B.Nirmala & Others vs Kutti Nayak And Others

Nataraj Rangaswamy, J

This Regular Second Appeal is filed by the defendants 1 to 6 challenging the Judgment and Decree dated 13.04.2011 passed by the II Additional

Senior Civil Judge at Shivamogga in OS No. 182/2002 and the concurring Judgment and Decree dated 06.07.2012 passed by the District Judge, I Fast

Track Court, Shivamogga in R.A. No. 168/2011. Both the Courts upheld the claim of the plaintiff that he was the owner of the suit schedule properties

in terms of the Will (Exhibit-P1) dated 27.01.1999.

For the sake of convenience, the parties shall henceforth be referred to as they were arrayed before the Trial court.

The appellants herein were the defendants 1 to 6 while the respondent No. 1 is the plaintiff, the respondent No. 2 was the defendant No. 7 and

respondent No. 3 was the defendant No. 8 before the Trial Court.

The plaintiff contended that the defendant No. 1 was the daughter of B.Gopala Nayak from his first wife Smt. Sharadamma while he was the son

of B.Gopala Nayak from his second wife Gulabi (defendant no.7). The defendants 2 to 6 were the children of the defendant No. 1. The 8th defendant

was the son of the younger brother of B.Gopala Nayak.

The said B.Gopala Nayak had married Sharadamma and the 7th defendant in accordance with Hindu rites and customs. The 7th defendant was

residing at Perdur in Dakshina Kannada District and B.Gopala Nayak was residing at Naratur village and was often visiting and living with the 7th

defendant. The plaintiff was born in Perdur and he studied till 10th standard at Perdur High school, Perdur, Udupi District. The said B.Gopala Nayak

for reasons unknown had kept his marriage with the 7th defendant, a secret. After the death of Sharadamma, B.Gopala Nayak took the plaintiff, 7th

defendant to his house at Bobbi and thereafter the plaintiff and the 7th defendant were residing together in the house of B.Gopala Nayak at Bobbi.

The defendants 1 to 6 and the husband of the defendant No. 1 joined the plaintiff, his parents and lived with them from the year 1978. The plaintiff

continued his education and got admitted to Government Pre-University College, Thirthahalli and studied upto II P.U.C. Later he secured a Degree in

B. Com during the year 1993. He claimed that in the entire school records the plaintiff had shown his father’s name as B.Gopala Nayak. It is

stated that the plaintiff was assisting the said B.Gopala Nayak in cultivation of his land and other related works. The properties in the plaint A

schedule were the self acquired properties of the father of the plaintiff, he having been granted occupancy rights by the Land Tribunal. It is stated that

when the father of the plaintiff possessed sound health, he had executed a Will dated 27.01.1999 bequeathing all his properties in terms of his Will. He

apportioned the self acquired properties amongst the plaintiff and the defendants 2 to 6. Accordingly the properties described in the B schedule fell to

the share of the plaintiff and the properties described in the C schedule fell to the share of the defendants 2 to 6. The defendant No. 1 was not happy

about the contents of the Will which excluded her from inheriting the property and therefore she in collusion with the defendant No. 8 planned to oust

the plaintiff from the suit schedule properties.

The 8th defendant who was the younger son of the brother Gopala Nayak had been residing with his parents at Hosakoppa and after the death of

first wife of B. Gopala Nayak, the 8th defendant became close to Gopala Nayak with an intention to knock off the properties of Gopala Nayak, but he

could not succeed in his evil desires and he failed in his attempts but he started interfering and meddling with the properties of said Gopala Nayak. To

prevent the 8th defendant from meddling with the possession of the suit properties, Gopala Nayak had filed a suit against the defendant No. 8 and his

father before the Munsiff at Shivamogga in O.S.No. 42/1978. In the said suit, Gopala Nayak had clearly pronounced that the defendant No. 8 was in

no way concerned to the plaint schedule properties and that he was not entitled to claim any right. That apart, the 8th defendant had no manner of

right, title or interest over the plaint properties, when the said Gopala Nayak had by a testament bequeathed his properties. After the death of Gopala

Nayak on 19.03.1999, the plaintiff produced the Will before the Revenue authorities and sought for change of mutation. The Revenue authorities

refused to enter the name of plaintiff, since the defendant No. 8 had objected to such request on the ground that the defendant No. 8 was the adopted

son of Gopala Nayak. Thus the plaintiff sought for declaration that he was the absolute owner of the suit property in terms of the Will dated

27.01.1999 or in the alternative to pass a Judgment and Decree of partition declaring that the plaintiff is entitled to 1/3rd share in the “A†schedule

properties and for perpetual injunction.

The defendant no. 1 filed her written statement contending that the plaintiff was not the son of late Gopala Nayak and that the defendant no. 7 was

not the second wife of Gopala Nayak as alleged. She alleged that the deceased Gopala Nayak lost his health during his last days due to addiction to

alcohol and he died on 19.03.1999 at the age of 84 years. She also contended that Gopala Nayak was suffering from ‘Cirrhosis’ and the

Doctors at Manipal Hospital had opined that he could not be cured. She stated that Gopala Nayak had got his eyes operated somewhere in the year

1993-1994 and could not see. She therefore contended that the Will set up by the plaintiff was concocted and false. She further disputed that the

defendant No. 8 was the adopted son of Gopala Nayak and she contended that Gopala Nayak was a permanent resident of Bobbi, Honnakudige,

Naratur village, Thirthahalli Taluk and that she had married Sharadamma. The 1st defendant was the only daughter of deceased Gopala Nayak and

except her, there were no children of deceased Gopala Nayak. She alleged that after the death of Sharadamma, Gopala Nayak had engaged the

defendant No. 7 as a maid servant for cooking and other household activities and accordingly the defendant no.7 was working as maid servant in the

house of deceased Gopala Nayak since the year 1977. She further alleged that the defendant No. 7 was the wife of Keshava Nayak who was also a

resident of Mathume, Perdur, Udupi Taluk and that the plaintiff was the son of Keshava Nayak and not the son of Gopala Nayak. She contended that

even in the school records at Peradur, the father’s name of the plaintiff was described as Keshava Nayak who was the natural father of the

plaintiff. She also alleged that the plaintiff and the defendant No. 7 were never in possession of the suit property and thus the question of granting

injunction would not arise.

The other defendants adopted the Written Statement filed by the Defendant No. 1. The defendant No. 8 filed a Written statement contending that

the deceased Gopala Nayak had filed a suit in O. S. No. 42/1978 for perpetual injunction and that the said suit was settled out of Court. He contended

that the deceased Gopala Nayak had no male issues and thus took the defendant in adoption which was registered by a deed dated 10.05.1976. The

defendant No. 8 claimed that he was residing with the deceased Gopala Nayak and helping him in looking after the properties and agricultural

operations. He stated that the defendant No. 1 married against the wishes of Gopala Nayak and therefore, she was given up by the said Gopala

Nayak. Later she returned home and she was pardoned by Gopala Nayak and allowed her to stay in the house. Thereafter the defendant No. 1 and

her husband started creating misunderstanding between the Gopal Nayak and the defendant No. 8 and intended to overcome the adoption deed and

created an unhealthy atmosphere which culminated in Gopal Nayak in filing the suit in O.S. No. 42/1978. He contended that the defendant No. 8 and

the said Gopala Nayak had filed the suit in O. S. No. 148/1987, wherein said Gopala Nayak admitted that the defendant No. 8 was his adopted son.

He further stated that there were other litigations between the plaintiff and the 1st defendant in O.S. No. 232/2001 and O.S. No. 208/2001. He stated

that the defendant No. 8 being the adopted son was also the beneficiary under the Will dated 10.05.1976 executed by Gopala Nayak in terms of which

he had bequeathed all the suit properties in favour of defendant No. 8. He therefore contended that the Will dated 27.01.1999 set up by the plaintiff

was concocted and there was no cause of action for filing of the suit.

On the basis of the above pleadings, the Trial Court has framed the following issues:-

Whether the plaintiff proves that he is the son of deceased B. Gopala Nayak through his second wife Smt. Gulabi i.e., the 7th defendant?

Whether the plaintiff proves that deceased B.Gopala Nayak executed a ‘Will’ dated 27.01.1999 bequeathing the “B†schedule

properties in his favour when he was in a sound state of mind and he is the absolute owner of the “Bâ€​ schedule properties?

Whether the plaintiff proves that he is the lawful possession of the ‘B’ schedule properties?

Whether the plaintiff proves the alleged interference by the defendants?

OR

In alternative, whether the plaintiff is entitled for 1/3rd share in the “Aâ€​ schedule properties by metes and bounds?

Whether the defendants prove that the plaintiff is the son of 7th defendant through Keshava Nayak?

Whether the defendants 1 to 6 prove that the Will dated 27-01-1999 is fabricated and concocted document?

Whether the 8th defendant proves that he is the adopted son of Gopala Nayak?

Whether the suit is properly valued and the court fee paid is correct?

To what order or Decree?

Before the Trial Court, the plaintiff was examined as P.W.1 and the attesting witnesses to the Will (Exhibit-P1) were examined as P.W.2 and

P.W.3, while two witnesses were examined as P.W.4, P.W.5. P.W.6 was the mother of the plaintiff and they marked Exhibits P1 to P83. On the

other hand, the husband of the defendant No. 1 was examined as D.W.1 while the defendant No. 8 was examined as D.W.4 and other witnesses

were examined as D.W.2, D.W.3, D.W.5, D.W.6 and D.W.7 and marked Exhibits-D1 to D29. A witness was summoned by the Court who produced

Exhibits C1, C2 and C3.

The Trial Court having regard to the evidence on record, declared that the plaintiff was the son of deceased Gopala Nayak and that the Will

(Exhibit-P1) was proper and valid and was lawfully executed by Gopala Nayak and thus declared that the plaintiff is entitled to the property

bequeathed to him by deceased Gopala Nayak while the defendants 2 to 6 were entitled to other properties as per the Will of deceased Gopala

Nayak.

The defendants 1 to 6 feeling aggrieved by the Judgment and Decree of the Trial Court filed an appeal before the First Appellate Court. The First

Appellate court having regard to the evidence dismissed the appeal and confirmed the Judgment and Decree of the Trial Court. The defendants 1 to 6

thus feeling aggrieved by the Judgment and Decree of both the Trial Court and the First Appellate Court have filed this Regular Second Appeal.

The Regular Second Appeal is listed for admission. Heard the learned Counsel for the Appellants, Defendants 1 to 6 and the plaintiff. Perused the

records and Judgment and Decree of the Trial Court and the First Appellate court and the grounds of the appeal mentioned.

It is noticed that the plaintiff claimed to be the son of deceased Gopala Nayak from his second wife. He stated in the plaint that after the death of

first wife of Gopala Nayak-Smt. Sharadamma, the plaintiff and defendant No. 7 were brought to the house where Gopala Nayak lived with his first

wife Smt. Sharadamma and later the defendant No. 1 along with her children joined the plaintiff and the deceased Gopala Nayak at Bobbi village. To

this, the defendants 1 to 6 contended that after the death of the first wife, Gopala Nayaka brought the defendant No. 7 as a housemaid to look after

the house hold chores. In short, the defendants 1 to 6 have admitted the fact that the defendant No. 8 was living in the house of Gopala Nayak from

the year 1978.

In addition, the plaintiff had marked Exhibit P5 which was Transfer Certificate, Exhibitâ€"P6 which was the cumulative record, Exhibit-P7 was the

SSLC marks card, Exhibitâ€"P8 was the PUC marks card, Exhibitâ€"P10 was the conduct certificate, Exhibit-P11 was the study certificate, Exhibit-

P12 was the electoral card in the year 1985, Exhibit-P13 was again an electoral card, Exhibitâ€"P14 which was the assessment register, all showed

that the plaintiff was the son of Gopala Nayak. In addition, Exhibitsâ€"P15, P16 and P17 were the letters received by Gopala Nayak asking him to pay

the balance instalment payable towards the loan account. Exhibit-P18 is yet another passbook issued by the Corporation Bank in the name of Gopala

Nayak. Exhibit P19 is the Life Insurance Corporation policy which showed that the plaintiff was the son of Gopala Nayak, Exhibit-P20 is another

Policy issued by Life Insurance Corporation which showed that the plaintiff is the son of Gopala Nayak. The Exhibits-P61, P62 and P63 that were

marked through P.W-5 indicated that the plaintiff was the son of Gopala Nayak. Exhibit-P64 which was the application filed by the plaintiff at the time

of joining the school indicated that the father’s name was Gopala Nayak. In fact, in the deposition of the husband of defendant No. 1 in O.S. No.

203/2001, he admitted that the plaintiff was the son of Gopala Nayak. The Fixed Deposit receipts issued by the Corporation Bank indicated the name

of Gopala Nayak and his son i.e., the plaintiff. The account opening forms at Corporation Bank also indicated that the plaintiff is the son of Gopala

Nayak. The only doubt that was sought to be created in the mind of the Court was by production of Exhibit-C1 and C2 which indicated the name of

father of Kutti as ‘Keshava Nayak’. This is sought to be cleared by examining P.W.4 who is the maternal uncle of the plaintiff and who stated

that Keshava Nayak was his father and that Keshava Nayak had admitted the plaintiff to the school on the same day when Ashok Nayak was also

admitted. Thus, the name of Keshava Nayak was found in the column “parent or guardianâ€​ when plaintiff was admitted to the school.

The question as to whether the plaintiff was the son of Gopala Nayak and as to who was Keshava Nayak who admitted the plaintiff to the school

was cleared by the evidence of P.W.4. P.W-5 who was the Head master of the school was also examined and he in categorical terms deposed that

the reference to plaintiff as the son of Keshava Nayak was incorrect and that he was the son of Gopala Nayak. P.W.6 was the mother of the plaintiff

and she deposed that the plaintiff is the son of Gopala Nayak. Yet another circumstance is the evidence of P.W.3 who is the brother-in-law of the

husband of defendant no. 1, who was examined as a witness in O. S. No. 208/2001 i.e. Exhibit-P66 wherein he admitted that the plaintiff was the son

of Gopala Nayak. Thus the Trial Court and the First Appellate Court below having regard to the voluminous evidence accepted that the plaintiff was

the son of Gopala Nayak.

I do not find any error or irregularity in appreciating the evidence by the both the Trial Court and the First Appellate Court in so far as this finding

of fact is concerned.

In so far as the lawful execution of Exhibit P1, the plaintiff had examined P.W.2 and P.W.3 who were the attesting witnesses. In the course of

cross examination of these two witnesses, the defendants did not establish that Exhibit-P1 was not validly executed. In fact the cross-examination of

P.W.2 and P.W.3 indicates that the Will was validly executed and that there was nothing amiss or doubtful. As a matter of fact, a perusal of Exhibit-

P1 indicates that late Gopala Nayak had bequeathed his properties in favour of the plaintiff and defendants 2 to 6 in equal shares. Therefore even

assuming that the Will was not executed, the plaintiff and the defendant would invariably be entitled to half share each. Therefore, the Trial Court and

the First Appellate Court rightly held that the Will at Exhibit-P1 was lawfully executed and there was no suspicious circumstances attached to the said

Will and consequently declared that the plaintiff became the owner of the suit property by virtue of the Will.

I do not find any error or irregularity in the matter of appreciation of the evidence by the Trial Court and First Appellate court and I also do not see

any irregularity in the appreciation the evidence as regards the claim of the defendants 1 to 6 that the plaintiff was not the son of Gopala Nayak.

As no substantial question of law arises for consideration in this appeal, the appeal is dismissed.

Consequently all the pending applications in the above appeal do not survive for consideration and accordingly they are dismissed.