, the plaintiff has categorically admitted that he was not aware of the exact

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date of noticing the Will. All these materials were considered by both the Courts, particularly while considering the judgment of this Court in the case of H.Venkatachala Iyengar vs. B.N.Thimmajamma and others reported in AIR 1959 SC 443 . Hence, it does not require any interference.

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Having heard the appellant’s counsel and also the counsel appearing for the respondents and also having considered the grounds urged in the second appeal for admission, the main contention of the counsel appearing for the appellant is that both the Courts have failed to consider the material on record and that it amounts to perversity.

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The trial Court has assigned reasons in not accepting the case of the plaintiff, particularly after extracting the evidence of the witnesses who relied upon the proof of the Will and the evidence thereof, and having considered the judgment of ‘Thimmajamma’ case (supra) in paragraph No.25 and the principles laid down therein, appreciated both oral and documentary evidence available on record. The trial Court also has taken note of the contents of the Will in paragraph No.26 and the evidence of PW1 to PW3 in paragraph No.27, it is observed that the evidence of PW1 was not credible, and the evidence of other witnesses was also taken note of in paragraph Nos.32 and 33, the evidence of witnesses was discussed in detail and from paragraph No.34 onwards, a detailed discussion was made, leading to the conclusion that the Will is shrouded with suspicious circumstances. Particularly, it was noted that when the Will was propounded by the plaintiff, his evidence was not credible, and so also the evidence of PW2 and PW3 was also not credible. It was also

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particularly noted that the exclusion of other family members, thereby disinheriting them from the property of the father, was taken note of. Even though the plaintiff contends that the Will was executed in the year 1989 and the father passed away in the year 1990, till the date of filing of the suit seeking the relief of declaration, the Will did not come to light. All these factors were taken note of by the trial Court as well as by the First Appellate Court.

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The First Appellate Court has also taken note of the question of law by invoking Sections 101 to 103 of the Evidence Act, 1872 as well as Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Evidence Act and taken note of both oral and documentary evidence, particularly in paragraph No.18 of the judgment, where the evidence of PW1 regarding knowledge was extracted. In paragraph No.21, it was also noted that the exclusion of legal heirs while bequeathing the properties in favour of the plaintiff itself is not a normal situation.

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When both the Courts applied their judicious mind while considering the Will, which is marked as Ex.P1 and when the same is not proved beyond doubt with regard to its execution, both the Courts have rightly came to the conclusion that the Will is shrouded with suspicious circumstances, I do not find any error on the part of trial Court as well as the First Appellate Court in appreciating the material on record and taken note of question of fact and question of law.

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Hence, it is not a case for admitting the second appeal and framing any substantial question of law invoking Section 100 of CPC.

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Counsel appearing for the appellant at this juncture brought to the notice of this Court that other two daughters have already filed the suit for partition in O.S.No.1114/2022 and the same is pending for consideration. Admittedly, the properties belongs to the father Javaraiah and this Court found that no testamentary

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