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Judgment
Huluadi G Ramesh
This is a defendants'' second appeal aggrieved by the order of the Civil Judge (Sr. Dvn,). T Narasipura dismissing Use appeal filed by them in RA 125/2001 and confirming the order passed by the Munsiff, T Narasipura in OS 467/1993. The respondent/plaintiff filed OS 467/1993 against the defendants/appellants for declaration that he is the absolute owner of the suit schedule property and to direct the defendants to put him in actual possession of the suit property and to order for enquiry under O 20, R 12, CPC to assess the damages to be paid for use and occupation of the suit property from the date of suit till date of delivery of possession to the plaintiff and for costs.
Suit property is a country tiled and asbestos roof house situate at Car Street. Bannur Town, T Narasipura. Taluk, measuring east-west 20 feet and south-north 45 feet with the boundaries mentioned therein of which one late Alur Hanumantha Rao was the absolute owner in possession of the same till his death. The katha stood in his name and he was paying the taxes also. He had also acquired property at Mysore and was living at both the houses i.e., at Mysore and Bannur alternatively. During his lifetime. Alur Hanumantha Rao had permitted the defendants who are close relatives. 10 use a portion of the house property at Bannu along with him, subject to they vacating the same on demand. Alur Hanumantha Rao died on 4.1.1990 and he had executed a Will on 4 1.1985s m respect of his properties. The suit property devolved on his son Anantha Prasad and he became the absolute owner of the property on his father''s death. The defendants were asked to only vacate and hand over possession of the suit house which they had occupied in full after the death of Alur Hanumantha Rao under the guise of taking care of the entire property for and on behalf of Anantha Prasad s/o Alur Hanumantha Rao. The defendants who had promised to vacate and deliver possession of the suit house as early as possible, actually went on postponing delivery of possession of the property under one pretext or the other. The said Anantha Prasad absolute owner of the suit property sold the same to the plaintiff for a consideration of Rs. 40,000/- under a registered sale deed dated 28.3.1993 and asked the plaintiff to take actual possession of the same from the defendants who had promised to vacate and deliver possession. Accordingly, when the plaintiff approached the defendants for taking possession of the house, the defendants once again promised the plaintiff to vacate and deliver vacant possession of the suit house on or before 28.4.1993 to plaintiff. However, the defendants did not deliver the vacant possession of the suit house as promised, In stead, they filed objection to the plaintiff''s application for change of katha in his name. The Bannur Municipality, on looking into the documents produced, changed the katha in the name of plaintiff and since then, plaintiff is paying the house tax in respect of the suit house. On 31.7.1993, a legal notice was got issued by the plaintiff asking the defendants to deliver vacant possession of the suit house. However, the defendants sent an untenable reply refusing to delivery vacant possession, also questioning the sale deed in favour of the plaintiff. Hence, the suit for declaration and possession and payment of costs and damages on the ground that the defendants are in permissive possession and their possession over the suit house is unlawful.
The defendants contested the suit. According to them, the suit itself is not maintainable. While denying the averments in the plaint, it is stated, they have been in possession of the suit property since the time of the 1st defendant jointly with Hanumantha Rao. The said Hanumatha Rao is the step brother of Ramachandramoorthy who is the 1st defendant. Thirty years prior to the tiling of the suit. Hanumantha Rao had shifted his residence permanently to Mysore and had instructed the 1st defendant to continue his stay in the suit house. The 1st defendant was also taking care of Hanumantha Rao as such, out of love and affection, Hanumantha Rao bequeathed the suit house in his favour under an unregistered Will dated 8.6.1989 and the said Will has not been challenged by any one. By virtue of the said Will, title and possession of the defendants has been confirmed and by continuous possession of the suit house, the defendants have acquired right over the property. As such, plaintiff is not entitled for any relief as claimed by him. It is also stated, plaintiff has no manner of right, title or interest over he suit property and likewise, H Ananlha Prasad s/o Hanumantha Rao also does not have any right or title or interest over the sun property. As such, the sale of the suit property by H Anantha Prasad to the plaintiff on 28.3.1993 does not confer any right on the plaintiff and the said Anantha Prasad had no legal right or title to transfer the same in favour of the plaintiff. Accordingly, they sought for dismissal of the suit.
Based on the pleadings, the trial court raised as many as four issues and after hearing, while answering the relevant issues in favour of the plaintiff, holding that the defendants failed to prove that late S Hanumantha Rao has executed the Will dated 8.6.1989 in favour of the 1st defendant decreed the suit with costs, declaring the ''plaintiff as the absolute owner of the suit property. Aggrieved, the defendants preferred appeal before the Civil Judge (Sr. Dvn.), T Narasipura who has dismissed the same. Against the concurrent finding of both the courts below, the defendants are before this Court in second appeal.
On 12.12.2005, the following substantial question of law was framed for consideration - Whether the first appellate court was justified in holding that the Will is not proved on the ground that the propounder of the Will has not satisfactorily explained the circumstances under which the natural heirs were disinherited in the light of the evidence which was on record.
Heard the counsel representing the parties.
It is seen, Ex.D1 is the basis on which the defendant/appellant herein is challenging the plaintiff''s stand. Although she defendant examined four witnesses in support of his stand regarding proof of unregistered Will, the trial court as well as the appellate court having noted the discrepancies in their evidence and also noting some of the attesting witnesses are localities and some are from Mysore and that the Will was prepared at Mysore, looking into the veracity of each of the witnesses, in a concurrent finding have formed an opinion that Ex.D1 is doubtful and it is the duty of the propounder to dispel all suspicious circumstances and if the Will is dated 8.6.1.989, it should have been brought to the knowledge of the plaintiff at an earlier point of time and it has not been disclosed till the last moment. Further, the courts below have also noted the conduct and have opined, DW 1 himself has admitted in his evidence that there is no objection for transfer of katha of the suit property to the vendor of H Anantha Prasad and he got it changed on the basis of the Will at Ex.P13 and, even on the death of Hanumantha Rao, defendants have not made any attempt before the Municipal authorities to get the katha changed in their name. If there was a Will executed in favour of defendants by Hanumantha Rao, they should have, brought the same to the knowledge of the Municipal Authorities and got the katha changed in their name. It is observed, Ex.D1 - Will is produced during examination of DW 2. If it really was in existence earlier as is mentioned in the Deed, there was no impediment for producing the same at the inception. Thus, referring to the decision of the Apex Court in S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, wherein it is observed, withholding of vital document, which is relevant to the litigation is fraud and as per S. 44 of the Evidence Art, the guilty party is liable to be thrown out at any state, it has been opined, Ex.D1 cannot be relied upon to hold that there was due execution of the Will in favour of the defendant.
As a matter of fact finding, both the courts below in a concurrent finding, have doubted the coning into existence of Ex. D1 and the conduct of the defendant in not acting upon the same at an earlier point of time either by producing the same before the Court or approached the revenue authorities to enter his name on the death of Hanumantha Rao, Rather, they have conceded that Ex.P 13 - Will, be acted upon and also to transfer the katha in the name of Anantha Prasad. The above view of both the courts below cannot be faulted. Thus, while answering the substantial question of law accordingly, it is held that the first appellate court is justified in holding that the Will is not proved on the ground that the propounder of the Will has not satisfactorily explained the circumstances under which the natural heirs were disinherited. Appeal is dismissed. It is further ordered, it is for the appellants to hand over vacant possession of the premises in three months from the date of receipt of a copy of this order. In the circumstances there need not he any inquiry under O 20 R 12, CPC. Parties to bear their own costs.