Krishna Holla and Others vs Seetarama Holla and Others

Ravi V. Malimath, J.

Aggrieved by the Judgment and Decree passed by the Trial Court, partly decreeing the suit of the plaintiff for partition and affirmation of the decree and alteration of the share of the plaintiff to a higher extent by the First Appellate Court, Defendants 1 to 3 have filed this second appeal.

Parties will be referred to as per their ranking in the trial Court.

The case of the plaintiff is that the father of the plaintiff and defendants owned and possessed immovable properties. He settled ''A'' schedule properties in favour of his wife Chandramma and male children jointly in terms of a registered settlement deed dated 29.10.1957. His wife Chandramma died on 15.05.1996. After her death, the defendants took possession of the properties. At the time of execution of the settlement deed, the plaintiff was the only son born to his father. After the settlement deed, 1st and 2nd defendant were born. As such, in terms of the recitals of the settlement deed, defendants 1 and 2 became jointly entitled to the suit properties and as such, they have been enjoying the same as co-owners. The mother of the plaintiff was in management of the same. After her death, the plaintiff being the eldest member of the family, has been managing the suit property. Thereafter, the property was divided equally initially and the plaintiff is entitled to one such share. That the deceased Chandramma executed the said Will in respect of the entire ''A'' schedule properties. That she does not have any right to bequeath all the properties. She is only entitled to bequeath 1/4th of the properties which she has received in terms of the earlier settlement deed. Therefore, the plaintiff claims that he is entitled to 28/96th share and hence, filed a suit to that extent. Suit summons were served on the defendants who filed their written statement. The relationship was not disputed. Defendants 1 to 3 claim that as per the Will executed by the deceased Chandramma, they are entitled for the entire share of Chandramma''s properties equally. It is further contended that Chandramma has deposited a sum of Rs. 1,00,000/- with Canara Bank, Gangolli branch and nominated the plaintiff for the said deposit. The same was renewed from time to time by taking thumb impression of Chandramma. Ultimately, the deposit was renewed in the sole name of the plaintiff. Therefore, the plaintiff is liable to account for the same. They disputed the quantum of share as claimed by the plaintiff. Their case is that plaintiff is not entitled to 28/96th share, but to a far lesser share. On the basis of pleadings, the following issues were framed by the trial Court.

i) Whether the plaintiff proves that he and the defendants are in joint possession and enjoyment of the plaint ''A'' schedule properties as co-owners as on the date of suit?

ii) Whether the defendants 1 and 2 prove that their mother Chandramma had executed the last will on 16.4.96 bequeathing the suit properties in favour of the plaintiff and defendants 1 to 3 to the extent of her 1/4th undivided share?

iii) Whether the plaintiff proves that the suit ''A'' schedule properties are liable to be divided into 96 fair and equal shares and he is liable for allotment of 28 such shares with proportionate profits?

iv) Whether the defendants 1 and 2 prove that the plaintiff is bound to account for the fixed deposit of Rs. one lakh belonging to Chandramma in Canara Bank, Gangolli?

v) Is the plaintiff entitled for partition of the suit properties as prayed. If so, to what extent of share he is entitled for?

vi) What order or decree?

In support of his case, the plaintiff examined himself as P.W. 1 and another witness and marked 15 documents. Defendant No. 1 was examined as D.W. 1, one other witness as D.W. 2 and marked Exs. D. 1, 1(a) and 1(b) in his favour. Issue Nos. 2 and 5 were held in the affirmative. Issue No. 4 was held in the negative. As per the seasonings on the other issues, the suit was decreed holding plaintiff''s entitlement of 5/16th share in the suit schedule properties. Defendants 1 and 2 were entitled to 5/16th share, respectively. Defendant No. 3 is entitled to 1/16th share, Defendants 4 and 5 were not entitled to any share in the suit schedule property. Aggrieved by the same, the plaintiff filed an appeal before the First Appellate Court. The shares were modified. The First Appellate Court held that the plaintiff is entitled for 8/28th share or 1/4th share in suit ''A'' schedule properties with the same share for Defendants 1 and 2. Defendants 3 to 5 were entitled to 1/28th or 1/7th share each out of 1/4th share of deceased Chandramma in ''A'' schedule properties. Aggrieved by the same, defendants are before this Court. The substantial question of law that arises for consideration in this appeal is:

"Whether the Lower Appellate Court is justified in holding that the Will at Ex. D. 1 has not been proved having regard to the evidence on record?"

Learned counsel for the appellants/defendants contends that the First Appellate Court committed an error in misreading the evidence. The Trial Court having held that the Will set up by the defendants is not proved, should have been accepted by the First Appellate Court. The First Appellate Court, having recorded a finding based on the material on record, has modified their shares in terms wherein the share is a far lesser extent than what has been granted by the Trial Court. That there was no objection to the Will set up by the defendants. The Trial Court, having accepted the same, held that the deceased Chandramma was entitled to bequeath all the properties. The finding recorded by the Trial Court being just and proper, was wrongly interfered with by the First Appellate Court. Hence, he pleads that the appeal be allowed by confirming the Judgment and Decree passed by the trial Court.

Respondent No. 1 is served and unrepresented.

Heard the learned counsel for the appellant and examined the records.

The relationships are not disputed. What is disputed is the settlement deed as well as the partition deed. However, the Trial Court framed Issue No. 2 as to whether the Defendants 1 and 2 prove that their mother Chandramma has executed the last Will bequeathing the suit schedule properties in favour of the plaintiff and defendants 1 to 3 to the extent of her 1/4th undivided share. In answering Issue No. 2, the trial Court held that the last Will dated 16.04.1996 executed by Chandramma is applicable to her 1/4th share of the suit schedule ''A'' property. The plaintiffs did not dispute the fact of execution of the Will as well as the bequeathment of the property by Chandramma. Consequently, the shares were allotted by the trial Court. The First Appellate Court framed Issue No. 1 to the effect whether the plaintiff proved that his mother Chandramma was not in a sound state of mind. Issues 1 and 2 as framed by the Appellate Court were considered together.

The evidence of the plaintiff would indicate that their mother was suffering from Cancer six months prior to the Will. She had became invalid, bed-ridden and not in a position to understand things. She was suffering. Her health deteriorated one week prior to execution of the Will. The Will is dated 16.04.1996 in terms of Ex. D. 1. Chandramma died on 15.05.1996, i.e., within one month of executing of the Will. In fact she was being treated regularly at Kidwai Hospital at Bangalore, which was not denied by the defendants. Therefore, based on this evidence, it would clearly show that her health condition as well as her state of mind at the time of execution of Will was doubtful.

Considering the serious health condition, she could not have been in a sound state of mind to understand the contents of the Will. Under such circumstances, her bequeathing the entire property in favour of the defendant in terms of the Will, becomes doubtful. Therefore, what becomes doubtful is not only the Will but also even to the extent of 1/4th of the share as she was entitled to in law. The defendants have failed to dispel the suspicion surrounding the Will. They have failed to prove the Will. The Will has been executed under suspicious circumstances. Under these circumstances, I am of the considered view that there is no error committed by the First Appellate Court.

The contention advanced is that before the Trial Court, there was no dispute by the plaintiffs regarding the validity of the Will. The plaintiff has accepted the same. Hence, there was no contest before the Trial Court on this issue. The acceptance of the Will and its validity is not by consent. Chandramma is entitled to only her 1/4th share of the properties as she has received in terms of the settlement deed. Therefore, the trial Court having held that the sound state of mind of the testator being the basis of the Will and the Will is proved, is erroneous. I am of the considered view that the finding recorded by the Appellate Court that the Will is not proved, is just and proper. As a consequence of holding that the Will has not been proved, the shares allotted by the First Appellate Court is just and proper. The shares have also been allotted to Defendants 4 and 5 who are the daughters as well as to the father. Therefore, the entitlement of Defendants 4 and 5 has been rightly granted by the First Appellate Court. The share of Defendants 4 and 5 was denied by the trial Court on the assumption that the Will has been established by the defendants. Under such circumstances, the allocation of shares by the First Appellate Court being just and proper and in accordance with law, does not call for interference. Hence, the substantial question of law is answered by holding that the First Appellate Court is justified in holding that Will/Ex. D. 1 is not proved.

For the aforesaid reasons, in view of the answer to the substantial question of law, the Appeal is dismissed.