A.S. Gururaja vs A.S. Raghavendrachar and Others

Budihal R.B., J—This is a second appeal preferred by defendant No. 2 challenging the judgment and decree passed by the Courts below.

Case of the parties in brief:

"Plaintiff filed the suit for the relief of partition and separate possession of 1/4th share of the plaintiff and also for mesne profits. It is averred in the plaint that the 1st defendant filed a suit in OS No. 312/1995 against the 2nd defendant contending that there has been a partition in the family during the year 1993 through a Hissa Thahanama. Among other contentions, the 2nd defendant has contended that there is no partition in their joint family. Hence, the plaintiff had obliged to file the suit."

It is further contended that the suit schedule properties are the ancestral properties of the plaintiff and defendants, wherein the plaintiff is entitled for his legitimate share. Originally, the plaintiffs family was resided in the village of Bekse-Kenchigudde of Thirthahalli Taluk. The plaintiffs father had lost plenty of lands under the Karnataka Land Reforms Act. Therefore, the plaintiffs father had sold out the house property in favour of Sri Yashavantha Kamath and Sri Vasudeva Bhagath under two different sale deeds dated 19.8.1976 for consideration amount of Rs. 15,000/- in all. Thereafter, the family was shifted to Buklapura village in Thirthahalli Taluk in the year 1976 itself. From out of the funds generated from the sale of all the above properties and the contribution made by the plaintiff, the father had purchased the suit schedule properties. Hence, he sought for his legitimate share in the suit schedule properties.

During the pendency of the suit, the 1st defendant was reported to be dead and her two daughters were brought on record as her L.Rs. But, they have not filed any written statement.

The 2nd defendant, who is the appellant herein, contested the suit by filing written statement. He admitted the relationship and also admitted that his father died on 12.5.1993 and mother died on 30.9.2000. It is further contended by the 2nd defendant that in order to avoid litigation over the properties subsequent to his death, A Srinivasachar executed a registered will on 14.6.1990 in the office of the Sub-Registrar, Thirthahalli and bequeathed a different portions of his properties to the plaintiff, 2nd and 3rd defendants as described therein. The aforesaid will is the last will of his father. Apart from other properties, item No. 1 and a portion of item No. 2 have been allotted to the 2nd defendant and shares have also been allotted to plaintiff and 3rd defendant. Accordingly, they are enjoying the said portions of the property. The suit is filed with frivolous allegations. Hence, the 2nd defendant sought to dismiss the suit as he is enjoying the properties as per the will-Ex. D16 executed by his father.

On the basis of the said pleadings, the Trial Court framed as many as six issues and three additional issues. After considering the material placed on record, the Trial Court decreed the suit of the plaintiff partly with cost declaring that the plaintiff is entitled for 1/5th share in all the suit schedule properties and the remaining 4/5th share has been allotted to the L.Rs of defendant No. 1 and defendants No. 2 and 3.

Being aggrieved by the judgment and decree of the Trial Court, the 2nd defendant preferred an appeal before the first Appellate Court and the first Appellate Court after re-appreciating the material placed on record, dismissed the appeal with cost confirming the judgment and decree passed by the Trial Court, against which, the present second appeal is filed.

Learned counsel appearing for the appellant/defendant No. 2, during the course of his argument, submits that the suit schedule properties are self acquired properties of the father of plaintiff as well as the 2nd defendant. The properties are not at all the joint family properties. It is also his submission that before the death of plaintiffs father, he left the will partitioning the properties to the plaintiff as well as the 2nd defendant and other defendants. Hence, according to arrangements made in the will, suit schedule item No. 1 and some portions in the suit schedule item No. 2 were given to the 2nd defendant and other properties were given to other defendants and plaintiff. Learned counsel also made a submission that to prove the will, the 2nd defendant was examined as the profounder of the will and DW2 is one of the attesting witnesses to Ex. D16. In his evidence, he deposed about the execution of will by his father. Hence, he submitted that when there is specific evidence of the 2nd defendant insofar as proof of the will is concerned, the Trial Court as well as the first Appellate Court have wrongly read the evidence and decreed the suit. Hence, he submitted that the judgments and decrees passed by the Courts below are not sustainable in law. In support of his argument, learned counsel has also relied upon a decision of the Hon''ble Supreme Court reported in Madanlal Phulchand Jain Vs. State of Maharashtra and others, AIR 1992 SC 1254 : (1993) 1 DMC 489 : (1992) 2 JT 530 : (1992) 1 SCALE 799 : (1992) 2 SCC 717 : (1992) 2 SCR 479 : (1992) 1 UJ 664 Learned counsel drawn the attention of this Court to para-2 of the said judgment. Hence, he submitted that the substantial questions of law are involved in this present appeal and the same may be admitted.

Perused the grounds urged in the memorandum of appeal, judgments and decrees passed by the Courts below, so also the submission made by the learned counsel appearing for the appellant and also perused the decision (supra) relied upon by him.

The main contention of the appellant in the written statement, which is filed before the Trial Court, is that he relied upon Ex. D16. On perusing the judgment and decree passed by the Trial Court, the Trial Court considering the oral evidence placed on record and the execution of the will is concerned, more particularly, the evidence of DW2, who is the attesting witness to the will, came to the conclusion that DW2 cannot be relied as he does not know about the transaction. Ultimately, the Trial Court disbelieved the execution of the will and held that the 2nd defendant, who is the appellant herein, has failed to remove all the suspicious circumstances surrounding the execution of the will. The Trial Court has culled out the evidence of DW2 at paragraph-27. At paragraph-30 of the judgment, the Trial Court referred the evidence of DW1, who is profounder of the will, wherein he admitted that in the year 1989, his father was having very serious ailment and he was admitted to Kasturba Hospital for about one month. Even he admitted that after discharge of his father from the said hospital, there was no improvement in his health. The evidence of DW1 and also the admission of DW2, attesting witness, were extensively considered by the Trial Court and ultimately, the Trial Court came to the conclusion that the will is not established by the 2nd defendant. The Trial Court as well as the first Appellate Court have held that the suit schedule properties are the ancestral properties of the plaintiff, defendants and the deceased father, by recording the concurrent findings as to factual aspects about the nature of properties and also the execution of the will. Both the courts below taking into consideration each and every aspect of the matter and the evidence both oral and documentary, have rightly came to the conclusion in decreeing the suit of the plaintiff. I have also perused the decision and the principle enunciated in the said decision relied upon by the learned counsel for the appellant. In view of the facts and circumstances of this case, the said judgment will not come to the aid of the appellant. Hence, I do not find any illegality in the judgments and decrees passed by the Courts below. There are no substantial questions of law involved in this appeal.

Accordingly, the appeal is dismissed.