Tangewwa and Others vs Gourawwa and Others

S.N. Satyanarayana, J.

Plaintiff and defendants in O.S. No. 12/2007 on the file of Civil Judge (Jr. Dn.), Bilagi, have come up in these two appeals. R.S.A. No. 5373/2013 is impugning the concurrent finding of both the Courts below in dismissing the suit of plaintiff for the relief of declaration with reference to suit schedule property which is confirmed by the lower appellate Court in R.A. No. 1/2012. Whereas R.S.A. No. 100137/2015 is by the defendants in O.S. No. 12/2007 in impugning the judgment and decree passed in R.A. No. 1/2012 in refusing to accept their contention that they have succeeded to the suit schedule property on the basis of the Will dated 13.05.1968 executed by deceased Ningappa who is the executant of the Will dated 13.05.1968 as well as on 31.03.1975.

Brief facts leading to the appeals are as under:

The plaintiff and defendants are respectively the legal heirs of Mallappa and Siddappa. Admittedly Mallappa and Siddappa are sons of one Kenchappa who is elder brother of executant Ningappa. Admittedly Kenchappa and Ningappa are the children of propositus Kariyappa. Suit schedule properties are the joint family properties of Kariappa, which had fallen to the share of Ningappa in a partition between himself and his brother Kenchappa. Admittedly, Kenchappa''s wife predeceased him and he died leaving him surviving his two sons Mallappa and Siddappa. Subsequently, Mallappa and Siddappa also died leaving them surviving their children as their legal heirs.

In the meanwhile original propositus Kariappa''s second son Ningappa who is the focal person in the entire litigation and who is the executant of aforesaid two wills, lost his wife and he had no issues. Hence, it is stated that in the year 1968, i.e., on 13.05.1968, he executed a Will in respect of suit schedule property, i.e., property bearing R.S. No. 89/4 situated in Balloor village of Bilagi Taluk, Bagalkot district, measuring 1 acre 38 guntas bequeathing the same to his nephew Mallappa. It is seen that thereafter he continued to live upto 1976. One year prior to his death he has executed one more Will on 31.03.1975 bequeathing all the three properties which were standing in his name including the property in respect of which he had earlier executed a Will on 13.05.1968.

The recitals of the second Will would disclose that the executant-Ningappa in all had three properties standing in his name, they are, (1) R.S. No. 223/2 + 3 measuring to an extent of 5 acres 17 guntas situated in Teggihalli village, Bilagi taluk, (2) R.S. No. 237/1, which totally measures 8 acres, in which, the share of Ningappa being 4 acres, is also situated in Teggihalli village, Bilagi taluk, and (3) land bearing R.S. No. 89/4 measuring totally 3 acres 36 guntas, in which, half share of the executant Ningappa being 1 acre 38 guntas. It is seen that in the second Will he has bequeathed these three properties in favour of the children of his two nephews, i.e., in respect of land sy. No. 233/2 + 3 measuring 5 acres 17 guntas was bequeathed in favour of Mallappa''s children. So far as land bearing R.S. No. 237/1 to an extent of 4 acres of Teggihalli village, Bilagi taluk, and R.S. No. 89/4 measuring 1 acre 38 guntas of Balloor village, were bequeathed in favour of the children of Siddappa who is another nephew of executant Ningappa.

The case of the plaintiff is that the defendants who succeeded to item No. 1 of Will dated 31.03.1975 got the said property registered in their name in revenue records and thereafter sold the said property in favour of third parties under a registered sale deed dated 15.03.1983, thereafter they are trying to interfere with the possession and title of the land bearing R.S. No. 89/4 which was bequeathed in favour of plaintiffs. It is the case of the plaintiff that, so far as the suit schedule property is concerned, since it was allotted in favour of defendant''s father Mallappa under earlier Will of 1968 they are trying to claim title to the said property on the basis of the earlier Will and from the second Will they are claiming title to R.S. No. 223/2 + 3 and in the process they are trying to get larger extent of land than what they are entitled to. Hence, they sought for declaration with reference to their title to R.S. No. 89/4 which was bequeathed in their favour by Ningappa under registered Will dated 31.03.1975.

In the said suit defendants entered appearance. They denied execution of Will dated 31.03.1975, they set up a defence to the effect that the suit schedule property was not the subject matter of the second Will dated 31.03.1975. According to them, the said property was already bequeathed in favour of their father under a registered Will dated 13.05.1968, pursuant to the bequest in the said Will their father was in possession of the suit property which has subsequently come to them. It is their case that after the death of Ningappa in the year 1976 there was a family partition in which land bearing R.S. No. 223/2 + 3 was allotted to their share and land bearing R.S. No. 237/1 was allotted to the share of plaintiff and pursuant to the said partition mutation entries have taken place. Accordingly, they are in possession and enjoyment of the properties.

Based on the aforesaid pleadings the trial Court framed the following issues.

Whether plaintiff proves that, he is the absolute owner of the suit schedule property on the basis of the Will deed dated 31.03.1975?

Whether defendants prove that, they are the absolute owners of the suit schedule property to the extent of half share on the basis of Will deed dated 16.06.1968?

Whether the plaintiff is entitled for permanent injunction as prayed for?

What order or decree?

Addl. Issue No. 1: Whether defendants are entitled for relief as prayed in their counter claim?

---

In the said suit on behalf of plaintiff, first plaintiff adduced evidence as P.W. 1, an independent witness, i.e., the attesting witness to the second Will dated 31.03.1975 was examined as P.W. 2. The certified copy of the Will dated 31.03.1975 was marked as Ex. P. 1 and other relevant documents were marked as Ex. P. 2 to Ex. P. 13. In the said proceedings on behalf of defendants, third defendant was examined as D.W. 1, in addition three other independent witnesses were examined, who are the residents of the same village to substantiate their defence that they are in possession of the suit schedule property pursuant to the Will dated 13.05.1968.

In the suit, defendants relied upon the certified copy of Will dated 13.05.1968 as Ex. P. 1 and other revenue documents as Ex. P. 2 to Ex. P. 8. Based on the aforesaid evidence the trial Court proceeded to accept the defence raised by the children of Siddappa and proceeded to answer all the issues against the plaintiff. While doing so, the counter claim which was raised by the defendant seeking declaration that they are the owners of land bearing R.S. No. 89/4 and in respect of which an additional issue which was framed, was also answered in the negative and thereby the suit as well as the counter claim were answered in the negative disbelieving both the Wills for the reason that the parties did not produce the original Will of either 1968 or 1975.

It is seen that the defendants who had preferred a counter claim in the original suit seeking declaration of their title to R.S. No. 89/4 did not choose to file appeal against the judgment and decree dated 28.11.2011 passed in O.S. No. 12/2007. It is only the plaintiffs in the said suit who lost their suit, preferred an appeal in R.A. No. 1/2012 on the file of Senior Civil Judge, Bilagi. It was urged that the dismissal of suit by the trial Court for non production of original Will dated 31.03.1975 is erroneous, that in the absence of any documents produced by the defendants to substantiate alleged partition in the joint family after death of Ningappa; the Court below should not have blindly accepted the partition in the absence of any documents; that the title regarding R.S. No. 89/4 allowed to be left unanswered in the original suit.

The lower appellate Court on going through the judgment of the trial Court with, reference to the grounds urged in R.A. No. 1/12 framed the following points for consideration.

1) Whether the lower Court is justified in holding that the plaintiffs are not the absolute owners of the suit schedule property on the basis of the Will dated 31.03.1975?

2) Whether the lower Court is justified in holding that the defendants are not the absolute owners of the suit schedule property to the extent of half share on the basis of the will deed dated 13.6.1968?

3) Whether the lower court is justified in holding that the plaintiffs are not entitled for permanent injunction?

4) Whether the lower court is justified in holding that the defendants are not entitled for the relief as prayed for in the counter claim?

5) What order?

---

In the said appeal after hearing the learned counsel for appellant-plaintiff and respondents-defendants proceeded to dismiss the appeal filed by the plaintiff in R.A. No. 1/2012 and consequently confirmed the judgment and decree passed by the Court below by its judgment dated 05.01.2013 which is challenged by both the plaintiffs and the defendants in the original suit.

The grounds urged by the appellant in R.S.A. No. 5373/2013 is similar to the grounds which were urged by them in R.A. No. 1/2012. So far as the grounds urged by the defendants in the original suit who are appellants in R.S.A. No. 100137/2015, is to the effect that the lower appellate Court and as well as the trial Court have failed to take into consideration their possession to suit schedule property and also their title in both the proceedings and so far as suit schedule property is concerned, no finding is given and mere dismissal of the suit would not inure to the benefit of any parties and that there should have been a decisive observation in respect of title and possession of the suit schedule property which is not properly rendered by the trial Court as well as the lower appellate Court.

When R.S.A. No. 5373/2013 came up for admission this Court heard the arguments and when it was about to frame substantial questions of law, the respondents in R.S.A. No. 5373/2013 who are appellants in R.S.A. No. 100137/2015 requested this Court that since the records of both the Courts are looked into for framing of substantial questions of law in this appeal, the same should be treated as substantial questions of law for the appeal which is filed by them subsequently and which is in respect of R.S.A. No. 100137/2015 which is still at the stage of scrutiny. Hence, at the request of the counsel appearing for the respondents in R.S.A. No. 5373/2013 who are appellants in R.S.A. No. 100137/2015 the same was secured by a specific order dated 18.02.2015 and when this matter came up before the Court, substantial questions of law were dictated in the presence of both the counsels which is accepted by them and thereafter both the parties had requested that sufficient time having been spent by the Court in looking into the entire records of both the Courts below, the matter may be further heard for final hearing and a decision may be rendered. Hence, the appeals are taken up for final hearing this day itself.

Heard learned counsel for the appellants in both the appeals who are respectively counsel for respondents in other appeals, perused the judgment of both the Courts below with reference to pleadings oral and documentary evidence available on record and also the grounds of appeal urged in both the appeal memorandum. On appreciation of the same, with reference to the substantial questions of law framed herein, this Court answer all the three substantial questions of law in the negative for the following reasons.

The fact that the owner of suit schedule property bearing R.S. No. 89/4 of Balloor village, is also the owner of other two properties namely R.S. No. 223/2 and 239/4 of Teggihalli village, Bilagi taluk, is the son of propositus Kariappa, younger brother of Kenchappa, is not in dispute. It is also not in dispute that the said Kenchappa had two sons by name Mallappa and Siddappa. The legal heirs of Siddappa are the plaintiffs in the original suit and appellant in R.A. No. 12/2007 and the defendants in the said suit are the legal heirs of deceased Mallappa. It is further not in dispute that the deceased Ningappa during his lifetime lost his wife and that he had no issues of his own. It is further not in dispute that aforesaid three properties are the absolute properties of said Ningappa.

The records would disclose that the said Ningappa during his lifetime executed a Will on 13.05.1968 wherein it is stated that he bequeathed suit schedule property in favour of his nephew Mallappa exclusively and to substantiate the same certified copy of the said Will is produced by defendant in the original suit as Ex. P. 1 and relied upon by them. In the said suit plaintiffs are not denying execution of the Will dated 13.05.1968. According to them the executant Ningappa subsequently executed another Will dated 31.03.1975 which is a comprehensive Will within which he included not only the property which was subject matter of Will dated 13.05.1968; in addition to that, he also included another two properties which were belonging to him and situated in Teggihalli village, Bilagi taluk. That in the second Will he divided all the properties equally between the legal heirs of his nephews, Mallappa and Siddappa. To substantiate the same, certified copy of the subsequent Will is produced as Ex. P. 1 in the Court below. It is seen that in the Court below both plaintiff and defendants were not able to produce original Wills. The explanation which is given by them in the evidence is that, at the time of getting the revenue entries made pursuant to the said Wills, they have lost possession of the original wills, i.e., Ex. P. 1 and Ex. D. 1.

In the instant case, the execution of Ex. D. 1 cannot be disputed for this reason the said Will relied upon by the defendant and execution of the same by Ningappa is not disputed by the plaintiff. Therefore, this Court feel that the finding of both the Courts below regarding due execution of Will at Ex. D. 1, need not be doubted.

So far as the second Will dated 31.03.1975 is concerned, the execution of the same is denied by the defendants in the original suit whereas the plaintiffs are resting their claim on the said Will. It is seen that the certified copy of the said Will discloses that the executant Ningappa had in all three items of the properties as stated supra which is not denied by the defendants. The recital in the second Will-Ex. P. 1, further demonstrate that the land in Sy. No. 223/2 + 3 of Teggihalli village, Bilagi taluk, was bequeathed by Ningappa in favour of the legal heirs of deceased Mallappa. Though the defendants denied the same it is a fact that the said property was in their possession and enjoyment until they sold it to third parties under a registered sale deed dated 15.03.1983. The possession and enjoyment of aforesaid land, they tried to attributable to a partition said to have taken place between the branch of Mallappa and Siddappa subsequent to death of Ningappa in the year 1976. Though such a defence is taken in the original suit they have failed to establish the same either by producing acceptable documentary or oral evidence. The independent witnesses who were examined on their behalf as D.W. 3 and 4 also have not lent any support to strengthen that claim. On the contrary, P.W. 2 who is examined by the plaintiff in support of his case being the attesting witness to Ex. P. 1 support the same.

So far as proving the Will is concerned, the same will have to be proved by examining one of the attesting witnesses. In the instant case, plaintiffs have complied that by examining P.W. 2 who has attested the Will at Ex. P. 1. Therefore, the defence which was taken by defendants in denying execution of the subsequent Will on 31.03.1975 is required to be negated here. With this, the second Will, i.e., later Will dated 31.03.1975, should be accepted as executed by Ningappa. If that is accepted, in the light of the defendants having failed to establish partition pursuant to the death of Ningappa his possession to land R.S. No. 223/2 + 3 should be attributed to the bequest made in their favour under Ex. P. 1. With this it is seen that Ex. P. 1 is not only acted upon by the plaintiff but also by the defendants, then it presupposes that the original Will dated 13.05.1968 would not survive for the simple reason the property which was included in the first Will dated 13.05.1968 is included in the second Will and in the second Will there is rearrangement of the share. Therefore, the contention of the defendants that by virtue of the first Will the said property has come to them and they are in possession and enjoyment of their ownership over the said property with possession with them, cannot be accepted. Therefore, the title and possession of both the parties with reference to three items of the suit property will have to be traced to Ex. P. 1 and to no other document. Unfortunately both the courts below have failed to appreciate the same in the right perception and they have gone on the presumption that non production of the original Will is detrimental to the right of plaintiff and defendants, in the bargain they have failed to recognize their title to various portions of the properties referred to in Ex. P. 1.

In this background if it is seen that the plaintiffs have rightly established that the deceased Ningappa, executant of Ex. P. 1-Will dated 31.03.1975, while executing the said Will has made it clear that the recitals of earlier Will dated 13.05.1968 would no longer be available for the benefit of the beneficiary in the earlier Will. It is further seen, as on the date when the second Will was executed, the beneficiary under the first Will Mallappa was not alive. Therefore, the contention of the defendant Mallappa had already taken possession of the property bequeathed in his favour under the earlier Will does not stand to reason. Besides the said Will would come into effect only after the death of Ningappa, who admittedly died in the year 1978 subsequent to the death of Mallappa. Therefore, their contention that Mallappa had taken possession of property pursuant to the Will does not stand to reason.

In that view of the matter, what is to be seen is, whether the plaintiffs in the original suit have established their title to the suit schedule property which is bequeathed in their favour by executant Ningappa and also their possession pursuant to that. If this has to be appreciated, the document in Ex. P. 1 will have to be taken in whole.

As discussed earlier the defendants have already taken possession of the land Sy. No. 223/2 + 3 of Teggihalli village, Bilagi taluk, and they were in possession, cultivation and enjoyment of the same up to March, 1983 and on 15.03.1983 they have sold the property in favour of third parties. If that is accepted, then the recitals in respect of other parties also to be accepted as the beneficiary have taken possession of the said property by exercising their ownership over the same. If that is accepted then the suit of plaintiff should be allowed and the judgment and decree passed by the Court below should be rejected in its totality. In fact, the Courts below while deciding the counter claim has rightly rejected the counter claim of defendants, however, it has not applied its mind so far as the right of plaintiffs under the second Will which is properly established by them by examining the attesting witness-P.W. 2. Therefore, there is a serious error on the part of the trial Court in rejecting the prayer of the suit but not of the counter claim that is rightly contested by the plaintiffs before the lower appellate Court. Unfortunately, the lower appellate Court has followed the footsteps of the trial Court while assessing the pleadings and evidence and has committed very same mistake with reference to the right of the plaintiffs, however, while reconsidering the same with reference to substantial questions of law framed above, this Court answer all the questions of law framed in these appeals in the negative, i.e., in favour of the plaintiff and against the defendants in the original suit and consequently declare that the plaintiff in the original suit who are the appellants herein are the absolute owners of the suit schedule property, i.e., land bearing sy. No. 89/4 of Balloor village, Bilagi taluk, measuring to an extent of 1 acre 38 guntas which has fallen to their share in the Will of Ningappa dated 31.03.1975 and the revenue records which stood in their name earlier would also establish that they were in possession and cultivation of the same. Accordingly, by allowing R.S.A. No. 5373/2013, judgment and decree of the Courts below are set aside and consequently suit of the plaintiff filed for the relief of declaration is hereby allowed.

In view of allowing of R.S.A. No. 5373/2013, the appeal filed by the defendants in R.S.A. No. 100137/2015 is dismissed.