Karnataka High Court

Sharat @ Sharatchandra S/O Dattappa ... vs Vijayandranatha @ Babu S/O ... on 5 December, 2023

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                                                       NC: 2023:KHC-D:14227
                                                           RSA No. 5004 of 2009
                                                       C/W RSA No. 5003 of 2009



                                IN THE HIGH COURT OF KARNATAKA
                                        DHARWAD BENCH

                            DATED THIS THE 5TH DAY OF DECEMBER, 2023

                                              BEFORE

                             THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

                                   RSA NO.5004 OF 2009 (DEC)
                                 C/w. RSA NO.5003 OF 2009 (DEC)

                      IN RSA No.5004/2009:
                      BETWEEN:

                      1.   SHARAT @ SHARATCHANDRA
                           S/O DATTAPPA CHOUDHARY,
                           SINCE DEAD BY HIS LR'S.

                      1(A) SMT. AMBUJA
                           W/O SHARATHCHANDRA CHOUDHARY
                           AGED ABOUT 68 YEARS, OCC: HOUSEWIFE
                           RESIDING AT NO.52/1, 2ND CROSS,
                           ANNAPOORNESHWARI NAGAR,
                           MOODALAPALYA NO.72,
                           OPPOSITE YOGI NARAYAN ASHRAM,
                           BANGALORE-72.

                      1(B) SHRI PRASHANTH
         Digitally
         signed by
         MANJANNA
                           S/O. SHARATHCHANDRA CHOUDHARY;
MANJANNA E
E        Date:
         2024.01.09
                           AGED ABOUT 42 YEARS, OCC: TAILOR
         12:58:49
         +0530             RESIDING AT NO. 52/1, 2ND CROSS,
                           ANNAPOORNESHWARI NAGAR,
                           MOODALAPALYA NO.72,
                           OPPOSITE YOGI NARAYAN ASHRAM,
                           BANGALORE-72.

                      1(C) SMT POORNIMA D/O SHRATHCHANDRA
                           AFTER MARRIAGE W/O JAWAHAR KALABHAIRAW
                           AGED ABOUT 42 YEARS, OCC: HOUSEWIFE
                           RESIDING AT SIDDAN PETH,
                           VEERAPUR ROAD, YELLAPUR ONI,
                           HUBLI, DHARWAD DISTRICT.
                                                                       ...APPELLANTS
                      (BY SRI MALLIKARJUNSWAMY B.HIREMATH, ADVOCATE)
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                                   NC: 2023:KHC-D:14227
                                       RSA No. 5004 of 2009
                                   C/W RSA No. 5003 of 2009



AND:


1.    GANGADHARAPPA
      S/O KHANDAPPA CHOUDHARY
      SINCE DECEASED BY HIS LRS.

1a)   VIJAYANDRANATHA @ BABU
      S/O GANGADHARAPPA CHOUDHARY,
      AGED ABOUT 60 YEARS,
      R/AT DAVANERE,
      PRESENTLY AT DANDIN PETH,
      BYADAGI-561106.

1b) SMT SHANTABAI W/O JAGANATH GONDKAR,
    AGED ABOUT 62 YEARS,
    R/AT SHETTAR ONI, HUBLI
    DIST. DHARWAD.

1c)   SMT SAROJABAI W/O SUBARAO HOWALE
      AGED ABOUT 50 YEARS,
      R/AT DODDA BEDHI, HARIHAR
      DIST. DAVANAGERE.

1d) SMT USHABAI W/O PARSHURAMRAO HOWALE,
    AGED ABOUT 47 YEARS,
    R/AT LADWA ONI, HARIHAR
    DIST. DAVANAGERE.

1e)   SMT JAYASHRI W/O H KRISHNAMURTHY MULE
      AGED ABOUT 43 YEARS,
      R/AT NEHRU NAGAR, ANANDI ROAD,
      SAGAR, DIST. SHIMOGA.

1f)   SMT RAJESHWARI W/O PRAKASH PADALKAR,
      AGED ABOUT 42 YEARS,
      R/AT YEGARE ILA CHIPLAON,
      RATNAGIRI, STATE MAHARASHTRA.

1g) SMT GIRIJABAI W/O NARAYANRAO MALAWADE,
    AGED ABOUT 39 YEARS,
    R/AT MAIN ROAD, MAHALINGPUR,
    TALUK MUDHOL, DIST. BAGALKOT.

1h) SMT PREMATAI W/O NAMADEVRAO DAVASKAR,
    AGED ABOUT 36 YEARS,
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                                   NC: 2023:KHC-D:14227
                                       RSA No. 5004 of 2009
                                   C/W RSA No. 5003 of 2009



      R/AT SADHAKERI, NEAR GOVT PRINTING
      PRESS, DHARWAD.

2.    VIJAYANDRANATHA @ BABU
      S/O GANGADHARAPPA CHOUDHARY,
      AGED ABOUT 60 YEARS,
      R/AT DAVANERE,
      PRESENTLY AT DANDIN PETH,
      BYADGI-561106.

3.    SHANMUKHAPPA S/O KALLAPPA KALLAPURA,
      AGED ABOUT 60 YEARS,
      R/AT CHAVADI ROAD, BYADAGI-561106.
                                                ...RESPONDENTS

(BY   SRI SANTOSH B.MALLIGAWAD, ADVOCATE FOR
      SRI. JAGADISH PATIL, ADV. FOR R1A TO R1D, R1F TO R1H;
      NOTICE TO R1E (i), R1E(iii) R2 AND R3 IS SERVED;
      NOTICE TO R1E (ii) IS HELD SUFFICIENT ASPER ORDER
       DATED 07.11.2023)

     THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100
OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT
AND DECREE DATED 18.09.2008 PASSED IN R.A.NO. 24/1994 ON THE
FILE OF THE CIVIL JUDGE (SR.DN.) AND JMFC, RANEBENNUR,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DATED 30.07.1994 PASSED IN O.S.NO. 40/1989 ON THE FILE
OF THE MUNSIFF AND JMFC, BYADAGI.


IN RSA NO.5003 OF 2009
BETWEEN:


1.    SHARAT @ SHARATCHANDRA
      S/O DATTAPPA CHOUDHARY,
      SINCE DEAD BY HIS LR'S

1(A) SMT. AMBUJA
     W/O SHARATHCHANDRA CHOUDHARY
     AGED ABOUT 68 YEARS, OCC: HOUSEWIFE
     RESIDING AT NO. 52/1, 2ND CROSS,
     ANNAPOORNESHWARI NAGAR,
     MOODALAPALYA NO.72,
     OPPOSITE YOGI NARAYAN ASHRAM,
     BANGALORE-72.
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                                   NC: 2023:KHC-D:14227
                                       RSA No. 5004 of 2009
                                   C/W RSA No. 5003 of 2009



1(B) SHRI PRASHANTH
     S/O. SHARATHCHANDRA CHOUDHARY,
     AGED ABOUT 42 YEARS, OCC: TAILOR
     RESIDING AT NO.52/1, 2ND CROSS,
     ANNAPOORNESHWARI NAGAR,
     MOODALAPALYA NO.72,
     OPPOSITE YOGI NARAYAN ASHRAM,
     BANGALORE-72.

1(C) SMT POORNIMA D/O SHRATHCHANDRA
     AFTER MARRIAGE W/O JAWAHAR KALABHAIRAW
     AGED ABOUT 42 YEARS, OCC: HOUSEWIFE
     RESIDING AT SIDDAN PETH, VEERAPUR ROAD
     YELLAPUR ONI, HUBLI, DHARWAD DISTRICT.
                                                ...APPELLANTS

(BY SRI. MALLIKARJUNSWAMY B.HIREMATH, ADVOCATE)

AND:


1.    VIJAYANDRANATHA @ BABU
      S/O GANGADHARAPPA CHOUDHARY,
      AGED ABOUT 60 YEARS,
      R/AT DAVANERE,
      PRESENTLY AT DANDIN PETH,
      BYADAGI-561106.
2.    SHANMUKHAPPA
      S/O. KALLAPPA KALLAPURA,
      AGED ABOUT 60 YEARS
      R/AT CHAVADI ROAD,
      BYADAGI-561106.
3.    GANGADHARAPPA
      S/O KHANDAPPA CHOUDHARY
      SINCE DECEASED BY HIS LRS
3a)   SMT SHANTABAI W/O JAGANATH GONDKAR,
      AGED ABOUT 62 YEARS,
      R/AT SHETTAR ONI, HUBLI
      DIST. DHARWAD.
3b) SMT SAROJABAI W/O SUBARAO HOWALE
    AGED ABOUT 50 YEARS,
    R/AT DODDA BEDHI, HARIHAR
    DIST. DAVANAGERE.
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                                      NC: 2023:KHC-D:14227
                                          RSA No. 5004 of 2009
                                      C/W RSA No. 5003 of 2009



3c)   SMT USHABAI W/O PARSHURAMRAO HOWALE,
      AGED ABOUT 47 YEARS,
      R/AT LADWA ONI, HARIHAR
      DIST. DAVANAGERE.
3d) SMT JAYASHRI W/O H KRISHNAMURTHY MULE
    AGED ABOUT 43 YEARS,
    R/AT NEHRU NAGAR, ANANDI ROAD,
    SAGAR, DIST. SHIMOGA.
3e)   SMT RAJESHWARI W/O PRAKASH PADALKAR,
      AGED ABOUT 42 YEARS,
      R/AT YEGARE ILA CHIPLAON,
      RATNAGIRI, STATE MAHARASHTRA.
3f)   SMT GIRIJABAI W/O NARAYANRAO MALAWADE,
      AGED ABOUT 39 YEARS,
      R/AT MAIN ROAD, MAHALINGPUR,
      TALUK MUDHOL, DIST. BAGALKOT.
3g) SMT PREMATAI W/O NAMADEVRAO DAVASKAR,
    AGED ABOUT 36 YEARS,
    R/AT SADHAKERI, NEAR GOVT PRINTING
    PRESS, DHARWAD.
                                                    ...RESPONDENTS

(BY   SRI. SANTOSH B.MALLIGAWAD, ADVOCATE FOR
      SRI. JAGADISH PATIL, ADV. FOR R1, R3A TO R3C, R3E TO R3G;
      NOTICE TO R3D (i), R3D (iii) IS SERVED;
      NOTICE TO R3D (ii) IS HELD SUFFICIENT AS PER ORDER DATED
      07.11.2023)



      THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100
OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT
AND DECREE DATED 18.09.2008 PASSED IN R.A.NO.23/1994 ON THE
FILE OF THE CIVIL JUDGE (SR.DN.) AND JMFC, RANEBENNUR,
ALLOWING THE APPEAL, FILED AGAINST THE JUDGMENT AND DECREE
DATED 30.07.1994 PASSED IN O.S.NO. 40/1989 ON THE FILE OF THE
MUNSIFF AND JMFC, BYADAGI, FILED FOR EXECUTION OF WILL.


      THESE REGULAR SECOND APPEALS, COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                                          RSA No. 5004 of 2009
                                      C/W RSA No. 5003 of 2009




                           JUDGMENT

The present second appeals by the plaintiff assailing

the judgment and decree of the First Appellate Court,

whereby, the suit of the plaintiff seeking declaration and

injunction was dismissed by the First Appellate Court

reversing the judgment and decree of the Trial Court.

2. The parties herein are referred to as per their

ranking before the trial Court for the sake of convenience.

3. This Court, while admitting the appeal on

03.03.2009, has framed the following substantial questions

of law:

(1) Whether the Lower Appellate Court was justified in considering the question relating to limitation aspect, in the manner done by the Lower Appellate Court and as to whether the same has led to perversity in the findings of the Lower Appellate Court that the suit was barred by time?

(2) Whether the Lower Appellate Court was justified in coming to the conclusion that the property indicated in Ex.P.3 has blended with the

NC: 2023:KHC-D:14227

properties which were included in the document at Ex.D6 and as such, whether the Lower Appellate Court was justified in its ultimate conclusion?

4. In RSA.No.5004/2009, this Court observed on

18.02.2014 that, in view of the substantial questions of law

framed by this Court on 03.03.2009 in the connected

regular second appeal in RSA.No.5003/2009, the same are

applicable to the regular second appeal in

RSA.No.5004/2009.

5. Sri Mallikarjunswamy B.Hiremath, learned

counsel appearing for the appellants and Sri Santosh

Malligwad, learned counsel appearing for the respondent

have been heard on the substantial questions of law framed

by this Court.

6. Learned counsel for the appellant would contend

that the first appellate Court has committed a serious error

in arriving at a conclusion that Article 65 of the Limitation

Act, 1963 ("Limitation Act" for short) is to be made

NC: 2023:KHC-D:14227

applicable and the plaintiff's suit for declaration and

possession is barred by limitation, without appreciating that

the suit of the plaintiff is for declaration and the relief of

possession is only a consequential relief and Article 65 is

not applicable. Learned counsel would contend that the

First Appellate Court has committed a serious error in

holding that the plaintiff had knowledge of the Will

executed in his favour and the said aspects having been

narrated in the partition deed at Ex.D.6, was without

considering that the plaintiff is not a party to Ex.D.6 and

the inclusion of the suit schedule property in the partition

deed was not binding on the plaintiff.

7. It is further contended that the execution of the

Will came to the knowledge of the plaintiff for the first time

in the year 1978 and the reasoning assigned by the

appellate Court that the suit of the plaintiff is barred by

limitation taking the applicability of Article 65 of the

Limitation Act is not justifiable.

NC: 2023:KHC-D:14227

8. In support of his contention, learned counsel has

placed reliance on the following decisions:

(i) Saroop Singh vs. Banto and others1 (Saroop Singh)

(ii) Md.Mohammad Ali (dead) by LRs. Vs. Jagadish Kalita and others2 (Md.Mohammad Ali)

(iii) C.Natarajan vs. Ashim Bai and another3 (C.Natarajan)

(iv) Janathadal Party Bangalore vs. The Indian National Congress, New Delhi and others4 (Janathadal Party Bangalore)

(v) Santosh Hazari vs. Purushotham Tiwari5 (Santosh Hazari)

9. Per contra, learned counsel appearing for the

respondents would contend that the present suit for

declaration of title on basis of the Will dated 23.04.1957 is

not maintainable without seeking cancellation of the

registered partition deed dated 02.12.1957, which has been

acted upon by all the parties and the plaintiff has even sold

(2005)8 SCC 330

(2004)1 SCC 271

(2007)14 SCC 183

2014(2) Kar.L.J. 265

(2001) 3 SCC 179

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the properties allotted to him under the partition deed

dated 02.12.1957 and the plaintiff is estopped from seeking

such a declaration without including the alienated

properties by the plaintiff in the suit. Learned counsel would

contend that the suit of the plaintiff is barred by limitation

under Article 65 of the Limitation Act. Further, learned

counsel would contend that, Section 3 of the Transfer of

Property Act, 1882 (hereinafter referred to as "the TP Act"

for the sake of convenience), stipulates that the registration

itself imputes knowledge to the person acquiring right

under such instrument and that the registered partition

deed specifically states about the Will and imputes the

knowledge of the Will to all the family members including

the father of the plaintiff, since the plaintiff was a minor at

the time of partition, the father of the plaintiff acting as a

de facto guardian has signed the partition having full

knowledge of the Will. It is further contended that, the

plaintiff and his father have acted upon the partition and

alienated all the properties that have been fallen to their

share and the present suit under the guise of the Will, is

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not maintainable. It is further contended that the executant

of the Will "Khandappa" has changed his mind after the

execution of the Will and he had executed "pancha taravu"

authorizing panchas to partition his properties as per

Ex.D.8.

10. Learned counsel would contend that, the

partition at Ex.D.8 being the last wish of the executant, the

Will stands revoked expressly and further the plaintiff's

father had written a letter vide Ex.D-17 to his advocate

informing the Will and thereafter, the father of the plaintiff

and the mother of the plaintiff participated in the partition.

The allegation that the plaintiff had no knowledge about the

Will is unbelievable and that he traced the Will at the time

of cleaning his uncle's house is a make believe approach

and the plaintiff had knowledge of the Will since the

beginning and conveniently has not chosen to assert his

rights.

11. Learned counsel would contend that the suit of

the plaintiff was for declaration of title and consequential

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relief of possession and Article 58 would have no

application. The Article applicable to the present facts is

Article 65, since the suit is not only for declaration of title,

but also for possession and the prescribed period of

limitation is 12 years. The registered Will dated 23.04.1957

has been executed as alleged by the plaintiff and the suit is

filed only in the year 1978, nearly after 21 years and the

outer limit under Articles 113 and 137 of the Limitation Act

stipulates three years as a period of limitation and in light

of the inordinate delay of 21 years, the suit is liable to be

dismissed.

12. In support of his contention, learned counsel has

relied upon the following decisions:

(i) K.V.Shivakumar and others vs. National Institute of Mental Health and Neuro Science and others6 (K.V.Shivakumar)

(ii) Dilboo (dead) by L.Rs. and others Vs. Dhanraji (dead) and others 7 (Dilboo)

ILR 2016 Kar.3114

(2000)7 SCC 702

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13. This Court has carefully considered the rival

contentions urged by learned counsel for the parties and

perused the judgment and decree of the Courts below and

the material on record including the original records to

answer the substantial questions of law framed by this

Court.

14. The family pedigree is as under:

GENEALOGY

Khandappa (Father) Since deceased _____________________________________________________

Vitthappa Gangadharappa Krishnappa Dattappa Shankarappa Since deceased Def. No.1

Ganapati Vijayendranath Sharat Def. No.2 Plaintiff

15. Suit for declaration that the plaintiff is the owner

of the suit schedule property by virtue of the Will dated

23.04.1957 and rectification deed dated 01.05.1957 and for

possession of the suit schedule property from the

defendants. It is contended that, the grandfather-

Khandappa on 23.04.1957 executed a registered Will in

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favour of the plaintiff in respect of the suit schedule

property and rectification deed dated 01.05.1957 to correct

certain mistake while writing the deed of Will. In the said

Will, the deceased Khandappa acted as a minor guardian of

the plaintiff who was minor then. It is averred in the plaint

that on 14.06.1978, there was marriage of defendant No.2

and the plaintiff was interested in whitewash, colouring and

minor repairs of the house. At the time of whitewash and

repairs done by the plaintiff, the plaintiff got the things

arranged in proper manner and he got a cover bundles

cleaned and while doing so, on 08.06.1978 found the Will

and its rectification deed along with other papers. According

to the plaintiff, these documents were hidden by the

defendants in order to deceive the plaintiff of his legitimate

right and the same came to his knowledge only on

08.06.1978. Till that date, the plaintiff was not aware

about execution of the Will by the grandfather-Khandappa.

16. Defendant No.1 files his written statement with

following contentions.

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(i) The suit of the plaintiff is illegal and not

maintainable in law and it is barred by

limitation.

(ii) That there was a family arrangement

between the family members and they

have partitioned the suit schedule property

in the year 1957 by a registered document

and there is a severance of joint family

status.

(iii) Defendant No.1 is in possession of the suit

schedule property.

(iv) That execution of the Will by the testator in

favour of the plaintiff on 23.04.1957 is

denied.

17. Defendant No.2 files his written statement

contending that there was a partition between defendant

No.1 and the father of the plaintiff and this property was

partitioned and thereafter there was a partition in between

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defendant Nos.1 and 2 in the year 1975 and the suit

schedule property has come to the possession of defendant

No.2 and defendant No.2 has executed a nominal

agreement to sell in favour of defendant No.3. Defendant

No.2 pleads that he has acquired right over the suit

schedule property by way of adverse possession.

18. The main contentions of defendant Nos.1 and 2

are that:

(i) Khandappa had no absolute right to

execute the Will in favour of the plaintiff.

(ii) Khandappa was suffering from a disease

and his mental capacity was not sound

enough to know the consequences of his

act.

(iii) That the executant of the Will had changed

his mind after the execution of the Will as

such, he had executed a "panch taravu" at

Ex.D.8 authorizing the panchas to partition

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all the properties and the partition at Ex.D-

6 being his last wish of the executant has

revoked his earlier Will.

(iv) The suit is barred by limitation under Article

65 of the Limitation Act, 1963, since

defendant No.2 has acquired right over the

property by way of adverse possession.

19. The trial Court, based on the pleadings, framed

the following issues for consideration:

1. "Whether the plaintiff proves that the suit property was the self acquired property of Khandappa Choudary as alleged?

2. Whether the plaintiff further proves that Khandappa executed a registered will on 23.4.57 and a correction deed of will on 1.5.57 as alleged in his favour?

3. Does plaintiff proves that the deceased Khandappa was in a sound disposing mind at the time of the alleged will and if so, is it his last will and valid in law and binding on the parties?

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4. Whether in view of the subsequent partition of the suit property by a Reg.deed dated 2.12.57, between the plaintiff's branch and other branches, plaintiff is estopped from setting up the alleged will and the suit is barred by principles of estoppel by conduct and record?

5. Alternatively: if the suit property was a joint family property before the registered partition dated 2.12.57 whether the alleged will by Khandappa as one of the members of the joint family is void, under the Hindu law and also on account of uncertainty etc., as mentioned in para 10 & 11 of the written statement of Defendant No.2 and 3?

6. Whether the plaintiff proves that the registered partition dated 2.12.57 was obtained fraudulently by suppressing the alleged will as contended in para 7 of the plaint?

7. Whether the suit based on the alleged will is maintainable without obtaining a probate from the competent Court?

8. Whether the plaintiff suit is barred by limitation under Art.64 and 65 of the limitation Act?

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9. Alternatively, whether the Defendants 1 and 2 have perfected their title by adverse possession?

10. Whether the plaintiff's suit is bad for non-

joinder of necessary parties and all the parties of the joint family who are parties to the partition dt: 2.12.57 and their heirs are necessary parties to this suit.

11. Whether the plaintiff proves that the agreement of sale dated 17.4.78, in favour of Defendant No.3 is hallow, ostensible and without consideration as alleged in para 11 of the Plaint?

12. Whether the plaintiff is entitled for declaration of title and possession of the suit property?"

20. In order to substantiate their claim, the plaintiff

examined himself as PW.1 and two witnesses as PWs.2 and

3 and got marked documents at Exs.P.1 to P.24. On the

other hand, the defendants examined themselves as DWs.1

to 3 and got marked documents at Exs.D.1 to D.26.

21. The trial Court, on basis of the pleadings, oral

and documentary evidence, held that:

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(i) The plaintiff has proved that the suit

schedule property is the self-acquired

property of deceased Khandappa-the

original propositus.

(ii) The plaintiff has proved due execution of

the Will by deceased Khandappa by way of

registered Will dated 23.04.1957 and the

correction deed of the Will dated

01.05.1957.

(iii) The plaintiff has proved that the deceased

Khandappa was in a sound disposing state

of mind at the time of the Will and it is the

last Will and valid in law binding on the

parties.

(iv) The subsequent partition at Ex.D-6 as

pleaded by the defendants has been failed

to be established.

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(v) The contention of the defendants that the

plaintiff is estopped from setting up a Will

is held to be in negative against the

defendants.

(vi) The suit of the plaintiff is not barred by

limitation under Articles 64 and 65 of the

Limitation Act

and by the judgment and decree, held that the

plaintiff is entitled for declaration and decreed the suit

holding that the plaintiff is declared to be the absolute

owner of the suit schedule property on the basis the

Will executed by Khandappa in favour of the plaintiff

and the defendants were directed to hand over the

possession of the suit schedule property within one

month from the date of the decree.

22. Aggrieved by the judgment and decree of the

trial Court, defendant Nos.1 and 2 preferred regular appeal

before the first appellate Court in RA.Nos.23 and 24 of

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1994. The first appellate Court reversed the finding of the

trial Court and held that the suit of the plaintiff is barred by

limitation.

23. Aggrieved by the reversal of the judgment by

the first appellate Court, these second appeals by the

plaintiff.

24. The sum and substance of the contention of the

plaintiff is that a registered Will is executed by the testator

in favour of the plaintiff and the rectification deed to correct

the mistakes of the Will dated 23.04.1957 was not revoked

during the lifetime of the deceased Khandappa. The defence

set up by the defendants is that after the death of

Khandappa-original propositus i.e., in the month of

December, the defendants have effected partition in view of

"taravu patra" executed by deceased Khandappa at Ex.D.8,

wherein the intention of the testator was to revoke the Will

executed in favour of the plaintiff and to see that the

partition has been effected between the plaintiff and

defendants, the members of the family of Khandappa.

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25. The suit property was admittedly purchased by

the grandfather of the appellant i.e., Khandappa under

registered sale deed at Ex.P.1. The Courts below held that

the suit schedule property is the self-acquired property of

Khandappa. Ex.P.22 and Ex.P.23 are the two documents

which have been executed by Khandappa in favour of the

plaintiff and Khandappa-testator was the minor guardian of

the plaintiff in the registered Will. The partition which is

also a registered partition between defendant No.1 and his

brother and the parents of the plaintiff, in respect of the

suit schedule property, wherein the suit property was

allotted to defendant No.1 which is at Ex.D.6 does not

speak about the Will in favour of the plaintiff. Even if it has

been spoken to, it cannot be a revocation of the Will which

is a registered Will in favour of the plaintiff. The procedure

for revoking or canceling the Will is governed by Section 70

of the Indian Succession Act, 1925 ("I.S. Act" for short).

Section 70 of the I.S. Act, reads as under:

70. Revocation of unprivileged Will or codicil.--No unprivileged Will or codicil, nor any part

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thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.

ILLUSTRATIONS

(i) A has made an unprivileged Will. Afterwards, A makes another unprivileged Will which purports to revoke the first. This is a revocation.

(ii) A has made an unprivileged Will. Afterwards, A being entitled to make a privileged Will makes a privileged Will, which purports to revoke his unprivileged Will. This is a revocation.

26. Plain Reading of Section 70 of the I.S. Act

indicates that in order to revoke an unprivileged Will, it

must execute a revocation deed in the same manner as an

original Will deed. Therefore, no one can cancel a Will after

the testator's death. The Court can declare a Will to be null

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and void of no force and effect after death of testator in the

following circumstances.

(i) Undue influence - someone forced the

testator to make the changes to the Will or

write a will unwillingly.

(ii) Lack of testamentary capacity - when

creating a will, a testator must have mental

capacity to understand what they are

doing.

(iii) Fraud - fraud can come when a will is

made under fraudulent circumstances and

can be held to be void.

(iv) After dated Will - if there are two Wills and

will with the most recent dates does not

mention the cancellation of the earlier Will.

(v) Age - if the testator is a minor.

Under such circumstances, the will can be revoked.

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27. The contention of the defendant is that Ex.D.8-

"taravu patra" is a document which shows the intention of

the testator to revoke the registered Will at Exs.P.22 and

P.23 is not acceptable, as it does not amount to the

revocation of the Will nor the partition deed effected

between the father of the plaintiff and defendant No.1,

admittedly, plaintiff is not a party to the alleged partition

deed and cannot be assumed that the deed has been

effected and the intention of the testator was to revoke the

Will. Admittedly, there is no pleadings to the said effect by

the defendants in the written statement and for the first

time the said contention has been raised in the second

appeals before this Court. It is a settled proposition of law

that a Will duly executed is not to be treated as revoke,

either wholly or partially, by a Will which is not

forthcoming, unless it is proved by clear and satisfactory

evidence that the later Will contained either the words of

revocation or disposition so inconsistent with the

dispositions of the earlier Will that the two cannot stand

together.

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28. It is a settled proposition of law that the burden

of proof lies on the person who challenges the Will i.e., in

existence. The decision of the High Court of Calcutta in the

case of Nawab Sahib Mirja and others Vs. Mussammat

Umat Khanam8 has held as under:

"It is well settled that a will duly executed is not to be treated as revoked, either wholly or partially, by a will which is not forthcoming, unless it is proved by clear and satisfactory evidence that the later will contained either words of revocation, or dispositions so inconsistent with the dispositions of the earlier will that the two cannot stand together. It is not enough to shew that the will which is not forthcoming differed from the earlier will, if it cannot be shewn in what the difference consisted. It is also settled that the burthen of proof lies upon the person who challenges the will that is in existence. These propositions have been established in this country, both in this tribunal and in the House of Lords: Cutto V. Gilbert (1): Hitchins V. Bassett (2):

Goodwright V. Harwood (3): and as they are founded on reason and good sense they must be regarded as of general application."

ILR (1892) 19 Cal 444

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"On consideration of the whole will their Lordships are of opinion that the Sub-judge and the Judicial Commissioner were right in holding that the annuities or stipends given to the Respondents were payable out of the testatrix's moveable property, which she had power to dispose of by will. Probably the testatrix was under the erroneous impression that she could deal with the wasika allowance, and her pension from Government, and the income of the fund settled by treaty. But their Lordships are of opinion that the words of the gift are large enough to charge the annuities or stipends in question upon the Government notes held by the testatrix, and also upon the rest of her moveable property. They may add that if the words of the will are to be taken in a more restricted sense, it appears to them that the gift of these annuities or stipends must be regarded as a demonstrative legacy, and in that view they would be payable out of the testatrix's general estate, in the event of the failure of particular fund pointed out for their payment."

29. The Full Bench of Kerala High Court in the case

of Sridevi Amma and others Vs. Venkitaparasurama

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Ayyan and others9 has taken a similar view at paragraph

No.17 and the relevant portion reads as under:

"17. The next question is, assuming that Ex.I was operative after Venkiteswara Iyer's return from his Banares trip, whether it was later revoked by him. Now there is no law in Cochin relating to Wills and providing for the revocation of a deposited will as here by the very withdrawal of the sealed cover containing it from the Registration Office, e.g.S.18 (b) of the Tvavancore Registration Act VI of 1074. There is also in Cochin no provision insisting on a continued deposit till death of the testator, for the will to come into operation at all, e.g. Section 118 of the Indian Succession Act regarding Bequests to religious or charitable uses. Nor have we any provision for revocation of unprivileged wills as in Section 70 of the Indian Succession Act as follows:

"Section 70.- No unprivileged will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is herein before required to be executed, or by the burning, tearing or otherwise destroying the same by the testator or by some

AIR 1960 Kerala 1

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person in his presence and by his directions with the intention of revoking the same".

It would appear therefore that no particular formality is necessary under that law for revoking Ext.I, except possibly the rule of prudence that when an inference in favour of revocation is asked to be drawn from the conduct of the testator, the conduct must be such as to show that his mind was directed to the question whether the will was to remain in force or not and his conduct proceeded on the footing that the will was no longer to be in force. It is in this connection that the circumstances surrounding the withdrawal of the sealed cover containing Ext.I on 12-7-1118 from its custody with the Superintendent of Registration, as analysed by the court below and referred to by us earlier becomes specially useful. There can, it seems to us for no doubt that the situation which existed in Chingom 1114 and called forth the terms contained in Ext.I, was completely changed."

30. The revocation as contended by respondents-

defendants cannot be drawn from the conduct of the

testator more particularly either by Ex.D.8 or Ex.D.6 and

thus, the contentions set up by defendants for the first time

before this Court is highly unacceptable.

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31. Now coming to the substantial questions of law

framed by this Court regarding the suit of the plaintiff being

barred by limitation applying Article 65 of the Limitation

Act. It is the contention of the defendants that the suit to

obtain declaratory relief accompanied with the prayer of

relief of possession, Article 65 is applicable. In order to

answer the said question, it is necessary to look into the

necessary provisions of Article 65 of the Limitation Act,

1963, which reads as under:

65. For possession of Twelve years When the immovable property or any possession of interest therein based on title. the defendant becomes adverse to the plaintiff.

Explanation.--For the purposes of this article--

(a)where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman,

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reversioner or devisee, as the case may be, falls into possession;

(b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;

(c)where the suit is by a purchaser at a sale in execution of a decree when the judgmentdebtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession.

32. Article 65 of the Limitation Act (Article 144 of the

Limitation Act, 1908) is a residuary Article applying to suits

for possession and not otherwise provided. As per Article

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65 of the Limitation Act, it is a party who claims adverse

possession to plead and prove adverse possession and it is

not for the other party to prove his title and possession

within twelve years preceding the date of the plaint and

that too in the absence of any plea of adverse possession

by defendant No.1. When defendant No.2 has set up a

claim of adverse possession, he has to establish adverse

possession by clearly asserting hostile title in denial of the

title of true owner. It is well settled principle that party

claiming adverse possession must prove his possession is

"nec vi, nec clam, nec precario" i.e., peaceful, open and

continuous. Thus, in the instant case, the question of the

applicability of Article 65 of the Limitation Act does not

arise since defendant No.1 has not raised the plea of

adverse possession and defendant No.2, though he sets up

a claim of adverse possession, has failed to establish when

the hostility of possession has become adverse to the

knowledge of the true owner and that he has perfected his

title by way of adverse possession.

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33. The Apex court in the case of Swaroop Singh

stated supra has held at paragraph Nos.26, 28 & 29 as

under:

"26. In the instant case, the question of applicability of the Limitation Act does not arise. The appellant-first defendant could have legitimately raised a plea that Indira Devi having died in the year 1961, his possession thereafter has become adverse to the true owner and, thus, on the expiry of the statutory period of limitation he had perfected his title by adverse possession. But, he did not raise such a plea. Even before us, Mr Jain categorically stated that the appellant does not intend to raise such a plea.

28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, the plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant-appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred.

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29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak (2004) 3 SCC 376.)"

34. In the decision stated supra, the Apex Court has

held that the statutory provisions of the Limitation Act has

undergone a change when compared to the terms of

Articles 142 & 144 of the schedule appended to the

Limitation Act, 1908, in terms whereof, it was imperative

upon the plaintiff not only to prove his title and also to

prove his possession within 12 years preceding the date of

institution of the suit. However, a change in the legal

position has been effected in view of Articles 64 & 65 of the

Limitation Act, 1963. In the instant case, the plaintiff has

proved his title based on the registered Will executed by

Khandappa on 23.04.1957 and in the absence of any

revocation by the deceased Khandappa, it is for defendant

No.1 to prove that his acquisition of title by way of adverse

possession. Defendant No.1 did not raise any plea of

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adverse possession and the suit of the plaintiff was not

barred by limitation applying Article 65 of the Limitation

Act. Defendant No.2 though has raised a contention of

adverse possession and contends that Article 65 has to be

applied, has failed to establish the hostility of his

possession. Mere long and continuous possession by itself

is not enough to take a plea of adverse possession. When

the defendant raises a plea of adverse possession, he must

prove the same along with his "animus possidendi" and for

ascertaining whether the plea of adverse possession was

raised, the Court must construe the entire pleading and

cumulative effect of the averments made in the written

statement. The pleadings of defendant No.1 is silent in this

regard and defendant No.2 has failed to establish the plea

of adverse possession.

35. The first appellate Court while reversing the

finding of fact must come into the close quarters with the

reasoning assigned by the trial Court and then assign its

own reason for arriving at a different finding. This would

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satisfy the Court hearing the further appeal that the first

appellate court had discharged the duty accepted by it. The

Apex Court in the case of Santosh Hazari stated supra at

paragraph No.15 held as under:

"15. A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along

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with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124] ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on

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inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai [(1983) 1 SCC 35 : AIR 1983 SC 114] ) The rule is -- and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [1950 SCC 714 : AIR 1951 SC 120] ) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain

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immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one."

36. The first appellate Court being the final Court of

law, in the sense that its decision on the question of law,

even if, erroneously may not be vulnerable before the High

Court in the second appeal because the jurisdiction of the

High Court has now been seized to be available correct, the

errors of law or erroneous finding of the first appellate

Court even on the question of law unless such question of

law be a substantial question of law.

37. The Apex Court in the case of MD. Mohammed

Ali stated supra has held at paragraph Nos.18 & 19 as

under:

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"18. On the other hand, if no partition by metes and bounds took place, the respondents herein were bound to plead and prove ouster of the plaintiff and/or his predecessors-in-interest from the land in question. For the said purpose, it was obligatory on the part of the respondents herein to specifically plead and prove as to since when their possession became adverse to the other co-sharers.

Moreover, if the possession of Prafulla Kalita was permissive or he obtained the same pursuant to some sort of arrangement as had been observed by the High Court, the plea of adverse possession would fail.

19. Long and continuous possession by itself, it is trite, would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription. A co-sharer, as is well settled, becomes a construction trustee of other co- sharer and the right of the appellant and/or his predecessors-in-interest would, thus, be deemed to be protected by the trustees. As noticed hereinbefore, the respondents in their written statement raised a plea of adverse possession only against the third set of the defendants. A plea of adverse possession set up by the respondents, as reproduced hereinbefore, does not meet the requirements of law also in proving ouster of a co-

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sharer. But in the event, if the heirs and legal representatives of Gayaram Kalita and Kashiram Kalita partitioned their properties by metes and bounds, they would cease to be co-sharers in which event a plea of adverse possession as contradistinguished from the plea of ouster could be raised. The courts in a given situation may on reading of the written statement in its entirety come to the conclusion that a proper plea of adverse possession has been raised if requisite allegations therefor exist. In the event the plaintiff proves his title, he need not prove that he was in possession within 12 years from the date of filing of suit. If he fails to prove his title, the suit fails."

38. The Apex Court has similarly observed in the

case of C. Natarajan stated supra and held at paragraph

Nos.19 & 20 as under:

"19. We have noticed hereinbefore that the defendant, inter alia, on the plea of identification of the suit land vis-à-vis the deeds of sale, under which the plaintiff has claimed his title, claimed possession. The defendant did not accept that the plaintiff was in possession. An issue in this behalf is, therefore, required to be framed and the said question is, therefore, required to be gone into. Limitation would not commence unless there has been a clear and

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unequivocal threat to the right claimed by the plaintiff. In a situation of this nature, in our opinion, the application under Order 7 Rule 11(d) was not maintainable. The contentions raised by the learned counsel for the respondent may have to be gone into at a proper stage. Lest it may prejudice the contention of one party or the other at the trial, we resist from making any observations at this stage.

20. For the reasons mentioned above, the impugned judgment cannot be sustained. The same is, therefore, set aside. The appeal is allowed with costs. Counsel's fee assessed at Rs 25,000 (twenty- five thousand)."

39. In Janata Dal Party, Bangalore stated supra

the Division Bench of this Court has taken a similar view

and has held at paragraph Nos.123 to 125 as under:

"123. Therefore, it is clear that when title is not in dispute and merely because a person continues in possession for any length of time, the said person would not acquire title by adverse possession. Consequently, the suit for possession based on title could not be said to be barred by time. Therefore, the starting point of limitation under Article 65 of the Limitation Act, is when the

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possession of the defendants becomes adverse to the plaintiff.

124. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another title. When the defendant specifically pleads that the properties and funds belonging to the Congress after the split in 1969 vested in Congress (O), and they were in exclusive possession and enjoyment, the Congress (O) is tracing a lawful title to the schedule property, as they claim to be the successor of the Congress. Therefore, the said plea do not constitute a plea of adverse possession. They are not claiming that their possession of the schedule property is adverse to the plaintiff. Similarly the specific case of the 1st defendant is as a result of the merger, all the properties belonging to the Congress (O) which originally belonged to the Congress became the properties of the Janata Party. Again the 1st defendant is claiming lawful title and possession to the schedule property. According to them the act of merger has conferred on them lawful title and as Congress (O) was in lawful possession of the schedule property on the date of merger, they continued in such lawful possession. Therefore, they are not claiming that their possession is adverse to

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that of the plaintiff, because they are not admitting the title of the plaintiff to the schedule property at all. Neither the acts of split in the political party nor the merger of political party constitutes commencement of adverse possession. It is in this background the averment that the Janata Party and its predecessor Congress (O) have perfected their title by adverse possession makes no sense.

125. In this context, it is for the defendant who contends that the suit is barred by limitation under Article 65 of the Limitation Act or that he has perfected his title by adverse possession to specifically plead the day from which his possession became adverse to that of the plaintiff. Therefore, the day on which the possession of the defendant became adverse to plaintiff is of utmost importance. Unless the said date is pleaded, it is not possible to compute the period of limitation. That is the first ingredient which is to be pleaded and proved by the defendant to succeed in his case that the plaintiffs suit is barred by limitation or that he has perfected his title by adverse possession. In the absence of such plea, any amount of evidence would be of no assistance. However, in this case, let us see what is the evidence regarding adverse possession which is adduced, if at all."

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40. The pleading of the plaintiff that he came to

know about the Will and unaware about the execution of

the Will by Khandappa is justifiable and the suit of the

plaintiff cannot be held to be barred by limitation. The

judgments stated supra, and in the light of the reasoning

stated, it can be clearly held that the suit of the plaintiff is

not barred by limitation and the plaintiff has proved that he

has established his title over the suit schedule property.

The first appellate Court has fell in error and was not

justified in the manner in which it has been done in holding