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Subbayyajoga Naik vs Narayanai And Ors. on 16 June, 2004
Cites 1 docs
The Hindu Succession Act, 1956
Karnataka High Court
Subbayyajoga Naik vs Narayanai And Ors. on 16/6/2004
JUDGMENT
V. Gopala Gowda, J.
1. This second appeal is filed by the 6th Defendant in O. S. No. 45/98 on the
file of civil Judge (Jr. Dn), Bhatkal, being aggrieved by the Judgment and
Decree dated 15-9-2003 in R. A. No. 428/2001 reversing the Judgment and Decree
dated 25-9-2001 passed by the trial Court in dismissing the suit.
2. The first respondent herein was the plaintiff in the suit. The appellant
was the 6th defendant and other respondents herein were the defendants. For the
sake of convenience, the rank of the parties is referred to as in the original
suit.
3. The Plaintiff filed the suit for declaration that the entries in the R. T.
C. in respect of "A" Schedule properties showing the names of the plaintiff and
defendants on the basis of alleged partition, are wrong, illegal and they are
liable to be deleted and that the names of plaintiff and defendants 2 to 6 have
to be substituted as legal representatives of deceased Joga Hanuma Naik, who
died intestate. A further relief for partition by metes and bounds of the said
properties into six equal shares and to deliver one such share with five mudi
rice per year from the date of suit till delivery of possession was bought for
in the original suit. The defendants filed written statement denying the plaint
averments. It is claimed that Joga Hanuma Naik executed a Will on 6-5-1985
bequeathing the properties in favour of the 6th defendant. On the basis of the
pleadings, the trial Court framed issues and went for trial. Parties adduced
evidence and produced documents in support of their respective case. Upon
consideration of the material brought on record, the trial Court dismissed the
suit holding that plaintiff is not entitled for 1/6th share. In the appeal
preferred, the said judgment and decree of the trial Court are reversed by the
first Appellate Court and decreed the suit. Aggrieved by the same, the 6th
defendant has filed the present second appeal.
4. It is not in dispute that the properties in question are the ancestral
properties belong to deceased Jogi Hanuma Naik. He died intestate. The first
defendant was his wife while plaintiff and defendants 2 to 6 are his children
and defendants 7 to 10 are grand children. The relationship between the parties
is admitted.
5. The trial Court denied the relief sought for by the plaintiff in the suit
merely because the plaintiff and defendants 2 to 5, the daughters of deceased
Jogi Hanuma Naik, had been married 20 years back. Placing reliance upon Hindu
Law of Mulla, it is held that a daughter ceases to be a member of her father's
family on marriage and becomes a member of her husband's family and hence, the
daughters are not entitled to share. To arrive at this conclusion, the trial
Court relied upon the decision reported in I. L. R. 2001 Kant 2209.
6. The first Appellate Court re-appreciated the findings and reasons assigned
by the trial Court and disagreed with the same. It has held that eventhough
plaintiff got married earlier to 1994, the properties being the self acquisition
of her father, she is entitled to a share. Since Joga Hanuma Naik and his wife
died intestate, their children being Class-I heirs under the Hindu Succession
Act, they are entitled to 1/6th share each in the properties. Hence, the first
Appellate Court has rightly held that the trial Court has not distinguished the
decision relied upon by it and that the other decisions cited are not applicable
to the case on hand.
7. So far as the Will alleged to have been executed by Joga Hanuma Naik in
favour of 6th defendant is concerned, though the trial Court framed issue No. 2
casting burden on the 6th defendant to prove the same, while answering the same
it has held that the issue does not arise for consideration. But, the first
Appellate Court considered this aspect while answering Point No. 2 framed by it.
The execution of the Will Ex. D-1 is considered. It was observed that plaintiff
and defendants 1 to 6 wanted mutation entries in their name for which defendant
No. 6 objected. In view of that, they partitioned the properties in the presence
of panchas. According to defendant No. 6, each sister was given 0-20 guntas and
he was given larger extent. In view of this version in the cross examination of
6th defendant, the first Appellate Court has rightly held thus :--
"If really the will Ex. D-1 was in existence defendant No. 6 would not have
ignored the same and got the properties partitioned between him and his sisters.
This is one of the strongest circumstance to suspect the Will.
After elaborately discussing the evidence adduced and the circumstances under
which the Will was executed and applying the law laid down in 1998 SAR (Civil)
401 and taking into consideration that though the Testator had equal love and
affection towards his wife and children, why he had chosen only the 6th
defendant as the beneficiary under the Will, the first Appellate Court has not
accepted the Will. The admission of DW-2 (6th defendant) that the Will is not
attested by any of the witnesses, itself was held sufficient to hold that Ex.
D-1 . was not a Will at all. Consequently, a categorical finding is rightly
given that the Will set-up by the 6th defendant is not at all proved.
8. The 6th defendant has sold the properties to defendants 11 and 12. Since
the properties are the self acquired properties of Joga Hanuma Naik, the first
Appellate Court is justified in holding that plaintiff and defendants 2 to 6 are
entitled to succeed simultaneously and the sale-deeds executed in favour of
defendants 11 and 12 are binding only to the extent of share of the 6th
defendant alone. This finding and conclusion is in accordance with law.
9. The judgment and decree of the first Appellate Court below are perfectly
justified and there are not grounds to interfere with the same. The substantial
questions of law framed in the memorandum of appeal do not arise and the appeal
is devoid of merit.
10. The appeal stands dismissed.
