Parvathamma and Others vs Gangamma and Others

Ravi V. Malimath, J—Aggrieved by the concurrent findings recorded by both the courts below in decreeing the suit of the plaintiffs, for declaration and injunction defendant No. 1 and defendant Nos. 2(a) have filed this appeal.

The parties will be referred to as per their ranking as referred to before the trial Court.

The case made out is that Plaintiff Nos. 1 to 5 and defendant No. 1 are sisters and defendant Nos. 2 and 3 are their brothers. Plaintiff Nos. 2 to 4 and defendant No. 1 are joint owners of the suit schedule ''B'' property. They inherited the said suit schedule property under a registered Will dated 6.4.1983 duly executed by their parents. They came into possession after the death of their parents. However defendant No. 2 has forcibly taken possession of the ''B'' schedule property from them on 20.11.1990. Plaintiff No. 4 is the owner of ''C'' schedule property under the said Will. Defendant No. 2 has also denied the title of plaintiff No. 4 over the said property. In fact, the first defendant has filed a suit in O.S. No. 13/87 before the Additional Munsiff, Davanagere for injunction. She has admitted the genealogy and relied on the Will in the said suit. Since the defendants denied the title and possession of the suit schedule property, the instant suit was filed seeking for a declaration that plaintiff No. 1 is the owner of plaint ''A'' schedule property, plaintiff Nos. 2 to 4 and defendants are the owners of plaint ''B'' schedule property and plaintiff No. 5 is the owner in possession of plaint ''C schedule property and sought for possession of ''B'' schedule property from defendant No. 2 and for costs.

On service of summons, the defendants entered appearance. Defendant No. 2 died during the proceedings and his legal representatives have been brought on record. The third defendant who was the brother of defendant No. 1 was impleaded as defendant No. 3 subsequently. The second defendant denied the suit claim. He contended that the plaintiff No. 1 is the owner of the suit schedule property having received it on the death of their parents. He being the last child, the parents were living with him. The third defendant has executed a release deed and he is living separately. During the life time of their father viz., Belludi Rudrappa, he declared that the suit schedule property belongs to defendant No. 2 as his other son is well settled in life and that the daughters who are plaintiffs and the first defendant are married and settled in their respective families; that since both Rudrappa and his wife had love and affection for defendant No. 2 and the suit schedule property has been assigned in his favour; that after the death of Rudrappa, defendant No. 2 approached the City Municipality, Davanagere and got the khatha of the suit schedule property changed to his name; that his parents are chronic patients and they used to take treatment continuously till their death; that they were not in a sound state of mind as on 6.4.1983 and were not in a capacity to execute any sort of Will in favour of the plaintiffs; that the Will dated 6.4.1983 is a created and concocted one with an intention to knock off the valuable properties.

Defendant No. 3 filed a separate written statement and denied the plaint averments. He contended that plaintiff No. 1 is not the owner of plaint ''A'' schedule property as she does not have title over the same; that there can be no claim under the alleged Will dated 6.4.1983; that the plaintiffs and the defendants are joint owners of suit schedule properties and the Will is a created one. Hence he sought for dismissal of the suit.

Based on the pleadings, the trial court framed the following issues and additional issues:

"(1) Whether the plaintiffs prove their title to the suit schedule properties through the Will dtd. 6-4-1983?

(2) Whether the plaintiff prove that the possession of defendant No. 2 to the suit schedule A & B properties is illegal and the plaintiffs are entitled for the possession?

(3) Whether the defendant No. 2 proves that the suit schedule properties are assigned to him by his father and mother?

(4) Whether the defendant No. 2 proves that the parents of plaintiffs were not in sound disposing state of mind and not having capacity to execute the Will on 6-4-1983?

(5) Whether the defendant No. 2 proves had the alleged Will is created one?

(6) Whether the Court fee paid is correct?

(7) Whether this Court has got no pecuniary jurisdiction to try the suit?

(8) What relief the plaintiffs are entitled for?

(9) What order or order?

Addl. Issues Dtd: 27-11-2000

1) Whether the third defendant proves that he invested amount to run the kirani business in the ''C schedule property?

ADDL. ISSUE DTD: 15-3-2002

1) Whether the defendants 1 & 2 prove that the suit is barred by limitation?"

The plaintiffs got examined P.Ws. 1 to 3 and got marked Exs. P.1 to P.46. the defendants examined DWs. 1 to 5 and marked Exs. D.1 to D.14 on their behalf.

Issues 1, 2, 6 and 8 were held in the affirmative and Issues 3 to 5, 7 and additional issues were held in the negative. The trial court decreed the suit declaring that plaintiff No. 1 is the owner of plaint ''A'' schedule properties and entitled for possession of the same by evicting defendant No. 2. Plaintiff Nos. 2 to 4 and defendant No. 1 are the owners of plaint ''B'' schedule property and entitled for possession of the same by evicting the legal representatives of defendant No. 2. Plaintiff No. 5 is the owner of plaint ''C schedule property. The legal heirs of the second defendant were directed to hand over the possession of ''A'' schedule properties to the first plaintiff and ''B'' schedule property to plaintiff Nos. 2 to 4 within three months from the date of the order.

Aggrieved by the same, defendant No. 1 and legal representatives of defendant No. 2 filed an appeal before the Appellate Court. The Appellate Court dismissed the appeal. Hence the present second appeal.

The learned counsel for the appellants contends that the court below failed to consider the fact that the parents who had stated to have executed the alleged Will were not in a proper state of mind to execute the Will. Medical evidence was led in support of their contentions. Hence the appellants herein would be entitled to an appropriate share in the said property.

Respondents are served and are represented by learned counsel. The plea of the plaintiffs is based on the registered Will marked by them as Ex. P. 3. It is stated that on 6.4.1995 in terms of the said Will, the property as mentioned therein was granted in favour of the plaintiffs and defendant No. 1. It is their contention that much prior to the execution of the Will, there was an oral partition between the parties and the properties were divided between the father and the second defendant. The third defendant was the other son who had executed a release deed in terms of Ex. P.36. He had relinquished all his rights in the properties of the family. Therefore the properties were divided among the father and the son. In terms of the Will, property which fell to the share of the father, fell to the share of the daughters. It is this share which the plaintiffs sought for by filing the instant suit.

It was contended by the defendant that the Will is not proved and is fabricated. The Will was executed when the father was not in an appropriate state of mind. In order to prove their case the defendants relied on Ex. D.13 which is the Bio-Chemistry letter pertaining to their father. It is therefore contended that the documents clearly indicate that the father was not in a clear state of mind. The Prescription was of the year 1975 whereas the Will Ex. P.3 was executed at 6.4.1983 viz., 7 years thereafter. Therefore it cannot be stated that the evidence led in support of Ex. D.13 support the pleadings of the defendants that their father was not in a sound state of mind. The court below failed to consider that defendant No. 2 had earlier filed a suit in O.S. No. 13/87 seeking for a decree of injunction. In the said suit, the second defendant had clearly narrated that the partition was effected on 30.6.1978 between his father and himself in terms of Ex. P.36, in terms whereof the property having fallen to the share of the second defendant and his family members and hence he requires an order of injunction. The second defendant had pleaded the prior partition as far back as in the suit filed by him in the year 1987. It is only subsequent to this partition, their father executed a Will on 6.4.1983. Therefore the plea set up by the plaintiff with regard to the prior partition as well as to the effect of execution of the Will was much earlier to present the suit. It was his specific contention that a partition had taken place. The Appellate Court has rightly held that it cannot be said that the findings recorded by the trial court are perverse and not based on material evidence one record. Even in the cross examination of Defendant No. 2 (a) who is examined as DW.1, he has clearly admitted the signature on Ex. P.36 the release deed. Even in the cross examination of defendants'' witnesses, they have clearly admitted about the prior partition which took place on 30.6.1978 as well as the Will executed on 6.4.1983. Therefore the evidence of the defendants themselves are not very cogent when they challenge the evidence of the plaintiffs on the Will.

So far as the release deed is concerned, which is executed by defendant No. 3, the same has been clearly admitted by his father and the second defendant. DW-1 and the deceased Vishwanathappa have also admitted to the partition deed. Therefore, the question of proving the same, does not arise for consideration. In view of the evidence of the defendants themselves even the release deed has been proved.

What has been contended by the defendants is that the Will has been executed under suspicious circumstances. That he was not in a proper state of mind to have executed the Will. The contention that Exhibit-D13 would indicate the poor state of health, while the Will was executed cannot be accepted. Since the prescription was of the year 1975 and the Will was executed in the year 1983, i.e., 7 years thereafter. Defendant No. 1 has admitted to the partition deed. The father of defendant No. 3 and defendant No. 2 have also admitted to the partition deed as well as the release deed. Therefore, it cannot be said that there is any suspicion in execution of the Will.

For the aforesaid reasons, I am of the considered view that no substantial question of law arises for consideration in this appeal. The entire case revolves around facts. I do not find any ground to interfere even so far as the merits are concerned. Consequently, the appeal is dismissed.