Doddappa vs Sitavva and Others

B. Veerappa, J.—Unsuccessful plaintiffs second appeal filed against the judgment and decree dated 12.01.2011 made in R.A. No. 21/09 on the file of the I Addl. District and Sessions Judge, Dharwad, confirming the judgment and decree dated 01.12.2008 made in O.S. 67/2005 on the file of the I Addl. Civil Judge (Sr. Dn), Hubli, dismissing the suit for declaration and injunction.

It is the case of the appellant/plaintiff before the Trial Court that agricultural land bearing R.S. No. 444/2B measuring 2 acres 28 guntas situated at Kundgol shown in A-schedule and a house property Municipal No. 1583 CTS No. 2126, property No. 2408, situated at Kundgol shown in B-Schedule are absolute properties of the plaintiff and he is in possession of the same and the said property originally belongs to Smt. Salubai wife of Sahadevappa Gaikwad, and the said Salubai was the real sister of the plaintiff Yellappa Balappa Rangoji is elder brother of the plaintiff and husband of defendant-1 and father of defendants 2 to 5. The said Smt. Salubai executed a Will on 27.4.1967 both in favour of the plaintiff and his brother deceased Yallappa Balappa Rangoji, i.e. husband of defendant-1 and father of defendants 2 to 5. Thus, by virtue of the registered will both plaintiff and deceased Yallappa Rangoji became joint owners of suit schedule-A properties/agricultural land. Both plaintiff and deceased Yallappa Rangoji jointly purchased the suit B-Schedule property from one Mahadevappa Bapurao Nikkam under registered sale deed dated 15.4.1961 for a valuable consideration. Thus, they became the joint owners of both A and B schedule properties and they are entitled to half share each in respect of both schedule properties equally.

It is the further case of the plaintiff that, defendant-1 wife of his brother deceased Yallappa. B. Rangaji has ran away with somebody along with children of deceased Yallappa Rangoji and the plaintiff alone looked after his elder brother Yallappa Rangoji till his death and during his ailments it is the plaintiff alone wo provided necessary treatment to Yallappa Rangoji and out of love and affection and confidence upon the plaintiff, the deceased Yallappa Rangoji has bequeathed his half share in the suit schedule A and B properties in favour of plaintiff as per the Will dated 30.5.1995 and his brother Y.B. Ranjogi died on 4.2.2000. It is the further case of plaintiff that just prior to his death the Y.B. Rangoji was taken away by the defendants from the house of the plaintiff to their place of residence at Dharwad when the plaintiff was out of station. Thereafter the plaintiff went to Dharwad and enquired with the said acts of the defendants, but they did not heed to the plaintiff Thereafter Y.B. Rangoji breathed his last at Dharwad even though he had no mind to stay at Dharwad with the defendants. After the death of his brother, the plaintiff gave Waradi to effect his name in the record of rights in respect of A and B Schedule properties in pursuance of the Will. Accordingly, in respect of A schedule property, the name of plaintiff was entered by the Tahasildar, Kundgol.

Against the said entry, the defendants filed appeal before the Assistant Commissioner, Dharwad, who allowed the appeal and ordered to delete the name of the plaintiff and include the plaintiff and defendants jointly. Against the said order, the plaintiff filed revision before the Deputy Commissioner, Dharwad, in No. RTS/RA/CR-24/2003-04 and the same was pending. The name of the plaintiff was entered in respect of the B Schedule property by virtue of the will and the same was challenged by the defendants before the Deputy Director of Land Records, Dharwad, and the said appeal was allowed and directed the plaintiff to approach the competent Civil Court to establish his right. Therefore, he filed the suit.

The defendants filed written statement along with the counter claim under Order 8 Rule 6A of Code of Civil Procedure and admitted the relationship between the parties. The description of the property is denied and also denied the execution of the Will by his brother Y.B. Rangoji in favour of the plaintiff and denied other allegations made in the plaint and sought for dismissal of the suit.

In the counter claim, the defendants 1 to 5 have contended that the husband of the defendant No. 1 Yallappa Balappa Rangoji and plaintiff were in joint possession of A and B schedule properties. The description was separately given along with the counter claim and the defendants also gave family genealogy and contended that the plaintiff and defendants were joint owners and in possession and enjoyment of the suit schedule properties and specifically contended that Y. B. Rangoji was residing along with defendant-1 and died on 4.2.2000 in the house of defendant No. 1 and at no point of time the defendant No. 1 had deserted U.B. Rangoji and it is absolutely false to allege that she has abandoned the company of Y.B. Rangoji, and ran away with another man, etc. Therefore, the allegation that Y.B. Rangoji executed a will in favour of plaintiff is denied and contended that the plaintiff in order to knock of the property of the defendants and their share in A and B properties, the plaintiff created abogus concocted will and managed to get his name entered in the records in collusion with C.T.S. authorities and revenue authorities and ultimately the same were challenged by the defendants before the competent appellate authority and entry effected in the name of plaintiff was cancelled and set aside and ordered to enter the name of defendants 1 to 5 along with plaintiff m joint names of plaintiff in the records, etc. Therefore, they prayed that the defendants 1 to 5 jointly entitled to get half share in both the A and B schedule properties and they requested the plaintiff to effect partition in both items of the property on 1.3.2005 and their request was denied. The said counter claim was objected by plaintiff by filing separate written statement denying the counter claim allegations.

Based on the pleadings, the trial court framed the following issues:

Whether plaintiff proves that on 30.05.1995 deceased Yellappa has executed will deed with respect to Schedule AB property in his favour and he has become absolute owner in possession of the said properties after his death?

Whether he further proves that the alleged interference by the defendants?

Whether the defendant is entitled for counter claim?

Whether court fee paid is proper one?

What order or decree?

In order to establish his case, the plaintiff got examined himself as PW.1 and examined two witnesses as PW. 2 and 3 and marked documents Ex. P.1 to P.6. The defendant-1 herself examined as DW.1 and one witness as D.W.2 and marked documents Ex. D.1 to D.14.

After considering the oral and documentary evidence, the trial court has recorded a finding that the plaintiff failed to prove that on 30.5.1995 deceased Yallappa Rangoji had executed a Will in favour of plaintiff in respect of A and B schedule properties and he became the absolute owner in possession in respect of half share of schedule properties. The Trial Court also recorded a finding that the plaintiff failed to prove the alleged interference by the defendants and held that defendants are entitled the relief sought for in the counter claim i.e. half share in the suit schedule properties and ultimately dismissed the suit filed by the plaintiff against defendants and decreed the counter claim raised by defendants under Order 8 Rule 6A of Code of Civil Procedure.

Against the said judgment and decree of the trial court, the plaintiff/appellant filed R.A. No. 21/2009 against the dismissal of his suit and R.A. No. 22/09 against the granting of relief in favour of defendants for decreeing the counter claim of defendants. The lower appellate court after reconsidering the entire material on record by his impugned judgment and decree dated 12.01.2011 has dismissed both the appeals. It is stated by the learned Counsel for the appellant, that against the judgment and decree made in R.A. 22/09 the plaintiff has already filed RSA. No. 5575/11 and it is dismissed for default before this Court on 18.2.2013.

Against the concurrent finding of fact recorded by the courts below the present Second appeal is filed.

I have heard Sri. V.S. Koujalagi along with Sri. V.M. Sheelvant, learned Counsel for the appellant, who has contended that both the courts below committed an error in holding that the Will executed by the deceased Yellappa B. Rangoji was under suspicious circumstances without any basis. He also contended that the appellant examined the scribe and attestor of Ex. P.5-Will, thereby he has proved the Will. The courts below has not considered the said aspect even though the plaintiff has complied the provisions of Section 68 of Indian Evidence Act and proved the will in question by examining the witnesses. Both the courts below have committed a serious error in negating the claim of the plaintiff Therefore, he sought to allow the above appeal.

I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the appellant and perused the entire material on record.

The only point that arise for consideration in this case is,

Whether the plaintiff has proved the Will said to have been executed by Y.B. Rangoji on 30.05.1995?

Whether the courts below justified in dismissing the suit filed by the plaintiff?

On appreciating the oral and documentary evidence, the trial court has recorded a finding that the plaintiff failed to prove that deceased Y.B. Rangoji has executed a Will on 30.5.1995 in respect of the Schedule A and B properties in his favour and he has become absolute owner in possession of said properties after the death of Y.B. Rangoji. Based on the material documents the trial court recorded a finding that the defendants (wife and sons) are entitled to get of half share in the counter claim of A and B Schedule properties after the death of deceased Yellappa Rangoji as his L.Rs. by allowing the counter claim under Order VIII Rule 6A of the Code of Civil Procedure and that the plaintiffs are entitled to half share in the Schedule A and B properties.

The relationship of the parties is not in dispute and it was also not in dispute that the plaintiff and Y.B.Rangoji were joint owners and they were entitled to equal share in the suit schedule properties. The trial court recorded a finding that as per the Ex. D.10 -death certificate that, Yallappa died on 4.2.2000 at plot No. 25A, Janata Quarters, Gulganjikoppa, Dharwad. Therefore, it is clear from the death certificate entries itself deceased Yallappa died while he was residing with his wife and children at Gulganjikoppa, Dharwad. Ex. D.11 is the surviving certificate obtained from the Tahasildar, Dharwad, by the defendants to show that after the death of Yallappa defendants 1 to 5 are his legal heirs. It is also admitted that plaint A and B schedule properties were standing in the name of Yallappa and his younger brother present plaintiff Doddappa Rangoji till the death of Yellappa. It is clear from suit A schedule property agricultural land bearing R.S. No. 444/2B measuring 2 acres 8 guntas of Kundgol village covering the boundary shown therein was the property belonged to one Smt Salubai wife of Sahadevappa Gaikwad who was none else than the real elder sister of both Yallappa and Doddappa-the plaintiff After the death of said Salubai, both Yallappa and Doddappa Rangoji became owners and possessors of A schedule agricultural land by virtue of registered will dated 24.7.1967 as per Ex. P.4 executed by SmtSalubai. The said facts are not in dispute.

P.W.1 in his evidence has stated that ''B'' schedule property was purchased by the plaintiff and Yallappa Rangoji under registered sale deed dated 15.04.1961 and the name was entered records jointly and they were residing along with their respective family members jointly. The said aspect was not at all disputed by the defendant. D.W.1 in her evidence stated that after marriage she resided in the said house itself. The registered sale deed dated 15.04.1961 marked as Ex. P-3. Coming to the proof of Ex. P-5 ''Will'' said to have been executed by Yallappa Rangoji in favour of the plaintiff. The Trial Court recorded a finding that to prove Ex. P-5, the plaintiff examined scribe of the said ''Will'' P.W. 2 who had a licence bond writer examined said scribe of ''Will''. P.W. 2 Sridhar Gurunath who stated that Yallappa Rangoji, testator signed the document. P.W. 3 is attesting witness has stated that Yallappa Rangoji gave instructions to write the ''Will'' to P.W.2 and he has attested the said document. On the basis of the alleged ''Will'', plaintiff has given vardhi to Revenue Officials as well as Panchayath Office as per Ex. D-10. The Revenue Authorities has entered the name of the plaintiff and subsequently it was challenged before the Assistant Commissioner who set aside the entry as per Ex. D-8. The Trial Court considering the evidence of P.Ws. 2 and 3 has recorded a finding that mere examination of P.W. 2 scribe and P.W. 3 attesting witness is not sufficient, it is only mere compliance of Section 68 of the Evidence Act and under the provisions of Section 63 of the Indian Succession Act, 1925, is not sufficient to accept Ex. D-5. It is proved that it is lost and genuine ''Will'' executed by the testator in the glaring fact that D.W. 1 in her evidence has clearly stated that her husband was residing along with her and children both in Kundgol and Dharwad on account of education of her children she started residing at Dharwad and they are in joint possession of suit schedule properties along with her children and husband. She also contended that Yallappa Rangoji was having love and affection towards his wife and children till his death and there was no occasion for him to execute the ''Will'' in favour of his younger brother plaintiff and alleged ''Will'' Ex. P-5. The ''Will'' does not bare the LTM of her husband and her husband never executed such ''Will''. It is a bogus, created ''Will'' and on the strength of the same, behind their back, the plaintiff got entered the name in respect of ''A'', ''B'' schedule properties and same was challenged before the concerned authorities. After enquiry, the Assistant Commissioner set aside the entry and entered the name of the defendants as legal representatives as per Ex. P-6, D. 8 and accordingly RTCs. were entered as per Exs. D-13 and 14. The plaintiff''s exclusive possession over the suit schedule properties are denied by the defendants. The plaintiff must remove all the suspicious circumstances surrounded the ''Will'' and the learned counsel for the plaintiff in the argument that no specific defence in pleading regarding suspicious circumstance is raised by the defendants in his written statement. Therefore, challenging the ''Will'' cannot be accepted for the simple reason that though under Order 8 Rule 3 and Rule 5 CPC warrants that there will be a specific denial, he must put his defence. In the written statement, allegations have specifically denied by the defendants stating that the ''Will'' was not at all executed by the deceased Yallappa Rangoji. It is a created, concocted bogus document and his contention that the exclusive possession was also denied by them. When they denied the very ''Will'' itself as concocted, bogus document, it includes the proof of execution of ''Will'' by the plaintiff as well as to remove all the suspicious circumstances surrounded the ''Will''. The very facts stated by D.W.1 that her husband has resisted along with his wife and children till he lost his breathe on account of education of children resided at Gulgajikoppa, Dharwad since 15 years.

P.W.1 has not remotely whispered the said allegation that D.W.1 ran away with another man along with her children. As she deserted the company of her husband and failed to look after, he executed ''Will''. On the contrary, he simply stated that the defendants were not at all looked after Yallappa Rangoji and he himself has maintained him. This is the reason out of love and affection he has executed the ''Will''. Only P.W.2 Sridhar Gurunath stated that on the date of execution of the ''Will'' he was with him, what was the purpose of the execution of ''Will'' whether he has married and got any children. At that time, the testator told him that about 7 to 8 years back his wife ran away with some other person along with her children. That is the reason he is going to execute the ''Will''. This fact is not stated by P.W.1 in his examination-m-chief nor whispered anything in the cross-examination. The version of P.W.1 and the attesting witnesses of the ''Will'', Ex. P-5 are residents of Kundgol and they are acquainted with the family members of deceased Yallappa Rangoji. Moreover, one of the witness, P.W.3 is a person in whose house he used to work. That means, he is a person having adequate knowledge with regard to the family affairs and regarding wife, children of the deceased Yallappa Rangoji. He has stated that he does not know the names of wife and children of deceased Yallappa Rangoji. If really Yallappa Rangoji has bad character and his wife had ran away with some other person, it must have been within the knowledge of P.W.3, but he has not chosen to state the said facts in his evidence. On the contrary, he has shown ignorance and even he does not know the names of wife and children and other particulars. That means, he was working in the house of deceased Yallappa Rangoji. All the way, having adequate knowledge with regard to family affairs of deceased Yallappa Rangoji, why he failed to state the facts that the wife ran away with some other person and deserted her husband. That is the reason Yallappa Rangoji has developed some hatred reasons against his wife and children. This must be strong circumstance and reason to disinherit his wife and children.

P.W.3 has not at all stated anything with regard to these facts are concerned. Therefore, the testator in executing the ''Will'' in favour of his younger brother, disinheriting his own wife and children must be gathered from the recital of the ''Will'' itself. The Trial Court has also recorded that Ex. P-5, testator has stated that he had love and affection towards younger brother, Doddappa Rangoji who is maintaining him and he had faith on him that in future also he will look after him and it is stated that his wife ran away with some other person. This is the reason he has cut off relationship with his wife and children and removed from his mind, treating that they are not at all the wife and intends to bequeath half share in both the properties in favour of his younger brother. Whether this reason stated in the ''Will'' deed was it having true facts could be ascertained by appreciating the evidence and other circumstances carefully.

P.W.3 is one of the attesting witness who was acquainted with the family members has not remotely whispered the said fact. The plaintiff pleaded and has not stated anything in his evidence. The scribe has sated that the fact only to justify what was written in plaint at para 4 of the Ex. P-5.

D.W.2 Dashrat Balappa Pawar who is none other than the husband of elder sister of the plaintiff Doddappa Rangoji. Therefore, he is a person acquainted with the family of Doddappa Rangoji. In his evidence, he has clearly stated that denying the allegation that D.W.1 ran away with some other person and deserted Yallappa Rangoji etc. He has stated that Yallappa Rangoji was residing along with his wife and children till his death and the Yallappa Rangoji died in Dharwad itself. In the cross-examination, what is suggested that wife of the plaintiff and witnesses are not in good terms, that is the reason the previous litigation in their family as Doddappa Rangoji advised D.W.2 not indulge in such matter. For this reason, he filed the case before the Court.

The Trial Court further recorded that the circumstances which the ''Will'' executed is totally unnatural, that means ''Will'' deed is not a compulsory registerable document. Even if it is registered, it does not enhance the value of the same, as it was written in a white paper and witnesses have come and parroted sectional requirement of Section 68 of the Indian Evidence Act. Mere saying the procedure of execution of the ''Will'' itself is not sufficient to prove its genuineness. Therefore, the facts are found in Ex. P-5 ''Will'' making allegation against wife and children of deceased Yallappa Rangoji, there must be circumstance and reason testator had an intention to bequeath his half share in the ''A'', ''B'' schedule properties in favour of plaintiff itself is a false and baseless which goes to show that it is a created ''Will''. Added to that Ex. P-5 ''Will'' the house number is showed as 1599/2408 as mentioned in Kundgol Municipality with regard to ''B'' schedule property. In fact the sale deed Ex. P-3 shows number as 1583, why it is showed as 1599. Though it is a minor mistake. Because CTS 2408 was correctly written. There is no dispute with regard to identity of the property. But in over anxiety of getting a ''Will'' narrated wrong number was given and also show the circumstance that why testator intends to disinherit his wife and children some allegations were made but not proved. The plaintiff is having half share in both the items of the property for which there is no dispute and it has come in the evidence of cross-examination of D.W.1 that another house left behind by the elder sister plaintiff Slubai Gaikwad is in possession of the plaintiff and his family members and they are residing there in is also admitted by D.W.1. Therefore, the plaintiff is having half share in the property and having other properties also in the possession. That is also the circumstance to consider that there was no intention on the part of the testator to give his share to his brother denying the right of inheritance to his own wife and children. Therefore, circumstance under which Ex. P-5 came into existence which shrouded with of unnatural circumstances and it is just only to knock of half share of Yallappa Rangoji, this ''Will'' was created by the plaintiff as rightly contended by the learned counsel for the defendants.

Further more, the Assistant Commissioner set aside the entries and confirmed by the Deputy Commissioner Ex. D8 and D12. In view of the reasons stated above, the Trial Court dismissed the suit filed by the plaintiff and allowed the counter claim filed by the defendants under Order 8 Rule 6A CPC.

On re-appreciating both the oral and documentary evidence, the Appellate Court recorded a finding of fact that Ex. P-5 ''Will'' is an unregistered ''Will'' said to have been executed by Yallappa Rangoji by making his LTM. P.W.2 scribe and P.W.3 attesting witness have deposed that the Yallappa Rangoji executed the ''Will''. That itself cannot be held to prove Ex. P-5. It is the specific contention of the defendants that defendants by leaving company of his brother Yallappa Rangoji at the time of death of his brother and also recorded a finding that the Trial Court has considered each and every aspect of the oral and documentary evidence and dismissed the suit. The impugned judgment and decree does not call for any interference. Accordingly, it is dismissed both the appeals filed by the plaintiff.

In view of the foregoing reasons, the issue No. 1 in the above para is held negative holding that the plaintiff has not proved the alleged ''Will'' Ex. P-5 said to have been executed by the brother Yallappa Rangoji and both the Courts have concurrently held that the plaintiff failed to establish the alleged Ex. P-5 ''Will'' said to have been executed by his brother Yallappa Rangoji. Such a finding of fact cannot be interfered by this court holding that the judgment and decree of the Courts below justified in dismissing the suit and the same does not call for any interference. No substantial question of law involved in the appeal.

Accordingly, the Regular Second Appeal is dismissed at the stage of admission itself.