IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER 2019 BEFORE THE HON'BLE MR.JUSTICE H.P.SANDESH RFA No.486 OF 2012 BETWEEN:
Smt. Thulsi, W/o. Late Joseph Aged about 46 years, R/at No.105, 3rd Cross, Williams Town, Gandhigrama, 87th Division, Jayamahal, Bengaluru-560046.
(By Sri. Vighneshwar S. Shastri, Advocate) AND:
Shri. Krishnappa, S/o. Late Muniswamy & Dose Papamma Aged about 52 years, R/at No.10/4, Nanjappa Thota, Pulikeshinagar (Fraser Town), Ward No.91, Bengaluru-560005.
(By Sri. H.S.Prashanth, Advocate and Sri. B.Narayana Swamy, Advocate ) ...Appellant …Respondent This RFA is filed under Section 96 of CPC against the judgment and decree dated 04.12.2010 passed in O.S.No.9299/2006 on the file of the XXIV Additional City Civil and Sessions Judge, Bengaluru City (C.C.H.No.6) dismissed the suit for declaration, mandatory injunction and permanent injunction.
This RFA coming on for further arguments this day, the Court delivered the following:
JUDGMENT This appeal is filed challenging the judgment and decree of dismissal of the suit in O.S.No.9299/2006 dated 4.12.2010 on the file of XXIV Additional City Civil and Sessions Judge, Bengaluru City, CCH-6.
2. The parties are referred to as per their original rankings before the trial Court as plaintiff and defendant for convenience of the Court and in order to avoid confusion.
3. The plaintiff in the suit prayed the Court to grant the relief of declaration to declare that the plaintiff is the only legal heir to succeed to the suit property and also sought for mandatory injunction against defendant to remove illegal structures put up on the suit property and also for the relief of permanent injunction and such other reliefs.
4. The contention of the plaintiff in the suit is that she is the wife of one Late Joseph. The said Joseph is the adopted son of Papamma. The said Papamma and her husband Paparaj @ Asirvadam had no issues and hence during their lifetime they adopted Joseph as their adopted son. The plaintiff is the wife of the said Joseph. It is her contention that her marriage was celebrated with Joseph by Late Papamma during her life time. In support of her claim she has also produced voters’ list consisting of family of Papamma and the plaintiff and her husband. It is also her case that Papamma had acquired agricultural land in Sy. No. 69/7 to an extent of 25 guntas through registered sale deed during the year 1941-42. It is the self acquisition of the said Papamma. It is also her claim that Papamma had executed a Will on 4.2.1984 bequeathing her properties to her only adopted son Joseph and her only legal heir. The said Papamma died on 15.10.1996 leaving behind the legal heir Joseph. The said legal heir Joseph died on 16.10.1996 leaving behind the plaintiff. When the things stood thus, one person by name Krishnappa who is the son of Muniswamy and Dose Papamma has represented himself as legal heir of deceased Papamma and has got the mutation of the land in Sy. No. 69/7 in respect of suit schedule property and those documents obtained by him are created documents. According to the family tree, the said Krishnappa is the son of Muniswamy and not Papamma and not as shown in the mutation and the subsequent RTC. After getting the mutation and RTC to his name, Krishnappa, the first defendant has transferred the property through registered sale deed to the extent of 0.12.08 guntas to one D.B.Suresh who was the second defendant in respect of the suit schedule property and mutation was transferred based on the said sale deed. Both defendants No. 1 and 2 have colluded with each other to get the revenue documents in their favour illegally. The plaintiff after coming to know of all these illegalities committed by the defendant approached the defendant to enquire the same. Taking advantage of the plaintiff’s illiteracy and her loneliness, they were evading for one or the other reason. Ultimately they offered to pay some compensation and also posed lot of threat. Without any other alternative, the plaintiff filed the suit seeking relief of declaration.
5. In pursuance of the suit summons, the first defendant appeared through counsel and filed written statement. The first defendant denied the very contention of the plaintiff that the said Joseph is the adopted son of Papamma and her husband. It is contended that said Papamma was a spinster and remained unmarried throughout her life and she had not adopted any person. The defendant also denied the averments made in the plaint with regard to execution of the Will in favour of the husband of the plaintiff. He further contended that the said Will is concocted. The defendant also contended that the said Joseph is a stranger and denied all other averments made in para Nos. 7 to 11. The defendant in the written statement sets up defence that the deceased Papamma is none other than his aunt, i.e., the elder sister of Chikka Papamma who is the mother of defendant No.1 and deceased Papamma remained unmarried and she died unmarried and she was residing along with defendant No.1’s family. After the death of Papamma, this defendant is the only legal heir and he has performed funeral ceremonies and succeeded to her properties without any interference and till today he is in peaceful possession and enjoyment of the same. Papamma has executed a Will dated 13.3.1990 in favour of defendant No.1. It is also contended that Papamma has not adopted any one and she was Hindu by religion and there is no provision in the Hindu Adoption Act to adopt a person who belongs to Christian. Except the Will executed in favour of defendant No.1, she has not executed any Will. The suit is also barred by limitation. Papamma had passed away in the year 1996 and the plaintiff was not in possession of the suit schedule property in any point of time and hence the plaintiff is not entitled to any relief, such as declaration and also the consequential relief of mandatory injunction and permanent injunction.
6. Based on the pleadings of the plaintiff and the defendant, the Court below framed the following issues:-
1. Whether the plaintiff proves that she is only legal heir to succeed to the schedule property?
2. Whether the plaintiff proves that defendant constructed illegal structure in the suit schedule property?
3. Whether the plaintiff proves the interference from the defendant?
4. Whether the plaintiff is entitled for mandatory injunction?
5. Whether the plaintiff is entitled for permanent injunction?
6. What decree or order?
7. Plaintiff in order to substantiate her claim examined herself as PW1 and examined two witnesses PWs2 and 3. The plaintiff also got marked Exs. P1 to P15. The first defendant examined himself as DW1 and got marked Exs. D1 to D10.
8. The Court below after considering both oral and documentary evidence, dismissed the suit. Hence, the present appeal is filed before this Court.
9. The grounds urged in the appeal is that the Court below has committed an error in answering issues No. 1 to 5 as negative without properly appreciating the evidence on record. The Court below, inspite of proof of adoption of Joseph by Papamma and her husband Papa Raj, committed an error in coming to the conclusion that the said Joseph is not the legal heir of Smt. Papamma and the provisions of the Hindu Adoption and Maintenance Act, 1956 prohibits a non- Hindu to adopt a Christian. Plaintiff has produced the document Ex.P1-geneological tree, Ex.P2-voters’ list, which corroborates the evidence of PWs1, 2 and 3 and inspite of that the Court below did not consider the same. Defendant also did not produce any document or source of title and he has produced Ex.D3-mutation extract and Exs. D4 to D8-record of records. The trial Court erred in relying upon those documents and dismissed the suit. Inspite of the plaintiff establishing her relationship with Joseph and in turn Joseph’s relationship with Papamma as per Exs.P1 to P3 and P14 and P15, the Court below miserably failed to appreciate the same. The Court below also has committed an error in coming to the conclusion that the Will dated 4.2.1984 which is marked as Ex.P14 was not proved and the very approach of the trial Court is erroneous. The trial Court did not consider the provisions of Section 69 of the Indian Evidence Act in a proper perspective and committed an error.
10. Counsel appearing for the appellant in his arguments vehemently contended that the Court below did not consider Exs. P1 to P3, P11 and P12, i.e., voters’ list, registered sale deed, marriage invitation and photograph. The Court below also did not consider the Will Ex.P14. In spite of there being a clear pleading in the plaint, the Court below did not frame any issue with regard to the Will as contended by the plaintiff. The defendant also pleaded in the written statement that there was a Will in his favour and inspite of the pleading he did not produce the same before the Court and hence it requires interference of this Court. Counsel also would contend that the Court below has not given any finding with regard to particularly Exs. P1 to P3 and Ex.P11 and so also the marriage certificate.
11. Per contra, the learned counsel for the defendant would contend that when the plaintiff pleads and produces the Will before the Court, the burden is on the plaintiff to prove the very execution of the Will. None of the attesting witnesses have been examined or also the witnesses who were having acquaintance with the handwriting or signature of the executant has not been examined. The Court below has not committed any error in appreciating the oral and documentary evidence. The Court below in detail discussed with regard to validity of the adoption and with regard to proof of the Will and has given a definite finding that the plaintiff has not proved the execution of the Will and hence no interference is required. Hence, he prayed this Court to dismiss this appeal.
12. Having heard the arguments of the plaintiff’s counsel and also the defendant’s counsel, the point that arise for the consideration of this Court is:-
(i) Whether the Court below has committed an error in dismissing the suit answering issues No. 1 to 5 as negative and whether it requires interference of this Court?
(ii) What order?
13. The plaintiff in the suit claims that she is the widow of one Joseph and the said Joseph is the adopted son of Smt. Papamma and so also Papamma has executed a Will in favour of her husband in terms of Ex.P14. The plaintiff’s specific contention is that she is the widow of Joseph. She has relied upon the genealogical tree and so also the voters list which is marked as Ex.P2. The plaintiff also relied upon the document Ex.P11-photograph and Ex.P12 marriage invitation and so also Will Ex.P14 dated 4.2.1984. The defendant also examined himself as DW1 and he got marked Exs. D1 to D10, i.e., voters identity card, death certificate, mutation and other revenue records. Before considering the grounds urged in the appeal memo, this Court has to re-consider both oral and documentary evidence.
14. The plaintiff who has been examined as PW1 in her evidence has reiterated the averments made in the plaint and she was subjected to cross-examination. In the cross-examination, she admits that she is residing in a tenanted house at Mundatti Palya. She further admits that she is residing there from the last 22 to 25 years and her native place was Andhra Pradesh. She knows Papamma right from her marriage. Her husband’s name was Pappa Raj. Her marriage was held at Andhra. She cannot remember the date and year. She has not given her marriage photograph. There were no issues out of the said wedlock. Joseph is her husband. Again she says that Joseph is not her husband. She further admits that she does not know whether Papamma was married or not and she does not know whether Papamma died as spinster and claimed that she was residing with Papamma from the date of marriage till her death. The said Papamma was residing with her at Gandhi Grama. It is suggested that Ex.P1 was created for the purpose of the case and the same was denied. Ex.P2 was taken in the year 2002. It is suggested that after the death of Papamma by colluding with the land developer she created Ex.P2. But, she claims that at the relevant point of time Papamma was alive. It is suggested that she was not staying along with Papamma. The Will stands in the name of her husband. Her mother-in-law bequeathed the suit schedule property in the name of her husband. She does not know when her mother-in-law executed the Will and also does not know who are the persons who affixed their signatures on the Will. She also does not know whether the Will is registered or not. She cannot remember when she got the Will. She has not gone through the contents of this Will and also not made any person to read over the Will and explain the contents of the Will. She does not know whether defendant No.1 sold the suit property to defendant No.2. She does not know the religion of Joseph and so also his parents.
15. The plaintiff also examined one witness as PW2. PW2 claims that he is the father of PW1 and deposed that marriage was celebrated as per Hindu customs on 26.2.1982. After the marriage, plaintiff lived with her husband and also with her mother-in-law till the death of her mother-in-law. PW2 was not subjected to cross-examination.
16. Plaintiff also examined one more witness PW3. PW3 claims that plaintiff is the daughter-in-law of her elder sister Late Papamma. It is also her evidence that her elder sister Papamma and husband were not having any issues. Therefore, they adopted the husband of the plaintiff as adopted son. After the marriage, the plaintiff lived with her husband and mother-in-law. PW3 was subjected to cross- examination. It is elicited that she does not know what she has stated in her affidavit evidence. The plaintiff told her to file affidavit and hence she filed it. Neither herself nor her husband possessed any property in Bengaluru. It is elicited that after death of Papamma she had been to defendant No.1’s house and requested him to give share to her. It is also elicited that defendant No.1 refused to give any share to her. Further it is elicited that after the death of her husband, she is residing along with her children. Dodda Papamma is the eldest daughter and she is the ninth daughter and approximately 20 years before Dodda Papamma died. Joseph @ Paparaju died on the very next day. She does not remember the date when Papamma adopted Paparaju @ Joseph. It is elicited that she joined along with Tulasi and filed this case.
17. On the other hand defendant in his evidence reiterated the averments of the written statement and got marked Exs. D1 to D10. He was subjected to cross- examination. In the cross-examination he admits that his mother was also called by the name Dosse Papamma. His mother’s elder sister name is Papamma and admits that suit schedule property belongs to his paternal aunt by name Papamma. He admits that his maternal grand mother’s name was Boodi Papamma and maternal grandfather’s name was Papanna. He admits that the names of his parents and his brothers and sisters read over to him in Ex.P1 is correct. He claims that he has produced documents such as ID card and ration card to show that Dodda Papamma till her last day resided with him. It is suggested that he has not produced any such documents and the same was denied. He admits that Ex.D1 is his electoral identity card. He admits that he has not produced any document to show that Papamma after her death has given entire property to him. It is suggested that Papamma never resided with him and the same was denied. He admits that he executed the sale deed by calling himself as son of Papanna. The said document is confronted and marked as Ex.P15. He admits that after settlement, plaintiff has left out 12 ½ guntas from the suit schedule property. Ex.P11 is confronted to the witness and the witness identifies Papamma. He says that he does not know who are the persons who were present on either side of Papamma in Ex.P11.
18. Having considered both oral and documentary evidence available before the Court, this Court has to re-appreciate the same since this Court has the power to reconsider the same, both question of law and question of fact. With regard to the question of law is concerned, though the plaintiff has contended that Joseph is the adopted son of Smt. Papamma, no material is placed before the Court to prove the adoption. Apart from that the said Joseph belongs to Christian and Papamma is a Hindu. The Court below discusses with regard to taking of a person from other religion as adopted son. The claim of the plaintiff with regard to the fact that Joseph is the adopted son, no material is placed. However, the plaintiff has produced the marriage invitation card and also photo. No doubt, on perusal of the photograph, it discloses that the plaintiff’s photo is available with Papamma and the husband Joseph. Ex.P2 also discloses that the same is the voters list. The voters list bears the name of Papamma as well as the plaintiff and her husband. A perusal of the document Ex.P2, voters list shows that it was issued in the year 2002. Papamma died on 15.10.1996, and her husband also passed away on the very next day. There is no dispute with regard to the fact that Papamma died in the year 1996. The electoral card was prepared in 2002 after the death of Papamma and also after the death of Joseph. This Court cannot give more credence to the document, Ex.P2. It is also important to note that plaintiff claims the relief based on the Will claiming that she is the legal heir of Pappamma. No doubt, the Will is produced before the Court at Ex.P14. In order to prove the Will, none of the attesting witnesses have been examined before the Court. Section 63 of the Indian Succession Act and 68 of the Evidence Act have not been complied with to prove the same. The Court below also discussed with regard to Sections 68 and 69 of the Evidence Act. In case if any attesting witnesses are not found at least the persons who are having acquaintance with regard to the signature of the executant ought to have been examined and the same has not been done. No doubt, PWs 2 and 3 have been examined before the Court. PW2 was not subjected to cross-examination. PW3 claims that she is the sister of the said Papamma and it is elicited in the cross-examination of PW3 that she also approached the defendant to give a share in the property and the defendant refused to give any share and further admits that the present suit is filed at her instance by the plaintiff. It has to be noted that when the suit is filed for declaration and also consequential reliefs of mandatory injunction and permanent injunction, the plaintiff has to stand on her own legs and not on the weakness of the defendant. No doubt, the defendant also contended that there was a Will in his favour also and the same is executed by Papamma. The defendant has not placed the said document before the Court. Defendant relied upon documents Exs. D1 to D10, i.e., the revenue documents, which have been mutated in his favour and also produced the document of sale deed executed by him in favour of defendant No.2. The revenue documents does not confer any right on the defendant also. When the plaintiff has sought the relief of declaration, the primary burden is on the plaintiff to prove the execution of the Will. The same has not been done and he has not discharged the burden of proving the Will.
19. Counsel appearing for the appellant would contend that no issue is framed before the trial Court regarding the Will which has been propounded by the plaintiff. On perusal of the issues, no doubt it is seen that the trial Court has committed an error in not framing the issue when the plaintiff is claiming that she is the legal heir of Papamma based on the Will. But, both the parties have understood the pleadings and led their evidence and contested the matter with regard to the Will and when such being the case, that is not fatal to the case in deciding the issues before the court. The Court has to see whether the parties have understood the case and led their evidence and also the trial Court has given the findings regarding the Will also. When such being the case, when the plaintiff did not discharge the burden to prove the Will, I do not find any error committed by the Court below in dismissing the suit. In order to reverse the findings of the trial Court, there must be an illegality committed by the Court below and if the whole evidence is not considered by the trial Court, then only this Court can exercise its power to reverse the findings. No doubt, the appellate Court should be slow in reversing the finding, but if the findings is perverse, the appellate Court should not hesitate to reverse the findings. But, I do not find any circumstances to reverse the said finding. Plaintiff utterly failed to prove that there was a Will in favour of her husband and though document is marked, the same is not proved as contemplated under law and hence I do not find any merits in the appeal.
20. In view of the discussions made above, I pass the following Order : -
Appeal is dismissed.
Sd/- JUDGE ckl