RUKMINI BAI Vs. UMABAI SHANAKAR JADHAV

JUDGEMENT

(1.) THE parties would be referred to in the same rank assigned to them before the Court below, for the purpose of convenience and clarity. The defendant Nos. 2 and 5 are before this Court in this appeal and the cross-objections is filed by the plaintiff assailing the judgment and decree dated 30-11-2000 passed in O. S. No. 60/1989 on the file of the III Addl. Civil Judge (Sr. Dn) and cjm, Dharwad. Pleadings of the Parties :

(2.) THE plaintiff was before the Court below in a suit seeking for a judgment and decree to award 1/8th share in all the suit properties by effecting partition by metes and bounds and also to handover the separate possession of the same to the plaintiff. The plaintiff claims to be the grand daughter of late ramachandra Kawatekar through the first wife Smt. Parvathi Bai. The defendant No. 1 is said to be the widow (second wife) of late ramachandra Kawatekar. The defendants 2 to 7 are the other grand children of late ramachandra Kawatekar while defendant nos. 8 and 9 are the great grand sons of late ramachandra Kawatekar. All the said grand children are the children of his daughter through the first wife Parvathi Bai. The plaintiff claims that the suit properties are self earned properties of her grand father late ramachandra Kawatekar who died on 24-5-1987 intestate. It is further contended that the grand mother (first wife of Ramachandra kawatekar) died in the year 1935 whereas the mother of the said parties died in the year 1981. The said late Ramachandra Kawatekar is said to have married the first defendant after the death of the first wife and did not have any issues from the said marriage. The plaintiff is said to have been brought up by the grand parents. It is further contended that late ramachandra Kawatekar suffered paralytic stroke thrice simultaneously from 1963 to 1968 and as such he was unable to move without the attendance of somebody. It is further contended that he was completely bed ridden and he was also unable to talk clearly. In the suit, it was alleged that since plaintiff was married to one Shankar Jadhav who was working in Air Force and was being transferred from one place to another, defendants 1 and 2 colluded with each other to take complete benefit of the health condition of late ramachandra Kawatekar. It is further alleged that in the year 1981 when the daughter of late Ramachandra Kawatekar i. e. . the mother of the plaintiff viz. , Smt. Krishnabai died and when he was in deep sorrow and depression, they got created a false and bogus sale deed of the property bearing No. 47/2 measuring 5 acres in favour of the minor great grandson rajendra. It is also alleged that one more false and bogus gift deed of the property bearing no. 47/1, measuring 5 acres in favour of another minor great grandson Chimmaji was also obtained by misrepresentation, fraud and deception. The said two transactions have taken place only one month after the death of krishnabai. It is therefore contended that late ramachandra Kawatekar never entered into any kind of transaction and he did not alienate any suit properties to any person. The plaint is subsequently amended after filing of the written statement by the defendants to add one more contention that defendant No. 2 got created a false and bogus Will from late ramachandra Kawatekar bequeathing the entire properties in favour of defendant Nos. 2 and 5 and as such it is contended that the said late Ramachandra Kawatekar has never made a Will in his life time to any persons. That apart, the plaintiff contends that the second defendant has also purchased one agricultural land at kurabgatti bearing RS No. 20. / 1b measuring 2 acres 27 guntas in her name out of the profits earned from the other suit properties and funded by the first defendant. Hence, it is claimed that this property is also the property of late Ramachandra Kawatekar. In this back ground, it is alleged that the suit properties are the joint family properties of late Ramachandra Kawatekar and has remained so till the date of filing the suit. The plaintiff claims that though she approached defendant No. 1 to get her 1/8th share in the entire suit properties, the same has been denied and therefore the plaintiff has filed the suit.

(3.) ON being notified of the suit, the defendants have appeared and filed their written statement. The defendant Nos. 3 to 6 have supported the case of the plaintiff. The defendant No. 5 has filed an independent written statement wherein the claim put forth by the plaintiff for share in the properties have been denied. It is contended that though the other properties were self acquired properties of late ramachandra Kawatekar, the property shown in suit schedule No. 1f is not the self acquired property of late Ramachandra Kawatekar, but it is contended that the suit property has been purchased by the second defendant in her individual capacity. It is further contended that late Ramachandra Kawatekar together with the first defendant executed a registered Will dated 23-11-1968 in respect of the properties indicated in the written statement and that late ramachandra Kawatekar was in sound disposing state of mind and the Will has been executed out of this free will. The said defendant therefore sought for dismissal of the suit* the defendant No. 1 also has filed a written statement independently and has disputed the case put forth in the plaint. It is stated that the genealogy and the fact that all other properties indicated in the suit schedule are the self acquired properties of late Ramachandra kawatekar cannot be in dispute. But item 1f property is that of the second defendant. It was purchased by the second defendant from the previous owner for a consideration of Rs. 30,000/- on 5-12-1978. The other family history which has been stated is admitted. However the contention of the plaintiff that late ramachandra Kawatekar had suffered paralysis from 1963-1968 has been denied. The allegations with regard to collusion and the creation of the documents alleged by the plaintiff has been denied by the said defendant. With regard to the gift deed executed in the year 1981, the said defendant has stated that the same had been executed with free will and out of love and affection for the great grand children. With regard to the sale deed. the defendant states that her husband sold the property bearing No. 47/2 in the name of defendant No. 9 for a consideration of Rs. 25. 000/-With regard to the WILL dated 23-11-1968 the said defendant has stated that the Will in respect of the properties owned by late ramachandra Kawatekar had been registered and he was of sound and disposing state of mind during that period and even thereafter. It is contended that the first defendant was given life interest in the property covered by the Will. The said defendant has also adverted to details of each of the properties and in effect the defendant has denied the case put forth by the plaintiff seeking for a share in the suit properties. The defendants 2, 8 and 9 have filed a joint written statement which is more in line with the written statement filed by the first defendant. The defendant No. 7 has also filed separate written statement in support of the case of the plaintiff. Issues considered by Trial Court :