Shri T Narasimha Murthy vs Shri T Harish and Others

H.S. Kempanna

This appeal by the defendant is directed against the judgment and decree dated 27.10.2009 passed in O.S.No.7083/2007 by the. XXXVIII Addl. City Civil Judge, Bangalore decreeing the suit of the plaintiffs as prayed for.

For the sake of convenience the parties in this appeal would be referred to by their rankings as they are referred to in the suit.

The suit schedule property is a house property bearing Municipal No.21 (formerly bearing No.243) situated at 5th cross Srirampuram, Bangalore, measuring east west 30 ft and north to south 70ft morefully described in the schedule appended to the plaint, (hereinafter referred to as "suit schedule property" for short)

3.1 It is the case of the plaintiffs that their paternal grand mother late Smt. Parvathamma had purchased a vacant site bearing No.243 meausirng 30 ft. east west and 100 ft north south situated at 5th cross, Srirampuram, Bangalore. Later, she constructed a residential house in a portion of the said site. Smt. Paravathamma died intestate on 28.1.1965 leaving behind her son Thippaiah and daughter S. Narasamma as her only legal heir. In the year 1978, Sri. Thippaiah and his sister S. Narasamma partitioned the property owned by their mother under a partition deed. In the said partition, southern portion of the property bearing No.243 to the extent of 30 ft east west and 70 ft. north-south fell to the share of Thippaiah which is the suit schedule property. The remaining property in No.243 to the extent of 30 ft. east-west and 30 ft. north-south fell to the share of Smt. S. Narasamma.

3.2 It is the case of the plaintiffs that defendant is the son of S. Thippaiah born to his first wife Kamakshamma. After the death of Kamakshamma, Thippaiah married Smt. Savithramma and the plaintiffs are the children of Thippaiah through his second wife Savithramma. Their father Thippaiah died intestate on 25.5.2006 leaving behind him his second wife-Smt. Savithramma, his four children i.e. the plaintiffs and the defendant as his LRs. Therefore, after the death of S. Thippaiah, plaintiffs, their mother Smt. Savithramma and defendant being the Class I heirs have succeeded to the said property and each of them are entitled to one-fifth share. Hence, the suit property is a joint family property consisting of themselves, their mother-Savithramma and the defendant.

3.3. it is further the case of the plaintiffs that after the death of their father-Thippaiah, they requested the defendant to effect partition in the suit schedule property and to give their share and the share of their mother in the suit schedule property, but defendant did not respond to their request. Hence, their mother Savithramma got issued a legal notice dated 15.12.2006 to defendant calling upon him to effect partition in the suit schedule property, but despite the same he failed to effect partition in the suit property. It is the case of the plaintiffs their mother Smt. Savithramma during her life time i.e. on 16.1.2007, executed a will and bequeathed her one-fifth share in the suit property in their favour. Their mother died on 21.3.2007. After the death of their mother, they became entitled to four-fifth share in the suit property. It is the case of the plaintiffs that during the life time of their father Thippaiah, he had constructed ground floor of the building situated on the northern portion of the suit schedule property in which all the members of the joint family are residing. Further during the life time of their father late Sri. Thippaiah plaintiff No.1 constructed first floor and started running tutorial classes and as such suit property is in joint possession and enjoyment of plaintiffs and defendant. As defendant failed to effect partition in the suit property in spite of their request and demand, they were constrained to file a suit against the defendant claiming 4/5th share in the same.

3.4 After service of suit summons, the defendant contested and filed his written statement. The defendant in his statement admitted the relationship with plaintiffs as stated in the plaint. He also admitted their parental grand mother late Smt. Parvathamma having purchased the vacant site situated in Srirampuram and later a residential house having been constructed in a portion of the said site. He also admitted that his grand mother having died on 28.1.1965 intestate leaving behind Thippaiah and Narasamma as her legal heirs. He also admitted in the year 1978, his fattier late Sri/Thippaiah and Thippaiah''s sister S. Narasamma having partitioned the property and in the said partition, portion of the property bearing No.243 measuring 30 x 70 ft. came to be allotted to the share of his father Thippaiah and the said property is nothing but the suit property. He also admitted that he is the son of Thippaiah born to his first wife Kamakshamma and the plaintiffs are the children of Thippaiah born to Savithramma his step mother. He also admitted that his father died intestate on 25.2.2006. But, he contended that Savithramma was not entitled to any share in the said property and even plaintiffs 2 and 3 are also not entitled to any share in the suit property. He also contended that for performing the marriage of the daughters Rs. 10,00,000/- has been spent and he himself has repaid the loan. He denied that the first plaintiff having constructed I floor situated in the suit property, on the other hand, he contended that it was he who had constructed the first floor of the building. He also contended that it was during the life time of their father late Sri. Thippaiah it was agreed by all the members of the family that the front portion of the house measuring 30 x 40 ft. shall be allotted to his share and the rear portion of the house measuring 30 ft x 40 ft. be allotted to share of plaintiff No. 1 and accordingly, he is residing in front portion of the house and plaintiff No. 1 is residing in rear portion of the house situated in the suit property. But he contended that he has no objection for effecting partition in the suit property between plaintiff No. 1 and himself.

He further contended that the mother of the plaintiffs Smt. Savithramma was not entitled to any share in the suit schedule property. She has no right to bequeath her one-fifth share of the suit schedule property in favour of the plaintiffs by executing a will dated 16.1.2007. He also denied the case of the plaintiffs that Smt. Savithramma executed a will bequeathing her one-filth share in the suit schedule property in their favour. He also contended that the valuation of the suit and the court fee paid by the plaintiff is not proper and sufficient. Accordingly, he prayed for dismissal of the suit.

3.5 On the basis of the above pleadings, the trial Court framed the following issues.

Issues:

Whether plaintiffs prove that their mother late Smt. Savithramma was entitled to 1/5th share in suit property?

Whether plaintiffs prove that, their mother late Smt. Savithramma had executed a Will dated 16.01.2007 and bequeathed her 1/5th share in the suit property in their favour?

Whether plaintiffs prove that they are entitled to 4/5th share in the suit property?

Whether defendant proves that for the reasons stated in para No. 6 of his written statement, plaintiff Nos.2 and 3 are not entitled to a share in the suit property?

Whether the valuation of the suit made by plaintiffs for the purpose of payment of Court fee is proper and Court fee paid on plaint is proper and sufficient?

Whether plaintiffs are entitled to the relief sought for?

What decree or order?

3.6 The plaintiffs in support of their case got examined plaintiff No. 1 as PW1 and one more witness by name E.S. Srikantaiah as PW2. They produced 23 documents which came to be marked as exhibits P1 to P23.

3.7 The defendant in support of his case got himself examined as DW1. He produced three documents which came to be marked as exhibits D1 to D3.

3.8 The learned trial judge thereafter, on appreciation of the evidence and the documents on record held that the plaintiffs have proved that their mother Smt. Savithramma was entitled to 1/5th share in the suit property and the plaintiffs have also proved that their mother had executed the will dt. 16.1.2007 and had bequeathed her 1/5th share to the plaintiffs and the plaintiffs are entitled to 4/5th share in the suit property. The defendant has failed to prove that plaintiffs 2 and 3 are not entitled to any share in the suit property The valuation and the court fee paid is proper and the plaintiffs are entitled to the relief as prayed for. Accordingly, decreed the suit of the plaintiffs as prayed for.

3.9. Aggrieved by the said judgment and decree of the trial Court, the first defendant is in appeal before this Court.

The learned counsel appearing for the appellant assailing the judgment and decree contended that admittedly the defendant was being taken care of by Savithramma, the mother of the plaintiffs. She had not made any difference between her sons and the defendant. Savithramma was all along living with him. The alleged will set up by the plaintiffs is forged one and it has been got up for the purposes of denying his share in the property. The will has not been properly proved. Despite the same, the trial court without appreciating the evidence on record in the right perspective has decreed the suit of the plaintiffs which cannot be sustained. Therefore, the same be set aside.

Per contra, the learned counsel for the respondent/plaintiff while supporting the impugned judgment and decree contended that the trial court has not committed any error in decreeing the suit of the plaintiff. Admittedly, Smt. Savithramma-the mother of the plaintiffs, plaintiffs and defendant after the death of their father Thippaiah had 1/5th share in the suit property. Even assuming that the will is not proved, defendant being not the son of Smt. Savithramma could not have claimed any share in the share fallen to her. He further contended that the plaintiffs who have set up the will have proved the same in accordance with law by examining the attesting witness-PW2. The trial Court on appreciation of the material on record has rightly decreed the suit of the plaintiffs. There is no illegality or infirmity in the same calling for interference. Accordingly, the appeal be dismissed.

Taking the rival submissions into consideration, the evidence and the documents on record, the points that arise for my consideration are :-

i) Whether the plaintiffs have proved that their mother Savithramma has executed the will dated 16.1.2007 and has bequeathed her 1/5th share under the same in their favour?

ii) Whether the defendant is entitled to any share in the share that has fallen to the share of Savithramma?

iii) Whether the impugned judgment and decree calls for any interference?

Facts are not in dispute. Plaintiffs and defendant being the children of Thippaiah is not in dispute. The plaintiffs being the children of Savithramma, second wife of Thippaiah and the defendant being the son of Thippaiah through his first wife Kamakshamma is not in dispute. The suit schedule property having fallen to the share of Thippaiah in the partition between his sister and himself is not in dispute. Thippaiah having died intestate is also not in dispute. Therefore, after the death of Thippaiah, Savithramma, the second wife of Thippaiah, plaintiffs and defendant would be his legal heirs. They would be entitled to 1/5th share each. Even if Savithramma has not executed any will, her 1/5th share will go to the plaintiffs and by any stretch of imagination, defendant cannot claim any share in the share of Savithramma. In that view of the matter, the case of the defendant that he has share in the share of Savithramma cannot be accepted.

7.1 Coming to the execution of the will, Ex.P23 it is the case of the plaintiffs that their mother Savithramma expired on 21.3.2007 and she died leaving behind her will dated 16.1.2007. It is their case that their mother under the will-Ex.P23 has bequeathed her 1/5th share in their favour. The plaintiffs in order to prove the will have examined the attesting witness -PW2. PW2 in this evidence has stated that he know Smt. Savithramma. On 16.1.2007 Savithramma requested him to come to the lawyers office as she wanted him to attest the will. Accordingly, he went to lawyer''s office. Smt. Savithramma and another attesting witness Sri. Venugopal and Advocate by name Srinivas were present. Sri. Srinivas Advocate read over the contents of the will before them and after admitting the contents of the will as true and correct, Smt. Savithramma signed on the will in his presence and in the presence of Sri. Venugopal. Later, Venugopal and himself signed and advocate also signed on the will. PW2 has identified the will-Ex.P23 as the will executed by Smt. Savithramma in his presence and in the presence of Venugopal. He has also identified the executant''s signature viz. Savithramma, his signature and signature of another attesting witness-Venugopal. In the cross-examination of this witness, nothing has been elicited so as to disbelieve his evidence. it is suggested to PW2 that he has signed on the will after the death of Smt. Savithramma. PW2 has denied the suggestion made to him. The very suggestion goes to show that defendant has admitted the fact that PW2 having signed on Ex.P23 will as an attesting witness. The recitals in Ex.P23 also goes to show that late Smt. Savithramma had executed the will and has bequeathed her 1/5th share in favour of her children. The defendant except denying the will having been executed by Savithramma has not placed any clinching evidence to show that it is not the will duly executed by Savithramma. Therefore, the trial Judge on appreciation of the evidence on record has rightly held that Smt. Savithramma, the mother of the plaintiffs, has executed the will dated 16.1.2007 and has bequeathed her 1/5th share in the suit schedule property in favour of the plaintiffs. I do not find any infirmity or illegality in the said findings of the trial Court.

7.2 It is not in dispute after the death of Thippaiah, father of the plaintiffs and the defendant, Savithramma the second wife of Thippaiah, plaintiffs and defendant were the only legal heirs. As such, each of them were entitled to 1/5th share each. Plaintiffs being the sons of Savithramma through Thippaiah would be entitled to the share of their mother after her death and not the defendant. Therefore, even in the absence of the will Ex.P23, the defendant is entitled to only 1/5th share and the plaintiffs are entitled to 4/5th share which is inclusive of the share of their mother. Therefore, in my view, the trial Court has not committed any error in allotting 4/5th share in the suit schedule property to the plaintiffs and 1/5th share to the defendant.

7.3 Taking from any angle, I do not find any infirmity or illegality in the findings recorded by the trial court calling for interference in this appeal.

Accordingly, the appeal is dismissed.