Dyamappa Buttappa Mustigeri vs Shiddavva

A.V. Chandrashekara, J.—Defendant nos. 2 and 3 of O.S. No. 130/1995 are before this Court by filing an appeal u/S. 100 of CPC challenging the judgment and decree passed against them on 19.07.2005 and the affirmation of the same by the learned Senior Civil Judge at Badami in R.A. No. 8/2006 (old no. 77/2005). The respondent is the plaintiff no. 2 in the said suit. Parties will be referred to as plaintiffs and defendants as per their ranking given in the trial Court.

Plaintiff Yallavva chose to file a suit for the relief of partition and separate possession of the properties described in the schedule appended to the plaint. The properties are measuring 11.35 acres and 5.12 acres in R.S. No. 63 and 75/2 of Niralakeri village, Badami Taluk respectively. The schedule properties include two houses bearing V.P. No. 239-A and 239-B. The suit filed for the relief of partition and separate possession claiming 1/2 share has been allowed by a considered judgment dated 19.07.2005. Against the said judgment and decree an appeal came to be filed u/S. 96 of CPC in old No. 77/2005. The said appeal was withdrawn and transferred to the Court of Civil Judge (Sr. Dn.) at Badami and renumbered as R.A. No. 8/2005. The said appeal was also dismissed after contest. Hence concurrent findings are called in question before this Court by defendant nos. 2 and 3 who are the legal representatives of deceased first defendant.

First plaintiff-Yallavva, the mother of Shiddavva, the respondent herein died during the pendency of the suit and hence Siddavva was brought on record in her place as her legal representative. One person by name Holiyappa Ramappa Mustigeri had two sons and 3 daughters, namely, Buttappa, Ramappa, Laxmavva, D. Bhimavva and S. Bhimavva. The said Holiyappa died on 03.04.1948 and his second Ramappa also died on 12.01.1995. Suit had been filed by Yallavva wife of Ramappa Mustigeri, the second son of Holiyappa seeking partition and separate possession of half share on the ground that Ramappa had undivided half share in the schedule properties. As she died during the pendency of the suit, her daughter Shiddavva came to be brought on record and she pursued the suit. Suit was filed against Buttappa, who died during the pendency of the suit. His son Dyamappa was brought on record as defendant no. 2, daughters Rukmavva and Manavva as defendant nos. 3 and 4 respectively.

According to the deceased plaintiff, she was the legally wedded wife of Ramappa, second son of Holiyappa, i.e., brother of deceased Buttappa and Shiddavva is her daughter born out of her marriage with Ramappa. Since Ramappa had neglected to maintain herself and her daughter, she had filed a suit seeking maintenance in O.S. No. 68/1986 and the same was allowed creating charge on the schedule properties. Ramappa and Buttappa lived as members of the joint family and since Laxmavva, B. Bhimavva and S. Bhimavva were married prior to 1956 they are not entitled for any share. According to the defendants, a compromise was entered into in O.S. No. 68/1986 and deceased plaintiff took a sum of Rs. 52,500/- in lieu of her share and executed a document on 27.04.1994 and thus Ramappa had become the absolute owner and that she had no right over the property. Ramappa is stated to have executed a Will on 19.10.1994 in favour of defendant no. 2 and hence prayed for dismissal of the suit.

On the basis of the above pleadings, the following issues came to be framed by the trial Court.

ISSUES

1) Whether the plaintiffs prove that suit properties are joint family ancestral properties of plaintiffs and defendants?

2) Whether the plaintiffs further prove that they are entitled for half share in the schedule ''B'' properties by equitable partition?

3) Whether the plaintiffs further prove that they are entitled for mesne profit from the date of suit till the recovery of possession of the suit properties?

4) Whether the defendant no. 2 prove that deceased Ramappa, i.e., husband of plaintiff no. 1 out of love and affection has executed a registered Will on 19.10.1994 during his lifetime and plaintiff have no right, title or interest over the suit properties?

5) What order or decree?

ADDITIONAL ISSUES:

1) Whether the defendants prove that the suit of the plaintiffs is hit by non-joinder of necessary parties?

2) Whether the defendants prove that Court fee paid is insufficient and valuation made U/sec. 35(2) of K.C.F. and S.V. Act is not correct?

Plaintiff is examined as P.W. 1 and got marked 9 exhibits on her behalf. Second defendant is examined as D.W. 1 and two more witnesses have been examined on his behalf apart from getting two documents marked. After hearing and perusing the record, suit has been decreed granting half share in the schedule ''B'' properties vide judgment dated 18.07.2005. The said judgment was called in question by filing an appeal before the Court of Senior Civil Judge at Badami in R.A. No. 8/06. The said appeal has also been dismissed after contest. Hence concurrent findings are called in question in this appeal.

At one breath the defendants had gone to the extent of denying the very relationship of deceased plaintiff-Ramappa; but during the course of evidence they have made an attempt to impress upon the Court that deceased first plaintiff had deserted Ramappa and therefore she was not entitled to a share. At another breath they had made an attempt to impress upon the Court that she had received Rs. 52,500/- in lieu of her share and thus she has no share or title. No acceptable evidence is placed on record. Per contra, nothing is placed on record to show that the relationship of husband and wife had been dissolved or they were no more husband and wife. The fact that deceased first plaintiff had filed a suit against Ramappa claiming maintenance is not in dispute. The said suit was allowed and she had recovered the maintenance amount from him and charge had been created in respect of schedule properties. The fact that the schedule properties are the ancestral properties of Buttappa and Ramappa, is not seriously disputed. In the light of they/being the members of the joint family and the schedule properties being the joint family properties, it was incumbent upon the defendants to prove the earlier partition or relinquishment of right that deceased first plaintiff had over the schedule property. In the light of the inability of the defendants to prove these aspects, the trial Court has rightly held that second plaintiff being the daughter of Ramappa and Yallawwa, she is entitled for half share.

Defendants have relied upon a Will marked as Ex. D.1, certified copy of the Will. It can be taken into consideration provided, secondary evidence as per Sec. 65 of the Evidence Act. In the light of plaintiff seriously disputing genuineness of the Will, it was incumbent upon the propounder of the Will to have warded off all the suspicious circumstances. No acceptable evidence is placed on record in regard to the due execution of the Will and the Will being the last Will executed when the deceased was in a sound and disposing state of mind. As rightly pointed out by the trial Court, D.W. 3-Chandrashekhar has not spoken anything about the mental and physical condition of the testator. In the written statement it had been mentioned earlier that the Will was executed on 27.04.1994. Later on it was got amended to include the date of execution as 19.10.1994. When Ramappa and Buttappa were living as members of the joint family and when Ramappa had wife and daughter, it is un-understandable as to how he could exclude them from the benefit of the Will. Even otherwise, nothing is placed on record as to why the said Will was not brought to light though it is stated to have been executed in the year 1994. Suppression of the Will for a long time and the suspicious circumstances surrounding the Will have made the learned Judge to doubt the genuineness of the Will.

Taking into consideration the overall circumstances of the case, the trial Court has rightly held that the Will is not proved in accordance with law more particularly from the provisions of Sec. 63 of the Indian Succession Act and Sec. 68 of the Evidence Act.

The appellate Court, being the final Court of facts, has reassessed the entire evidence on the touchstone of intrinsic probabilities and has assigned cogent and valid reasons for concurring with the judgment of the trial Court. No good grounds are made out to interfere with the factual findings in regard to the inability to prove the Will and the inability to prove in regard to the factum of deceased plaintiff taking Rs. 52,500/- in lieu of her share. Hence the judgment do not deserve interference.

Anyhow the trial Court cannot grant mesne profits in a suit for partition and separate possession. It can only direct the concerned to render accounts as contemplated u/S. 20 Rule 18 of CPC. In this view of the matter, the order of granting mesne profits must be construed as an order directing the concerned to render accounts under Order 20 Rule 18 CPC since a coparcener or a co-sharer in a suit for partition and separate possession cannot be considered to be in unlawful possession of the schedule property.

ORDER

Appeal is dismissed as unfit for admission. No order as to costs.