Kamala vs Shantinath and Others

S.N. Satyanarayana, J.—Plaintiff in O.S. No. 230/1998 on the file of the Additional Civil Judge (Jr. Dn.), Raibag has come up in this second appeal impugning the concurrent finding of both the Courts below in dismissing her suit for declaration with reference to the alleged Will said to have executed by her maternal aunt in her favour.

The brief facts leading to this second appeal areas under:

"The suit in O.S. No. 230/1998 is filed by the appellant herein, namely, Smt. Kamala @ Padmavati W/o Baburao Patil. The sum and substance of her plea in the original suit is to the effect that her maternal aunt Smt. Gangubai is the absolute owner of the suit properties which are agricultural land bearing R.S. No. 229/2/2 measuring 3 acres 7 guntas and house property bearing VPC No. 403 situated at Bhirdi village, Raibag Taluk, Belgaum District. According to the plaintiff, her maternal aunt executed a Will dated 05.09.1996 bequeathing the suit schedule property in her favour and as such, she has become the absolute owner of the suit property. Hence, the suit was filed seeking declaration that she is the owner of suit schedule-A property, which she has succeeded under a registered Will dated 05.09.1996 by her maternal aunt Smt. Gangubai W/o Bharma Mantape."

The said suit is filed against Shantinath Bharma Mandape, who is none other than son of alleged executant of the Will Smt. Gangubai and her husband Bharma Mandape. The relationship between the parties that defendant is the son of Smt. Gangubai and Bharma Mandape is not in dispute. It is also not in dispute that plaintiff is the niece of deceased Smt. Gangubai, i.e., Gangubai''s sister''s daughter. In the said suit, after service of notice, defendant entered appearance, filed his written statement denying that his mother had executed a Will dated 05.09.1996 bequeathing suit schedule-A property in favour of the plaintiff. His defence is to the effect that the Will dated 05.09.1996 could not have been executed by his mother Gangubai, as she was a patient of leprosy disease, which she was suffering for more than 20 years prior to the execution of Will dated 05.09.1996. Therefore, the alleged Will said to be executed by Smt. Gangubai is fabricated one. It is also contended that during the lifetime of his mother, the suit schedule property was registered in the name of himself and his mother and subsequently, after the death of his mother, he has given varadi to seek registration of the property exclusively in his name.

In the said proceeding, based on aforesaid pleadings following issues are framed:

"i) Whether plaintiff prove that she is absolute owner of suit schedule properties 1 and 2 on the basis of will deed executed by deceased Gangubai W/o Bharma Mantappa on 5.9.1996?

ii) Whether plaintiff proves that she was in lawful possession as on the date of suit?

iii) Whether plaintiff proves that interference by the defendant?

iv) Whether plaintiff is entitle for declaration injunction with consequential relief?

v) What order or decree?"

Thereafter, parties were called upon to adduce evidence. On behalf of the plaintiff, she herself examined as P.W. 1 and she also examined two other witnesses, namely P.Ws. 2 and 3. P.W. 2-Shivabasappa Laxman Avaradi is the scribe of the Will dated 05.09.1996 and P.W. 3-Shrishail K. Gudodagi stated to be the doctor who is attesting witness to Ex. P1-Will dated 05.09.1996. In the proceedings before the trial Court, plaintiff produced in all 37 documents, which are marked as Exs. P1 to P37.

On behalf of the defendant, his wife Smt. Vimala Shantinath Mandape adduced evidence as D.W. 1 based on the General Power of Attorney which was executed in her favour and she also examined three other witnesses as D.Ws. 2 to 4. Out of which, D.W. 2-Tataysab Mallappa Patravali, who is the resident of Bhiradi village and the person known to the defendant''s father Bharma Mandape. He would state that defendant''s father married twice and the second marriage has taken place after the death of first wife and the defendant is the son of first wife of the deceased Bharma Mandape. He would also state regarding who is in possession and cultivation of the suit property and also with reference to the execution of the Will dated 05.09.1996 by Smt. Gangubai who is suffering from leprosy for more than 20 years and he also would speak regarding treatment provided to Smt. Gangubai through doctor.

In addition to that another witness by name Vasanth was examined as D.W. 3, a jain by community and resident of Bhiradi village and also a person known to the family of Gangubai, her husband and her son. He also would speak on the same lines on which D.W. 2 Tatya Saheb has given evidence stating that defendant''s father had two wives and defendant born to him through his first wife and after the death of his first wife he had married Gangubai, who is the executant of Will dated 5.9.1996 and also would reiterate about the fact that deceased Gangubai was suffering from a disease which is identified as leprosy. He would adduce evidence on the lines that the Willed properties were earlier in possession of defendant''s father and subsequently it has come to the cultivation, possession and enjoyment of the defendant in the original suit.

The 4th witness D.W. 4 is the Medical Superintendent in Leprosy Hospital, who has given evidence in depth regarding the nature of leprosy disease and the manner in which it is managed and cured and what would be the effect of the said disease over a period of time on the body of the patient. He would categorically state that if the disease is afflicted to a person and continue for more than 20 years, the lines and marks on fingers and hand of the infected person would vanish and the possibility of loss of fingers cannot be ruled out. In any event according to him, if the fingers remained, they will not have any lines and the same could not be used either for putting impression showing the marks as could be seen in the finger print of a healthy person.

The trial Court on appreciation of the evidence of aforesaid witnesses with reference to pleading and documents produced in the trial Court, dismissed the suit of the plaintiff holding that the executant of Will dated 5.9.1996 namely Gangubai was not the absolute owner of the suit schedule property and they were the properties of the family of her husband, in which she did not have any absolute right and also held that immediately after the death of defendant''s father, the defendant continued to look after his business in Hatakanagala village along with the property, which was never in possession of the plaintiff with aforesaid findings, suit of the plaintiff came to be dismissed.

As against that an appeal was filed by the plaintiff Smt. Kamala @ Padmavati W/o. Baburao Patil in R.A. No. 54/2005 on the file of Civil Judge (Sr. Dn.), Gokak, wherein the lower appellate Court on going through the pleadings, oral and documentary evidence available on record and also considering the grounds of appeal in R.A. No. 54/2005, proceeded to frame the following points for consideration.

"POINTS

(i) Whether the appellant/plaintiff has proved the alleged Will dated 5.9.1996?

(ii) Whether the impugned judgment and decree needs to be interfered with?

(iii) What order?"

Thereafter the lower appellate Court after hearing both the parties and on going through the pleadings, evidence and finding in the judgment, proceeded to answer the 1st and 2nd point for consideration in negative and consequently confirmed the dismissal of suit filed in O.S. No. 230/1998. As against the concurrent finding of both the Courts below, this second appeal is filed by the plaintiff.

Heard the learned counsel for the appellant and as well as the contesting respondent. Perused the lower Court records and on going through the same, it is clearly seen, that the plaintiff is litigating against two successors to suit schedule property, who is none other than the son of Bharmappa Mandape, though his first wife and step son of the executant in Will dated 5.9.1996, which is said to have executed by Gangubai, bequeathing the suit schedule property in favour of plaintiff in the original suit. As could be seen from the discussion in the trial Court and as well as the lower appellate Court, there is nothing on record to demonstrate that the deceased Gangubai was hale and healthy and was in a position to execute a Will and she was able to affix her thumb impression with the fingers of left hand being intact.

The evidence and pleadings on record would substantiate that Gangubai was suffering from Leprosy for more than 20 years, as could be seen from the evidence of D.W. 3, the possibility of fingers of Gangubai being in order to utilize the same for her thumb impression cannot be accepted. More so, when she was inflicted by said disease for more than 20 years prior to her death. With such a kind of disease, according to the opinion of D.W. 3, there cannot be any mark or lines on the fingers or on the hand. If the fingers are available, the possibility of finger prints was not there. With such an evidence from the doctor and also considering the fact that the suit properties are not the absolute properties of Smt. Gangubai, as stated in the plaint, both the Courts below have rightly rejected her prayer for declaration that the Will dated 5.9.1996 is duly executed by Smt. Gangubai during her lifetime and consequently dismissed her prayer for declaring that the title to suit schedule properties have flown to her by virtue of Will dated 5.9.1996. Accordingly the suit of the plaintiff is rightly dismissed which is confirmed by the lower appellate Court with acceptable reasons.

As against the concurrent finding of both the Courts below, this Court find no justifiable grounds are made out to interfere with the judgment and decree of both the Courts below to consider the non existing right of appellant in this proceedings, who is plaintiff in the trial Court. Accordingly, this second appeal filed by the plaintiff in the original suit is hereby dismissed by confirming the judgment and decree passed by both the Courts below.