Smt Shanthakumari a Vs v Nagesh

THIS RFA IS FILED U/SEC. 96 R/W ORDER 41 RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 01.09.2010 PASSED IN O.S.NO.3382/2002 ON THE FILE OF THE XXIV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE (CCH 6), DISMISSING THE SUIT OF PLAINTIFF THEREIN FOR PERMANENT INJUNCTION.

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

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal is by the plaintiff challenging the decree passed on a counter claim raised by defendant Nos.1, 2 and 3 in respect of Schedule B, C and D properties in the written statement.

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For the sake of brevity, the parties are referred

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to as per their rank before the trial Court.

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Facts leading to the case are as under:

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The plaintiff instituted a suit for bare injunction, asserting that the suit schedule property originally belonged to her grandfather, late Naik Kappanna @ Karupanna, and thereafter devolved upon her mother, Sharadamma @ Meenakshi, who was pleaded to be the sole daughter and legal heir. It was further pleaded that the plaintiff was conversant only with the Tamil language. According to the plaint, Sharadamma had no issues and subsequently contracted another marriage with Arjuna, through whom the plaintiff was born to Netravathi. The plaintiff averred that her father Arjuna died on 25.05.1959 and that thereafter Sharadamma and Netravathi sustained themselves by engaging in beedi binding and milk vending, apart from Sharadamma receiving pensionary benefits. It was further alleged that Sharadamma, owing

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to advanced age, was hospitalized at K.C. General Hospital, Malleshwaram, Bengaluru, where she ultimately died on 12.06.1999. The plaintiff alleged that the defendants, who are sons of one B.K. Venugopala Pillai and distant relatives, had temporarily resided in an adjacent house and later shifted to Azad Nagar. It was alleged that the defendants began harassing the plaintiff by demanding possession of a portion of the suit schedule property and, upon refusal, attempted to fabricate documents and change the khatha. Claiming interference with possession, the plaintiff issued notice to the Bangalore City Corporation and thereafter approached the Civil Court seeking a decree of perpetual injunction.

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4. Upon service of summons, the defendants

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entered appearance and filed their written statement, stoutly denying the plaint averments. The defendants also

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set up a counter claim seeking declaration of title in respect of Schedule ‘B’, ‘C’ and ‘D’ properties, contending that defendant No.1 is the owner of Schedule ‘B’,

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defendant No.2 of Schedule ‘C’, and defendant No.3 of Schedule ‘D’, and sought recovery of possession thereof from the plaintiff. The defendants traced their title to a testamentary disposition and contended that Sharadamma, being the absolute owner of the properties, was looked after by Venugopala and, out of love and affection, executed a registered Will dated 22.05.1999 bequeathing Schedule ‘B’ to ‘D’ properties in their favour.

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On the basis of rival pleadings, the Trial Court framed appropriate issues. Both parties led oral and documentary evidence in support of their respective claims. Upon appreciation of the evidence adduced by the plaintiff and the evidence let in by the defendants in proof of the Will, the Trial Court dismissed the suit for perpetual injunction filed by the plaintiff and decreed the counter claim, declaring that the defendants had acquired right, title and interest in Schedule ‘B’ to ‘D’ properties under the testamentary arrangement made by Sharadamma.

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Aggrieved by the decree passed on the counter

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claim, the plaintiff has preferred the present appeal.

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Learned counsel appearing for the plaintiff, reiterating the grounds urged in the memorandum of appeal, vehemently contended that the present appeal is confined only to the decree passed on the counter claim. It was argued that the Will propounded by the defendants is shrouded with suspicious circumstances and that the very genesis of the Will cannot be looked into, as the defendants had not set up the counter claim in the written statement at the first instance and had introduced the counter claim subsequently by way of an application. It was contended that such a course is impermissible and runs contrary to the scheme of Order VIII Rule 6-A of the Code of Civil Procedure, and therefore, the decree passed on the counter claim is a nullity.

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Drawing attention to the evidence of the Advocate examined as the scribe of the Will, learned

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counsel submitted that the said witness has not supported the defendants’ version and has categorically stated that he did not draft the Will. According to the learned counsel, this admission strikes at the root of the defendants’ claim and is fatal to the proof of the alleged testamentary disposition.

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Learned counsel further contended that the Will is dated 22.05.1999, whereas Sharadamma died on 12.06.1999 due to advanced age and ill-health. It was argued that the proximity between the date of execution of the Will and the date of death, coupled with her deteriorating health, casts serious doubt on her mental capacity. It was submitted that the defendants have failed to dispel these suspicious circumstances by cogent evidence, warranting interference by this Court.

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Per contra, learned counsel appearing for the defendants placed strong reliance on Exs.D-1 to D-8, being photographs, to contend that the intention behind

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the testamentary arrangement is evident therefrom. It was submitted that the photographs unmistakably depict that Sharadamma was treated as a member of the defendants’ family and was part of family celebrations, and

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that she was taken care of by the defendants till her demise. With regard to the evidence of the Advocatescribe, learned counsel drew the attention of this Court to the reasons assigned by the Trial Court, wherein the Trial Court has meticulously scrutinized his testimony and drawn adverse inference with respect to his conduct and manner of deposition. It was contended that even assuming the evidence of the Advocate is eschewed, the testimony of DW-2, the attesting witness, clearly establishes due execution and attestation of the Will, thereby dispelling all suspicious circumstances. Learned counsel also relied on the evidence of the tenant, who has spoken to the close association between Sharadamma and the defendants. It was further contended that the Will has been acted upon and mutation entries have been effected

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in favour of the defendants. Since the plaintiff is also a beneficiary under the Will, it was argued that she lacks locus to challenge its genuineness. On these grounds, dismissal of the appeal was sought.

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Upon hearing the learned counsel for the parties and on perusal of the records, the following points arise for consideration:

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i) Whether the finding recorded by the Trial Court that the defendants have successfully proved the genuineness of the Will dated 22.05.1999 marked as Ex.D-143 and consequently established title based on testamentary succession calls for interference by this Court?

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ii) Whether the alleged procedural irregularity in entertaining the counter claim, which is sought to be raised for the first time in appeal without a specific plea before the Trial Court and in the absence of specific grounds in the memorandum of appeal, can be examined at the appellate stage?

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iii) What order?

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Finding on Point No.i:

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In support of their claim and in proof of the due execution of the Will dated 22.05.1999 marked as Ex.D143, the defendants have placed principal reliance on the oral testimony of DW-2, who is one of the attesting witnesses to the said Will. This Court has carefully and meticulously examined the entire deposition of DW-2. The evidence of this witness clearly establishes his prior acquaintance with the testatrix Sharadamma. He has categorically deposed that the Will was drafted at the specific instructions of Sharadamma and that she affixed her signature/thumb impression to the Will in his presence. He has further deposed that, after witnessing the execution by the testatrix, he, in turn, attested the Will in her presence. Nothing material has been elicited in the cross-examination of DW-2 so as to discredit his testimony or to cast any doubt on the manner of execution and attestation of the Will. The testimony of DW-2 thus

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satisfies the mandatory statutory requirements governing

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proof of a testamentary instrument.

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In addition to DW-2, the defendants have examined R. Somanna as DW-3, an independent witness. DW-3 has deposed that he is acquainted with both the plaintiff and the defendants. He has further stated that subsequent to the death of Sharadamma, the Will was acted upon and that both the plaintiff and the defendants have been enjoying their respective portions in accordance with the testamentary arrangement. He has also specifically deposed that Sharadamma treated the plaintiff and the defendants with equal affection. The evidence of DW-3 assumes significance inasmuch as he was a tenant under Sharadamma and, therefore, had frequent interaction with the testatrix. No material is placed on record during cross-examination to establish any personal

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animus or bias on the part of DW-3 against the plaintiff. His testimony, therefore, lends substantial corroboration to

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the defendants’ case regarding the genuineness and due execution of the Will.

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Coupled with the oral evidence of DW-2 and DW-3, the defendants have also relied upon the forensic expert report secured during the course of the trial. The forensic evidence further fortifies the defendants’ claim. The expert has compared the disputed left thumb impression found on the Will with the admitted left thumb impression of Sharadamma available on the mortgage deed. Upon scientific examination, the expert has opined that the left thumb impression found on the admitted document tallies with the thumb impression found on the Will. The expert opinion, though corroborative in nature, lends additional assurance to the Court regarding the authenticity of the Will and dispels the suspicion sought to be raised by the plaintiff with respect to the execution of the testamentary document.

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In the light of the cumulative evidence let in by the defendants, this Court finds that the requirements contemplated under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 stand fully satisfied. Having regard to the consistent oral evidence of the attesting witness, the corroborative testimony of the independent witness, and the supporting forensic material, this Court finds no hesitation in proceeding further to examine the genuineness of the Will.

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At this juncture, it is pertinent to note that while learned counsel for the plaintiff has consistently contended that defendant Nos.1 to 3 are complete strangers to the plaintiff’s family, the pleadings in the plaint itself belie such a contention. The averments contained in the plaint clearly indicate prior acquaintance and proximity between the plaintiff’s family and the defendants. In this regard, paragraph No.4 of the plaint assumes relevance and is therefore extracted herein below:

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"4. The defendants are the sons of late B.K.Venugopala Pillai who is the son of Balakrishna. They are the distant relatives of the plaintiff. This being the case father Venugopala and his sons are having no manner of right title and interest over the suit schedule property. They resided in the adjacent house for few days and left the place and residing in separate houses in Azad Nagar. They are not having good terms with Sharadamma. The entire suit schedule property is now in the possession of the plaintiff."

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(Emphasis Supplied)

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In the light of these crucial admissions of plaintiff extracted supra, this argument does not stand scrutiny in view of the plaintiff’s own pleadings. The averments made in the plaint clearly disclose prior acquaintance and proximity between the plaintiff’s family and the defendants. Therefore, the contention advanced at the bar runs contrary to the pleadings on record.

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Accordingly point no.(i) is answered in Negative .

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Finding on Point No.ii:

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There are no specific pleadings in the written statement filed by the plaintiff to the counter claim questioning either the maintainability or the validity of the counter claim. The plaintiff has not raised any objection contending that the counter claim was filed in violation of the scheme or the requirements contemplated under Order VIII Rule 6-A of the Code of Civil Procedure. Equally, a perusal of the memorandum of appeal does not disclose any specific or distinct ground assailing the decree passed on the counter claim on the footing that the counter claim itself was procedurally impermissible or contrary to law.

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In the absence of foundational pleadings before

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the Trial Court and in the absence of specific grounds in the appeal memorandum, the objection now sought to be raised at the stage of final hearing remains a mere argument from the bar, unsupported by pleadings. It is a settled principle of law that a party cannot be permitted to

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travel beyond its pleadings, nor can a new case be set up

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for the first time in appeal, much less at the stage of arguments, particularly when such a plea involves mixed questions of fact and law.

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More importantly, the counter claim culminated in a decree determining substantive rights of the parties in respect of immovable properties. Such adjudication cannot

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be lightly unsettled on hyper-technical or procedural objections, especially when the appeal itself was instituted in the year 2011 and no challenge was raised at the earliest point of time. The prolonged acquiescence on the part of the plaintiff clearly disentitles her from invoking a technical objection at this belated stage, when rights have already crystallized in favour of the defendants.

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In these circumstances, this Court is of the considered view that it is neither necessary nor appropriate to undertake an examination as to whether the counter claim was presented in strict conformity with

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the procedural scheme under Order VIII Rule 6-A of CPC. The belated objection raised without pleadings and without specific grounds cannot be entertained. Accordingly, Point

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No.(ii) is answered in the Negative .

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Finding on point No.iii:

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