Dileep Shankar Poojari vs Raju Vishnu Poojari
2022 Latest Caselaw 11898 Kant

                              1



     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 16TH DAY OF SEPTEMBER, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                     R.F.A.NO.684/2007

BETWEEN:

DILEEP SHANKAR POOJARI,
S/O SHANKAR POOJARI,
41 YRS, OCC: AGRICULTURIST,
R/O CHINNODA VILLAGE,
MELINAMANNIGA,
HONAVAR TALUK- 581395,
NORTH KANNADA DISTRICT.
                                               ...APPELLANT
            (BY SRI SATISH S. RAICHUR, ADVOCATE)

AND:

1.     RAJU VISHNU POOJARI,
       S/O VISHNU POOJARI,
       AGED ABOUT 61 YRS,
       OCC: AGRICULTURE,
       R/O CHINNODA VILLAGE,
       MELINAMANNIGE,
       HONAVAR TALUK-581395,
       NORTH KANNADA DISTRICT.

2.     DATTU VISHNU POOJARI,
       S/O VISHNU POOJARI,
       MAJOR, OCC: AGRICULTURE,
       R/O CHINNDOA VILLAGE,
       MELINAMANNIGE,
       HONAVAR TALUK- 581395,
       NORTH KANNADA DISTRICT.
                             2



3.   PANDU VISHNU POOJARI,
     S/O VISHNU POOJARI,
     MAJOR, OCC: AGRICULTURE,
     R/O CHINNDOA VILLAGE,
     MELINAMANNIGE,
     HONAVAR TALUK- 581395,
     NORTH KANNADA DISTRICT.

4.   SHANKAR VISHNU POOJARI,
     SINCE DECEASED BY HIS LRS.

4(a) SMT. UMA SHANKAR POOJARI,
     W/O LATE SHANKAR VISHNU POOJARI,
     AGED ABOUT 66 YRS,
     OCC: HOUSEHOLD,
     R/O CHINNODI VILLAGE,
     MELINAMANNIGE,
     HONAVAR TALUK- 581395,
     NORTH KANNADA DISTRICT.

4(b) RAJESH SHANKAR POOJARI,
     S/O LATE SHANKAR VISHNU POOJARI,
     AGED ABOUT 36 YRS,
     OCC: AGRICULTURE,
     R/O CHINNOD VILLAGE,
     MELINAMANNIGE,
     HONAVAR TALUK- 581395,
     NORTH KANNADA DISTRICT.

4(c). PRAMOD SHANKAR POOJARI,
      S/O LATE SHANKAR VISHNU POOJARI,
      AGED ABOUT 34 YRS,
      OCC: AGRICULTURE,
      R/O CHINNOD VILLAGE,
      MELINAMANNIGE,
      HONAVAR TALUK- 581395,
      NORTH KANNADA DISTRICT.

4(d). SMT SHANTA
      W/O VASANTH KUMTA,
      AGED ABOUT 46 YRS,
      OCC: HOUSEHOLD,
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     R/AT C/O VASANTH V. KUMTA NEELKENI,
     SIRSI - 581 402,
     UTTARA KANNADA DISTRICT.

4(e). SMT. VIJAYA,
      W/O RAMA MOGER,
      AGED ABOUT 42 YRS,
      OCC: HOUSEHOLD,
      R/AT ALWEKODI, SHIRALI,
      BHATKAL-581320,
      NORTH KANNADA DISTRICT.

4(f) . SMT. CHAYA,
       W/O PANDURANGA VAIDYA,
       AGED ABOUT 39 YRS,
       OCC: HOUSEHOLD,
       R/O C/O PANDURANGA DATTA VAIDYA,
       MANDANAGERI, KUMTA-581343.
       NORTH KANNADA DISTRICT.

4(g) . KUM SUNILA,
       D/O SHANKAR POOJARI,
       AGED ABOUT 29 YRS,
       R/O CHINNOD VILLAGE,
       MELINAMANNIGE,
       HONAVAR TALUK- 581395,
       NORTH KANNADA DISTRICT.

4(h). KUM MAMTA,
      D/O SHANKAR POOJARI,
      AGED ABOUT 27 YRS,
      R/O CHINNOD VILLAGE,
      MELINAMANNIGE,
      HONAVAR TALUK- 581395,
      NORTH KANNADA DISTRICT.

5.   SMT GIRIJA,
     W/O NAGESH POOJARI,
     AGED ABOUT 77 YRS,
     OCC: RETD SERVICE,
     R/O CHINNOD VILLAGE,
     MELINAMANNIGE,
                               4



     HONAVAR TALUK- 581395,
     NORTH KANNADA DISTRICT.

6.   SMT. SHARADA LAXMAN POOJARI,
     SINCE DECEASED BY HER LRS.

6(a). MALLINATHA LAXMAN POOJARI,
      S/O LATE LAXMAN POOJARI,
      AGED ABOUT 57 YEARS,
      R/O GUJARGALLI,
      KUMTA-581343,
      NORTH KANNADA DISTRICT.

6(b). NEELAKANTA LAXMAN POOJARI,
      S/O LATE LAXMAN POOJARI,
      AGED ABOUT 53 YRS,
      R/O GUJARGALLI,
      KUMTA-581343,
      NORTH KANNADA DISTRICT.

6(c). KESHWAR LAXMAN POOJARI,
      S/O LATE LAXMAN POOJARI,
      AGED ABOUT 41 YRS,
      R/O GUJARGALLI,
      KUMTA 581343,
      NORTH KANNADA DISTRICT.
                                              ...RESPONDENTS

                 (BY SRI R.B. DESHPANDE AND
          SRI N.S. BHAT, ADVOCATES FOR R-1 TO R-3,
     R-4(a) TO R-4(h), R-5, R-6(a) AND R-6(b) ARE SERVED,
             APPEAL AGAINST R-6(c) IS DISMISSED)

     THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGEMENT AND DECREE DATED 22.12.2006 PASSED IN
OS.NO.183/2001 ON THE FILE OF THE CIVIL JUDGE (SR.DN.)
HONAVAR, DISMISSING THE SUIT FOR DELCARATION, PARTITION
AND SEPARATE POSSESSION.

     THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 09.09.2022, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
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                           JUDGMENT

This appeal is filed challenging the judgment and decree of

dismissal of the suit dated 22.12.2006, filed by the plaintiff

seeking the relief of declaration, partition and separate

possession in O.S.No.183/2001 on the file of the Civil Judge

(Sr.Dn.), Honavar.

2. The parties are referred to as per their original

rankings before the Trial Court to avoid the confusion and for the

convenience of the Court.

3. The factual matrix of the case of the plaintiff before

the Trial Court is that defendant No.4 is his father, defendant

Nos.1 to 3 are uncles and defendant No.5 is the aunt of the

plaintiff and defendant No.6 is the sister of defendant Nos.1 to 4.

It is contended that Hindu Mitakshara Law governs the plaintiff

and the defendants. The Land Tribunal, Honavar granted the

occupancy rights in respect of suit schedule properties in favour

of defendant Nos.1 to 4 and their mother by name, Smt.Gulabi

w/o Vishnu Poojari. In pursuance of the said order, Form No.10

came to be issued on 14.03.1983. Accordingly, mutation entry

No.979 came to be certified. It is his contention that all of them

jointly enjoyed the suit properties, but subsequently they started

cultivation of the suit properties separately as per arrangement

made among them orally. The said Smt. Gulabi was separately

cultivating the suit properties. The suit 'A' schedule property

was allotted to her share. Due to differences between her

children and herself, she took the minor plaintiff with her and

was cultivating the suit 'A' schedule properties fallen to her share

with the assistance of the plaintiff. Due to love and affection

towards the plaintiff, she executed a registered Will dated

29.09.1983, thereby bequeathed the suit land Survey No.68/1

along with house therein and shed situated in Survey No.68/2

and other immovable properties belonging to her in favour of the

plaintiff. The said Smt. Gulabi died on 20.12.1994. Thereafter,

the plaintiff has succeeded to the properties of the deceased

Smt. Gulabi as per the Will. The plaintiff has continued his

possession and cultivation of the suit 'A' schedule property. The

names of defendant Nos.1 to 4 came to be entered in the

revenue records as legal heirs of deceased through mutation

entry No.1477. The plaintiff challenged the said order before the

Assistant Commissioner, Bhatkal and the said appeal came to be

dismissed. It is the contention of the plaintiff that defendant

Nos.1 to 3 threatened to dispossess the plaintiff from suit 'A'

schedule properties in view of the said order. Hence, the

plaintiff filed O.S.No.84/1996 in the Court of Civil Judge (Jr.Dn.)

Honavar against defendant Nos.1 to 4. The defendant Nos.1 to

3 filed their written statement. As the other joint family

properties were not included in the said suit and on account of

pecuniary jurisdiction, the plaintiff withdrew the said suit with

permission to file fresh suit on same cause of action. Hence, the

plaintiff was constrained to file the suit for the relief of

declaration of his right by way of Will and partition and separate

possession of the share of deceased Smt. Gulabi over the suit

properties and prayed to decree the suit.

4. In pursuance of the suit filed by the plaintiff, the suit

summons were issued and defendant Nos.1, 4 and 5 appeared

through their learned respective counsel and defendant Nos.2, 3

and 6 remained exparte. The defendant No.1 filed the written

statement denying all the averments. However, admitted the

relationship between the parties and also admitted that the Land

Tribunal granted the land. It is contended that the suit schedule

properties are joint family properties and are in joint possession

and cultivation of the defendants and their mother. The mother

of the defendants was never in possession and enjoyment of the

suit schedule properties separately, as contend by the plaintiff

and the defendants are enjoying their common right over the

suit schedule properties separately. There was no oral partition

or arrangement made between the defendants and Smt. Gulabi.

It is contended that the mother of the defendants was aged

about 85 years and she was not able to think rationally as she

had lost memory power and was unable to understand the things

and the very execution of the Will is fraudulent, created and

illegal and all other averments made in the plaint was denied.

5. Defendant Nos.4 and 5 have filed their separate joint

written statement, wherein these defendants have admitted the

relationship between the parties to the suit, but denied all other

averments made in the plaint. These defendants have duly

admitted the contents of the plaint paras 3 and 4, however

denied that the deceased Smt. Gulabi executed Will dated

29.09.1983 in the name of the plaintiff, but admitted that the

deceased Smt. Gulabi was separately residing with the plaintiff

till her death. The defendants have claimed 1/7th share each

over the suit schedule properties. After the filing of the written

statement by defendant No.1, the plaintiff got amended the

plaint and thereby added 'B' schedule property. The defendant

No.1 also filed the additional written statement and also

Sl.Nos.22 to 28 are got added to 'A' schedule property and

claims the defendants have got right over the suit 'A' and 'B'

schedule properties and entitled for partition.

6. Based on the pleadings of the parties, the Trial Court

framed following issues:

1. Whether the plaintiff proves that deceased Gulabi Vishnu Poojari was in separate possession and cultivation of the suit 'A' schedule properties?

2. Whether the plaintiff proves that deceased Gulabi Kom Vishnu Poojari has bequeathed her 1/7th right in the suit 'A' and 'B' schedule properties by a legally executed Will dated 29.09.1983 in his favour and he has acquired 1/7th right over the suit properties under the Will?

3. Whether the plaintiff proves that he is in separate possession and enjoyment of suits 'A" schedule property by virtue of the Will document 29.09.1983 executed by Gulabi?

4. Whether the defendant No.1 proves that himself and defendant Nos.2 to 4 are in samaik possession and enjoyment of suit properties?

5. Whether the suit is barred by limitation?

6. Whether the suit is bad for non-joinder of all the immovable properties of the family situated at Adukal Village?

7. Whether the plaintiff is entitled for partition and separate possession of 1/7th share in all the suit properties?

8. Whether defendant Nos.4 and 5 are entitled for partition and separate possession of 1/7th share each in the suit properties?

9. What decree of order?

7. The plaintiff in order to prove his case, examined

himself as P.W.1 and examined two witnesses as P.W.2 and

P.W.3 and got marked the documents at Exs.P.1 to 47. The son

of defendant No.1 was also examined as power of attorney

holder of defendant Nos.1 to 3 as D.W.1 and got marked the

documents at Exs.D.1 to 10. The defendant Nos.4 and 6 have

not adduced any evidence. The Trial Court after considering

both oral and documentary evidence available on record,

answered almost all the issues as negative and in respect of

issue No.8 whether defendant Nos.4 and 5 are entitled for

partition and separate possession of 1/7th share each in the suit

schedule properties, answered partly in the affirmative. It was

ordered that defendant Nos.1 to 3 and 5 are entitled to partition

and separate possession of their 7/36th share each over the suit

schedule 'A' and 'B' properties by metes and bounds. Defendant

Nos.4(a) to 4(h) are together entitled to partition and separate

possession of their 7/36th share and defendant Nos.6(a) to 6(c)

are together entitled to partition and separate possession of their

1/36th share. In view of the dismissal of the claim of the

plaintiff in coming to the conclusion that the Will came into

existence under suspicious circumstances, the present appeal is

filed by the plaintiff.

8. The main contention of learned counsel for the

appellant/plaintiff before this Court is that the very conclusion of

the Trial Court that the Will has not been proved and the same

came into existence under suspicious circumstances is

erroneous. The discrepancy does not create any suspicion and

stray sentence is relied upon by the Trial Court. Two attesters

died and hence the son of one of the attester is examined and

proved the Will in terms of Section 69 of the Evidence Act. The

learned counsel submits that P.W.2 is the scribe of the Will and

an advocate who drafted the Will and he also supports the case

of the plaintiff. P.W.3, no doubt, is his relative, but he is the son

of one of the attester and by examining the son of one of the

attester proved the very execution of the Will by examining

P.W.2 and P.W.3. The Trial Court harped upon the paper

publication which is marked as Ex.D.1 and disbelieved the

evidence of P.W.2. The Will is a registered Will. Ex.P.39 ration

card is also produced before the Court which shows that the

grandson was staying along with the grandmother. There is no

suspicious circumstances even though the Trial Court comes to

the conclusion that the Will came into existence under suspicious

circumstances and hence it requires interference of this Court.

9. The respondents though represented through the

counsel, the counsel was absent. In the earlier occasion also the

counsel for the respondents was absent and it was made it clear

earlier that it is the matter of the year 2007 and if the learned

counsel for the respondents does not appear on the next date of

hearing, the appeal will be heard in his absence and accordingly

the matter is heard in his absence and reserved.

10. Having heard the learned counsel for the appellant

and also on perusal of the lower Court records and the grounds

urged in the appeal memo, the points that would arise for the

consideration of this Court are:

(i) Whether the Trial Court has committed an error in dismissing the suit in coming to the conclusion that the Will has not been proved by answering issue No.2 as negative?

(ii) What order?

Point No.(i):

11. The main contention of the plaintiff is that the

grandmother Smt. Gulabi W/o Vishnu Poojari separated from her

children and started staying along with the plaintiff and

cultivating the land allotted to the grandmother which is

mentioned in 'A' schedule property. It is also the claim of the

plaintiff that the occupancy rights was granted in respect of the

suit schedule properties in favour of defendant Nos.1 to 4 and

their mother by name, Smt. Gulabi. It is also the contention of

the plaintiff that Smt. Gulabi was separately cultivating the suit

properties and the plaintiff was taking care of the grandmother

and hence due to love and affection towards the plaintiff, the

grandmother had executed the registered Will on 29.09.1983.

The plaintiff also led his evidence in order to substantiate his

case reiterating the contents of the plaint. In the cross-

examination he admits that the suit schedule properties are

ancestral properties and also admits that defendant Nos.4 and 5

are also having 1/7th share in respect of the suit schedule

properties. He also admits that they are cultivating the land

separately and he has no objection to give share in respect of

defendant Nos.4 and 5. He admits that defendant No.4 is his

father. He admits that the house was divided as A, B, C and D

and the houses are standing in the names of defendant Nos.1 to

4 separately. When his grandfather was alive all were living

together, but he cannot tell when his grandfather had passed

away. He admits that from last 30 years, all the defendants are

living separately. He claims that his father and he himself are

living separately and in the back portion he himself and his

grandmother are living separately and his father and other

children are living in the said portion of the house. He cannot

tell how many items are mentioned in the suit and he cannot tell

what was the income in favour of his grandmother out of share

given to her and also cannot tell how much money was spent for

cultivation. He claims that when they were living separately,

they have obtained the ration card and also paying the tax

separately. He also admits that the attesting witnesses of the

Will are the brothers of his mother and also he admits that his

maternal uncles Manu and Gavadi have signed the said Will and

Will was written by S.S.Naik and he read the contents and he

cannot tell when Tondi Vatani was taken place. They have not

produced any documents to evidence the same. He admits that

now all the properties are standing in the names of four

brothers. But he claims that after the death of the grandmother

in the year 1994, he is paying the tax in favour of the houses

and during her lifetime she was paying the tax.

12. The other witness is P.W.2, who is the scribe of

Ex.P.38 Will and he claims that when he was in the Senior office,

he drafted the Will and in the cross-examination he admits that

he prepared the Will in the year 1983 in the month of

September. He also admits that he became notary in the year

1994. The document of Ex.D.1 was confronted to him and he

admits the same, but he claims that he does not know the

contents of the same. He claims that when he was called to the

Sub-Registrar's office, he accompanied the executant. He

cannot tell the timings of the visit made to the Sub-Registrar's

office and he cannot tell how many signatures are obtained.

13. The other witness is P.W.3, who is the brother of one

of the attesting witness and he identifies the signature of his

brother. In the cross-examination, he admits that he had seen

the signature of his brother 4-5 years ago. It is suggested that

he cannot identify the signature of his brother and the same was

denied. However, he admits that he is the brother of the

plaintiff's mother.

14. The other witness is D.W.1 and in his evidence he

gave the evidence on his behalf and also on behalf of other

defendants and filed the detailed affidavit. In the cross-

examination he admits that he is the son of defendant No.1 and

also admits that the suit schedule properties are ancestral

properties and the same was granted by the Land Tribunal. He

admits that when the grandmother was alive, defendant Nos.1 to

4 were living together and he cannot tell in whose ration card

the grandmother name was entered. He admits that in his

father's ration card, only his father, mother and their children's

names were mentioned. He admits that defendant Nos.1 to 3

have obtained the loan from the Co-operative Bank by pledging

the suit schedule properties. In the cross-examination he admits

that from last 15 years the grandmother was not keeping well

and they have provided treatment, but no documents are

produced and also cannot tell the name of the doctor with whom

treatment was provided.

15. Having reconsidered the evidence available on

record, as this Court being the First appellate Court can give

finding of fact as well as question of law by appreciating the

evidence available on record.

16. Having considered the oral and documentary

evidence available on record, it is the claim of the plaintiff that

the grandmother had executed the Will in his favour and in

terms of Ex.P.38 it is clear that he was aged about 16 years at

the time of the execution of the Will. But it is the contention of

the plaintiff that the grandmother was not having good

relationship with her children including the father of the plaintiff.

Hence, she took separate share and started living along with the

plaintiff. Admittedly, he was a minor and in the cross-

examination categorical admission was given that the attesting

witnesses are brothers of his mother and also witness P.W.3 is

one of the brother, who comes and deposes and identifies the

signature of his brother, who is one of the attester. But he

claims that he himself was making the payment of tax when the

grandmother was alive and was having separate ration card

when both the plaintiff and grandmother were residing together

and the ration card is marked as Ex.P.39. On perusal of Ex.P.39,

no reference on what date the same was issued. But on perusal

of Ex.P.39, he started taking food items from the ration shop

after 1995 and by that time, the grandmother was not alive and

the grandmother had died in the year 1994 itself and the same

is admitted. The tax paid receipts are also after 1995 onwards

and there is no specific pleadings as to when the grandmother

separated from her sons. He cannot tell the details of how many

survey numbers are included in the plaint and also he cannot tell

what would be the income from the land of grandmother and

what was the expenditure, but he claims that he himself and

grandmother were cultivating the said land. It is important to

note that he categorically admits that his maternal uncle Manu

and Gavadi have only signed the Will as witnesses and also he

claims that the Will was written by P.W.2. He also admits that to

show that either he himself or his grandmother were cultivating

the land separately and to show that Tondi Vatani was taken

place, no documents are placed before the Court. It is his case

that the grandmother was paying the tax when she was alive,

but no such documents are produced before the Court. I have

already pointed out that the tax paid receipts are after 1995 i.e.,

after the death of the grandmother. P.W.2 is only a scribe of the

Will. But he claims that Smt. Gulabi came along with two

persons and the very credence of these witnesses is questioned

during the course of cross-examination with regard to swearing

of an affidavit with P.W.2, who is a notary that a document was

prepared in the name of a person, who is no more and Ex.D.1 is

also confronted. But he claims that he was sitting in the office of

Sub-Registrar while registering the document, but he cannot tell

on what time he went and how long he was in the Sub-

Registrar's office. He cannot tell how many signatures were

taken and also he cannot tell whether the witnesses signatures

are taken or not and the Trial Court not believed the evidence of

P.W.2 regarding identification and attestation signature of the

executant of the Will.

17. The other witness is P.W.3 who has identified the

signature of his brother and he is none other than the maternal

uncle of the plaintiff and the same has been elicited in the cross-

examination of P.W.3. Hence, it is clear that P.W.3 is none other

than the interested witness and no doubt, in order to prove the

attestation of the Will examined P.W.3 in terms of Section 69 of

the Evidence Act.

18. Having considered both oral and documentary

evidence available on record, the evidence available before the

Court does not inspire the confidence of the Court. The Trial

Judge also rightly comes to the conclusion that the Will has not

been proved and the same came into existence in a suspicious

circumstances and reasons are also assigned in coming to such a

conclusion and admittedly the suit schedule properties which the

plaintiff claims as holder of the Will belongs to the family. He

was only 16 years old when the Will was executed i.e.,

immediately after the grant was made in favour of defendant

Nos.1 to 4 and their mother and that was on 29.09.1983 and

alleged Will came into existence within a span of six months and

there is no material before the Court when the grandmother

started to live separately along with the plaintiff. It is the claim

of the plaintiff that due to love and affection since he used to

take care of the grandmother, the Will was executed. When he

was only 16 years old at the time of the execution of the Will,

the question of taking care by the plaintiff, as contended does

not arise. No doubt, the plaintiff relies upon Ex.P.39 ration card

and I have already pointed out that in the ration card, entry is

found only after 1995 for having taken the ration and in the

ration card, the name of the grandmother was rounded off. But

there are no entries prior to 1994 and admittedly, the

grandmother died in the year 1994. If any documents are

placed before the Court prior to 1994 to show that both of them

were living together and cultivating the land, then the case of

the plaintiff would have been accepted. Hence, the very Will

came into existence in a suspicious circumstances as observed

by the Trial Court. The Trial Court in detail discussed analyzing

the evidence available on record in paragraph Nos.30 to 36 and

also taken note of insertion in Ex.P.38 that defendant No.4 has

represented minor plaintiff and also observed in paragraph

No.41 that oral evidence of the scribe of the Will has been

falsified by his own testimony and he was not able to speak

either about identification of the executant before the Sub-

Registrar or identification of thumb impression of the executant.

It is also observed that there is no evidence to show that each of

the attesting witnesses have signed the Ex.P.38 in the presence

of the executant and not believed the evidence of P.W.1 to

P.W.3. When such being the case and when the material is not

suffice to come to a conclusion that the very execution of the

document by the grandmother excluding her own sons and

executing Will in respect of grandson who is the plaintiff, cannot

be accepted and it is the grouse of the grandmother that all the

sons are not cordial with grandmother, but the plaintiff's father

is none other than one of the son of the grandmother and if she

is not having any confidence on her children, why the other son

i.e., defendant No.4 who is father of the plaintiff represented on

behalf of the minor son also is the other suspicious circumstance

and the same is also considered by the Trial Court.

19. Having considered the material available on record, I

do not find any force in the contention of the learned counsel for

the appellant to come to other conclusion that the Trial Court

has committed an error. Both oral and documentary evidence

does not inspire the confidence of the Court to come to other

conclusion and I do not find any error of finding of fact and

finding of law. Hence, I do not find any merit in the appeal.

Hence, I answer point No.(i) as negative.

Point No. (ii):

20. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

(sd) JUDGE

MD