Kannan vs C. Velayudhan and Others

B.V. Nagarathna, J—The defendant in O.S. No. 57/2006, has filed this second appeal, assailing the judgment and decree passed in R.A. No. 58/2012, by the First Fast Track Court at Shimoga, dated 04/04/2013, by which, the judgment and decree passed by the II Addl. Senior Civil Judge at Shimoga, in O.S. No. 57/2006 dated 03/01/2012 has been affirmed.

For the sake of convenience, the parties shall be referred to in terms of their status before the trial Court.

The first and the seventh plaintiffs and defendant are brothers. The second plaintiff''s husband and father of plaintiff Nos. 3 to 6 is their deceased brother. They are the children of late Chinnayyan and Smt. Chinnammal. Chinnayyan died on 08/03/1985 and Smt. Chinnammal passed away on 10/09/2003. It is the case of the plaintiffs that during the lifetime of late Chinnayyan and Smt. Chinnammal, they had purchased the suit schedule properties from one Kuppa, s/o. Yellappa and Kannappa, s/o. C. Lakshmana, under registered sale deeds dated 22/01/1968, for a valuable consideration.

That on 04/06/1990, their mother Chinnammal had executed a registered Will by which, she had divided the suit schedule properties into four equal parts and bequeathed the same to her four sons. This was done in order to maintain peace in the family. That since the year 1990, plaintiffs and defendants had been enjoying their respective 1/4th share in the suit schedule properties separately. That the family house was in a garden land where Chinnammal resided till her death i.e., 10/09/2003. After the death of Chinnammal, plaintiffs approached the defendant for division of the properties and for transfer of their respective shares. But the defendant initially advised the plaintiffs to remain quiet till the clearance of certain bank loans and not to make such demands. But the plaintiffs came to know that the defendant had got his name mutated in the revenue records and obtained RTC extracts to that effect. This was on the basis of the registered Will dated 21/11/2000 said to have been executed by Chinnammal, the mother. According to the plaintiffs, no such Will was executed by her. But the said Will dated 21/11/2000 was a fabricated and concocted document. That the properties had to be divided in terms of the earlier Will dated 4/6/1990, which was a registered Will executed by the mother, Chinnammal. On coming to know of these developments, the plaintiffs demanded from the defendant division of the properties. But when the same was refused, they filed the suit.

After service of suit summons and notices from the trial Court, defendant appeared through his advocate and filed his written statement admitting the relationship between the parties. He stated that the suit schedule properties were acquired by his parents jointly and it was the specific case of the defendant i.e., the father, Chinnayyan died intestate leaving behind his wife and his four sons, as legal representatives. That Smt. Chinnammal-mother had executed a registered Will on 10/9/2003 bequeathing her interest in the suit properties exclusively in favour of the defendant. Therefore, the plaintiffs cannot claim the share of Chinnammal in the suit properties, which according to the defendant, was one half. He also contended that in the remaining half share of the father, he was entitled to one fourth (1/4th) share and therefore, his total share was 7/10th share in the suit schedule properties. According to him, he was entitled to 3 acres 20 guntas of land, whereas the plaintiff Nos. 1 and 7 were entitled to get 20 guntas of land each and plaintiff Nos. 2 to 6 were entitled to 20 guntas of land together. He also contended that he had raised loans from the banks to make improvements on the suit schedule properties, but the plaintiffs had not contributed anything to the said improvement. That the plaintiffs had taken monies from the joint family and started their respective industries and constructed residential houses and those properties were not brought as suit schedule properties for the purpose of partitioning them between the parties. Defendant amended the written statement and counter-claim and plaintiffs filed rejoinder to the counter-claim by denying and disputing the claim of the defendant that the alleged Will is not a genuine one Chinnammal never intended to bequeath the properties in favour of the defendant, giving details and source of the funds for the purchase of various properties. Plaintiffs, sought for the dismissal of the counter-claim.

On the basis of the rival pleadings, the trial Court framed the following issues and additional issues for its consideration:

"1. Whether the defendant proves that his mother Smt. Chinnamal died intestate bequeathing all her shares in the properties to the defendant through a Will dated 10.9.2003?

Whether the defendant proves that he is entitled to get 7/10th share in the entire schedule properties and the plaintiffs 1 and 7 are entitled to 1/10th share each and plaintiffs 2 to 6 are entitled to 1/10th share?

Whether the defendant proves that the plaintiffs have taken money from the joint family funds and started Industries and constructed residential house and purchased sites and other properties and so the suit is bad for non-joinder of those properties?

Whether the defendant is entitled for 1/4th share in the said properties?

Whether the plaintiffs together entitled for 3/4th share as prayed?

Whether the plaintiff and entitled for mesne profits?

Addl. Issues:

Whether the defendant proves that written schedule properties have also been acquired under the joint family funds and hence he is entitle for a share, as contended in para 9 (j) of the Written Statement?

To what order or Decree?"

In order to prove their case, plaintiffs examined one witness, who is none other than plaintiff No. 1; they produced 34 documents, which were marked as Exs. P-1 to P-34. Defendant examined himself as D.W. 1 and two other witnesses were examined as D.W.s. 2 and 3. Defendant produced 9 documents, which were marked as Exs. D-1 to D-9 (b to e).

On the basis of the said evidence, the trial Court answered issue Nos. 1, 3, 4 and additional issue Nos. 1 and 6 in the negative, issue No. 2 partly in the affirmative and issue No. 5 in the affirmative and decreed the suit of the plaintiffs holding that, each of the sons of Chinnayyan and Chinnammal were entitled to one fourth (1/4th) share in the suit schedule properties. A direction was issued to draw up a preliminary decree to that effect. Being aggrieved by the said judgment and decree of the trial Court dated 3/1/2012, the defendant filed R.A. No. 58/2012 before the first appellate Court, which on hearing the parties, framed the following points for its consideration:

"i) Whether the defendant proves that his mother Chennammal died intestate bequeathing all her share in the property to the defendant through will Dt. 10-9-2003?

ii) Whether the Defendant proves that he is entitled to get 7/10th share in the entire schedule property and the Plaintiffs 1 & 7 are entitled to 1/10th share each and plaintiffs 2 to 6 are entitled to 1/10th share?

iii) Whether the defendant proves that the plaintiffs have taken money from the joint family funds and started industries and constructed residential house and purchased sites and other properties and so the suit is bad for non-joinder of those properties?

iv) Whether the defendant is entitled to 1/4th share in the said properties and whether the plaintiffs together entitled for 3/4th share?

V) Whether the defendant proves that the written schedule properties have also been acquired under the joint family funds and hence he is entitle for a share, as contended in pare 9(j) of the written statement?

vi) Whether the lower Court has properly appreciated the oral and documentary evidence?

vii) Whether the lower Court judgment is required to be set aside?

viii) What order?"

The first appellate Court answered point Nos. 1 to 3, 5 and 7 in the negative and answered point Nos. 4 and 6 in the affirmative and dismissed the appeal by confirming the judgment and decree of the trial Court dated 3/1/2012. Being aggrieved by the judgment of the Court below, the defendant has preferred this second appeal.

I have heard Sri. Nandish Patil, learned counsel for Sri. Harish Kumar M.S., learned counsel for the appellant and Sri. S.R. Hegde Hudlamane, learned counsel for the respondents.

While submitting that there was no dispute with regard to relationship between the parties and also the fact that Smt. Chinnammal, the mother had indeed executed a registered Will dated 4/6/1990, he contended that there were strong reasons for her to execute another Will on 21/11/2000, which is also a registered Will. He contended that it was only the defendant who looked after the mother, whereas all other sons had deserted her and were living separately with their respective families. Since they did not look after their mother, Chinnammal was constrained to make a fresh Will by bequeathing her share in the suit schedule properties in favour of the defendant. That the execution of the second Will dated 22/11/2000 was purely on account of love and affection in favour of the defendant as he had stayed with her and looked after her. He contended that Smt. Chinnammal died on 10/9/2003 and thereafter the Will became operational, and on the basis of the said Will, defendant''s name was mutated in the revenue records and therefore, the defendant was rightly in possession of the suit schedule properties. He also contended that the Courts below have not properly appreciated the evidence on record with regard to proof of Will and therefore, the judgments of the Courts below would call for interference at the hands of this Court, as substantial questions of law arise in this appeal, which merit a detailed consideration of the matter. He, therefore, submitted that the appeal may be admitted and on consideration of the records, the judgments of the Courts below may be reconsidered.

Per contra, learned counsel for respondent Nos. 1 to 7, while supporting the judgments and decrees of the Courts below, contended that the mother of the parties had wisely executed a Will on 4/6/1990, which is a registered Will. Under that Will, each son was entitled to 1/4th share in the suit schedule properties. There was no reason or occasion for the mother to once again execute another registered Will particularly, in the absence of there being any revocation of the registered Will dated 4/6/1990. He contended that though the Will dated 21/11/2000 is a registered Will, the same is null and void and not valid in the eye of law as the execution of the Will is shrouded in suspicion circumstances. The Courts below have rightly appreciated the fact that the Will was not a legal instrument and accordingly disbelieved the Will and have rightly partitioned the suit schedule properties in terms of the Will dated 4/6/1990. Drawing my attention to the various portions of the judgments of the first appellate Court and the trial Court, he contended that no substantial question of law arises in this appeal and that the concurrent finding of fact arrived at by the Courts below are in favour of the plaintiff and therefore, the appeal may be dismissed.

Having heard learned counsel for the parties, it is noted that there is no dispute with regard to the relationship between the parties. The parents, namely Sri. Chinnayyan and Smt. Chinnammal, had four sons. That the suit schedule properties were purchased jointly by them under a registered sale deeds dated 22/1/1968. In the absence of there being any specific apportionment of their rights in the properties, it must be presumed that they had an equal share in the suit schedule properties.

Chinnayyan died intestate. On his death, his share in the suit schedule properties devolved on his widow as well as his four sons. But there was no actual division of the suit properties. But after his death, his widow Chinnammal, who had half share in the suit schedule properties, had executed a registered Will dated 4/6/1990 dividing the entire suit schedule properties into four parts. This was done in order to maintain peace in the family. Each son was entitled to 1/4th share in the suit schedule properties. Chinnammal passed away on 10/9/2003. It is, thereafter, that the plaintiffs sought actual division of the properties, in terms of the Will dated 4/6/1990 and when the defendant refused to divide the properties, plaintiffs filed the suit seeking partition and separate possession of the suit schedule properties. It was at that stage, defendant propounded Will dated 21/11/2000, which is also a registered Will, under which he claimed the entire half share of his mother Smt. Chinnammal and also 1/4th share of his father, in the suit schedule property.

The plaintiffs contended that the Will was not valid in the eye of law. In order to prove the Will, the defendant examined one of the attesting witnesses, who was also a person, who identified Chinnammal, the testator, before the Sub-Registrar. According to D.W. 2, there was no prior discussion with regard to the execution of the Will. Along with the executant, D.W. 2 and D.W. 1 were at the Sub-Registrar''s office. They identified one Lingappa, a document writer and through him, the Will was got written. The defendant admitted that Lingappa did not know Tamil and his grand-mother Chinnammal did not know Kannada and she used to speak only Tamil. He has also stated that he did not give any instruction to Lingappa to prepare the Will. The trial Court has wondered that when the testator did not know the language of the Will, by which the deed writer drafted the Will, then on what basis the Will was drafted. The instructions given by the testator to the deed writer directly is also not forthcoming. Therefore, there was no direct communication between the testator and the deed writer, so as to give instructions with regard to the bequest that was made. He has also denied that he had given any instructions to the deed writer for drafting of the Will and has admitted that his grand-mother alone had given instructions. But the Courts below recorded that there were suspicion circumstances in the execution of the Will as the property was bequeathed exclusively to one of the sons of the testators, by excluding three other sons. There was no strong reason stated in the Will to exclude the two sons and the children of the other son, from her legacy.

D.W. 2 is none other than the grand-son of the testator and son of the defendant. D.W. 3-H.R. Manjunatha, in his evidence, has stated that on 21/11/2000, he went to the office of the Sub-Registrar for his work at about 12.20 p.m. and he wanted to meet Lingappa, the deed writer, at that time, he saw Chinnammal sitting along with Lingappa and Lingappa requested him to identify Chinnammal before the Sub-Registrar. Therefore, D.W. 3 was not requested by Chinnammal to be present at the time of execution of the registered Will, but incidentally, he happened to be present when the Will was being drafted and typed. In fact, his clear admission is that on the day of execution and registration of the Will, he had not come to the Taluk Office at the request of Chinnammal, but was there incidentally, for his own work, is a significant admission. The trial Court has also discussed certain other aspects with regard to the execution of the Will and came to the conclusion that the Will was not a genuine one and therefore, had to be eschewed and that the suit schedule properties had to be divided on the basis of intestate succession.

The findings of the trial Court have been considered by the first appellate Court, in light of the submissions that were made by the learned counsel therein and those findings have been approved and upheld by the first appellate Court. Therefore, as far as the validity of the Will and proof of the will is concerned, both the Courts below have been unanimous in their findings that the Will was not proved in accordance with law and therefore, was not a valid testament.

Those findings are sought to be assailed by the defendant in this second appeal by only stating that the testator intended to bequeath her half share in the suit schedule properties to the defendant, who is one of the sons, as it was only he, who looked after her towards the end of her life and that the plaintiffs did not bother to take care of her. If that was so, then such observations or submissions ought to have been found a place in the second Will executed by the testator on 21/11/2000. In fact, the Will dated 4/6/1990, which is the first Will executed by the testator was a registered instrument. If the testator intended to modify that Will or even revoke that Will, then there ought to have been strong circumstances for that and also the reasons for revocation must have found a place in the second Will or even if the reasons did not find a place in the second testament, atleast, the averment that first testament was revoked ought to have been mentioned in the second Will, which was also registered, which could have had the effect of revocation of the first testament. Those aspects are absent in the instant case. It becomes clear that the defendant and his son had taken a lead in the coming into existence of the Will dated 21/11/2000. The suspicious circumstances surrounding the execution of the second Will have not been cleared to the satisfaction of the Courts below. Therefore, there is no good reason to interfere with the findings of the Courts below.

As far as the counter-claim made by the defendant is concerned, the evidence given by the plaintiffs to the effect that the said properties mentioned in the written statement for counter-claim of the defendant were not joint family properties, but were purchased out of their own funds and were, therefore, self-acquisitions of the plaintiffs have been clearly established. The plea raised by the defendant that those properties were purchased out of joint family funds has not been proved.

In the circumstances, the Courts below were right in holding that the suit schedule properties mentioned in the written statement or counter-claim of the defendant were not joint family properties, but were indeed self-acquisition of the respective plaintiffs. Those findings also would not call for any interference. In fact, no substantial question of law arises in this appeal, the appeal is devoid of any merit and hence, dismissed. No costs.