Anni Poojari vs Leela Bai

H.G. Ramesh, J.—Second appeal is by the defendant challenging the finding of the Civil Judge (Sr. Dvn.), Karkala in RA 634/2005 on 14.11.2008.

Originally suit was filed by the respondent plaintiff before the trial court i.e., before Prl. Civil Judge (Jr. Dvn.), Karkala in OS 76/1992 for permanent injunction. Plaintiff is the wife of one M. Jarappa Poojary. The defendant is said to be the nephew of Jarappa Poojary. According to the plaintiff, after the death of her husband, she is entitled for the A Schedule property which belongs to Jarappa Poojary S/o. Thaniya Poojary. Plaintiff is having three children viz., Kalavathi, Dinavathi and Yashodara. Having succeeded to the right, title and interest of the deceased Jarappa Poojary, on interference by the defendant, she filed a suit. The stand taken by the plaintiff is, defendant is a stranger and a trespasser, etc. It is submitted that 2nd defendant who is a stranger was working as a driver and had been accommodated by Jarappa Poojary in two rooms and also Jarappa Poojary used to advance money to this defendant and vice versa. When they asked defendant to go out of the house on the death of Jarappa Poojary, he refused to do so rather he tried to stand by the alleged Will which is said to be concocted.

The suit was contested stating that there is a General Power of Attorney executed in favour of the defendant, he has redeemed the mortgage and he is not a trespasser, by virtue of the Will executed in his favour he has succeeded to the estate of Jarappa Poojary. Based on the pleadings, trial court framed seven issues and one additional issue for consideration. While appreciating the material evidence on record, answering the relevant issues in favour of the plaintiff, allowed the suit of the plaintiff negating the contention of the defendant that he is in possession by virtue of the Will executed in his favour and the general Power of Attorney at Ex. D4 and D1 and he has become the absolute owner in enjoyment of the property. Defendant went in appeal before the lower appellate court in RA 634/2005. The appellate court also, on the point of Will set up by the defendant, disbelieved the same and confirmed the decree passed by the trial court. Hence, this second appeal on the ground that there is no appreciation of the material evidence on record and both the courts below have erred in not believing the evidence of the defendant''s witnesses on extraneous consideration and, involvement of one of the attesting witnesses in a criminal case could not have been a ground for rejecting the evidence of the defendant and this attesting witness and submitted that he has incurred expenditure by virtue of the general power of attorney to safe guard the property and to evict the tenants and this defendant is not a stranger rather he is the nephew of the deceased.

Heard the counsel representing the parties.

Counsel representing the respondent submitted since 1985 with the permission of Jarappa Poojary this defendant was staying in the room and he was also addicted to vices like drinking and there is no such Will being executed in favour of the defendant. As a matter of appreciation, both the courts below have held that the Will has been created under suspicious circumstances and there is no error as such committed by the courts below. Accordingly, it is prayed for dismissal of the appeal.

It appears there is evidence on record to the effect that the appellant had been given the power of attorney. Whether by virtue of it if he has incurred expenditure for which he is entitled for any benefit much less defendant is entitled for any right by virtue of the Will has to be considered. The substantial question of law that would arise for consideration is, by virtue of the execution of the general power of attorney in favour of this defendant and also the alleged Will, whether the defendant is entitled for any benefit and it needs re-appreciation on the point of Will.

So far as the Will is concerned, it is unregistered. One of the reasons assigned is leaving out the natural heirs, question of executing the Will would not arise as is held by both the courts below. This does not require any reconsideration. May be some aspects have not been considered. But so far as execution of the general power of attorney is concerned, that is also to the knowledge of the defendant and plaintiff and in furtherance of the GPA if he has filed the case and got the tenant evicted, at the most, case of the appellant would be considered to accommodate him to some extent.

Accordingly, while confirming the orders of both the courts below regarding house property and other items holding that Will has not been duly proved as required, ten cents of land be made available according to the convenience of the plaintiff, as the defendant has discharged his duties as the power of attorney holder to safeguard the interest of the property. It is for the plaintiff to identify the property to be spared in favour of the defendant. Ordered accordingly.

Appeal is allowed in part.