Venkataswamy Reddy vs Gowramma & Others

Nataraj Rangaswamy, J

This Regular Second Appeal is filed by the defendant challenging the Judgment and Decree dated 23.06.2008 passed by the Civil Judge (Sr.Dn)

and J.M.F.C, Anekal in O.S.No.847/2006 (Old No. 939/2004) and the concurring judgment and decree dated 05.12.2009 passed by the Principal

District Judge, Bangalore Rural District in R.A. No. 186/2008. Both the Courts held that the plaintiffs were entitled to be declared as the owners of

the suit schedule property based on the Will dated 28.01.1986 executed by their father.

For the sake of convenience, the parties shall henceforth be referred to as they were arrayed before the trial court. The appellant herein was the

defendant and the respondents herein were the plaintiffs before the Trial Court.

The plaintiffs filed a suit contending that they were the daughters and the defendant was the son of late Veera Reddy. It is stated that Veera Reddy

died leaving behind his wife Smt. Nanjamma. There was a division of the properties between Veera Reddy and the defendant in the year 1978 and in

the said division, the defendant took his share in the family properties and was residing separately. The suit properties fell to the share of Veera Reddy

and Veera Reddy executed a Will dated 28.01.1986 bequeathing the suit properties in favour of the plaintiffs. The said Sri.Veera Reddy is stated to

have died on 18.05.1991. Prior to the filing of the suit when the plaintiffs had been to Lakshmipura village, the defendant had attempted to alienate the

suit schedule properties in favour of third parties. On coming to know of the same, the plaintiffs applied for transfer of khatha and the revenue records

to their names. The plaintiffs received an endorsement from the Tahsildar that by M.R.No.3/1993-1994, the khatha was already transferred to the

name of the defendant and therefore directed the plaintiff to approach the Assistant Commissioner, Doddaballapura Sub-division. Hence the plaintiffs

filed the present suit for declaration that they are the owners of the suit properties and for perpetual injunction restraining the defendant from

alienating or creating encumbrance in the suit properties.

The defendant entered appearance and filed his written statement. He admitted the relationship between the plaintiffs and the defendant, but denied

all other allegations contained in the plaint. He contended that the suit was not maintainable. He claimed that Veera Reddy knew to read and write

kannada and he used to sign and not affix his thumb mark. He stated that Veera Reddy died on 18.05.1991. He alleged that Veera Reddy was not the

owner of the suit properties and that he had no right to execute any document in respect of the suit properties. He also alleged that Veera Reddy was

not in good state of mind and he was not competent to execute any document as he was ailing from leprosy and was under constant medical

treatment. He stated that Veera Reddy had no intention to execute any document and the defendant being the only son had enormous love and

affection towards Veera Reddy. He claimed that Veera Reddy during his lifetime had partitioned all movable and immovable properties including the

suit properties. All the immovable properties including the suit schedule properties were allotted to the share of the defendant under the oral partition

effected. He therefore contended that the suit was not maintainable and sought the dismissal of the suit.

On the basis of the above pleadings, the Trial Court has framed the following issues:-

“1. Whether the plaintiff proves that he is the owner of suit schedule properties?

Whether the plaintiff proves that he was in lawful possession of the suit schedule properties as on the date of suit?

Whether the plaintiff proves that the defendant is attempting to alienate the suit schedule properties?

Whether the plaintiff proves that the alleged interference by the defendant?

What decree or order?â€​

Before the Trial Court the plaintiff was examined as PW.1 and they marked Exhibits P1 to P3 and closed their side. The defendant except cross

examining PW.1 and P.W.2 did not adduce any evidence on his behalf.

The Trial court noticed the contentions and the evidence of P.W.2, an attesting witness, held that the lawful execution of the Will was established

and therefore decreed the suit of the plaintiff.

Feeling aggrieved by the aforesaid Judgment and Decree of the Trial Court, the defendant filed the appeal before the First Appellate court in R.A.

No. 186/2008. The First Appellate Court secured the record of the Trial Court and framed the points for consideration and after considering the

evidence on record, dismissed the appeal and confirmed the Judgment and Decree of the Trial Court. The defendant, feeling aggrieved by the

Judgment and Decree passed by the Trial Court and the 1st appellate Court has filed this Regular Second Appeal.

This appeal is listed for admission. The records of the Trial Court and the First Appellate Court were secured and perused. Heard the learned

Counsel for the defendant/Appellant and the plaintiffs/ Respondent and also perused the Judgment and Decree of the Trial Court and the First

Appellate Court as well as the grounds of appeal urged by the appellant.

The defendant in this Regular Second Appeal contended that the plaintiff had failed to prove the Will in the manner known to law and therefore

the suit must be dismissed. The appellants relied upon the Judgment of the Apex Court in (2015) 12 Supreme Court Cases 301 and (2007) 9

Supreme Court Cases 728 and contended that the Will was brought about under doubtful circumstances and the plaintiffs had failed to purge all the

suspicious circumstances that were surrounding the Will.

On the contrary, the plaintiff contended that the Will was lawfully executed and that Veera Reddy had executed the Will in the year 1986 and was

alive for more than 5 years. Veera Reddy being the lawful owner of the suit properties was entitled to bequeath the suit properties as it was his self

acquisition and therefore the defendant could not contest the lawful execution of the Will.

On perusal of the evidence on record, the plaintiffs placed on record the Judgment and Decree passed in O.S. No.581/2007 which was the suit

filed by the wife of Veera Reddy for partition and separate possession of her share in the suit properties. In the said suit, the defendant had admitted

that there was partition in the year 1979 between Veera Reddy and Venkataswami Reddy and consequently the Trial Court had dismissed the suit in

O.S. No. 581/2007. The learned Counsel for the respondents requested the Court to take judicial notice of the Judgment and Decree passed by the

Civil Court in O. S. No. 581/2007 in proof of the contention of the plaintiffs that there was a partition between Veera Reddy and the defendant and

that the suit properties fell to the share of Veera Reddy.

It is found from the evidence of P.W.1 and P.W.2 that the defendant had put various suggestions which indicated that there was a partition

between Veera Reddy and that the defendant was in possession of the properties which was allotted to his share.

The suggestions put forth to P.W.2 go to show that Veera Reddy had in fact executed the Will in favour of the plaintiffs. The defendant did not

attempt to discredit or demonstrate any suspicious circumstance which was attached to the execution of the Will. Under the circumstances, the Trial

Court and the First Appellate Court rightly held that the plaintiffs have proved the lawful execution of the Will in favour of the plaintiffs and therefore

the Trial Court and the First Appellate Court were justified in decreeing the suit. The Judgment relied upon by the defendant is not applicable to the

facts of the case since the cross-examination of PW.2 by the defendant clearly indicates the lawful execution of Ex.P1.

Therefore, I do not find any irregularity or illegality in the Judgment and Decree passed by the Trial Court and the First Appellate Court. Hence this

Regular Second Appeal filed by the defendant is bereft of merits and the same is dismissed.

Any pending applications in the above appeal stand disposed off.