IN THE HIGH COURT OF KARNATAK. CIRCUIT BENCH AT I)HARW4I) DATED THIS THE 21 DAY OF .JULY 2011 PRESENT TIlE HON’13LE MR JUSTICE \ .G.SABHAHIT AM) THE HON’BLE MR1 JLSTICE B MANOHAR Reg1ar First eal o.24Q7 of 2005 Between: Smt.Kalawwa. W/o. Hanmappa kambar. Age Major. Oee:llousehold uork. R/o.Teggi. Tq. Bilgi. PIN-581 116. District Belgaum. 2. Chilckappa. S/o.Ramappa Kambar. Age Major. 0cc: Agriculture, R/o.Haligeri. Tq. Badami. PIN—587 201. 3. Dyamanna s/o.Ramappa Kambar. Age Major. 0cc: Agriculture, R/o.Haligcri, Taluk Badami. PIN-587 201. k 4. 4. Balappa s/o.Ramappa Karnbar, Age Major, 0cc: Agriculture. R/o.Haligeri, Taluk Badami, PIN -587201. 5. Laxmappa s/o.Ramappa Kambar, since deceased by LRs. 5A. Laxmavva, w/o.Laxmappa Kambar, Age Major, 0cc: Household work. 5B. Renavva d/o.Lakshmappa Kambar, Age Major, 0cc: Household work. SC. Pundalik, s/o.Lakshmappa Kambar, Age Major, 0cc: Agriculture. SD. Kallawwa, d/o.Lakshmappa Kambar, Age minor. 5E. Channavva d/o.Lakshmappa Kambar, Age minor. SD and SE are minors represented by their natural guardian 5A, r/o.5A to SE all r/a.Haligeri, Tq. Badami PIN - 587 201. 6. Sannadyamanna, s/o.Ramappa Kambar, Age Major, 0cc; Agriculture, R/o.Haligeri, Tq. Badami PIN —587 201. 7. Rangappa s/ o. Rarnappa Kambar, Ae Major. Ccc: Agriculture. R/o.Haligeri. Tq. Baclami. PIN — 587 201. 8. Hanamappa s/o.l<alappa Kambar, since deceased by his L.Rs. 8A. Tarakka, w /o. Hanamappa Kambar, Age Major, 0cc: Household work. 8B, Siddappa, s/o.Hanamappa Kambar, Age Major, 0cc: Agriculture. 8C. Lachappa, s/o,Hanamappa Kambar, Age Major, 0cc: Agriculture. 8A to 8C all r/o.Kutakanakcri Village, Taluk Badami PIN - 587 201. 8D. Dvarnawwa. v/o. Panclappa Kumbar. Age Major. 0cc: Household work. R/o.Haligeri. Tq. Badarni. PIN —587 201. 9. Kasturewwa. d/ o. Han arnant IKambar. Age Major. 0cc: Household work. R/o.Tegi, Tq. Bilgi. PIN—581 116. District Bagaikot. 4 4 10. Muttawwa, w/u.Basappa Kambar, Age Major, 0cc: Household work, R/o.Haligeri, Tq. Badami, PIN -587 201. 11. Dyamawwa, w/o.Somappa Kambar, Age Major, 0cc: Household work, R/o.Haligeri, Tq. Badan’zi, Pin -587201. 12. Balappa s/o.Basappa Kambar, Age minor, Represented by natural guardian Represented by Deft. No.10 Muttawwa w/o.Basappa Kambar, r/o.Haligeri, Taluk Badami, PIN - 587 201. .. Appellants (By Sri V R Datar, Adv.) And: Irappa, s/o.Maliyappa Doni, Age Major, 0cc: Agriculture, R/o.Haligeri, Tq. Badami PIN —587201. 2. Somawwa w/o.Somalingappa Kambar, Age Major, t 0cc: Housewife, R/o.Teggi, Tq. Bilgi, Dist: Bagalkot, PIN—581 116. 3. Laxmavva w/o.Laxmappa Kambar, Age Major, 0cc: Housewife, R/o.Nandihal, Tq.Ramdurg PIN—591 123. A’ -‘I .4 4. Yallawwa, w/o.Neelappa Kambar, Age Major, 0cc: Housewife, R/o.Kuttanakeri, Tq. Badami, PIN —587201. 5. Kalawwa, w/o.Lachappa Kambar, Age Major, 0cc: House wife, R/o.Nandihal, Tq. Ramdurg, PIN—591 123. .. Respondents (By Sri S B Hebbali, Adv.) This RFA is filed under Section 96 of CPC, praying to set aside the judgment and decree dated 29.8.2005 in OC No.178/1998 on the file of the I Additional Civil Judge (Sr.Dn.), Bagalkot. This appeal coming on for hearing before Court this day having been reserved for judgment, Manohar J., pronounced the following: JUDGMENT The appellants being the defendants No.1 to 11 and 16 in 0.S.No. 178/1998 have preferred this appeal challenging the legality and correctness of the judgment and decree dated 29.8.2005 passed by the learned I st Addl. Civil Judge (Sr.Dn.), Bagalkot, wherein the suit filed by the plaintiff was partly decreed. 6 2. The essential facts of the case leading up to this appeal with reference to the rank of the parties before the trial court are as follows: 3. The plaintiff filed the suit seeking for the folloi ing reliefs: A) The plaintiff be declared as owner of 2/31(1 share in the 1/4’ share of deceased Dyamanna the husband of deceased Neelana by virtue of the Will executed by Neelaw a in respect of suit land and that he is the absolute owner of the suit house. B) A consequential relief of permanent injunction be granted in favour of plaintiff against the defendants. restraining them from interfering with the plaintff’s peaceful possession of the suit lands and properties bequeathed to him by deceased Neelawwa and to the exclusive possession of the suit house. C) A decree for partition and separate possession be granted awarding plaintiff of his legitimate share in the suit lands by an equitable partition with metes and bounds; 4. The plaintiff contended that the suit schedule properties except the suit house were originall) belonged to one D3 amanna, the husband of one Neelawwa and father-in-law of defendant No.1. The suit F 7 house was originally belonged to the said Neelawwa exclusively. The said Neelawwa filed a suit in OS No.68/1984 on the file of the learned Munsiff, Badami seeking declaration of her share in the suit schedule properties belonged to her husband against the 1st defendant, Kalawwa and others. The said suit was decreed holding that Neelawwa got 2/31d share in the 1/4th share of her deceased husband, Dyamanna. On account of the litigation between Neelawwa and defendant No.1, the relationship between them was strained. Defendant No.1 was not taking care of the said Neelawwa, who was the mother in-law of defendant No.1 i.e. who is the wife of her son. The Defendants No.2 to 1 1 are the Neelavva’s husband’s brothers and sisters, who were also not in good relation with the said Neelavva. 5. The plaintiff further averred that due to the strained relationship between Neelawwa and defendant No.1, no one in her family members was taking care of 8 her including the 1st defendant during her old age. The plaintiff being the nearest relationship i.e. son-in-law of Neelawwa taken care of her during her old age. In view of love and affection on the plaintiff, Neelawwa executed a registered will dated 8.1 .1998 bequeathing the suit schedule lands and the suit house in favour of the plaintiff. Subsequently the said Neelawwa died on 2.6.1998. The plaintiff has performed the obsequies of the deceased. Thereafter, he caine to know about the will after the demise of Neelawwa and he gave an application to the Tahsidlar to enter his name in the revenue records as per the said will. By virtue of the registered vill executed by the deceased Neelawwa, the plaintiff has become the owner of 2/3rd share in the 1/4th share of the deceased Dyamanna and also the house exclusively. During the life time of Neelawwa, the plaintiff assisted her in cultivating the land by effecting strips in all the suit lands. After the death of Neelawwa, those strips are being cultivated by the plaintiff and he is possession and enjoyment of the suit house. Though 9 the defendants are fully aware of these facts, they tried to interfere with the peaceful possession and tried to dig the mud in the strips and destroyed the landed property. In spite of request made by the plaintiff, the defendants have not at all heeded the request of the plaintiff. In view of that, he filed the suit with the above reliefs. 6. The defendants entered appearance in pursuant to the notice issued by the Court below, the 2nd defendant filed the written statement. Defendants No.1, 3 to 16 adopted the written statement of defendant No.2. In the written statement, the defendants have denied the plaint averments and also contended that the suit filed by the plaintiff is not maintainable. All the members of the joint family of the deceased, Dyamanna, was not made party and the suit is liable to be dismissed for non-joinder of the necessary party. It is further alleged that the decree in 05 No.68/1984 on the file of the learned Munsiff, Badami, obtained by the deceased, k I0 Neelawwa is nullity since in the said partition suit, all the persons, who were sharers in the properties of propositus Rangappa, who were not impleaded. It was a suit brought against only Kalawwa, defendant No.1, who is the wife of deceased Hanamappa and without impleading Kasturewwa and other sharers who were the brothers of her husband, Dvamanna and also her sons. Hence, the said decree is invalid and nullity in the eye of law. They have denied the averments made in the plaint that the relationship between defendant No.1 was strained and she was not looking after her are denied. They also denied that Neelawwa had 2/3rd share in the 1/4th share of Dyanianna. They have specifically contended that Dyamanna had a mother and after his death, his mother inherited half of his share i.e. 1/8th share which has been now inherited by other three branches. They also denied the averments made in the plaint that the deceased Neelawwa bequeathed her property to the plaintiff is totally false and baseless. The further allegations made in the plaint that during II Sc’ the old age of Neelawwa, the plaintiff was looking after her and due to love and affection, she had executed a will dated 8.1.1998 is also denied. They alleged that the said will is fabricated one. Further, the plaintiff is nothing to do with the suit properties and also the suit house. Even though the decree was passed in OS No.68/1984, the joint family property was not partitioned and the defendants are in possessibn and cultivating the lands. It is also denied that the defendants are removing the mud and destroying the property. The plaintiff has no cause of action to file the suit and sought for dismissal of the same. 7. On the basis of the pleadings of the parties, the court below framed the following issues: 1. Whether the plaintiff proves that Smt.Neelawwa has bequeathed the suit lands and the suit house to the plaintiff by executing her last Will on 08.01.1998? 2. If so, whether the plaintiff further prove that he is the owner of 2/3’ share in the 1/4th share of deceased Dyamanna in the suit properties? 12 3. Vhether the plaintiff prove that. Neela va was cultivating her share of suit lands by effecting pith ate strips in the lands as contended in para 4 of the plaint? 4. Whether the plaintiff proves that Neelawa was the exclusive owner of suit house? 5. Whether the plaintiff proves the interference by the defendants as contended in pm-a 5 of the plaint? 6. Whether the suit is not maintainable for non inclusion of all the members of joint family of deceased Dvamanna? 7. Whether the defendnats prove that the decree in O.S.No.68/84 on the file of then Munsiff. Badami is a nulliI.v? 8. Whether valuation made and payment of court fee is proper 2 9. Vhether the plaintiff is entitled to the relief claimed? 10. What order or decree? 8. The plaintiff in order to prove his case examined himself as PW I and examined four other witnesses PWs.2 to 5 and got marked the documents as Exs.P1 to P17. On behalf of the defendants. defendant No.1 got examined himself as DW I and examined three witnesses DW.2 to DV4 and got marked the documents k as Exs.D1 to D17. The court below after considering the arguments addressed by the parties and oral and documentary evidence let in by the parties held issue No.1. 2. 4 and 8 in affirmative and issue No3, 5. 6 antI 7 in negative and consequently by its judgment and decree dated 29.8.2005 decreed the suit in part, which reads as under: ‘lt is declared that, the plaintiff is the owner of 2/3i share in the I /1h share of deceased Dyamanna who is husband of Neelavva in respect of suit lands, and also the plaintiff is the absolute owner of suit. The plaintiff is entitled to et said 2/3 share in 1/4th share of the said deceased Dvamanna in all the suit lands and to get separate possession of the same by metes and bounds. The prayer sought for consequential relief of permanent injunction against the defendants restraining them from interfering with the peaceful possession of the suit lands antI suit house is dismissed.” 9. The respondent No.1 to 11 and 16 being aggrieved by the judgment antI decree dated 29.8.2005 filed this appeal. 14 10. Sri V R Datar, Advocate appearing for the appellants contended that the judgment and decree passed by the court below is contrary to law’ and the Court committed serious error in declaring that the plaintiff is the owner of 2/3rd1 share in 1/4th share of the deceased, Dyamanna, who was husband of Neelawwa. The appellants further contended that the judgment and decree in OS No.68/1984 was obtained in tespect of landed property and there is no identification of shares, which could be granted to her. The said decree has not yet been executed. In the absence of separate possession or partition, the decree being only the paper decree is nullity in law. When Smt. Neelawva did not secure any identifiable interest in the joint family property, she could not have divested the same. The finding of the court below to the matter in controversy is erroneous in law. The declaratory releif sought for by the plaintiff ought not to have been granted by the trial court that too against the co-owners and some of the co owners were not made as parties to the suit. Hence, the 15 t entire approach made by the court below is contrary to law. 11. The appellants further contended that the house property bearing VPC No.2/B was not part of the declaratory decree in OS No.68/1984 and the house property was remained in joint family property. The trial court has seriously erred in relying upon a house demand extract at Ex.P6 for the year 1995-96 and M.E. Ex.P1O showing the name of Neelawwa as the owner, which is also contrary to law and sought for setting aside the judgment and decree passed by the court below. Sri V R Datar. Advocate appearing for the appellants relied upon the following judgments 1) AIR 1954 SC 340 (Kiran Sin Singh -vs- Chaman Paswn) 2) AIR 1959 SC 443 (H Venkatachala Iyengar —vs Thimmajamma & ors. 3) AIR 1997 SC 2719 (Balwant Singh —vs- Daulat Singh) Sri Datar contended that the judgment and decree passed by the court below is nullity in the eye of law. V H’ 12. On the other hand, Sri S B Hebballi, Advocate appearing for the respondents argued in support of the judgment and decree passed by the court below and contended that pursuant to the judgment made in OS. No.68/1984. Neelawwa got 2/3’ share in 1 14t share of her husband. the said right was bequeathed in favour of the plaintiff as per the will dated 8.1.1 Q8. The plaintiff has become the absolute ow ner of the suit property. The deceased Dyamanna got three brothers and each brother is entitled for 1/4th share. After the death of Dyamanna. the Neelawwa succeeded the estate of Dyamanna and she was entitled for 2/31(1 share in the 1/4th share allotted to D’amanna. The Court below after considering the oral and documentary evidence held that the will executed by Neelaww a is proved. The appellants hate not made out a case for interfering with the judgment and decree passed by the court below and sought for dismissal of the appeal. 4- 17 13. We have carefully considered the arguments addressed by the parties and perused the oral and documentary evidence of the parties. 14. The points that arise for our consideration in this appeal are: i) Whether the plaintiff has proved the execution of the will dated 8.1.1998 by Neelawwa in accordance with law? ii) Whether Neelawwa is the absolute owner of the house property bearing No.62/B? iii) Whether there is en-or or illegality in the judgment and decree passed by the court below as to call for interference in this appeal? 15. It is the case of the plaintiff that pursuant to the judgment and decree obtained by the deceased, Neelawwa in 05 No.68/1984 on the file of the learned Munsift Badami. she became the absolute owner of 2/3” share in the 1/4” share of her husband, Dyamanna. Due to love and affection, she bequeathed the suit property in favour of the plaintiff on free will and volition since he had taken care of her during her k. old age. Since the defendants tried to interfere nith the peaceful possession, he filed the suit for declaration as nell as injunction. The case of the defendants is that the very decree obtained by the said Ncelawna is invalid and nullity in the cxc of law. The alleged will executed by Neelawwa in favour of the plaintiff is a bogus and fabricated one and also he nas never in possession of the suit schedule propertx. Therefore he is not entitled for the reliefs. 16. The plaintiff was examined himself as PW1 and deposed the plaint averments in the examination in chief, lie was crossexamined by the defendants. In the cross examination, he deposed that the deceased Neelawna is his mother-in-law, Neelana had filed a suit against Kalawwa and others. The said suit was decreed and Neelawwa got 2/3r’ share in I 4’ share of her husband. The said suit was decreed by the court below. Neelawwa’s husband died in the year 1984 itself. Neelawwa was hale and healthx uhile executing the will. 19 He is not aware of the vi1l executed 1)3’ Neelawwa till her death. She was suffering from fever for a period of 8 to 10 da3 s prior to her death. He further deposed that the will was registered in the Registrar’s office at Badami. tie was not present hile preparing the will. 17. PW2 in his evidence deposed that the vill was prepared in his presence and she has signed the will. Ex.P1 (A) is his signature. The scribe was one V M Goudar. who has also put his signature. During the old age of Neelawwa. the plaintiff was looking after her. In the cross-examination he has dcposed that I lanamant is the son of Neelawwa and Ka1awa is the wife of Hanamantha. Hanamant died about 8 years back. The relationship between Neelawa and Ka1asa is not cordial due to the tiling of the suit by Neelawi a. On the date of execution of the ill. they left their place at 10.00 a.m. and reached Badami at 10.30 a.m. The scribe, who written Ex. P1 was kno n to him earlier. Neelawwa herself took PW2 to the scribe. On the A- 20 I direction of Neelwwa. the scribe was written the vill and thereafter the same was registered in the Sub-Registrar Office. The registered will was not given on the same day. He specifically stated that the will was registered at4.OOp.m. 18. PW3, who was scribe of the ‘viii. deposed that he has written the will Ex.Pl on the direction of Neelawwa. She was hale and healthy and sound disposal state of. mind. The will was read over to her. She understood the will. In the cross-examination he deposed that Neelawwa came to the house at 12.30 p.m. on the same the will was registered. PW4 was one of the attesting of witnesses to the will. He also deposed that Neelawwa was hale and healthy. The witnesses have signed the will in his presence. The will was registered in his presence. Nothing has been elicited in his cross examination to show that Neelawwa was not keeping good health and not having sound mind at the time of execution of Ex.P1, will. PW4 was the neighbour of 21 Neelawwa. He deposed that the will, Ex.P1 was executed by Neelawwa in his presence. He put his signature in the will. In the cross-examination of PW4, he has denied the suggestion made by the defendants that Neelawwa was bed ridden and lost her sense about one year prior to the execution of the will. 19. PW5 who is the neighbourer of the land of Neelawwa, deposed that Neelawwa was cultivating the land with the help of plaintiff and the plaintiff was looking after Neelawwa. The daughter-in-law i.e. defendant No.1 has never looked after Neelawwa. In the cross-examination, he deposed that Neelawwa’s husband has four brothers. The husband of Neelawwa i.e. Dyamanna was entitled to 1/4th share. The evidence of PWs. 1 to 5 merely discloses that Neelawwa had executed the registered will in favour of the plaintiff. 20. The defendant No.1 was examined herself as DW1 and deposed that her mother-in-law Neelawwa never executed the will in favour of the plaintiff. The house C property is not inherited by her mother-in-law. She was also entitled for 2/3rd share in the suit property and herself and other defendants are jointly cultivating the lands. In the cross-examination she admitted that the suit schedule property being the ancestral property was belonged to her father-in-law Dyamanna and his brothers. Dyamanna was entitled for 1/4th share. The defendant No.1, her husband and Neelawwa are residing jointly at Haligeri. She further deposed in her cross-examination that her mother-in-law was suffering with sickness for one year before her death. She consulted the doctor in her village for the disease of her mother-in-law. Further he deposed that she did not remember the doctor’s name and possess the prescription given by the doctor. Further she deposed that she did not remember the day on which her mother-in-law passed away. 21. DW2 who is the 5th defendant in the suit deposed that his uncle Dyamanna died about 18 years back. His 23 I wife died about 4 years back. Her son Hanamarith, who is also died about 10 to 12 years back. Hanumanta’s wife Kalawwa is defendant No.1 and he had only daughter by name Kasturewwa, defendant No.9. They are jointly cultivating the land belonged to the joint family. The plaintiff is not related to their family. In the cross-examination he deposed that his father had right in the joint family properties and he cannot say what is the extent of share of his father. He further deposed that during the harvesting period, Neelawwa used to visit the land arid all the four brothers of Dyamanna are residing together, but cooking separately. There is no house standing in the name of Neelawwa in Huligeri village. He also admitted that there is no cordial terms with his uncle, his father and Neelawwa. Neelawwa had filed the suit in O.S.No.68/ 1984 in the Court of Badami seeking partition. The said suit was decreed. DW3 was the neighbourer of the lands of the defendants. He deposed that Neelawwa had filed a case against Kalawwa in the Badami Court with regard to the suit 24 C lands. The defendant No.1 Kalawwa belongs to Teggi village of Bilagi taluk. Neela “a used to call him to her house often about one and half sears before her death. He has admitted in his cross examination that the relationship bet een Neelaswa and Kalaw a was not cordial. 22. The evidence on record clearb discloses that the plaintiff has taken care of Neelawwa during her old age. In view of love and affection towards plaintiff. Neelawwa had executed the ill in favour of the plaintiff, who is also close relatii e of Ncelawwa. The evidence of PWs.2, 3 and 4 clearly discloses that Neela wa had executed the will in favour of the plaintiff. At that time she was in sound and disposition state of mind. She herself went to PW3 and got prepared the will and registered before the Sub-Registrar. PM s.2 and 4 are the attesting witnesses of the will and PW3 is the scribe of the ‘ill. The evidence sho s that Neelawwa was in sound k 25 I disposal state of mind. Hence we hold that point No.1 is in favour of the plaintiff. 23. It is the case of the plaintiff that Neelawwa was the exclusive and absolute owner of the house property. On perusal of Ex.P6, it is clear that the house property bearing VPC No.62/B is standing in the name of Neelawwa. The tax paid receipts clearly disclose that the properties are standing in the name of Neelawwa from the year 1993 itself. No document has been produced by the defendants to show that the said house property is the ancestral property of her husband and further is the joint family property. The document produced by the plaintiff clearly