KALLAWWA VIRUPAXAPPA BANAKAR Vs. BHAGAWWA

JUDGEMENT

(1.) The legal representatives of the plaintiff in O.S. NO.3/1984, on the file of Munsiff, Banahatti, have challenged the judgment dated 29.03.2005 passed by the Fast Track Court, Jamakhandi, in R.A. No.74/1996.

(2.) Briefly stated, the pleadings putforth by the parties are that house property bearing R.B.T.M.C. No.204 situate in Division No.1 of Banhatti town (hereinafter referred to as 'suit property') belonged to one Gurappa Channaparappa Mandi (propositus). He had two wives, namely, Bhagawwa and Rachawwa. The plaintiff, Kallawwa and one Tangewwa are the daughters of Bhagawwa and the second wife Rachawwa begot four daughters, namely, Bhagawwa (defendant No.1), Janakibai, Revakka (defendant No.2) and Sanyawwa (defendant No.3). Both the wives of the propositus pre-deceased him. His second daughter through second wife, Janakibai had a daughter by name Kasturi. Defendant No.4, Anandappa is the husband of Kasturi. Janakibai died in the year 1963. The plaintiff pleaded that since the suit property belonged to her father, she was entitled to 1/5th share in the same. She claimed joint possession of the said property with defendants No.1 to 3 and alleged further that defendant No.5, claiming to be a purchaser of half portion of the suit property from defendant No.4 laid claim on the portion said to have been purchased by him although defendant No.4 had no right to sell that half portion to defendant No.5. The plaintiff stated that she had a preferential right under Section 22 of the Hindu Succession Act, to purchase the share that her sister Kasturi had in the suit property. In fact, the plaintiff filed a suit, O.S. No.91/1992 for permanent injunction against defendant No.4 to restrain him from selling his right, title or interest in any portion of the suit property to defendant No.5 and to restrain defendant No.5 from causing obstruction to her peaceful possession and enjoyment of suit property. In the said suit, defendant No.5 contended that he purchased half portion of the suit property from defendant No.4. He took up a contention in the said suit that on 29.09.1961, the propositus had executed a will bequeathing half portion of the suit property to his grand daughter, Kasturi and another half portion to one of his daughters, namely, Sanyawwa, defendant No.3. This Kasturi executed a will in favour of her husband i.e., defendant No.4 on 31.05.1963 in respect of half portion of the suit property that had been given to her by her grandfather. Kasturi died in the year 1963, and therefore, the said will came into force and defendant No.4 became the absolute owner of that half portion. Then defendant No.4 sold that property to defendant No.5 through a registered sale deed dated 26.05.1973. Coming to know this defence taken by defendant No.5 in O.S. No.91/1992, the plaintiff wanted to amend the plaint, but her application was rejected. She withdrew that suit on 20.12.1983 seeking permission to file another suit. Giving these details, the plaintiff further pleaded that the propositus was not at all in a sound state of mind to execute the will in favour of Kasturi and defendant No.3. The will is a concocted document. Therefore, Kasturi and Sanyawwa did not acquire any right or title on the basis of the will. The sale deed executed by defendant No.4 in favour of defendant No.5 does not bind her interest. In this background, plaintiff claimed partition of the suit property.

(3.) Very strangely, defendant No.3, who is a beneficiary under the will made by her father denied the execution of will by her father and stated further in the written statement that her father was aged about 85 years at the time of his death and that he was totally bed ridden. He was not in a position to understand what he was doing. He had lost his sight and was hard of hearing. Therefore, he could not have executed a will on 29.09.1961 in her favour and Kasturi's father. She also stated that the will dated 29.09.1961 was bogus and never intended to be acted upon. The suit property still stands in the name of her father in the municipal records. She has been paying house tax, electric charges, etc. with respect to suit property. In the same way she also denied the execution of will by Kasturi on 31.05.1963 in favour of defendant No.4 and the right of defendant No.4 to sell half portion of the suit property to defendant No.5 by executing a sale deed on 26.05.1973. She stated in her written statement that she was also entitled to 1/5th share in the suit property.