HARINI @ HARINAKSHI Vs. P.M. SHIVAPPA

JUDGEMENT

(1.) This matter is listed for admission. Heard the learned counsel for the appellant and the learned counsel for the respondent.

(2.) The factual matrix of the case of the plaintiff is that the plaintiff filed a suit before the Trial Court seeking the relief of declaration to declare himself as the absolute owner and in possession over the suit schedule property and also to declare that the Will is not binding on him and for consequential relief of permanent injunction. It is contended that, in the partition the suit schedule property was allotted to the share of the plaintiff. The defendant contended that the suit schedule property was left to the life maintenance of the parents of the plaintiff. It is alleged by the plaintiff that the defendant and her brother instigated Channamma and created the Will dtd. 16/4/2007. It is the contention of the plaintiff that Channamma had no right to execute the Will in respect of the suit schedule property and hence sought for the relief. The Trial Court allowed the parties to lead evidence and considering the document of Ex.P.10 and also considering that in terms of the partition, the property was given to Channamma for her maintenance, held that the property shall revert back to the plaintiff. The Trial Court also taken note of the Will relied upon by the defendant and in this regard, the Trial Court discussed the same in paragraph Nos.19, 20, 21, 22 and discussed that D.W.1 categorically admitted that on the date of the very execution of the Will, the same was shown to her. Apart from that, taken note of the general power of attorney, which was drafted by D.W.2 himself and he categorically stated that in the GPA, the reason is stated that Channamma was not able to hear and see and the same is admitted by D.W.2. The Trial Court also taken note of the evidence of D.W.3 and comes to the conclusion that the Will is surrounded with suspicious circumstances and granted the relief as sought in the plaint that the plaintiff has proved the case that the property in terms of the document shall revert back to him and only the maintenance right was given to the said Channamma. The Trial Court considering the document of Ex.P.10 as well as Ex.P.9 comes to such a conclusion.

(3.) Being aggrieved by the said judgment and decree, an appeal is filed before the Appellate Court. The Appellate Court having considered the grounds urged in the appeal memo and also hearing both the sides, formulated the point whether the impugned judgment and decree of the Trial Court is against law, facts and probabilities of the case? The Appellate Court having re-assessed the material available on record, taken note of the pleadings of the parties and also the evidence led by both of them. The Appellate Court also taken note of particularly the document of Ex.P.10 and the same is not disputed and also made it clear that if the respondent fails to look after his mother, the property should go to the respondent's mother and it is the case of the respondent that after the death of his mother, he became the owner of the suit schedule property. This fact is admitted by the respondent during the course of cross-examination. The Appellate Court also taken note of the Trial Court in its judgment has also considered that after the death of the mother of the respondent, the suit schedule property should go to the respondent by virtue of the partition. The Appellate Court also taken note of the Will, which the defendant/appellant claims and also re-assessed the material available on record and particularly in paragraph No.16 considered the evidence of D.W.1, D.W.2 and D.W.3, wherein D.W.2 categorically admitted that while preparing the GPA in respect of suit in O.S.No.82/2003, specific averment is made that Channamma was not having proper hearing and her eye sight is also not good and she was suffering from impairment and also loss of eyesight. The same was also considered by the Appellate Court while considering the genuineness of the Will is concerned and re-assessed the evidence and confirmed the judgment of the Trial Court.