G. Sushilamma and Others vs Chamundi

B. Veerappa, J.—None appears for the appellants when the case was called twice on 24.08.2015. In the interest of justice, matter was posted to today. Again matter called twice. None appears. As the matter is of the year 2010, neither the appellant nor the counsel for the appellant is present.

This is a plaintiffs regular second appeal against the judgment and decree dated 19.02.2008 made in R.A. No. 31/2007 on the file of the I Addl. Civil Judge (Sr. Dn.), Bellary, confirming the judgment and decree dated 07.10.2006 made in O.S. No. 250/2002 on the file of the Addl. Civil Judge (Jr. Dn.), Bellary dismissing the suit for declaration and for possession.

The plaintiff-appellant filed the suit for declaration of title and possession contending that she is the absolute owner of the suit property and same was acquired by her mother A. Venkatamma under a registered sale deed dated 15.09.1975 for Rs. 6,000/- from one Siddamma. After her mother acquired the ownership over the schedule property she continued to be in possession and after hear death, her husband father of the plaintiff continued to be in possession. Her mother died on 15.09.1985. The father of the plaintiff by name A. Gopalappa executed a will bequeathing the schedule property to the plaintiff as it was the intention of the mother of the plaintiff and plaintiff paid the consideration amount. Accordingly, the father of the plaintiff executed a Will'' in favour of plaintiff on 28.05.1995 and also contended that the said Siddamma had entered into an agreement in her favour thereby agreed to re-convey the property if the consideration amount were to be paid within three years. Before expiry of three years, the consideration amount was paid by the plaintiff Accordingly, the sale deed came to be executed in favour of her mother and she contended that defendant has no right and interest over the suit schedule property etc. Therefore, she filed the suit.

The defendant filed written statement denying the entire plaint averments and contended that the suit filed by plaintiff is barred by limitation and the plaintiffs father had no authority to execute the Will'' in respect of the suit schedule property, as he was not the owner of the suit schedule property. Pursuant to Will'', though Municipal records have been changed in the name of the plaintiff, they do not establish or create right over the schedule property and also contended that the very suit is not maintainable without relief of declaration. Again after the amendment, the additional written statement was filed thereby, contending that the suit is bad for non-joinder of necessary parties.

Based on the pleadings, the Trial Court framed the following issues and additional issues:

"1. Whether the plaintiff proves that, suit house was purchased by her mother A. Venkatamma from one Siddamma for a sum of Rs. 6,000/- by virtue of registered sale deed dated 15.09.1975?

Whether the plaintiff is proves that her mother A. Venkatamma died on 14.05.1985 thereafter, her father A. Gopalappa enjoyed the property? (Modified)

Whether the plaintiff is prove that on 28.05.1985 her father A. Gopalappa executed a will deed in her favour?

Whether the plaintiff proves that, on 01.07.1999 defendant had trespassed into suit house and dispossessed the plaintiff?

Whether the defendant proves that, she married, the brother of plaintiff by name Ravi in the year 1978?

Whether the defendant proves that she is in possession of suit property since 1978?

Whether the defendant proves that suit is not maintainable without seeking the relief of declaration?

Whether the defendant proves that market value of suit property is more than Rs. 6,00,000/- as on the date of suit?

This issue deleted.

Whether the plaintiff is entitled to the relief sought for?

What decree or order?

Additional Issue

Whether the plaintiff proves that she is the absolute owner of suit schedule property by virtue of Will deed dated 28.5.95?

Whether the suit is barred by limitation?

Additional issue framed on 14.09.2006

Whether the suit is bad for non-joinder of necessary parties."

In order to establish her case, the plaintiff examined her power of attorney holder as P.W. 1 and other witness as P.W. 2 and marked documents Exs. P-1 to P-15. The defendant No. 1 examined herself as D.W. 1 and witness D.Ws. 2 to 4 and no documents have been marked.

The Trial Court after considering the entire material on record held that the plaintiff proved that suit property was purchased by her mother A. Venkatamma from one Siddamma for Rs. 6,000/- under a registered sale deed dated 15.09.1975 and her mother died on 15.09.1985 and thereafter her father A. Gopalappa was enjoying the suit property and further plaintiff failed to prove that on 28.05.1995 her father A. Gopalappa executed a Will'' in her favour and plaintiff proved that on 01.07.1999 defendant trespassed his suit house and dispossessed the plaintiff and defendant proved that she married the brother of the plaintiff by name Ravi in the year 1978 and defendant failed to prove that she is in possession and enjoyment of suit property from the year 1978 and suit filed by the plaintiff is bad for non-joinder of necessary parties and accordingly, the suit came to be dismissed.

Aggrieved by the said judgment and decree of the Trial Court, the plaintiff filed an appeal in RA. No. 31/2007 before the I Addl. Senior Civil Judge, (Sr. Dn.), Bellary, who after hearing both the parties, by the impugned judgment and decree dismissed the appeal and confirmed the judgment and decree of the Trial Court.

None appears for the appellants.

I have heard Shri Gode Nagaraj, learned counsel for the respondent who sought to justify the impugned judgment and decree of the Courts below.

I have given my anxious consideration to the arguments advanced by the learned counsel for the respondent and perused both the judgment and decree of the Courts below carefully.

The substance of the entire case of the plaintiff is that she is seeking declaration of title and injunction mainly on the basis of Will''. Both the Courts concurrently held that the Will'' executed by father is not proved and admittedly the property purchased by the plaintiffs mother A. Venkatamma under a registered sale deed dated 15.09.1975 from one Siddamma and after death of plaintiffs mother A. Venkatamma, all heirs of A. Venkatamma namely the plaintiff, husband of the 1st defendant - Ravi and one Radhamani are entitled for equal share.

When the plaintiffs mother A. Venkatamma purchased a registered sale deed dated 14.05.1985 after her death, the plaintiffs father had no right to execute the Will'' in favour of the plaintiffs. Therefore, the Trial Court dismissed the suit. Considering the entire material on record, the Trial Court recorded a finding that there is no dispute regarding death of A. Venkatamma. After the death of plaintiffs mother, it is quite common that the property should come to the hands of husband and children as per the provisions of Hindu Succession Act. Admittedly, the plaintiff was residing with her husband at Guntakal and it cannot be termed as she continued the possession of the same. It is also admitted the fact during the course of examination, P.W. 1 and D.W. 1 that the husband of the defendant by name Ravi was residing at Guntakal along with his another wife and children. The defendant came into possession of suit property since 1978. On the basis of her marital status, as the wife of the brother of the plaintiff and it has been contended by her that the mother-in-law had given the suit schedule properties for enjoyment and accordingly she continued to be in possession of same. However, she has not produced any document to show that her name is entered in the ration card or in the voters'' list in the suit schedule house property.

The defendant after amendment of the plaint has contended that the suit is bad for non-joinder of necessary parties. After death of A. Venkatamma the son by name Ravi and another daughter by name Radhamani @ Rani are the necessary parties and they have got right over the suit schedule property. The class one legal heirs, son and daughter just because the husband has sold the property, it does not mean that they lose their right on account of death of A. Venkatamma. When such being the case, they are also necessary parties otherwise their right will be defeated. Therefore, in their absence, an effective decree cannot be passed. Since it is a suit for declaration of title, the plaintiff must establish that the alleged shares or loss of their rights. Therefore, the Trial Court is of the opinion that suit is bad for non-joinder of necessary parties. In fact, the Trial Court was of the opinion to give an opportunity to the plaintiff to bring them on record as to be seen on the basis of subsequent events. Even after contending the same, the plaintiffs struck on her title by virtue of sale deed and purchased by her mother on her behalf According to her she is the absolute owner. Therefore, the said parties are not necessary parties. The Trial Court also recorded a finding that the plaintiff has claimed the relief for declaration and possession on the basis of the absolute ownership. However, she failed to establish her absolute right over the suit schedule property. As already stated that the father of the plaintiff, her brother and sister are also having right over the suit schedule property. The plaintiffs would have claimed the right of her father under a Will'' Ex. P-8, herself her share in a properly instituted suit for partition. If she had filed a suit for partition, then of course she is entitled half share in the suit schedule property. Even otherwise, she had right under the provisions of Section 15 of Hindu Succession Act. The relief could have been molded one into partition and grant relief. But all the L.Rs. of A. Venkatamma are not impleaded as parties to the suit. Therefore, the Trial Court was of the view that the suit filed is not proper and it is misconceived. Accordingly, suit was dismissed.

On re-appreciating the entire material on record, the lower Appellate Court recorded a finding that the property belongs to the plaintiffs mother A. Venkatamma, who purchased on 15.09.1975 under a registered sale deed. All class one heirs of A. Venkatamma are entitled for equal share in the suit schedule properties. Admittedly, in the present case, the plaintiff claiming her title and possession based on the Will'' said to have been executed by her father after death of her mother who was the absolute owner and admittedly as on the date of the execution of the Will'', the plaintiffs father has no right to execute the shares of other brother and sister. Therefore, the Will'' executed by her father in favour of plaintiff was not valid. The lower Appellate Court has also recorded a finding that as on the date of death of A. Venkatamma, the plaintiff her brother Ravi and Sister Radhamam @ Ram were entitled to succeed to the property of A. Venkatamma. Husband does not come in the class one heir of deceased wife, he comes under class 2. Therefore, along with the plaintiff, her brother and sister appellant - Ravi, Radhamani @ Ram are entitled share. Gopalalappa did not inherit any share in the property of his wife, so as to execute any Will'' as per Ex. P-8, so as to claim the benefit of Section 30 of the Hindu Succession Act, even presuming that really such a Will'' has been executed by Gopalappa. When a Will'' has been challenged by the defendant-respondent, specifically stating that he has not executed and it has been created etc and even the plaintiff-appellant''s brother Ravi has come before the Court and deposed on oath as DW. 4 the proof of Will'', the way it has to be proved as per Section 68 of the Indian Evidence Act and Section 63 of the Hindu Succession Act cannot be dispensed with. The plaintiff has not examined any one of the attesting witnesses of the Will'' to prove due execution of the Will''. Without examining one of the attesting witnesses of the Will'', the Will'' is not at all admissible in evidence. In view of the dictum of the Hon''ble Supreme Court reported in the case of Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, held as under:

"5. Before we consider the facts of this case it is well to set out the principles which govern the, 199 proving of a will. This was considered by this Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, . It was observed in that case that the mode of proving a will did not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will was on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and signature of the testator as required by law was sufficient to discharge the onus. Where, however, there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine. If the caveats alleged undue influence, fraud or coercion, the onus would be on him to prove the same. Even where there were no such plea, but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court. Further, what are suspicious circumstances was also considered in this case. The alleged signature of the testator might be very shaky and doubtful and evidence in support of the plunder''s case that the signature in question was the signature of the testator might not remove the doubt created by the appearance of the signature. The condition of the testator''s mind might appear to be very feeble and debilitated and evidence adduced might not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or I the will might otherwise indicate that the said dispositions might not be the result of the testator''s free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document was accepted as the last will of the testator. Further, a propounder himself might take a prominent part in the execution of the will which, conferred on him substantial benefits. If this was so it was generally treated as a suspicious circumstance attending the execution of the will and the propounder was required to remove the doubts by clear and satisfactory evidence. But even where there were suspicious circumstances and the propounder succeeded in removing them, the Court would grant probate though the will might be unnatural and might cut off wholly or in part near relations.

The High Court was also conscious of the fact that the evidence as to the execution and attestation of the will was not very adequate, for the learned chief Justice observed that the evidence on the point of actual execution might not be very adequate; but the view taken by the High Court was that more evidence was not necessary in view of the pleadings of the parties. In this connection the High Court relied on Dwijendra Narayan Deb''s acceptance of the will in favour of the respondent. This in our opinion was not justified so far as the appellants were concerned, for an admission of Diwijendra Narayan Deb who must now be held to have put forward a forged will could not be an added circumstance to support the inadequate evidence led by the respondent. We are further of the opinion that the High Court was not justified in executing the inadequacy of the evidence to prove the due execution and attestation of the will on the basis of the pleadings of the parties. It is true that the appellants did not say in so many words that the will propounded by the respondent was a forgery as they did about the will propounded by Dwijendra Narayan Deb; even so the appellants had put the respondent to strict proof of due and legal execution and attestation of the will and there was an issue to that effect. This was not a case where the due and legal execution and attestation of the will was admitted and the only disputes were that the testator had not a sound disposing state of mind or had acted under undue influence or coercion. Though the appellants did not go to the length of characterising the will as a forgery as they did in the case of the will propounded by Dwijendra Narayan, they certainly put the respondent to strict proof of legal and due execution and attestation of the will. In such circumstances it was the duty of the respondent, particularly in the presence of auspicious circumstances which have been noted by the High Court, to prove the due execution and attestation of the will by satisfactory evidence which would lead Court to the conclusion that the suspicious circumstances had been dispelled. We do not see how the evidence which has been characterised by the High Court as inadequate would suffice to dispel the suspicious circumstances which undoubtedly are present in this case. We have no hesitation in coming to the conclusion, apart from the question of registration with which we shall deal presently, that it the evidence which has been produced in this case were all the evidence available to prove the due execution and attestation of the will, there could be no doubt that the respondent had failed to satisfy the Court and dispel the suspicious circumstances which were undoubtedly present in this case.

The question therefore is whether in the circumstances of the present case the evidence as to registration discloses that the testator knew that he was admitting the execution of a will when he is said to have put down his signature at the bottom of the will in the presence of Arabali. We have scrutinized that evidence carefully and we must say that the evidence falls short of satisfying us in the circumstances of this case that the testator knew that the document the execution of which he was admitting before Arabali and at the bottom of which he signed was his will. Therefore we are left with the bald fact of registration which in our opinion is insufficient in the circumstances of this case to dispel the suspicious circumstances which we have enumerated above. We are therefore not satisfied about the due execution and attestation of this will by the testator and hold that the propounder has been unable to dispel the suspicious circumstances which surround the execution and attestation of this will. In the circumstances, no letters of administration in favour of the respondent can ''be granted on the basis of it."

Therefore, the lower Appellate Court is of the opinion that the appellant has failed to establish due execution of Will''. Once the Will'' is on record, based on which plaintiff-appellant sought title to suit property, when a status is that one of the daughter of A. Venkatamma having definite share in the property along with her sister Radhamani @ Rani and her brother Ravi. Now in the absence of sister and brother as a party to the suit, even the Trial Court could not have molded the relief granting a relief of partition between the parties.

The lower Appellate Court also recorded a finding that basically the Will'' itself is not established. The way it is expected to be established. Therefore, there was nothing for the Trial Court could have done totally rejecting in the case of the plaintiff-appellant. However, observing that at best she/plaintiff got 1/3rd share in the property of the A. Venkatamma that which she can workout by instituting a suit for partition and separate possession by impleading her brother Ravi and sister Radhamani @ Ram. Therefore, the lower Appellate Court held that the impugned judgment and decree passed by the Courts below does not call for any interference. Accordingly, the said appeal came to be dismissed.

In view of the admitted facts that that the property belongs to plaintiffs mother A. Venkatamma who purchased from one Siddamma under registered sale deed dated 15.9.1975. She died leaving behind the plaintiff, her brother Ravi and sister Radhamani @ Rani and husband Gopalappa. After the death of A. Venkatamma, all the members of the family i.e. plaintiff, her brother Ravi and sister Radhamani are entitled to seek share in the property left by A. Venkatamma. The plaintiff claimed her title based on the basis of will dated 28.05.1985 executed by her father Gopalappa, who is in no way concerned with the property in question, and both the courts have concurrently held that the plaintiff has failed to prove the Will'' as contemplated under the provisions of Sections 63 and 68 of Indian Evidence Act and accordingly rejected the case of the plaintiff/appellant. However, both the courts have concurrently observed that, the plaintiff can maintain suit for partition of her 1/3rd share in the property of Venkatamma and since all the family members have not been impleaded as parties to the suit, ultimately the trial court dismissed the suit with an observation that the plaintiff can file suit for partition and separate possession by impleading all the members of the joint family. The said finding of fact recorded by both the courts below is based on the cogent legal evidence on record.

The appellant/plaintiff has not made out any ground to interfere with the concurrent findings of fact recorded by the courts below under the provisions of Section 100 of the Code of Civil Procedure. No substantial question of law is involved in the present appeal.

Accordingly, the regular second appeal is dismissed.