Mangalamma vs Sannarangamma

H.G. Ramesh, J.—The defendants are before this Court challenging the judgment and decree passed by the courts below in the suit filed by the mother of the 1st defendant for partition and separate possession of the property.

One G Rangappa @ Baggi Rangappa is said to be the husband of the plaintiff- Sannarangamma. The 1st defendant is born to the plaintiff through G Rangappa. The suit OS 194/2002 was filed for declaration and permanent injunction by way of partition and separate possession of the plaintiffs half share in the suit properties. In all there are four items. According to the plaintiff, on the death of G Rangappa, she and the 1st defendant have inherited the suit properties and they are in joint possession and enjoyment of the same. It is alleged, defendants 1 and 2 colluding with each other, are trying to disturb the joint possession of the suit properties. Having come to know that some documents have been concocted and created by the defendants in respect of the suit properties to knock of the plaintiffs share in the same, she filed an application to the Tahsildar for change of katha in the revenue records. Meanwhile, the defendants tried to dispossess the plaintiff. Therefore, suit came to be filed.

Defendants contested the suit. In the written statement, it is contended that Sy. No. 1/110 measuring 5.00 acres and Sy. No. 1/54 measuring 4.00 acre of Badavanahalli Kaval are not the properties of late Baggi Rangappa. However, they admitted that other two survey numbers i.e., 15/1 and 103/P measuring 9.36 acres and 6.00 acres situate at Chikkenahalli Village and D Marrunte Village of Challakere Taluk belong to Baggi Rangappa who died on 5.1.2000 and that 1st defendant is the daughter born to plaintiff through Baggi Rangappa. The 2nd defendant is a permanent resident of Chekkenahalli and he is Baggi Rangappa''s brother''s son. Since Baggi Rangappa had no male issues, he treated the 2nd defendant as his foster son and that both defendants 1 and 2 have jointly taken care of Baggi Rangappa till his death and the obsequies of Baggi Rangappa was attended to by the 2nd defendant. The 2nd defendant was assisting in the agricultural operations of Baggi Rangappa and out of love and affection, he had bequeathed item 3 of the suit properties to the 1st defendant and item 2, to the 2nd defendant through registered Wills dated 15.9.1997. At the time of execution of these Wills, Baggi Rangappa was in a sound state of mind. Subsequently, he died on 5.1.2000. After his death, there is change of katha in the name of defendants as such, they are in possession and enjoyment of the suit properties. Based on the pleadings, trial court has raised as many as five issues for consideration. After hearing, answering the relevant issues in favour of the plaintiff, the suit of the plaintiff is decreed holding that she is entitled to half share in the suit schedule properties; she is in joint possession and enjoyment of the suit properties while negating the contention of the defendants as to the creation of the Will in their favour in respect of item 3 and 2 of the suit properties. Against the said order, in the appeal preferred by the defendants in RA 61/2007, the District Judge having heard the parties, holding that there is no infirmity in the order passed by the trial court, concurring with the finding of the trial court, dismissed the appeal. Hence, this second appeal.

The following substantial questions of law were raised for consideration on 20.9.2012 :

"1. Whether the courts below erred in law in holding that the registered will - Ex. D1 and D2 are not proved by the appellants only because no share is allotted to the plaintiff and friends and relatives of the testator are not the attestors;

Whether the courts below have erred in law in holding that plaintiff is residing at Chikkenahally and at Gollahalli by overlooking Ex. D13, the voters list and admission to the effect that the defendant No. 1 is residing with defendant No. 2."

So far as the 1st substantial question of law raised i.e., regarding Ex. D1 and D2 the finding of the trial court is during the year 1999-2000, these two properties (items 1 and 2) stood in the name of G Rangappa as per the RTC extracts produced by the plaintiff and items 2 and 3 of the suit properties are the ancestral properties of Baggi Rangappa. However, according to the defendants, item 1 and 2 were not available as the property was taken over under the SC/ST (PTCL) Act. However, no such documents are produced by the defendants as claimed by them, as observed by the trial court. It is also the stand of the defendants that plaintiff left the company of Baggi Rangappa and she did not take care of the 1st defendant during her childhood and she started leaving at Gollahalli Village in Hiriyur Taluk. Baggi Rangappa was aged about 65 - 70 years at the time of his death. The voters list of 1993 goes to show that plaintiff was not living with Baggi Rangappa during his life time, rather she was living at Gollahalli in Hiriyur Taluk. The consistent stand of the defendants is that plaintiff left the company of Baggi Rangappa and was residing elsewhere. The trial court has noted that only in the year 1993 perhaps the plaintiff was not living with Baggi Rangappa but that by itself would not establish that she has left the company of Baggi Rangappa. There is said to be a Will created in favour of the 1st defendants by Baggi Rangappa as they were residing together. Having noted the contents/recitals of the Will do not show a picture as to Baggi Rangappa has been taken care of by the 2nd defendant since several years and that the recitals are not sufficient to hold that 2nd defendant was treated as foster son, the trial court has not accepted the stand of the 2nd defendant to prove that he was the foster son of Baggi Rangappa and also there is nothing on record to show that this Baggi Rangappa has executed a Will in favour of the 2nd defendant. It is also observed that the 1st defendant was given in marriage to the brother of the plaintiff and she gave birth to two children and left her husband''s house to live with her father at Chikkenahalli. Referring to S. 63 and 68 of the Evidence Act, the trial court has noted that the Wills executed in favour of defendants 1 and 2 are silent as to exclusion of the plaintiff from inheritance. As regards the evidence of D.W. 2, it is noted that he used to attend the Court for giving evidence and there is nothing in the evidence that Baggi Rangappa has put his signature on Ex. D1 and D2 in his presence as such, held that Ex. D1 and D2 are not duly proved. The trial court as well as the lower appellate court disbelieved the version of defendants 1 and 2 as regards execution of the Will, that too in a concurrent finding.

The very fact that the plaintiff was residing at Gollahalli and not at Chikkenahalli does not necessarily mean that she is not entitled for her share in the properties unless there is separation between the plaintiff and Baggi Rangappa, her husband. Mere production of Ex. D3 - ration card alone as regards absence of the plaintiffs name, will not take away the right and entitlement unless marriage is dissolved legally. In the circumstances, I do not find any scope for interference.

While answering the substantial questions raised accordingly, appeal is dismissed. Parties to bear their own costs.