Virupaksha Murthy and Others vs Mahadeva and Others

Anand Byrareddy, J—Heard the learned counsel for the appellants and the cross objector.

The appellants were Defendants 2 and 4 before the court below. Defendant No. 2 is said to have died during the pendency of these proceedings and his legal representatives have now come on record. The suit was filed by Respondent No. 1. It was his case that he and the defendants were brothers and sisters and were children of Mahanthappa and Mallamma. According to the plaintiff, they constituted a Hindu Undivided Family and all the properties purchased by any of the family members was thrown into a hotchpot of the joint family properties. It is claimed that during the lifetime of Mahanthappa, he had purchased a property in the name of Mallamma, the mother bearing No. 42, Suarashtrapet, Bangalore, under a registered sale deed measuring East to West 25 feet and North to South 25 feet, totally measuring 625 sq.ft. as described in the schedule to the suit. It was also contended that at the time of purchase of the suit property, it was a vacant site and after purchase, the father and mother of the plaintiff along with the parties to the suit, had constructed a residential building on the said site, out of the joint family funds. It was also contended that one other property which was standing in the name of the mother at Jayanagar was sold and the proceeds of the sale was utilized in the purchase of the suit property. Though the property sold stood in the name of Mallamma, the mother, the property had been purchased by the father Mahanthappa. It transpires that Mallamma died on 1.3.1986 and Mahanthappa died on 8.11.1990, leaving behind the plaintiff and defendants 1 to 5 as their legal heirs. During the lifetime of Mallamma, all the parties were residing in the suit property and as and when the sons got married, the family grew and Defendants 1, 2 and 5 moved to a rented premises and were residing separately, as the suit property was not sufficient to accommodate all of them. Defendants 2 and 4 are said to be educated and others are said to be uneducated and they were all depending on Defendants 2 and 4 for the management of the suit properties, for all of them had contributed in the construction of the property. The defendants 2 and 4 had themselves leased out the suit property to third parties and were enjoying the benefits thereof. When plaintiff approached Defendants 2 and 4 seeking partition of the suit properties, they had refused to do so and continued to enjoy the benefits. Later, they had sought to place reliance on a got-up document which was styled as "Last Will and Testament" of Mallamma, the mother and claimed exclusive possession of the suit property. Hence, the suit by the plaintiff.

Defendants 2 and 4 had entered appearance and sought to place reliance on a Will executed by their mother Mallamma to claim that the suit property was her absolute property and that on 28.02.1986, that is one day prior to her death, she had executed a Will which was duly registered in due course through Defendant No. 2 and that under the Will, the suit property was exclusively bequeathed to Defendants 2 and 4. It is on the defendants setting up such defence the plaintiff sought to amend the plaint to claim that the Will was a got-up document and was extremely suspicious and could not be relied upon. The other defendants did not choose to file any written statement. It is on the above pleadings that the court below had framed the following issues:

"1. Whether the plaintiff proves that the defendants and he constitute the joint Hindu Undivided Family?

Whether the plaintiff proves that the suit schedule property of the parties are the joint family properties of the parties to the suit?

Whether the plaintiff proves that he is entitled for 1/6th share in the suit schedule property and separate possession of the same by metes and bounds?

Whether the defendant No. 2 and 4 prove that the suit schedule property is the self-acquired property of their mother Smt. Mallamma?

Whether the defendant Nos. 2 and 4 prove that their mother executed Will dated 28.02.1986 bequeathing the suit schedule property in their favour?

To what reliefs are the parties entitled to?

To what order or decree?"

The court below has answered Issue Nos. 1 and 2 in the affirmative, Issue No. 3 to the effect that the plaintiff was entitled to 7/30th share in the suit schedule property, Issues 4 and 5 in the negative and insofar as Issue No. 6 was concerned that the plaintiff was entitled to partition and separate possession. It is that which is under challenge in the present appeal.

The Cross Objections are filed by Defendants 1, 3 and 5. The third defendant having died during the pendency of the appeal, the legal representatives of Defendant No. 3 have now come on record in the cross objections. It is claimed that the Trial Court has only granted a share in favour of the plaintiff and has not declared the shares to which the present cross objectors are entitled to, and seek for appropriate relief.

Heard the learned counsel for the appellants at length. It is pointed out at the outset that the court below has accepted the contention of the plaintiff that the suit schedule property was a joint family property. On the other hand, it is not in dispute that the property which was earlier in the name of the mother at Jayanagar was shown as her absolute property and the same having been sold by her, the proceeds have been invested in the purchase of the suit property, also in her name. The contention of the plaintiff that the suit property was purchased out of contributions made by the father, plaintiff and other defendants is not forthcoming from the document of title, namely the sale deed under which the mother has purchased the suit property. The consideration has flown only from her and in that view of the matter, the learned counsel would submit that there is no basis for the court below to have held that the plaintiff was entitled to 7/30th share in the suit property accepting the self-serving pleadings of the plaintiff that the suit property was joint family property and was available for partition.

On the other hand, Defendants 2 and 4 had produced a certified copy of the Will of Mallamma, whereby the suit property was bequeathed exclusively to Defendants 2 and 4 herein. The Will also indicated the mother''s intention of disinheriting the other parties, saying that the daughters were married and well provided for and were residing along with their husbands. Since the plaintiff had left the house and was residing by himself and was not taking care of the family or the mother, she had chosen not to make any bequest even in his favour.

It is further pointed out that the Trial Court had dealt with Issue Nos. 1 to 5 together and ultimately, insofar as Issue No. 4 as to whether Defendants 2 to 4 had established that the suit property was the self-acquired property of their mother, has trashed the Will said to have been produced by the defendants 2 and 4 and has observed that the Attesting Witnesses were dead as on the date of the evidence and that the defendants had not chosen to examine the scribe of the Will or anybody else to establish that it was the signature of the Attesting witnesses and therefore, the attestation of the Will that Mallamma was in sound state of mind was not established by evidence to indicate that she was of a sound disposing state of mind and the proximity of the date of the Will said to be executed and the date of death of Mallamma being one day apart, the court below has viewed the Will with extreme suspicion and has negated the same and has hence come to the conclusion that by virtue of it, it could not be said that the suit property was the self-acquired property of Mallamma but it was the joint family property.

The learned counsel would point out that the court has completely overlooked the fact that the suit property stood in the name of Mallamma and the Title Deed under which it was acquired did not indicate that other members of the family or the father of the plaintiff or the defendants had contributed in the purchase of the property. The earlier property referred to which was sold and the proceeds of which was invested in the suit property, also stood in the name of the mother and there was hence no basis for the court to have held that the property was a joint family property. Even if the Will was negated by the Trial Court, it was only open for the court to hold that the parties would succeed to the property of late Mallamma by intestate succession and it could not have said that it was joint family property. The mere assertion of the plaintiff that it was so has been accepted by the court in the face of the Title Deed indicating that it was the exclusive property of Mallamma. Even if it was purchased by the father in the name of the mother, it at best enabled the father to lay claim to the property on that ground and established by cogent evidence in a suit and it was not for the plaintiff or others to lay such a claim when the property was in the name of the mother and therefore, there was a palpable error committed by the Trial Court in proceeding on the basis that the suit property was joint family property. He would further contend that there is no doubt want of diligence on the part of the defendants in not having tendered evidence in respect of the Last Will and Testament of Mallamma. The learned counsel has now produced the original Will. He would further submit that the court below has arrived at findings when no written statement had been filed by other defendants except Defendants 2 and 4. The plaintiff having filed an application for amendment and the amendment having been allowed, Defendants 2 and 4 had filed additional written statement to refute the contention that the Will was executed under suspicious circumstances. Therefore the learned counsel would submit that it is a fit case where there is a miscarriage of justice in the Will having been negated firstly on the ground that it was executed under suspicious circumstances, and secondly on the ground that no attesting witness was examined as both of them were dead and there was no endeavour to prove that anyone of the attesting witnesses had attested the Will, in the face of which he seeks that there be a remand of the matter, while eschewing the findings of the court below that the suit property was the joint family property.

He would further contend that insofar as the cross objections now filed by Defendants 1, 3 and 5 are concerned, that the suit filed by the plaintiff seeking his share of the suit property has been decreed. If the defendants who have now filed Cross objections were inclined to seek any such prayer, it was for them to have paid the appropriate court fee to seek such a relief and they also ought to have filed their written statement. There was no such circumstance forthcoming and therefore, the court not having granted any such relief in favour of Defendants 1, 3 and 5, cannot be now challenged in appeal. In any event, the suit property was not joint family property susceptible to partition and the question of granting them any share did not arise. Therefore, on the face of it, since the Title Deed in respect of the suit property stood in the name of the mother Mallamma, it should be construed that it was her absolute property, unless the contrary was proved and if it was the contention of the plaintiff that the father had contributed in the purchase of the suit property, it could at best enable the father to seek such a declaration and claim that the property was not purchased for the sole benefit of the mother. In terms of Section 4 of the The Benami Transactions (Prohibition) Act, 1988, it was for the father Mahanthappa to have established such a claim.

Therefore, the court below having accepted the case of the plaintiff that it was joint family property, is not tenable. The other aspect of the matter that the Trial Court having taken up Issue Nos. 1 to 5 together and having disposed of them together, is also not welcome. The issues ought to have been dealt with independently and the reasoning of the court is therefore not capable of being segregated to examine as to how the court could come to a conclusion that the property was joint family property. The reasoning on each of these issues running into each other does not enable this Court to affirm the findings of the Trial Court. In any event, as already pointed out, the property could not be taken as a joint family property, merely on the say of the plaintiff. The issues having been answered in favour of the plaintiff, cannot be sustained. The only other question is whether the defendants are justified in claiming that they did not have ample opportunity to establish the genuineness of the Will and also to dispel the suspicious circumstances that were alleged by the plaintiff.

It cannot be said that the defendants were not afforded opportunity in this regard. There is certainly want of diligence. But, if the Will could even now be established, the complexion of the suit and the rights of the parties are completely changed and the rights of the parties accordingly also would be different. Therefore, the only question now is whether the property devolves by succession under the Will or by intestate succession and to leave that question in doubt merely on the finding of the court below that the defendants have not taken their contention as regards the existence of a Will to its logical conclusion by proving the same in accordance with law though cannot be found fault with, would require to be re-examined by the Trial Court in order to avoid a miscarriage of justice. On the other hand, it would be just if the legal representatives of Defendant No. 2 and Defendant No. 4 are given a further opportunity to establish the Will, as the original Will is only now produced before this Court and the court below has not taken exception to the certified copy of the Will being produced in evidence when it was required of the defendants to submit the original document. Therefore, in exercise of power under Order XLI Rule 27(b) of the Code of Civil Procedure, 1908, this Court deems that it is necessary for the defendants to have produced the original Will and examined witnesses in support of its execution in order to prove the same.

While it is also necessary for the defendants to stake their claim to intestate succession and who also seek to echo the sentiments of the plaintiff that the Will is a got-up document had it executed under suspicious circumstances, it would stand to justice to permit Defendants 1, 3 and 5 to also file their written statement to that effect.

The findings of the court below that the suit property was the joint family property, is however set aside and the said question does not arise for consideration on such remand. The only question that would arise for consideration would be as to whether the property would devolve by testamentary succession or intestate succession in favour of the parties to the suit. The judgment and decree in favour of the plaintiff is accordingly set aside. The matter is remanded to enable the defendants 2 and 4 to produce the original Will and to tender such evidence in support of the same, while the defendants are also entitled to file their written statement on the first hearing date to which the matter is posted. It is open for the court below to frame additional issues if any in addition to Issue No. 5 and adjudicate upon the suit to that limited extent. Since this has caused inconvenience and hardship to the defendants as well as to the plaintiffs, it is appropriate that the present Defendants 2 to 4 pay the costs in a sum of Rs. 5,000/- each to the plaintiff and Defendants 1, 3 and 5 before the court below on remand.

The parties shall appear before the court below on 17.08.2015. Costs shall be paid on that date.

Having regard to the fact that the suit was of the year 2001, the Trial Court shall keep the same in view and expedite the adjudication depending on its convenience. The Cross Objections in the appeal stands disposed of in the light of the order.

ORDER ON "FOR BEING SPOKEN TO"

The appeals are again listed before this Court at the instance of the counsel for the appellant and it is complained that after the appeals were heard and judgment dictated in open court, he had packed his files and had kept his bag in the Advocates'' Association Hall, and had gone for a cup of coffee and when he returned, it was noticed that the bag was rifled through and the files were in disarray and immediately on suspicion when he checked the file pertaining to the present appeals, it was noticed that though the file was intact, the copy of the Will consisting of two pages on a foolscap size paper typed on both sides, running into four pages in all, and which was laminated and was also produced before the Court for perusal, was missing. Therefore, the counsel had immediately lodged a complaint with the Jurisdictional Police as regards the Will having been stolen from the court premises and had thereafter moved this Court to inform the unfortunate incident and therefore, the appeals are again listed before this Court.

It is stated that the parties - Respondents No. 2 to 4 were not present in court when the judgment was dictated. However, it is stated that the widow of deceased Respondent No. 3 was present in Court and two of the sons-in-law of late Respondent No. 3 were present.

The undersigned acknowledges that the original document was produced for the perusal of this Court and it is thereafter the judgment was dictated with reference to the same. This is only to record the sequence of events and to acknowledge that the original Will was actually produced before this Court for perusal, as it had not been produced and marked before the Trial Court.

It would now be open for the appellants to take recourse to Section 237 of the Indian Succession Act, 1925 in the event that the original Will cannot be traced or procured. It is unfortunate that such a situation should come about. The finger of suspicion could only point at the other side in having indulged in any such deplorable act.