Ranganath vs Sarojadevi

B. Veerappa, J.—This is a plaintiff''s regular second appeal against the judgment and decree dated 01.12.2011 made in RA No. 51/2011 on the file of the Senior Civil Judge, Koppal, confirming the judgment and decree dated 07.09.2011 made in OS No. 2/2010 on the file of the Civil Judge and JMFC, Koppal, dismissing the suit for declaration and injunction.

The plaintiff filed the suit for declaration of title and perpetual injunction, contending that the plaintiff is the brother and defendant is his sister. The father of the plaintiff and defendant by name Hanamanthappa died in the year 1986. The mother of the plaintiff by name Girijadevi died on 25.02.2003. The said Hanamanthappa and Girijadevi were having four sons and three daughters. Among the children, brothers and sisters of the plaintiff by name Venkatesh and Suvarna are also dead and it is pleaded that all the brothers and sisters of the plaintiff are Government servants. According to the plaintiff, the suit schedule property, originally belonged to his mother Ginjadevi and after the death of the father, the mother was in the care and custody of the plaintiff. He was looking after her, in her olden days till her death. Hence, out of love and affection, Ginjadevi had executed a valid Will dated 22.03.2000 bequeathing the suit schedule property in favour of the plaintiff. Therefore, he succeeded to the suit schedule property and became the owner by virtue of the Will. The further case of the plaintiff is that the defendant also concocted a forged Will dated 01.12.2002 and in furtherance, she has denied his right, title over the suit schedule property. The grievance of the plaintiff is that the defendant in collusion with the revenue officials got entered her name in the mutation register in respect of the suit schedule property and thereafter, she has denied the right, title and possession of the plaintiff over the suit property. Therefore, he filed the suit for declaration.

The defendant filed written statement and admitted the plaint description and genealogy and also admitted that the suit schedule property belongs to their mother Ginjadevi and denied that her mother Ginjadevi was in care and custody of the plaintiff and denied that, out of love and affection executing a Will in favour of the plaintiff and it is the specific case of the defendant that her mother executed valid Will dated 01.12.2002 bequeathing the suit schedule property in her favour. At the time of execution of the Will, Girijadevi was in a sound and disposing state of mind. The plaintiff has neglected and refused to maintain his mother and hence, she was residing with the defendant at Gadag. In the mutation proceedings, the present plaintiff entered appearance and filed objections claiming intestate succession. But, he has not made any reference regarding execution of the Will by his deceased mother in his favour, etc. The suit filed by the plaintiff is barred by limitation. Therefore, she sought for dismissal of the suit.

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

"(i) Whether the plaintiff proves valid execution of last Will dated 22.03.2000 by his mother in his favour and thereby bequeathed the suit property?

(ii) Whether the plaintiff proves his lawful possession over suit schedule property as on the date of the suit?

(iii) Whether the defendant proves valid execution of last Will dated 01.12.2002 by deceased Girijadevi in her favour?

(iv) Whether the plaintiff proves alleged interference by the defendant?

(v) Whether the plaintiff is entitled for relief of declaration and perpetual injunction?

(vi) What order or decree?

Additional Issue

"Whether the defendant proves suit is barred by law of limitation?"

In order to establish his case, the plaintiff examined as PW-1 and two more witnesses as PWs-2 & 3 and produced documents Exs. P-1 to 10. On the other hand, the defendant is examined as D.W. -1 and another witness as D.W. -2 and got marked documents Exs. D-1 to 15.

After considering the entire material on record, the trial court recorded a finding that the plaintiff has failed to prove the valid execution of last Will dated 22.03.2000 by his mother in his favour and thereby bequeathed the suit property, but he proved that he his in lawful possession over suit schedule property as on the date of the suit. The defendant failed to prove the valid execution of last Will dated 01.12.2002 by deceased Girijadevi in her favour and the plaintiff further failed to prove the alleged interference by the defendant and the suit filed by the plaintiff is barred by limitation. Accordingly, the suit came to be dismissed.

Aggrieved by the said judgment and decree, the appellant filed RA No. 51/2011 before the Senior Civil Judge, Koppal, who after hearing both parties by his impugned judgment and decree dated 01.12.2011 dismissed the appeal and confirmed the judgment and decree of the trial court. Against the said judgment and decree of the courts below, the present appeal is filed.

I have heard the learned counsel for the parties to the lis.

Sri. A.S. Patil, learned counsel for the plaintiff/appellant, has contended that the impugned judgment and decree passed by the courts below holding that the plaintiff has failed to prove Ex. P-7, is illegal, contrary to the material facts and evidence on record. Ex. P-7 is an unregistered Will, wherein there is a reference with regard to the care taken by the appellant/plaintiff during the last days of Sri. Girijadevi. The said aspect of the matter has not been considered. He also contended that the defendant also claimed title based on the Will alleged to have been executed by the plaintiff''s mother on 01.12.2002. The said Will is also negated by the both the Courts. Therefore, he sought to set aside the impugned judgment and decree of the courts below.

Per contra, Sri. P.G. Mogali, learned counsel for the 1st respondent sought to justify the impugned judgment and decree of the trial court.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.

The plaintiff claimed his title and declaration on the basis of an unregistered Will dated 22.03.2000, so also the defendant based on her claim on another unregistered Will dated 01.12.2002. Both the courts below held that the plaintiff and defendant both have failed to prove the alleged last will dated 23.02.2000 and 01.12.2002 said to have been executed by their mother/Ginjadevi.

The pleadings of both the parties are not in dispute that the suit schedule property originally belongs to the father of the plaintiff and defendant which was the joint family and after the death of their father, the name of their mother Girijadevi was shown as legal representative and on the basis of the entry, both the plaintiff and defendant simultaneously claimed the title in respect of the suit schedule property in the present suit. Both the Courts negatived their respective contentions and the fact that they are the members of the joint family and the suit schedule property belong to joint family property is not disputed either by the plaintiff or defendant. If the suit schedule property is joint family property, the plaintiff and defendant, being brother and sister, are equally entitled for the share. The said aspect has not been considered by both the Trial Court as well as the lower Appellate Court. The Trial Court dismissed the suit. Lower Appellate Court affirmed the judgment and decree of the Trial Court holding that the plaintiff is not able to establish his declaration of title and possession on the basis of the "Will" dated 20.03.2000. So also the defendant on the basis of the "Will" dated 01.12.2002 and ultimately, the Appellate Court confirmed the judgment and decree of the Trial Court and the resultant position would be, admittedly, the suit schedule property belongs to the father of the plaintiff and defendant which was a joint family property. If it is so, that the members of the joint family, plaintiff and defendant are entitled equal share. Therefore, the lower Appellate Court confirmed the judgment and decree of the Trial Court is in accordance with law. The appellant has not made any ground to interfere in the present appeal. No substantial question of law is involved. Accordingly, the appeal is dismissed.

However, the fact remains that the suit schedule property belongs to joint family of both the plaintiff defendant and other members. If that is so, it is needless to observe that it is always open for the plaintiff to file comprehensive suit for partition and separate possession, impleading all the members of the joint family and in accordance with law. Accordingly, the regular second appeal is dismissed.