Shntabai vs Iramma

N. Ananda, J.—The appellant and respondent''s no. 1 to 3 are the daughters of deceased Halayya Swamy and 4th respondent is the wife of deceased Halayya Swamy.

The respondent no. 1 (plaintiff) had filed a suit for partition in O.S. No. 77/2007 against the appellant (defendant no. 1) and respondents 2 to 4 (defendants no. 2 to 4). The suit was resisted inter alia contending that deceased Halayya Swamy had bequeathed the suit schedule property in favour of the husband of appellant by executing a will on 11.04.1975. The suit was barred by time. It was also contended that husband of appellant was an illtom son-in-law and he was entrusted responsibility of managing suit properties.

The trial court on consideration of document dated 11.04.1975 styled as Will'' has held that document has not been proved and the document does not fits into the definition of will u/s 2(h) of the Indian Succession Act, 1925. Therefore, first defendant (appellant) was before the I-appellate court. The learned judge of I-appellate court on reconsideration has confirmed the findings of trial court.

I have heard Sri. Srivatsa, learned Senior Counsel for the appellant and Sri. K.A. Kalburgi, learned counsel for defendants.

The appellant has raised following substantial questions of law:

1) When the Trial Court holds Ex. D-30 is a will deed by its order dated 19.11.2008 whether the court below were justified in ignoring the said order?

2) When undisputedly Ex. D-30 is a will deed whether the court below was right in denying the said will deed?

3) Whether the respondent No. 1/Plaintiff has discharged her burden to establish that the suit properties are joint family properties?

4) Whether the Court below was right in decreeing the suit of the plaintiff by ignoring on Ex. D-30 will deed dated 11.04.1975?

5) Whether the Court below was right in decreeing the suit of the plaintiff by ignoring Section 14 of the Hindu Succession Act?

6) When plaintiff/respondent has admitted that the appellant is in possession of the suit properties Whether the Court below was justified in decreeing the suit?

The learned Senior counsel for appellant has raised following additional substantial questions of law:

Whether after finding that there was a partition between Halayya and his brothers as evidenced by Ex. D42 and D43, the finding of the trial court and the First Appellate Court that the properties in the hands of Halayya were ancestral properties in view of the law laid down by the Hon''ble High Court of Karnataka reported in ILR 2007 KAR 3216 ? Whether the appreciation of evidence is perverse?

Whether the Trial Court after holding by its order dated 19.11.2008 that the document at Ex. D39 was a will could have, in the judgment held it was not a will and whether the First Appellate Court could have upheld it giving its own reasons?

Whether inspite of the evidence on record to show and prove ouster the Trial Court and the First Appellate Court could have held that the plaintiff and defendants 2, 3 and 4 were in joint constructive possession? Whether the appreciation of evidence to arrive at such a finding is perverse?

Whether the judgment and decree is based on a perverse appreciation of evidence is as much as admittedly the 1st defendant was in possession and was taking all the usufruct and neither the plaintiff nor defendants 2 to 4 were either in actual or constructive possession?

The learned Senior counsel would submit, the trial court has ignored that deceased Halayya Swamy was the absolute owner of suit schedule property and he had right to execute the will.

The learned Senior counsel would submit that the trial court by order dated 19.1 1.2008 had considered Ex. D39 as ''Will'', therefore, the trial court was not justified in holding that Ex. P39 is not a will while deciding the case on merits. The courts below have failed to record a finding on the plea of adverse possession raised by defendants.

The learned counsel for respondent would justify the judgments of the courts below.

After going through the impugned judgment and copy of the document (Ex-P39), I find that the document accepted on it''s face value, cannot be considered as ''will'' u/s 2(h) of the Indian Succession Act, 1925. In order to constitute a will, the testator must have made a legal declaration of his intention with respect to his property, which he desires to be carried into effect after his death. The recitals of Ex. D39 do not disclose that the testator had made a declaration of his intention with respect to his properties which he desired to be carried into effect after his death.

It is curious to notice that Ex. D39 does not even bear the date to indicate that this document had come into existence during the lifetime of deceased Halayya Swamy. Therefore, there are no reasons to interfere with the concurrent findings recorded by the courts below.

The first defendant had not raised the plea of ouster in the written statement. It is nowhere stated that the suit for partition was filed after 12 years from the date of ouster of defendants from the possession of suit schedule property There is no tenable plea regarding limitation in the written statement.

The plea of limitation raised by first defendant is inconsistent with the case put forth by her. It is the case of first defendant that in terms Ex. D39, her husband was directed by her father to take care of her mother during her lifetime. Contrary to this, first defendant would contend that "her mother was ousted from suit property. There is neither plea nor evidence in proof of plea of adverse possession against plaintiff.

In a suit for partition by the co-owners, the suit may be resisted on the ground of ouster and not by pleading adverse possession. The period of petition is governed by Article 110 of the limitation Act. The trial court has admitted the document (Ex. D39) in evidence however, it has not recorded a finding on Ex. D39 falls within the definition of will u/s 2(h) of the Indian Succession Act, 1925. Therefore, there is no inconsistency in the findings recorded by the trial court.

In view of the above discussion, I hold that substantial questions of law raised in the appeal do not survive for consideration. The additional substantial question of law no. 1 is founded on the pleading and the same is answered in the negative, additional substantial question of law no. 2 in the affirmative and additional substantial question of law no. 3 and 4 in the negative.

In the result, I pass the following:

ORDER

The appeal is dismissed