Sanjeeva Bhandary vs Shivaram Bhandary and Others

N. Kumar, J—This is the 1st defendant''s regular first appeal against the judgment and decree of the Trial Court decreeing the suit of the plaintiffs for partition, granting 1/4th share in the suit schedule property, to the plaintiffs.

For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

The subject matter of the suit is 7 items of agricultural land situated in Surathkal Village of Mangalore Taluk within Mangalore City Corporation Limits of D.K. District, which is more particularly described in the schedule to the plaint and hereinafter referred to as the "Schedule Property".

One Kookra Bhandary is the propositor. He has four children; two daughters and two sons. Smt. Koosu Bhandarthy and Smt. Kollu Bhandary are the daughters. Sanjeeva Bhandary and Babu Bhandary are the sons. Plaintiffs 1 to 4 are the children of late Koosu Bhandarthy and 5th plaintiff is the son of Vanaja Bhandary, daughter of Koosu Bhandarthy, who is no more. Koosu Bhandarthy died leaving behind the plaintiffs as her successors. The schedule property was enjoyed by Kookra Bhandary as an agricultural tenant. On coming into force of the Karnataka Land Reforms Act, Kookra Bhandari filed declaration in Form No. 7 claiming occupancy right over the suit schedule properties. The Land Tribunal, Mangalore after holding an enquiry passed an order dated 10.02.1977 in LRT No. 368 and 375/75-76 granting occupancy rights in favour of Kookra Bhandary. In this regard, Form No. 10 is also issued on 05.06.1997. Kookra Bhandari died intestate on 23.07.1979 leaving behind the plaintiffs and defendants as his legal heirs. The wife of Kookra Bhandary by name Durgi pre-deceased him. On the death of Kookra Bhandary, the plaintiffs and defendants being the only legal heirs have succeeded to his estate and all of them have got equal rights. In other words, plaintiffs have together inherited 1/4th undivided right, title and interest in the plaint schedule properties. The predecessors of the plaintiff Smt. Koosu Bhandarthy got issued a legal notice dated 15.07.2005 to the defendants calling upon them to divide the properties and to give her legitimate share. The 1st defendant sent a reply denying her claim and he had set up a Will and put forth a false claim on the basis of the said Will. In the meanwhile, Koosu Bhandarthy died intestate. Subsequently, the 1st defendant approached the plaintiffs and offered to settle the matter by dividing the property into four equal shares. The property was also surveyed by the surveyor and was divided into four shares. After all these preliminary works, defendant backed out from the offer of settlement. Defendants 2 and 3 have colluded with the 1st defendant and have conspired and colluded together to defeat the legal rights of the plaintiffs. Therefore, the suit is filed for partition of plaintiffs'' 1/4th share in the plaint schedule properties.

After service of summons, the defendants entered appearance through their respective counsel. The 1st defendant contended that the suit is not maintainable either on point of law or on facts. The suit is filed to harass and black mail the defendants by taking undue advantage of the situation. The 1st defendant admitted the relationship of the parties to the proceedings as stated in the plaint. He also added that Late Kookra Bhandary was an agricultural tenant and the Land Tribunal, Mangalore conferred occupancy rights in respect of the plaint schedule property in his favour. It is also admitted that Late Durgi, the wife of Kookra Bhandary pre-deceased him. However, he denied that Kookra Bhandari died intestate and thus he also denied that Kookra Bhandari''s heirs inherited the plaint schedule properties. He also denied the plea that plaintiffs and defendants are in joint and in constructive possession of the plaint schedule property as co-owners or otherwise. He admits the receipt of lawyer''s notice and the reply sent by him and the settlement pleaded was disputed. No surveyor was taken to measure the properties. According to the 1st defendant, Kookra Bhandary, while he was in a sound disposing state of mind, executed his last Will and testament dated 28.03.1977 in the presence of two attesting witnesses, which was registered by the Sub-Registrar of Mulki. By virtue of the said last Will and Testament, Kookra Bhandary had bequeathed the schedule property in favour of the 1st defendant. The Children of Late Kookra Bhandary were very well aware of the due execution of the Registered Will. The Will was acted upon subsequent to the death of Kookra Bhandary. From the date of the death of Kookra Bhandary, the schedule property is in enjoyment and possession of the 1st defendant as an absolute owner for more than three decades which indicates that neither the plaintiffs nor their predecessors and no other children of Kookra Bhandary are in possession of the property as its co-owners. Since the death of Kookra Bhandary, the 1st defendant has been exercising his right in the ownership of the property openly, peacefully and continuously to the knowledge of all including the plaintiffs and Late Koosu Bhandarthy without any hindrance. The assertion of the plaintiffs as to any imaginary right, title and interest in the plaint schedule property in occupation of this defendant is a non-existent one and even in the unlikely event of having any such semblance of right, the same is long lost by adverse possession, estoppels, latches and acquiescence. The 1st defendant is the owner of the plaint schedule property and had converted some portion of the land for non-agricultural purpose, constructed residential house, parted with portions of the plaint schedule property through registered document. There is no cause of action for the suit. The suit is bad for non-joinder of necessary parties and that the plaintiffs are not entitled to any relief sought in the suit.

The 2nd defendant, who filed the written statement also admitted the relationship between the parties, tenancy in favour of Kookra Bhandary and grant of occupancy rights in his favour. Insofar as the 3rd defendant is concerned, he adopted the stand of the 1st defendant. He further contended that the 1st defendant Sanjeeva Bhandary had gifted the portion of the plaint schedule properties owned and possessed by him to the 3rd defendant as per the deed of gift dated 27.10.2010 and by virtue of the said deed of gift, he had become the absolute owner of the properties which is the subject matter of the said deed of gift and he has been enjoying the same being in actual possession and enjoyment of the same without any obstruction from whomsoever by effecting improvements thereto. The 1st defendant has also executed the sale deed in respect of portion of the suit schedule properties. The purchasers of the suit property are also necessary parties to the suit. Hence, the suit is bad for non-joinder of necessary parties. It is false to say that the 1st defendant colluded with defendants 2 and 3 and tried to grab the legitimate share of the plaintiffs in respect of the suit schedule property. There is no cause of action for the suit and therefore, he sought for dismissal of the suit.

On the basis of the aforesaid pleadings, the Trial Court has framed as many as seven issues and one additional issue which are as under:

Whether the 1st defendant proves that Kookra Bhandary died on 23.07.1979 leaving behind his Last Will and Testament dated 28.03.1977 bequeathing the suit schedule properties in favour of his son Mr. Sanjeeva Bhandary the 1st defendant?

Whether the 3rd defendant proves that 1st defendant gifted the written statement schedule properties in his favour as per Gift Deed dated 27.10.2010?

Whether the suit is bad for non-joinder of necessary parties as stated in para 5(D) of the written statement?

Whether the suit is bad for non-compliance of provisions of Order VII Rule 3 of CPC?

Whether the plaintiffs are entitled for partition and 1/4th share in the suit schedule properties?

Whether the plaintiffs are entitled for 1/4th share in the income from the suit schedule properties?

What order or Decree?

Additional Issue:-

Whether the 2nd defendant proves that she is entitled to 1/4th share in the plaint schedule property?

The plaintiffs, in order to substantiate their claim examined the 1st plaintiff Shivarama Bhandary as P.W. 1 and produced 12 documents, which were marked as Ex. P1 to Ex. P12. On behalf of the defendants, the 1st defendant Sanjeeva Bhandary was examined as D.W. 1. He examined one P. Raghuram as D.W. 2, Surendra Nayak as D.W. 3 and Ravindra Bhandary as D.W. 4 and produced 29 documents, which were marked as Ex. D1 to Ex. D29.

The Trial Court, on appreciation of the aforesaid oral and documentary evidence on record held that the 1st defendant has failed to prove that Kookra Bhandary executed the Last Will and Testament dated 28.03.1977 bequeathing the schedule properties in his favour. It also held that in order to prove the Will, none of the attesting witnesses were examined and the evidence of D.W. 3, who claims to be the son of the scribe cannot be believed. The case of the 1st defendant that both the attesting witnesses are dead is also not proved and therefore, it held that the Will dated 28.03.1977 propounded by the 1st defendant is not established. It held that the 3rd defendant has proved the due execution of the gift deed dated 27.10.2010 by the 1st defendant in his favour. The defendants have failed to establish whether the suit is bad for non-joinder of necessary parties. Similarly, the suit is not bad for non-compliance of provisions of Order 3 Rule 7 of CPC. The plaintiffs are entitled for partition of the suit schedule properties and they are also entitled to mesne profits relatable to their 1/4th share. The 2nd defendant also has established that she is entitled to 1/4th share in all the plaint schedule properties. Thus, the suit of the plaintiffs is decreed as prayed for. Aggrieved by the said judgment and decree of the Trial Court, the 1st defendant has preferred this appeal.

The learned counsel appearing for the appellant assailing the impugned order contended that though no other attesting witnesses were examined to prove the Will, it is a registered Will executed more than 30 years back and the presumption under Section 90 of the Indian Evidence Act is attracted. Moreover, the evidence of D.W. 3, the son of the scribe proves the Will. Therefore, the finding of the Trial Court that the Will is not proved requires to be set-aside. He also contended that the 1st defendant is in peaceful possession and enjoyment of the suit properties even during the life time of his father. His possession is adverse to the interest of the plaintiffs and other legal heirs. Admittedly, the plaintiffs are not in possession, other legal heirs are not in possession and even the mutation records stand in the name of the 1st defendant. The case of adverse possession set up by the 1st defendant is established and the Trial Court was not justified in not holding so. Particularly, he contended that in view of the judgment of this Court coupled with Section 24 of the definition of the "family" in the Land Reforms Act, the daughters that too a married daughter is not entitled to a share in the land belonging to the father, which is granted under the Land Reforms Act. An application has been filed in Form No. 7. This aspect has not been considered by the Trial Court. Therefore, he submits that the impugned order requires to be set-aside.

Per contra, the learned counsel for the plaintiff submits that the evidence on record shows that the 1st defendant never stayed with his father as he was staying in Bombay from 1945. There is no reference to the occupancy right in the Will propounded. But whereabouts of the attesting witnesses is not known. No attesting witnesses were examined, his children were not examined. P.W. 1 is not the son of the scribe. He has clearly stated that he did not inform P.W. 1 about the attesting witnesses and they having been dead, the whereabouts of the children are not known. Therefore, he submits that the finding recorded by the Trial Court is based on legal evidence and therefore, it does not call for interference. Insofar as adverse possession, is concerned, the condition precedent for setting up a plea of adverse possession is the person who sets up a plea should be in possession. The evidence shows that the 1st defendant was never in possession of the property. The grant of occupancy rights by the Land Tribunal is concerned, the judgments relied on were dealing with a case where the tenant during the subsistence of tenancy died and in such circumstances, whether a daughter is entitled to claim occupancy rights under the provisions of the Land Reforms Act. That is not the case here. Kookra Bhandary filed Form No. 7 for grant of occupancy rights and the same was granted and he was the owner of the land on the day he died and therefore, he submits that the Trial Court has rightly held that the plaintiffs are entitled to equal share with others.

In the light of the aforesaid facts and rival contentions, the points that arise for our consideration are as under:

(a) Whether the finding of the Trial Court that the Will dated 28.03.1977 alleged to have been executed by Sri. Kookra Bhandary in favour of the 1st defendant is proved or not?

(b) Whether the finding of the Trial Court that the plea of adverse possession is not established, calls for interference?

(c) Whether an unmarried daughter is entitled to a share in the land granted under the Land Reforms Act as held by the Trial Court?

Point No. 1:

It is not in dispute that plaintiffs 1 to 4 are the children of Koosu Bhandarthi and plaintiff No. 5 is the grand son of Koosu Bhandathi. The said Koosu Bhandarthi had another daughter by name Vanaja Bhandary. The said Koosu Bhandarthi is one of the daughters of late Kookra Bhandary and late Durgi. Kookra Bhandary and late Durgi are the common ancestors. They have left behind four children namely, Koosu Bhandarthy, Sanjeeva Bhandary, Smt. Kollu Bhandarthy and Mr. Babu Bhandary. Koosu Bhandarthi left the plaintiffs as her legal heirs. Sanjeeva Bhandary, Kollu Bhandary and Babu Bhandary are the defendant Nos. 1 to 3. The evidence on record shows, Kookra Bhandary was enjoying the schedule properties as agricultural tenant. On coming into force of Karnataka Land Reforms Act, he filed Form No. 7 claiming occupancy rights in respect of schedule property. After enquiry, the Tribunal passed an order dated 10.2.1977 in LRF 368/75-76 granting occupancy rights in favour of Kookra Bhandary. Form No. 10 was also issued on 5.6.1979. Kookra Bhandary died on 23.7.1979. It is not in dispute that if Kookra Bhandary had died intestate, the plaintiffs and defendants 1 to 4 each one of them would have 1/4th share in the said property. However, first defendant has set up a Will dated 28.3.1977 which is marked as Ex. D1 in this case. The said Will is denied by plaintiffs. It is a registered Will. Therefore, in order to non-suit the plaintiffs, first defendant has to prove the Will set up by him.

In order to establish the Will, first defendant has examined himself as D.W. 1. His evidence cannot prove the Will. The Will has to be proved by examining the attesting witnesses. There are two attesting witnesses to the Will by name Jogappa and Giriyappa. Admittedly, none of them is examined. The reason given is, both of them were dead. Therefore, the plaintiffs, in order to prove the Will should have examined their children and have proved the signatures of two attesting witnesses. No attempt is made to examine them. On the contrary, the plaintiffs relied on the evidence of D.W. 2 the Sub-Registrar and D.W. 3 one Surendra Nayak @ Surendra Shenoy son of the scribe by name Krishna Rao @ Krishna Shenoy. The evidence of the son of the scribe is not what is contemplated in law. He can only speak to the handwriting of the scribe. He has not spoken anything about the signature of the attesting witnesses. Insofar as, the Sub-Registrar is concerned, his evidence is of no assistance in proving the attestation of the Will. Unless the propounder of the Will satisfied the requirement of Section 63 of the Succession Act as well as Section 68 of the Indian Evidence Act, a Will cannot be said to be proved. Realizing this difficulty, it was contended on behalf of the propounder of the Will that the Will is 30 years old and it is registered and therefore, due execution is to be presumed. Section 63 of the Hindu Succession Act and Section 68 of the Indian Evidence Act categorically state, insofar as proving of Will is concerned, the examination of one of the attesting witnesses is a must. Section 30 is no exception to the said Rule. Therefore, the trial Court rightly held no attesting witness is examined and the children of attesting witnesses are not examined. Section 68 of the Evidence Act and Section 63 of the Hindu Succession Act are not complied with. Moreover, the trial Court carefully has scanned the evidence of D.W. 1 and the Will as contained in Ex. D1. The recitals in D1 make it very clear that, Kookra Bhandary was aged about 80 years as on the date of the Will. Throughout his life, the first defendant has assisted him in cultivation of the land. Therefore, he has bequeathed the schedule property in his favour and is not giving any right to others. Therefore, the intention of the testator bequeathing the schedule property in favour of the first defendant as could be gathered from the terms of the Will is that, he was assisting him for 40 years in cultivating the land. However, the evidence of D.W. 1 shows, in 1954, D.W. 1 went to Mumbai where he stayed about 14 years. He was working in a saloon doing hair cutting. He married in 1960. He stayed in Mumbai. After the marriage, they had five children and the children were studying in Bombay. From the year 1955, till the date he was deposing he was residing at Mumbai. It is defendant No. 3 who was living with his father. D.W. 1 was giving money. Mother of the plaintiffs started living with her father after the death of her husband. The first plaintiff studied upto 7th standard. But he does not know how the income of the schedule property is spent. He deposed that the mother of the plaintiffs 1 to 4 lived with her father after the death of her husband.

Therefore, according to the contents of the Will, the property given to the first defendant exclusively because he was living with the father for the last 40 years is ex-facie not correct. In fact, no reasons are given for disinheriting the other children. When once a Will comes in the way of natural succession, that constitutes a suspicious circumstance. It is for the propounder of the Will to dispel the suspicious circumstance before the Court can declare that Will is proved. Absolutely no reasons are given and the trial Court has rightly held the evidence of D.W. 1 coupled with the recitals in the Ex. D1 and the exclusion of other three children constitutes a suspicious circumstance which has not been dispelled by the propounder of the Will. Secondly there is no evidence on record to show that the testator was aged about 80 years on the date of Will. He was in a sound and disposing state of mind. The testator died nearly two years after the execution of the Will. But, the evidence on record shows, the mother of the plaintiff put-forth a claim for share in the schedule property. In that regard, a Panchayath was convened, sketches were prepared. But the first defendant declined to act on the basis of those sketches and declined to give property to the plaintiff''s mother because she and others did not accept what he was saying. Therefore, case of the plaintiffs that there were talks of settlement, Panchayath was convened, the surveyor was appointed and measured the boundaries for partition of lands would clearly establish if really the Will was in existence, the first defendant would not have been a party to these Panchayaths for entrusting the matter of measuring property to a surveyor and preparation of sketches. Therefore, the trial court taking into consideration the evidence of P.W. 1, D.W. 1, D.W. 2 and D.W. 3 has rightly held that, the Will is not proved.

We do not see any justification to interfere with the well considered finding recorded by the trial Court regarding due execution of the Will.

Point No. 2:

The first defendant in the alternative has put-forth a claim of adverse possession. His case is, the mutation entries are made in his name. He is in actual peaceful possession of the property. The mutation entries are not challenged. He is enjoying the property. He is paying taxes. All these acts are not challenged by the plaintiff or others. He therefore, contends if the Will is not proved, as he is asserting possession over the schedule property openly with hostility and continuously for more than 12 years, he has perfected his title by adverse possession. As could be seen from the evidence of D.W. 1, from 1955, till the date he was giving evidence he was living with his wife and five children in Bombay. He is not residing with the defendant at all. Evidence on record shows, second defendant was assisting his father in cultivation of the land. First plaintiff''s father joined her after the death of her husband and assisting him in agricultural operations. Therefore, it is third defendant who is in possession of the property after the death of the testator. D.W. 1 is not in possession at all. The condition precedent for accepting the plea of adverse possession is, the person who is putting forth the plea must be in physical possession of the property and he must assert title being in possession adverse to the interest of the real owner openly and for a period of more than 12 years. However, the evidence on record shows, first defendant is not in possession of the land. Therefore, plea of adverse possession has no legs to stand.

The trial Court has rightly rejected the claim put-forth by the defendant.

Point No. 3:

It was contended, as a married daughter is not a member of the family as defined under Section 2(12) of the Karnataka Land Reforms Act, the plaintiffs'' mother is not entitled to any right in the land which was granted to her father under the provisions of the Land Reforms Act. What we are considered in the suit is, whether the plaintiffs are entitled to a share in the property of a tenant in whose favour the tenancy rights have been conferred. Under the provisions of Section 24 of the Land Reforms Act, tenancy rights are heritable. Admittedly, Kookra Bhandary was cultivating the land as an agricultural tenant. With the passing of the Land Reforms Act, the tenanted lands vested with the Government. An opportunity was given to the tenant to file Form No. 7 for grant of occupancy rights. Accordingly, Kookra Bhandary applied in Form No. 7. After enquiry, it was granted. Subsequently, after 10 years, Form No. 10 is also issued. So, Kukra Bhandary was enjoying this property as absolute owner thereof. It is thereafter, he died leaving behind his two daughters and two sons. As it is not a case of tenancy rights being heritable, it is the case of ownership being devolved to his legal heirs. Therefore, trial Court has recorded a finding of fact holding that the Judgments of this Court relied upon have no application to the facts of this case. Smt. Kookra Bhandari was the absolute owner of the property as on the date of his death. The Will set up by the first defendant having not been proved, his daughters and sons being his Class-I heirs under Section 8 of the Hindu Succession Act, plaintiffs are entitled to 1/4th share which is share of their mother in the schedule property.

Therefore, we do not see any merit in this contention. Hence, it is rejected.

For the aforesaid reasons, we pass the following order:

Appeal is dismissed. Parties to bear their own costs.