IN THE HIGH COURT OF

CIRCUIT BENCH AT DHARWAD

DATED THIS THE 26 TH DAY OF JULY, 2012

BEFORE

THE HON’BLE MR.JUSTICE AJIT J.GUNJAL

R.S.A. NO.737/2006

BETWEEN:

Sri.Laxman, Son of Hanumanth Nagarale, Since deceased by his L.Rs.

1. Smt.Bayawwa, W/o.Laxman Nagarale, Aged about 70 years, Occ: Agriculture, R/o.Tornahalli, Tq:, Dist. .

2. Sri.Dundappa, S/o.Laxman Nagarale, Aged about 40 years, Occ: Agriculture, Resident of Tornahalli, Taluka Chikodi, District Belgaum.

3. Sri.Kempanna, S/o.Laxman Nagarale, Aged about 35 years, Occ: Agriculture, Resident of Tornahalli, Taluka Chikodi, District Belgaum. : 2 :

4. Sri.Shrikant @ Rama, S/o.Laxman Nagarale, Aged about 32 years, Occ: Agriculture, Resident of Tornahalli, Taluka Chikodi, District Belgaum.

5. Sri.Basavaraj, S/o.Laxman Nagarale, Aged about 28 years, Occ: Agriculture, Resident of Tornahalli, Taluka Chikodi, District Belgaum.

6. Smt.Rukmini, W/o.Shivappa Busakatti, Aged about 50 years, Occ; Household Work, R/o.Kerur, Tq. Chikodi, District Belgaum.

7. Smt.Tulasabai, W/o.Awanna Ramankatti, Aged about 30 years, Occ. Household work, R/o.Handyanatti, Taluka Chikodi, Post , Dist. Belgaum.

8. Smt.Vithabai, D/o.Laxman Nagarale, Aged about 25 years, Occ: Household work, R/o.Toranhalli, Taluka Chikodi, District Belgaum. …APPELLANTS

(By Sri.Vigneshwar S.Shastri, Adv.) : 3 :

AND:

1. Smt.Tayawwa, Wife of Shivappa Khot, Aged about 55 years, Occ: Household Work, Resident of Nainglaj, Tq. Chikodi, Dist. Belgaum.

2. Smt.Laxmawwa, Wife of Shantaram Karoshi, Aged about 52 years, Occ: Household work, Resident of Dawanakatti, Tq. , Dist. Belguam.

3. Smt.Gangawwa, Wife of Rayappa Kalimani, Aged about 41 years, Occ: Household Work, Resident of Toranahalli, Tq. Chikodi, Dist. Belgaum.

4. Smt.Gourawwa, Wife of Appanna Pujari, Aged about 38 years, Occ: Household Work, Resident of Toranahalli, Tq. Chikodi, Dist. Belgaum.

5. Smt.Paravva, Wife of Nagappa Pujari, Aged about 36 years, Occ: Household work, Resident of Toranahalli, Tq. Chikodi, Dist. Belgaum.

6. Smt.Bayawwa, Wife of Laxman Nagarale, Aged about 48 years, Occ: Agriculture, : 4 :

Resident of Toranahalli, Tq. Chikodi, Dist. Belgaum.

(Transposed as appellant Vide Order dated 11.01.2008.) ... RESPONDENTS

(By Sri.Sachin S.Magadum, Adv. for R1 to R4) . . . .

This R.S.A. is filed under Section 100 of Code of Civil Procedure against the Judgment and Decree dated 17.12.2005 passed in R.A.No.3/2000 on the file of the Civil Judge (Sr. Dn.) Chikodi, allowing the appeal and setting aside the Judgment and Decree dated 05.11.1999 passed in O.S.No.95/1992 on the file of the Principal Civil Judge (Jr.Sn.), Chikodi.

This R.S.A. coming on for admission , this day, the court delivered the following:

JUDGMENT

The plaintiff is before this Court questioning the judgment and decree passed by the learned Appellate

Judge reversing the Judgment and Decree passed by the learned Trial Judge Judge.

2. The matter arises in the following manner:

The plaintiff is the son-in-law of one Balawwa,

W/o.Rama Kalimani. Balawwa has four daughters i.e., plaintiff’s wife, who is defendant No.6, defendants 1 and

2 and one Satyawwa, who pre-deceased Balawwa. : 5 :

Balawwa had no male issues. The marriages of the daughters of Balawwa are performed long back. The plaintiff was treated by Balawwa as her own son and the plaintiff and defendant No.6 were looking after Balawwa and taking care of her during her life time. The plaintiff lost his parents at a very young age and Balawwa looked after him. During the life-time of Balawwa, she has executed a Will on 25.11.1986 bequeathing all the property in favour of the plaintiff. The said Balawwa died on 05.01.1987 within a span of less than two months. In view of the Will executed by her, the plaintiff became the owner of the suit schedule properties and he is in possession. Hence, the present suit for declaration of title under the Will and also for injunction from interfering with his possession.

3. The defendants entered appearance and filed a written statement inter alia contending that the Will set up by the plaintiff is not genuine. They would contend that the said alleged Will is accentuated by fraud. It is also their case that the said Balawwa was not keeping good health and hence taking advantage of the said : 6 : situation, the plaintiff has taken her thumb impression on the document. The defendants have also set up a

Will stated to have been executed by Balawwa, wherein the plaintiff and his wife have been denied a share.

4. On these spacious pleadings, the learned Trial

Judge has framed necessary issues. The plaintiff got examined himself as P.W.1 and another witness P.W.2 and Ex.P1 to Ex.P5 were marked. Defendant No.3 is examined as D.W.1 and one more witness asD.W.2 and

Ex.D1 & Ex.D2 were marked. The learned Trial Judge upheld the Will executed by Balawwa in favour of plaintiff and thus decreed the suit and held the Will

Ex.D2 set up by the defendants is not proved.

5. Aggrieved by the said judgment and decree, defendants went in appeal. The learned Appellate

Judge has pointed out that the Will sought to be propounded by the plaintiff has come about in suspicious circumstances inasmuch as the plaintiff has taken active interest in getting the Will executed.

Another compelling reason for the learned Appellate : 7 :

Judge to disbelieve the evidence with reference to the

Will set up by the defendants is that there is a mention in the Will that Balawwa during her life time way back in the year 1961 had executed a registered Will bequeathing all the properties in respect of her four daughters. Thus the Appellate Court was of the view that the suit of the plaintiff must fail.

6. The learned counsel appearing for the plaintiff would submit that a substantial question of law would arise for consideration inasmuch as the plaintiff has examined himself and so also attesting witness. Thus, there is a compliance of Section 68 of the Evidence Act.

He further submits that the recital in the Will discloses that the plaintiff has taken care of Balawwa during her old-age.

7. The learned counsel appearing for the defendants supports the Judgment and Decree of the

Appellate Court. He submits that a perusal of the original Ex.P1 itself creates a doubt inasmuch as the plaintiff had taken active interest in the Execution of the : 8 :

Will and there are no compelling reasons as to why the other daughters were excluded.

8. I have given my anxious consideration to the submissions made by the learned counsel appearing for the parties.

9. Apparently, the Will is to be examined with reference to what the Testator had in her mind. It is an admitted fact that the deceased Balawwa had only four daughters and no sons. Whatever the property of

Balawwa, in normal course would devolve and be inherited by the four daughters. There must be some compelling reasons as to why the other three daughters are excluded inasmuch as the Will would change the natural course on succession.

10. I have perused Ex.P1 the Will stated to have been executed by Balawwa. A perusal of the same would certainly create some doubt inasmuch as it is an unregistered document. There is sufficient space left between the last line and the Thumb Impression. It is also to be noticed that the Will is signed by the scribe : 9 : even before the alleged thumb impression of deceased

Balawwa. I am of the view that the finding recorded by the learned Appellate Judge on the validity of the Will cannot be faulted. It has also come in evidence that the plaintiff has taken active interest in getting the document executed. It is also to be noticed that the plaintiff would state that Balawwa had expressed that she proposed to execute a Will in favour of the plaintiff bequeathing the suit schedule properties. P.W.1 in the

Cross-examination would state that Balawwa came to

Chikkodi and she had brought one Seshagiri Shivappa and also she brought two RTC extracts. They came to

Chikkodi and went to Taluk Office. There is no reason as to why she did not go to Sub-Registrar Office and executed a Registered Will in favour of the plaintiff.

Indeed the first Will and probably the last Will executed by Balawwa was way back in the year 1961 bequeathing the suit schedule properties in equal parts in favour of her four daughters. A perusal of Ex.P1 also does not disclose as to why the plaintiff i.e., who is the son-in- law is preferred to other sons-in-law or other daughters. : 10 :

Mere fact that the plaintiff was taking care of Balawwa, will have to be taken with a pinch of salt inasmuch as to execute Ex.P1, if the testator Balawwa can travel from her village to Chikkodi, it would indicate that she was not required to be taken care of by any one. The learned Appellate Judge has also disbelieved the Will stated to have been executed in favour of the defendants, which is produced at Ex.D2. If the two

Wills at Ex.P1 and Ex.D2 are excluded what would remain is Ex.D1, which according to me would be the first and the last Will of Balawwa.

11. Having said so, justice having been done, I am of the view that interfering with the finding of fact recorded by the Appellate Court, does not arise. To my mind, no substantial question of law arises for consideration in this appeal.

Appeal stands dismissed .

Sd/- JUDGE

SPS/-