MOTAPPA Vs. ERAPPA

JUDGEMENT

(1.) THE plaintiff filed suit in OS No.5757 of 1988 with a prayer for half share in the family property. Suit was conducted by the power of attorney holder. By its order dated 31st October 1995, the suit came to be allowed decreeing half share in the suit schedule property in favour of plaintiff Lakshmamma. Being aggrieved by the said order, legal representatives of the defendant preferred RFA No.6 of 1996 before this Court. During pendency of the appeal, plaintiff Lakshmamma in suit OS No.5757 of 1988, died. The present plaintiff in suit OS No.3910 of 2005, who was the General Power of Attorney holder, had filed IA.IV seeking permission to come on record as a sole legal representative of deceased Lakshmamma contending that besides being her close relative, she had bequeathed all her properties under a Will dated 15th December 1988 which was registered on 17th December 1988. The legal representatives of the defendants contested the application and disputed the claim of plaintiff -Erappa, the respondent herein. By its order dated 15th July 1999, this Court passed an order under Order XXII Rule 5 of the Code of Civil Procedure, 1908 and directed the Trial Court to determine as to whether Erappa was the legal representative of deceased Lakshmamma and also to give a finding with regard to the validity of the Will dated 15th December 1988 registered on 17th December 1988. On receipt of the order passed by this Court, the learned Civil Judge, on appreciation of the materials and evidence on record, came to the conclusion that Erappa was not the legal representative of the deceased Lakshmamma and further observed that the Will in question was not proved, as the execution of the Will was shrouded with suspicious circumstances and the same had not been cleared effectively and that Erappa failed to prove that the Will was executed by Lakshmamma out of her own volition. The said order was passed on 28th October 1989. The High Court, by its order dated 5th June 2000, on re -appreciation of evidence on record, came to the conclusion that the Civil Judge has not properly appreciated the evidence on record and accordingly reversed the finding holding that the Will has been executed by late Lakshmamma bequeathing her properties to Erappa and further held that Erappa is her legal representative. The said order was challenged before the Hon'ble Supreme Court by the defendants filing SLP (Civil) No.14975 of 2000. The said petition came to be dismissed on 18th August 2000; and the plaintiff also had challenged filing SLP No.16226 of 2004, which also came to be dismissed on 23rd August 2004. Regular First Appeal No.6 of 1996 preferred by defendants against the judgment in Suit O S No.5757/1988 also came to be dismissed on 17th April 2004. While dismissing the appeal, this Court has observed that allowing of IA.IV is only for the purpose of continuing the appeal and not for granting any decree in his favour. Applicant Erappa has to get separate declaration to the effect that the plaintiff who has been declared to be entitled for half share in the suit schedule property has left a Will in his favour and that he has been bequeathed the properties of the plaintiff. It is only when he gets such a declaration that he can execute the decree and could seek possession under the decree. As a result, he filed Suit OS No.3910 of 2005 in which he made a prayer that he is the sole legatee of Lakshmamma under registered Will dated 15th December 1988 executed by her and consequently entitled for half share in the suit schedule property as per the decree dated 31st October 1995 passed in OS No.5757 of 1988 and sought for granting of mandatory injunction and also to hold an enquiry regarding mesne profits in respect of Schedule 'B' and 'C' properties. By its order dated 2nd January 2009 the said suit came to be decreed and being aggrieved by the same, the defendants who are the legal representatives of the original defendant No.1 have preferred this appeal.

(2.) THE plaintiff -respondent No.1 herein has pleaded that late Lakshmamma the plaintiff in OS No.5757 of 1988, has executed Will on 15th December 1988 which came to be registered on 17th December 1988 and she died on 14th August 1998, almost ten years after the execution of the registered Will. The suit filed by Lakshmamma was decreed during her lifetime and she died during the pendency of Regular First Appeal No.6 of 1996 filed by present appellant. In view of execution of the Will, the plaintiff -first respondent herein, is the absolute owner of the half share in Schedule 'A', 'B' and 'C' properties by metes and bounds being the sole legatee of late Lakshmamma and he has got cause of action for filing suit on 17th April 2004 when RFA No.6 of 1996 was dismissed with certain observations. The Hon'ble Supreme Court, on 23rd August 2004, dismissed SLP No.16226 of 2004 filed by the plaintiffrespondent herein and subsequently the plaintiff demanded for partition and separate possession of the suit schedule property. Written statements have been filed on behalf of the defendants. Only defendant No.2 has sworn to affidavit. Defendant No.7 also has filed written statement.

(3.) THE learned senior counsel appearing for the advocate for the appellant contended that the order of Trial Court is bad in law for the following reasons: