IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH RFA.No.1691/2013(Dec-Pos) BETWEEN:
SRI. A.KRISHNA AGED ABOUT 68 YEARS S/O. LATE ABBAYYAPPA RESIDING IN A PORTION OF PROPERTY No.39, KODIHALLI MAIN ROAD HAL II STAGE POST BENGALURU-560 038. ... APPELLANT (BY SRI.K.K.VASANTH, ADV.) AND:
SRI. SURESH MOHAN SINCE DECEASED BY HIS LR 1(a. SMT.SHANTHA AGED ABOUT 40 YEARS W/O LATE SURESH MOHAN R/AT No.6, GANDHI ROAD GUDIYATTAM-632 602 NADUPETTAI VELLORE TAMIL NADU.
2. MISS. SADANA MOHAN AGED ABOUT 45 YEARS D/O. MOHAN P.B. & GOWRAMMA 3. SMT.SANJU GANGULY AGED ABOUT 44 YEARS W/O.ASHWIN GANGULY D/O. MOHAN & GOWRAMMA 4. SRI.MOHAN SUDESH AGED ABOUT 42 YEARS S/O. MOHAN & GOWRAMMA THE RESPONDENTS 1 TO 4 ARE R/AT. No.76/3, 2ND CROSS 80 FEET ROAD MICHAEL PALYA THIPPASANDRA POST BENGALURU-560 075 5. SMT. RATHNAMMA AGED ABOUT 44 YEARS W/O. LATE A.DASAPPA RESIDING IN A PORTION OF PROPERTY No.39, KODIHALLI MAIN ROAD HAL II STAGE POST BENGALURU-560 038.
6. SRI.D.MAHENDRA AGED ABOUT 26 YEARS S/O. LATE DASAPPA RESIDING IN A PORTION OF PROPERTY No.39, KODIHALLI MAIN ROAD HAL II STAGE POST BENGALURU-560 038. ... RESPONDENTS (BY SRI.V.V.GUNJAL, ADV. FOR R1 TO 4 SRI.B.L.NANDAKUMAR, ADV. FOR R6 R5 IS SERVED) THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 31.08.2013 PASSED IN O.S.NO.2932/2005 ON THE FILE OF THE X ADDL.
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH.26) DECREEING THE SUIT FOR DECLARATION, POSSESSION AND DAMAGES.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 24.10.2019, THIS DAY THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed challenging the judgment and decree passed in O.S.No.2932/2005 dated 31.08.2013 on the file of X Additional City Civil and Sessions Judge, Bengaluru (CCH.26) questioning the decree declaring the plaintiffs as the absolute owners and also directing the defendants No.1 and 2 to hand over the vacant possession of the suit schedule property in favour of the plaintiffs.
2. The parties are referred to as per their original rankings before the Court below to avoid confusion and for the convenience of the Court.
3. The brief facts of the case:
It is the case of the plaintiffs that they are the children and class-I heirs of later Smt.Gowramma, who died intestate on 28.10.2002 leaving behind the plaintiffs as legal heirs and they have succeeded to the estate of Gowramma after her death. It is their further case that grand-father of plaintiffs by name Muniyappa @ D.K.Abbaiah S/o. Dasappa had acquired certain immovable properties during his lifetime and he executed registered Will dated 15.09.1989 and as per the said Will, the mother of the plaintiffs Gowramma had been given ‘A’ schedule property shown in the Will and so also deceased Abbaiah bequeathed certain other properties in favour of other legal heirs retaining a portion of property situated at Sampangiramanagar, Bengaluru. It is contended that first defendant is the brother of Gowramma and second defendant is her sister-in-law and third defendant is son of second defendant and that after demise of D.K.Abbaiah, schedule property became the absolute property of the mother of plaintiffs and likewise the first defendant and husband of second defendant got certain other properties as per the said Will. The property No.39 is vast property, wherein a portion measuring 35x30 feet consisting of old house situated in north eastern side as shown in the plaint schedule is bequeathed by the deceased Abbaiah along with 4 other properties to Smt.Gowramma and that the said Will came into effect immediately after the death of Abbaiah and thereby Gowramma became the owner and possessor of the schedule property and other properties bequeathed in her favour.
4. It is contended that recently after the death of Gowramma, the first defendant high handedly and illegally dispossessed the plaintiffs from suit property by creating false documents on 26.10.2004 and now defendants 1 & 2 are in illegal occupation of schedule property for the last 3 months and that prior to dispossession, the plaintiffs and their family members were living in the schedule property. It is further contended that at the time of dispossession, the plaintiffs were away from Bengaluru and the area occupied by the defendant is measuring 3 squares house and after returning to Bengaluru, the plaintiffs questioned the illegal act of the first defendant and also approached the jurisdictional police and however, the police did not take any action on the ground the matter is civil dispute. It is further contended that the defendants are permanent resident of Jeevanbhimanagar and they came to schedule property illegally and trespassed. Hence, filed the suit for declaration and possession.
5. In pursuance of the suit summons, the defendants appeared through their counsel and second defendant has not filed any written statement. The third defendant has filed a consent written statement admitting the entire case of the plaintiffs and further contended that defendant No.3 is also one of the beneficiaries under the Will dated 18.09.1989, which was executed by deceased D.K.Abbaiah.
6. The first defendant in his written statement denied the case of the plaintiffs. It is contended that plaintiffs are the children and class-I heirs of deceased Smt.Gowramma, but first defendant denied the plaintiffs have succeeded exclusively to the estate of deceased Gowramma and that deceased Gowramma acquired the schedule property under the Will executed on 15.09.1989. The first defendant denied the averments of claiming ownership by the plaintiffs based on the Will. He has further contended that there was a family settlement in panchayath regarding the properties of late Abbaiah and that late Abbaiah also executed two other Wills apart from the Will referred by the plaintiffs and that during the life time of late Abbaiah, he was taken to Dharmasthala on 01.10.1989 and thereafter his dead body was brought to the house of first defendant on 3.10.1989. The relationship of parties is admitted by the first defendant. However, he denied the claim of the plaintiffs that the suit schedule property was bequeathed to late Gowramma and she was in possession of the property till her death in 2002 and he also denied the averments of illegal dispossession of the plaintiffs from the suit schedule property. The first defendant has admitted that legal heirs of Abbaiah acquired and started enjoying their portions of properties, after demise of Abbaiah as per Wills and also as per panchayath verdict. He further contended that he is in legal possession of the schedule property, which was given by his father and that the suit filed by the plaintiffs is liable to be dismissed.
7. In view of the pleadings of both the parties, the Court below has framed the following issues and an additional issue:-
ISSUE 1. Whether the plaintiffs prove their ownership and title over the schedule property?
2. Whether the plaintiffs are entitled for the recovery of possession of the schedule property?
3. What order regarding damages?
4. What order?
ADDITIONAL ISSUE 1. Whether defendant No.1 proves that the relief claimed by the plaintiff is not binding on him?
8. The plaintiffs, in order to substantiate their claim, examined one witness as PW.1 and got marked documents Exs.P1 to P17. The first defendant examined DW.1 and got marked the documents Exs.D1 to D13.
9. The Court below, after hearing and considering both the oral and documentary evidence, decreed the suit answering issue Nos.1 and 2 in the affirmative and additional issue No.1 in the negative. Hence, the present appeal has been filed by the first defendant.
10. The first defendant in the appeal memorandum has contended that the Court below has committed an error in answering issue Nos.1 and 2 in the affirmative and additional issue No.1 in the negative believing the case of the plaintiffs based on the Will dated 15.9.1989 though the suit is barred by law of limitation and they ought to have filed the suit within 12 years from the date of coming into effect of the said Will.
11. The Trial Judge also committed an error in coming to the conclusion that there is no need to examine any of the attesters of the Will in compliance of Section 68 of the Indian Evidence Act, which is mandatory under law, whether the Will is in dispute or not. The original Will has not been produced and they have not taken any steps either to secure the original Will or to examine any of the attesters as witnesses. The Trial Judge also failed to notice the contents of palu patti at Ex.D1, wherein 1/2 share in the northern portion of the property has been allotted to the first defendant and southern portion has been allotted to his brother late A.Dasappa which is dated 9.8.1979 entered into between the said Abbaiah and his children and PW.1 has also admitted the same and marked in his evidence.
12. The Court below has committed an error in coming to the conclusion that the said palu patti was not acted upon and subsequently, the same has been cancelled by virtue of the Will-Ex.P3, though the said Abbaiah had no right or interest to execute Ex.P3. The Trial Judge has erred in holding that the first defendant ought to have challenged the Will-Ex.P3 by stating that the document is illegal and cannot be relied upon in lieu of earlier palu patti or settlement, though the said family settlement Ex.D1 has become final.
13. The Trial Judge has also failed to consider Ex.D6-the cumulative record of the appellant, Ex.D7-the RC Book which shows that the first defendant was residing in the suit schedule property right from the year 1962- 1963, Ex.D.10 dated 26.10.1983 which reflects the appellant was residing in the suit schedule property and Ex.D11, which discloses that appellant has obtained the khatha in respect of the suit schedule property.
14. The Trial Judge also failed to take note of the fact that the first defendant has been in possession and the claim of the plaintiffs that they were dispossessed has not been proved and the Court below has failed to frame any issues with regard to the illegal dispossession of the plaintiffs. It is also contended that the plaintiffs filed the suit for declaration of ownership based on the Will dated 15.9.1989 and hence, they ought to have made all legal representatives of the said Abbaiah and the testator of the said Will as parties to the suit. Hence, the impugned judgment and decree of the Trial Court is liable to be set aside.
15. Learned counsel appearing for the appellant/defendant in this appeal would contend that the Court below has committed an error in relying upon the Will and failed to take note of the fact that the attester of the said Will has not been examined and the same is opposed to Section 68 of the Indian Evidence Act.
16. The other contention of the appellant’s counsel is that the Court below has committed an error in not taking into consideration of the fact that the defendants are in possession and the claim of the plaintiffs that they were dispossessed in the year 2004 has not been proved by placing any documentary evidence before the Court and also failed to take note of documents Ex.D.6 and Ex.D.7 and also other documents, which shows that the first defendant is in possession. It is his further contention that the suit is filed after 16 years which is barred by law of limitation and the Court below has committed an error in not appreciating both oral and documentary evidence in a right perspective.
17. The respondents’ counsel in his arguments contends that the first defendant is claiming right based on the settlement deed but the said settlement deed has not been acted upon and subsequently, the original owner Abbaiah has executed the Will, which is marked at Ex.P3. All the beneficiaries of the said Will have acted upon and also executed the documents based on the said Will in terms of Exs.P13 to P17. It is also contended that the first defendant himself has referred to the said Will in the suit filed by him and hence, now he cannot approbate and reprobate. Once he accepts the transaction as valid, taking advantage of the same, again he cannot be permitted to challenge the validity of the said Will.
18. Learned counsel for the respondents in support of his arguments relied upon the decision of the Hon’ble Apex Court in the case of R.N.GOSAIN VS. YASHPAL DHIR reported in (1992) 4 SCC 683. Learned counsel referring to para No.10 of the judgment, brought to my notice with regard to approbate and reprobate wherein it has been held that once the documents has been accepted and acted upon, a person cannot at one time accept the said documents as valid and thereafter in order to secure some other advantage, he cannot deny the same.
19. Learned counsel also relied upon the judgment of the Apex Court in the case of PRASHANT RAMACHANDRA DESHPANDE VS. MARUTI BALARAM HIBATTI reported in 1995 Supp (2) SCC 539 and brought to my notice para No.5 of the judgment contending that the Doctrine of election is founded ON equitable principle that where a person persuades another to act in a manner to his prejudice and derives any advantage from that, then he cannot turn around and claim that he was not liable to perform his pat as it was void. It applies where a vendor or a transferor or property tries to take advantage of his own wrong.
20. In reply to the arguments of the respondents’ counsel, the appellant’s counsel in his arguments contends that the plaintiffs have admitted the palu patti and when once the palu patti is admitted, the said Abbaiah cannot execute another Will and also the plaintiffs have not produced any documents from 1987 onwards to show that they were in possession. The plaintiffs have filed the suit in O.S.No.2580/2005 and in the said suit, the case was compromised and the compromise decree, which is marked at Ex.P.15 discloses the address of suit schedule property and there is no reference of the Will. The plaintiffs claim that they were dispossessed in the year 2004 and to prove the same, no documents have been produced but the first defendant has produced documents from 1962 onwards to show that he has been in possession of the suit schedule property and these aspects have not been considered by the Trial Court.
21. The appellant’s counsel in his arguments relied upon the judgment in the case of H.VENKATACHALA IYENGAR VS. B.N.THIMMAJAMMA AND OTHERS reported in AIR 1959 SC 443. Learned counsel referring to paras 18, 19, 20, 21, 22 and 39 of the judgment, contended that in order to prove the documents of the Will, Sections 67 and 68 of the Indian Evidence Act are relevant and if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting and for proving such an handwriting under Sections 45 and 47 of the Act, the opinions of experts and of persons acquainted with the handwriting of the person concerned are relevant. Section 68 deals with the proof of execution of the document required by law to be attested and attesting witnesses must be examined for the purpose of proving the same. The same has not been done and the plaintiffs have failed to comply the above provisions. Thus, the Court below ought not to have relied upon the Will-Ex.P3. Generally, the propounder of the Will has to prove the same and in case of any suspicious circumstances surrounding the execution of the Will, the propounder has to remove the said suspicion from the mind of the Court by placing cogent and satisfactory evidence but the same has not been done.
22. Learned counsel also relied upon the judgment reported in ILR 2008 KAR. 2115 in the case of SRI.J.T.SURAPPA AND ANOTHER VS. SRI.SATCHIDHANANDENDRA SARASWATHI SWAMIJI PUBLIC CHARITABLE TRUST AND OTHERS and brought para No.31 of the judgment to my notice by contending that a Will is a document, which requires to be attested under Section 63(c) of the Act. Therefore, the said document shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. It is further contended that even if the said Will is registered under the provisions of the Indian Registration Act, 1908 whether the execution of the Will is admitted or denied, it is necessary to call an attesting witness in proof of the execution of the said Will.
23. Learned counsel also relied upon the judgment reported in ILR 2008 KAR. 1840 in the case of PARAPPA AND OTHERS VS. BHIMAPPA AND ANOTHER and brought para No.32 of the judgment to my notice and contends that if the attesting witnesses are not alive, then Section 67 of the Indian Evidence Act is attracted and in addition to usual modes, handwriting may also be proved by circumstantial evidence. In the absence of attesting persons who are well acquainted with the handwriting or signatures of the attesting witness should be examined to prove the signature of the attesting witness.
24. Learned counsel also relied upon the judgment reported in (2019) 6 SCC 409 in the case of THULASIDHARA AND ANOTHER VS. NARAYANAPPA AND OTHERS. Learned counsel referring to para Nos.9.4 and 9.5 of the judgment contended that even unregistered document of family settlement would operate as estoppel against parties to such a settlement and the same can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. If partition of joint family properties took place by oral family settlement, unregistered document containing signature of all members, containing list of properties partitioned can be used as corroborative evidence.
25. Learned counsel appearing for the appellant referring to these decisions would contend that the Court below has committed an error in not properly appreciating both oral and documentary evidence and also did not apply its mind with reference to the question of law. Hence, it requires interference of this Court.
26. Having heard the arguments of the defendant’s counsel and also counsel appearing for the plaintiffs and also in keeping the grounds urged in this appeal, the points that arise for consideration of this Court are as follows:-
1. Whether the Court below has committed an error in relying upon Ex.P3-Will and has erroneously passed the judgment and decree declaring the plaintiffs as the absolute owners and it requires interference of this Court?
2. Whether the Court below has committed an error in granting the decree of possession by directing defendant Nos.1 and 2 to deliver the possession as sought for in the suit and it requires interference of this Court?
3. Whether the Court below has committed an error in entertaining the suit which is time barred as contended by the defendants and it requires interference of this Court?
4. What order?
27. Points No.1 to 4:- Having considered both the pleadings of the plaint and contentions urged in the written statements, there is no dispute with regard to the fact that the suit schedule property belongs to one Abbaiah and both parties admit the same. It is also important to note that the relief was sought against the 2nd defendant for possession but the 2nd defendant did not choose to contest the matter and the 3rd defendant also filed the consent written statement and supported the case of the plaintiffs. The only contesting defendant is the first defendant.
28. Now this Court considers both oral and documentary evidence available before the Court. The plaintiffs in order to prove their case examined one witness as P.W.1 and got marked Exs.P1 to P17. The plaintiffs mainly relied upon Ex.P3 Will and also Exs.P4 to P9 to prove the fact that they were in possession prior to filing of the suit. The plaintiffs also relied upon Ex.P10 – certified copy of the plaint in O.S.No.5462/1990 and the same reflects the address given by the defendants while filing the suit. The other documents are certified copy of the orders passed in O.S.No.2580/2005 at Ex.P.13, the certified copy of the ordersheet in the said suit at Ex.P.14, the certified copy of the compromise petition in the said suit in terms of Ex.P.14, certified copy of the joint development agreement at Ex.P.16 and certified copy of the sale deed at Ex.P.17.
29. P.W.1 was subjected to cross-examination. In the cross-examination, it is elicited that all the schedule properties are the self acquired properties of his grand father Abbaiah and he also admits that their grand-father Abbaiah made panchayath palu patti in the year 1979. The question was put to P.W.1 that house property bearing No.39 at Kodihalli Village was allotted to the first defendant and Dasappa in the panchayath palu patti and he admits the same, but contended that the same was cancelled under the registered Will by Abbaiah in terms of Ex.P.3. He also admits that a share was given to the daughters in terms of panchayath palu patti, but he claims that the daughters were allotted 1/4th share but the same was cancelled under the Will. A suggestion was made that in terms of hissa of the year 1979, the first defendant is residing in the schedule property as his share and the same was denied. He claims that Abbaiah was staying in his house No.39.
30. P.W.1 also admits that his mother has sold the a piece of property situated at Sampangi Tank, which is also shown in the Will of the year 1989. The document Ex.D.1 Palupatti was confronted and the same was marked. It is elicited that he does not have the original Will but he is having only the certified copy and he does not know with whom the said original Will is with. His mother came to know about the execution of the Will only on the death of his grand-father i.e., on 3.10.1989. He admits that suit schedule property consists of main house and the garage portion and that 2nd defendant is residing in the garage portion. It is suggested that except defendant Nos.1 and 2, no other person is having any share in the schedule property and the same was denied. He admits that his mother had filed the suit against Govindappa regarding Kodihalli property in O.S.No.15031/1999 and the said suit is pending. He admits that his grand-father Abbaiah at his expenditure celebrated the marriage of his mother and her sisters.
31. The first defendant also examined himself as D.W.1 and he reiterated the averments of the written statement in his evidence in lieu of his chief examination. He also marked the documents Exs.D.1 to D13. He was subjected to cross-examination. In the cross-examination he admits that Abbaiah was the absolute owner of the schedule property and his father had executed the registered Will on 15.9.1989.
32. It is suggested that his father had bequeathed the schedule property to his mother on 15.9.1989 and he says that he does not know the same, but he admits that he has not challenged the deed 15.9.1989. He also admits that legal heirs of Gowramma had filed case against Gayathri and against them in connection with the sale of house at Sampangiramanagar and also the said suit is ended in a compromise. Ex.P.14-the certified copy of the order sheet in O.S.No.2580/2005 and Ex.P.15 is the certified copy of the compromise petition. He also admits that he himself and Narayanappa had filed the case for partition of the property left behind by Abbaiah, but he claims that he has withdrawn the same. He states that he does not know whether the said palu patti was cancelled under the Will dated 15.9.1989. It is suggested that mother of P.W.1 was in possession of the schedule property till 26.12.2004 and they have illegally dispossessed her and the same was denied.
33. Having considered both oral and documentary evidence, it is evident that though the defendants denied the Will-Ex.P3 in the written statement, but have categorically admitted the very execution of the Will, which is marked at Ex.P3 in the cross-examination. It is also suggested that under the said Will, suit schedule property was allotted in favour of the plaintiffs’ mother but his answer was that he does not know and he has also not specifically denied about bequeathing of the suit schedule property in favour of Gowramma. He also admits that he has not challenged the Will dated 15.9.1989. He also admits that the suit was filed by the legal heirs of Gowramma challenging the sale deed made in favour of Smt.Gayathri in respect of the property, which is situated at Sampangiramanagar and the same was compromised in terms of Ex.P14 and Ex.P15.
34. He also admits in the cross-examination that he himself and Narayanappa had filed the case for partition of the properties left behind by Abbaiah. When the question was put to him that whether the said palu patti was examined to prove the Will, he stated that he does not know. P.W.1 also in his evidence admits that there was a palu patti marked at Ex.D1 and also admits that his mother has sold the piece of property situated at Sampangi Tank, which is also shown in the Will and his mother has not claimed any title based on the palu patti.
P.W.1 also explained that the original Will is not in her custody and also she does not know with whom the original will is with.
35. Having taken note of the answers elicited from the mouth of P.W.1 and D.W.1, there is no dispute with regard to Ex.D.1 and so also Ex.P.3. I have already pointed out that even though defendants have denied the Will, but in the cross-examination they have categorically admitted the very execution of the Will. It is also pertinent to note that in the cross-examination, he did not deny specifically Ex.P.3 but it is only his answer that he does not know about the same. It is further pertinent to note that in the cross-examination, a specific question was put to him that in terms of the Will-Ex.P.3, the suit schedule property was bequeathed in favour of his mother and the same was denied saying that he does not know about the same. However, he admits that he had not challenged the Will. The plaintiffs have relied upon document Ex.P.13 to Ex.P.17 contending that the parties in terms of the Will have acted upon. It is also important to note that Ex.P.3 is the registered document having registered on 18.9.1989 and the same was executed on 15.9.1989. When the Will itself is not disputed, the question of proving the said Will by the propounder of the Will does not arise at all.
36. The main contention of the appellant is that the attesting witness of the Will has not been examined. The principles laid down in the judgment referred by the appellant’s counsel are also not in dispute. There is no doubt that the law mandates to examine one of the attesting witnesses, but in the case on hand, it is to be noted that the defendant No.1 along with Narayanappa had filed the suit earlier and in the said suit, the defendants themselves have made reference to Ex.P.3. In the suit O.S.No.3414/1997, the first defendant admitted that he acquired portion of the property in Sy.No.49 under Will and during the course of evidence in the said suit, he produced the certified copy of the Will, which is also marked at Ex.P.3 in that suit. Hence, the first defendant admitted the very execution of the Will and also acted upon the same and he has also relied upon the very same document in the suit filed by him. The other beneficiaries have also claimed that the Will-Ex.P.3 was executed.
37. The main contention of the appellant’s counsel that there was a palu patti in the year 1979. There is no dispute with regard to the palu patti, which is marked at Ex.D.1. The main contention of the plaintiffs that the said palu patti was not acted upon by any of the parties and subsequently, the vendor had executed the Will and consequent upon the execution of the Will, earlier palu patti was cancelled. It is to be noted that the document Ex.D.1 discloses with regard to the distribution of the property, but no other document is placed before the Court to show that based on the said palu patti, the parties have acted upon and apart from that the parties have relied upon the registered Will, which is marked at Ex.P.3.
38. It is also pertinent to note that the property in which the original executant of the Will was in possession and after his death, the remaining legal representatives have sold the said property and the same was questioned in O.S.No.2580/2005 challenging the sale deed Ex.P.13 executed by the first defendant and his brothers and sought for the relief of partition and separate possession. It is also an admitted fact that the said suit was compromised as per Exs.P.14 and 15 and share of the legal heirs of the Gowramma was given in the form of cash of Rs.62,500/- and the same is also not in dispute. The fact that the defendant also filed the suit for the relief of partition is also not in dispute.
39. The Court below, while passing the judgment has given its anxious consideration to both oral and documentary evidence. The Court below has taken note of the fact that the parties have not acted upon in terms of Ex.D.1 earlier palu patti. Defendant No.1 has also not placed any material before the Court to show that the parties have acted upon. On the other hand, the parties have acted upon in terms of Ex.P.3-Will and Ex.P.13 to Ex.P.17 to substantiate that the parties have acted upon. I have already pointed out that the defendant No.1 also in the suit pleaded about Ex.P.3-Will and claims the right based on the Will. When such being the case, the Trial Court has considered the material on record in coming to the conclusion that first defendant cannot at one breath claims that there was a settlement among the family members and at another breath, though denied the Will in the written statement but has admitted the Will-Ex.P.3 in the cross-examination and so also he claims right based on the said Will. The Trial Court also observed that the defendants have also filed the suit for partition and in that case, if there was a partition among the family members in terms of Ex.D.1 and parties have acted upon the same, the question of filing one more suit for the relief of partition does not arise at all.
40. It has been held by the Apex Court in R.N.GOSAIN’s case stated supra that the law does not permit a person to both approbate and reprobate. A person, after taking advantage of the document, cannot reprobate and say that the document is void in order to secure some advantage over the same. The principle laid down in the judgment referred supra is aptly applicable to the case on hand.
41. No doubt, there is no dispute with regard to the principles laid down in the judgment referred supra by the appellant’s counsel in PARAPPA’s case that one of the attester has to be examined in order to prove the Will but in this case, the parties have acted upon the Will and the defendant No.1 has claimed the right based on the said document and also pleaded in his own pleadings that there was a Will. When such being the case, the principles laid down in the judgment referred by the appellant’s counsel do not come to the aid of the appellant.
42. It is also the contention of the appellant’s counsel that whether the Will is admitted or denied, it is the bounden duty to examine the attester of the Will. The said contention also cannot be accepted since the first defendant himself has relied upon the very same document. The facts and circumstances of the present case is different from that of the cases referred to by the counsel. Hence, I am of the opinion that the Court below has not committed an error in relying upon Ex.P.3 and in coming to the conclusion that the plaintiffs are the absolute owners of the suit schedule property based on the Will.
43. The Hon’ble Apex Court in THULASIDHARA’S case stated supra has observed with regard to the settlement deed. It is also the settled law that even oral partition, which has been reduced into writing, can be used for the collateral purpose. There is no dispute with regard to the principles laid down in the said decision, but in the case on hand, it is clear that though the said palu patti came into existence, the parties have not acted upon and subsequently, the registered Will was executed by the father and the first defendant also relied upon the said Will. However, the contention that there was a family settlement and he has got the right in respect of the suit schedule property cannot be accepted.
44. Learned counsel for the appellant in his arguments contended that the plaintiffs have not proved the illegality in taking the possession and inspite of the same, the Court below has committed an error in coming to the conclusion that the plaintiffs have been dispossessed. Learned counsel in his arguments vehemently contended that from 1962 onwards, the defendants are in possession of the suit schedule property and at no point of time, they dispossessed the plaintiffs. The Court below, relying upon the documents i.e., gas vouchers which are marked at Exs.P4 to 7 and ration card at Ex.P.8, comes to the conclusion that even after marriage, the deceased Gowramma was residing in the schedule property during the lifetime of her father.
45. The counsel would contend that Trial Court has erred in coming to the conclusion` that police complaint produced by the plaintiffs, which is marked at Ex.P9 dated 04.03.2003 establishes the possession of the plaintiffs and the Court below did not consider the cumulative record issued by the School and RC Book which shows that he is residing in the schedule property. No doubt, cumulative record is of the year 1962 and RC Book is of the year 1980, but the fact is that the plaintiffs contended that they were dispossessed in the year 2004 and in order to substantiate the contention of the plaintiffs, they have relied upon Ex.P.4 to Ex.P.7, which is of the year 1987- 1988 and Ex.P.8 which is of the year 2003 and so also relied upon the complaint dated 4.03.2003, which is marked at Ex.P9. These documents substantiates that the plaintiffs were in possession of the suit schedule property.
P.W.1 also deposed about the illegal occupation of the defendant. The third defendant supports the case of the plaintiffs. There is nothing on record to discard the evidence of P.W.1 considering the document Ex.P3 and Ex.P4 to 8 and so also Ex.P9. If the plaintiffs were not in possession in the year 2003, there was no need to give the complaint against defendants in terms of Ex.P.9. The Court below considered all these documents and comes to the conclusion that the plaintiffs are entitled for recovery of possession. Hence, I do not find any reasons to interfere with the findings of the Trial Court that the Court below has committed an error in appreciating both oral and documentary evidence. In order to reverse the findings of the Trial Court, there must be cogent evidence before the Court, but except the cumulative record which is of the year 1962 and RC Book which is of the year 1980, there are no other documents. Hence, the Court below has not committed any error in answering issue No.2 and directing the defendants to deliver the possession.
46. The Court below, while considering both oral and documentary evidence, has meticulously examined the material available on record and appreciated the same in a right perspective. Hence, I do not find any error committed by the Trial Court to reverse the findings. The Appellate Court can reverse the findings of the Trial Court, only if it has ignored the material available on record and if the findings are perverse. Since the same is opposed to both oral and documentary evidence, I do not find any such circumstances in the case on hand. Hence, there is no merit in the appeal.
47. In view of the discussions made above, I pass the following:-
ORDER The appeal is dismissed.
Sd/- JUDGE PYR