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Judgment
Huluvadi G. Ramesh, J.—Appeal is by the Plaintiff challenging the order of the XXXVII Addl. City Civil Judge, Bangalore in OS 7592/2000 on 28.8.2008.
Suit was filed by the Plaintiff seeking for declaration that the judgment and decree passed in OS 7266/1996 by the City Civil Judge is not binding on the Plaintiff and to declare that Plaintiff is the full and absolute owner of the suit schedule property in view of the registered Will dated 12.3.1980 executed by her father late Ramaiah and for the consequential relief of injunction against the Defendants from alienating the suit property and also from interfering with her peaceful possession and enjoyment.
It is stated, Plaintiff and 1st Defendant are the daughter and son of late Ramaiah @ Ramiah Reddy born to Hemavathi. The 2nd Defendant claims to be the wife of Ramaiah Reddy and she is not the legally wedded wife and so also the 3rd Defendant who claims to be the son born to 2nd Defendant through Ramiah Reddy. According to the Plaintiff, plaint schedule properties are site Nos. 1-4 and 7-12 situate at Nanjareddy Colony, Jeevanbheema Nagar, Bangalore and land bearing Sy. No. 2/7 measuring 1.22 acres situate at Hoodi Village, Bangalore South Taluk. The Plaintiffs father, during his life time, has put up a residential building on the ground floor on site No. 7. The said Ramaiah Reddy had executed a registered Will dated 12.3.1980 bequeathing site Nos. 1 to 4 in favour of the 1st Defendant and premises on site No. 7 and sites 8 to 12 in favour of the Plaintiff and also handed over the original registered Will in favour of the 1st Defendant and the same was informed by him to the Plaintiff. Subsequently, on 26.11.1995, Ramaiah Reddy died as such, Plaintiff became the absolute owner in possession of the suit residential building in site No. 7 and sites 8 - 12 in view of the registered Will. It is also slated, after the death of her father, she had put up construction on the first floor of site No. 7 and, on the death of her father when she requested her brother to hand over the original Will, since he did not hand over the same, Plaintiff obtained the certified copy of the Will from the office of the Sub-Registrar. The Plaintiff had also leased out the four houses on the premises in site No. 7 to four different tenants and she is regularly collecting rents based on the registered Will. It is also stated, based on the Will, her father during his life lime, had made the tenants to execute the lease agreement in favour of the Plaintiff as such, she was collecting the rentals and she became the absolute owner on the death of her father. However, in so far as other property in Sy. No. 2/7, separate suit is filed in OS 3454/1999 seeking for half share and for mesne profits.
It is stated, Defendants 1 to 3 alleging that there is a Will dated 20.5.1995 executed by late Ramaiah Reddy, filed OS 7266/1996 and obtained a collusive preliminary and final decree behind her back and she is not a party to that proceedings. Stating that Defendants 1 to 3 have no right, title or interest over the plaint schedule property i.e., in respect of site No. 7 and sites 8-12, suit came to be filed.
Defendants 1 to 3 appeared in the suit filed by the Plaintiff. The 1st Defendant had filed written statement. 2nd and 3rd Defendants also filed their written statement separately. According to the Defendants, on the death of Hemavathi, first wife, Ramaiah Reddy married the 2nd Defendant who is said to be the legally wedded wife and the 3rd Defendant is their son. Denying the contention of the Plaintiff as regards the alleged Will dated 12.3.1980 bequeathing the property in favour of the Plaintiff, it is stated his father performed the marriage of the Plaintiff after selling site No. 11 of Nanjareddy Layout towards the marriage expenses and rather, he settled the right in the last Will dated 20.5.1995. It is further stated, the entire property has been bequeathed in his favour by virtue of the Will dated 20.5.1995 including the plaint schedule property as such, Plaintiff has no right, title or interest over the same. It is also contended, Plaintiff is claiming right over the property in Sy. No. 73/2 to which Defendants are strangers and are in no way concerned with that land and they have been wrongly impleaded.
It is to be noted, the written statement filed by the 1st Defendant alone has been considered while the written statement filed by 2nd and 3rd Defendants has been rejected since it was belated and thereafter, the writ petition filed against the order of rejection of the written statement of 2nd and 3rd Defendants also came to be dismissed. However, the averments noted above is on the basis of the pleadings in the written statement filed by the 1st Defendant.
It is further alleged by the 1st Defendant, his father had not handed over the original registered Will dated 12.3.1980 in his favour. Though the trial court has rejected the written statement of the 2nd and 3rd Defendants, according to these Defendants, they are in possession and under the Will dated 20.5.1995, Plaintiff was entitled to collect the rents from the tenants up to the date of the execution of the new Will and Plaintiffs husband has been collecting the rent forcibly. Site Nos. 8 to 12 are vacant and it is contended, they are not aware of the suit filed by the Plaintiff for separate possession and partition. However, the specific case of the Defendants is on the basis of the order in OS 7266/1996 filed by them, Plaintiff is not entitled for any relief. It is stated, even the property at Hoodi has been settled under the Will of 1995.
Based on the pleadings, trial court raised as many as four issue? and three additional issues. After inquiry, trial court dismissed the suit filed by the Plaintiff. Hence, this appeal.
Heard the counsel representing the parties.
According to the Appellant''s counsel, the Will dated 12.3.1980 is a registered Will. It has been duly proved by examining the attesting witness. The secondary evidence produced is nothing but a certified copy of the original Will which was registered and available in the Sub-Registrar''s office and it is an authentic document. As per the said document, Plaintiff was given share of site No. 7 and 8 to 12 at Nanjareddy Colony and site No. 7 consists of ground and first floor. In OS 3477/1996 filed, the 2nd Defendant did not claim any right over site No. 7 which was given to the Plaintiff. Even injunction was refused to the 2nd Defendant. In OS 7266/1996, Defendants inter se got a consent decree without impleading the Plaintiff and suppressing the earlier suit and right given to the Plaintiff, collusive decree has been obtained which is not binding on the Plaintiff, it being an ex parte order. Although the court has ordered to produce the documents viz., the Will dated 20.5.1995 alleged to have been executed in favour of the Defendant by Ramiah Reddy, non-production of the same is fatal Accordingly, learned Counsel has relied upon the decision in the case of State of Bihar Vs. Radha Krishna Singh and Others, to contend when Defendants failed to produce the document, an adverse inference has to be drawn. Further, according to the Appellant''s counsel, when the Defendant has taken a stand by filing written statement and did not step into the witness box to stand by his contention and the written statement filed by 2nd and 3rd Defendants having not been accepted, his stand has to M. Venkataramana Hebbar (D) by L.Rs. Vs. M. Rajagopal Hebbar and Others, - Head Note E, it is contended that the suit of the Plaintiff ought to have been decreed in the circumstances based on the evidence let in by the Plaintiff by proving the Will as required u/s 63 of the Indian Succession Act and when none of the attesting witnesses have been examined and also when it is specifically stated that the Defendant to whom the subsequent Will was handed over, has not produced the documents much less he has destroyed the document, the certified copy produced is an authentic document. It is further contended that when the 1st Defendant never entered into the witness box to stand by his contention, the entire written statement has to be thrown out and accordingly, referred to the decision of the Apex Court in the case of Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, and in the case of Vidyadhar v. Manikrao and Anr. AIR 1989 SC 1441 to contend, adverse inference has to be drawn against the Defendants as the Defendants never entered into the witness box. It is also contended, Plaintiff was authorised and permitted to mark the secondary evidence and at the threshold objections has to be taken for marking secondary evidence and not at a later stage. Counsel has also relied on the case of Smt. Dayamathi Bai Vs. Sri K.M. Shaffi, and in the case of Vice Chairman, Kendriya Vidyalaya Sangathan and Anr. v. Girdharilal Yadav (2004) 6 SCC 325 to contend that admitted facts need not be proved. It is specifically stated, even the Defendants themselves have stated that it is Sy. No. 73/2 and not 78/2 as such, now the Defendants taking a different stand even on the identity of the property and its survey number at this point contrary to their own stand, cannot be accepted.
Further, relying on the Division Bench decision of this Court in the case of Smt. Aisha Bi and Anr. v. M. Shamsher Khan ILR 2008 Kar 546, referring to Order 8 Rule 5(2) r/w Rule 10, CPC it is contended even when the Defendant failed to contest the matter by entering into the witness box and when the matter has not been contested as required, the trial court passed the judgment in favour of the Defendant and on an erroneous consideration, the suit of the Plaintiff has been dismissed without understanding the legal position. It is also his contention, the judgment and decree obtained by the Defendants by way of a collusive decree in OS 7266/1996 is not a judgment in rem but it is in personam and not binding on the Plaintiff as the Plaintiff was not made a party. The said suit nor the document dated 20.5.1995 - the subsequent Will has not been produced as such, adverse inference has to be drown. Accordingly, on various grounds it is contended that the order of the trial court be set aside and the suit be decreed.
Per contra, Respondents'' counsel submitted, the decree obtained in OS 7266/1966 is a judgment in rem and it is binding on the Plaintiff. The said decree cannot be nullified and Plaintiff has not produced the original Will and she has taken inconsistent stand at different dines and, with regard to survey number, it is contended the survey number is 78/2 and not 73/2 and in the absence of the original Will, the certified copy marked as exparte evidence is not binding on the Defendant. In the second Will dated 20.5.1995 except site No. 7, there is no property made available to the Plaintiff and the Will dated 12.3.1980 cannot be acted upon and Plaintiff had to prove that the original Will was not available and she ought to have given notice to the opposite party, then only secondary evidence is admissible. It is contended further, Ramaiah Reddy owned Sy. No. 78/2 to the extent of 15 1/2 guntas, the Will pertains to Sy. No. 73/2, there are discrepancies in the Will produced by the Plaintiff and. relying on the judgment of the Apex Court in the case of Sanjay Verma Vs. Manik Roy and Others, , on various grounds Respondents'' counsel contended that the trial court has rightly dismissed the suit.
In the light of the arguments advanced, the points that arise for consideration are-
Whether the Plaintiff has duly proved the Will dated 12.3.1980;
Whether the Plaintiff is justified in relying upon secondary evidence i.e., certified copy of the Will obtained from the office of the Sub-Registrar;
Whether the Defendants are justified in contending that the decree obtained in OS 7266/1996 is binding, on the Plaintiff;
Whether the Defendants are able to establish that there is a second Will dated 20.5.1995 executed by Ramiah Reddy and that is the last Will, as such, the Will dated 12.3.1980 is not binding.
During, the pendency of the appeal, Respondents also sought to produce additional documents at this stage to which the Appellant''s counsel has objected. As such, question also arises whether the additional documents sought to be produced at this stage needs to be allowed, and what order.
What is not in dispute is the relationship between the Plaintiff and the 1st Defendant who are sister and brother born to late Hemavathi through Ramiah Redely. What is contended is, the 2nd Defendant is married to Ramaniah Reddy after the death of Hemavathi and the 3rd Defendant is born to Ramaiah Reddy and the 2nd Defendant. According to the Plaintiff, there is a Will dated 12.3.1980 bequeathing his property situate at Nanjareddy Layout. Plaintiff was given site Nos. 7-12 in which house was built in site No. 7 during the life time of Ramaiah Reddy and thereafter, on his death, first floor was put up by the Plaintiff and the remaining sites 8-12 are vacant sites said to be in possession of the Plaintiff. It is pertinent to note, Ex-P3 - Will said to have been executed by Ramaiah Reddy is a registered Will and it is also the contention of the Plaintiff that the original Will is given to her brother which he has torn or destroyed. One of the attesting witness who is examined is none other than the relative of both the Plaintiff and the 1st Defendant and he has been examined as required u/s 63 of the Indian Succession Act, who also supports the case of the Plaintiff. In the description provided in the Will as claimed by the Plaintiff, she was given properties which are said to be the self acquired properties of late Ramaiah Reddy.
The stand taken by the Defendants is, there was a subsequent Will and the Will dated 12.3.1980 is not the last Will. However, when the Defendants were called upon to produce, they have not produced much less the 2nd and 3rd Defendant''s case has not been entertained by the trial court by way of refuting the written statement filed by them. The said order has been confirmed in the writ petition. What is also not in dispute is, though written statement is filed by the 1st Defendant, he has not made himself available nor he entered the witness box to stand by his contention and he was not available for cross-examination.
So far as the decree, obtained by the Defendant in OS 7266/1996, according to the Respondents'' counsel, it is a judgment in rem and is binding on the Plaintiff. However, to contravert the position, Appellant''s counsel has submitted that to prove the Will alleged to have been executed in favour of the Defendants, suit was got dismissed by way of dismissal for default as such, Defendants were unable to establish that there was a last Will much less they have also not produced the Will before the Court. Relying upon Sanjay Verma''s case noted supra it is contended the judgment rendered in the suit filed by the Defendants is not binding on the Plaintiff since Plaintiff was not made a party as such, it is not even a judgment in rem, may be a judgment in personam and as such, does not bind the Plaintiff. As argued by the Appellant''s counsel, judgment in OS 7266/1996 is not binding on the Plaintiff as she was not a party to the suit.
In the suit filed by the Defendants themselves, the finding of the trial court on the issue and also regarding the property in Sy. No. 73/2 and 78/2 is concerned remains a moot point in view of the fact that Plaintiff has never taken a stand rather, she has given a descriptive boundary of the suit property. Rather, in the paper book filed some of the documents produced by the Defendants themselves reflect they have pleaded that the Survey Number is 73/2 - Ex.P5. That itself takes away the defense of the Defendants to contend that it is Sy. No. 78/2 and not Sy. No. 73/2. Even the Defendants fail to establish the alleged Will dated 20.5.1995 as the last Will as such, they have to be non-suited.
So far as the first Will, copy of which is said to have been produced by the Plaintiff, the attesting witness has been examined and she has done her part as required under law. The case of the Plaintiff is, the original Will was handed over to the 1st Defendant and it is not available. Certified copy obtained by the Plaintiff from the office of the Sub-Registrar and examining the witnesses in respect of the same who is a attesting witnesses to the Will and in the absence of any decree obtained by the Defendants alleging that there is second Will executed in their favour to stand by their contention and also when their defense was struck off in not accepting the written statement filed by Defendants 2 and 3 and also the 1st Defendant failed to enter the witness box and considering the contentions, the trial court ought to have decreed the suit based on Ex.P3 - certified copy of the Will which is shown to be duly proved.
The IA filed by the Respondents for production of additional documents is dismissed as no cogent reasons are assigned for belated production.
In the circumstances, appeal is allowed. Order passed by the trial court is set aside having noted the various legal position referred to in the course of arguments and in the order. Suit of the Plaintiff is decreed as prayed for. However, in the circumstances, parties to bear their own costs.