Jagannatha Shetty, J.
R.A.F. No. 4 of 1973 -:
1. This appeal by the defendants has been preferred against the judgment and decree dt. Aug. 14, 1972 of the Civil Judge, Chitradurga in 0. S. No. 25 of 1964.
2. The facts so far as relevant may briefly be stated as follows:
Channabasamma - defendant-1 and Rudraiya - the plaintiff - were rival claimants to plaint A and B Schedule properties left behind by one Halaswami Each claimed to be the nearest agnatic heir of the deceased to the exclusion of the other,
3. To appreciate the controversy involved in this appeal, it will be useful to have before us the pedigree table which is as follows:-
T. M. (YAJAMAN) MURIGAPPA(Ist Wife) I (2nd Wife)Siddalingappa Siddappa Vearappa Gorupadappa Murugendrappa Tbirukappa(Dead long ago) (Dead long ago) (Dead long ago) (Dead long ago) (Dead long ago) (Dead long ago) died on 9p>11-11-1929Gurashanthappa (Dead long ago)Shandaksharalya Panahaksheratya Onkarappa Namasivayappa(Dead long ago) (Dead long ago) (Died on3O-8-1931) (Died on 11-10-1929)(Rannabasarnma-Ist Deft. died on(Basalingamma ) 24-9-1975) (Died on 14.-1-1945) T. M. Siddaradhya Rajashkeraiya(P. W. 1) Halaswamy(Died on &12.1959)Gangaroxna (Dead) Rudraiya Basalingappa(Daughter: Basaltngamms (Plaintiff) (Died long ago)Married to Onkaraiya) (Died on 25-12-1977)Nanjundaiya Sivanandaiya
It will be observed there from that one T, M. Murigappa the common ancestor of the propositus had by his second.wife three sons, namely (1) Gurupadappp, (2) Murugendrappa and (3) Thirukappa. -Gurupadappa had no issues, while Murugendrappa had two sons, namely (1) Onkarappa and (2) Namasivayappa. The third son had also two sons namely (1) Rudraiya - the plaintiff and (2) Basslingappa. He had also a daughter called Gangamma whose daughter Basalingamma was married to Onkarappa and Halaswamy was the only son of Onkarappa and Basalingamma. He remained unmarried.
Namasivayappa died issueless on Oct 11, 1929 leaving behind him his widow Channabasamma - the Ist defendant; Onkarappa died on Aug. 30, 1931 leaving behind his widow - Basalinganima, and son - Halaswami. Basalingarnma died on Jan. 14, 1945 and Halaswami died issueless on Dec. 6, 1959, leaving behind the suit schs. A and B properties,
4. After the death of Halaswami, Channabasamma claiming to be the legal heir, executed a Will on Dec. 17, 1959 bequeathing most of the suit properties to the children of her step-sister and come to charities. She also alienated some properties to defendants 2 to 20. She died issueless on Sept. 24, 1975 at a ripe age of 70.
5. On Dec. 29, issued a registered lawyer's notice to Channabasamma alleging that he was the nearest heir entitled to succeed to all the properties left behind by Halaswami and calling upon her to deliver to him the possession thereof. On Jan. 6, 1960, the lawyers of Channabasamma issued a reply thereto denying. the plaintiff's right to succeed to the properties of Halaswami and asserting to the contrary that she was the nearest heir. In that notice it was alleged that Halaswami had bequeathed all. his properties to Channabasamma by his testament dt. Oct. 19, 1959.
6. The plaintiff while denying the right of Channabasamma to succeed to the properties of Halaswami and also characterising the Will set up by her as an outright and rank forgery, instituted a suit for declaration of his right and title to and recovery of possession of the suit properties. He also claimed past mesne profits estimated at Rupees 5,400/- from the date of death of Halasswaim up to the date of alienations to different defendants. He has challenged those alienations, as fraudulent and without authority of law.
7. Channabasamma resisted the suit contending inter alia:
That she was the nearest heir to Ralaswami entitled to succeed to the properties left behind him as per the provisions of the Mysore Hindu Law Women's Right to Property Act, 1933 (Act No. X of 1933) read with the Hindu Succession Act, 1956 (Central Act 30 of 1956). She was residing with Halaswami in the same house for several years prior to his death, she attended on him during his life time and after his death, it was she who performed all the obsequies, Halaswami had executed a Will on October 19, 1959 (Ext. D-11) bequeathing all the suit properties in her favour and after his death she got the katha of those properties transferred in her name. He executed the will while he was in a sound disposing state of mind. That Will was left in the custody of one Arkachary Rudrapa who after the death of Halaswami handed it over to her and thereafter she,herself executed a Will on December 17, 1959 (Ext. P-30) bequeathing those properties to her near and dear relatives and charities.
She has admitted the alienations made by her in favour of the defendants, but she asserted that those alienations were found necessary to clear the debts left behind by Halaswami; to discharge the tax arrears-, to meet his obsequies; and to effect repairs to her house which was in a dilapidated condition
The other defendants also filed written statements more or less raising the same contentions as those taken by Channnabasamma. it is therefore not necessary to refer to them in detail.
8. Upon these pleadings, the trial Court framed the following main issues:
1. Does the plaintiff prove that he is the nearest agnatic relation of Halaswami and is entitled to succeed to his estate?
2. Does defendant No. 1 prove that the alleged Will dt. 19-10-1959 is genuine and was executed by Halaswami and that he was then in a sound and disposing state of mind?
3. Does defendant No. 1 prove that she is the nearest legal heir of Halaswami and entitled to succeed as per the provisions of Act X of 1933 of the Mysore State viz., Hindu Law Women's Right to Property Act and whether the provisions of the said Act apply to the facts of this case?
4. Does the plaintiff prove that defendants 2 to 16 in collusion with defendant No. 1 have taken the sale deeds from defendant No. 1 as stated in Para11 of the plaint with a view to defraud the plaintiff And help defendant No. 1 being aware that defendant No. 1, has no right in the properties mentioned in these deeds?
5. Do defendants 2 to 16 prove that the alienations referred to in para-11 of the plaint are binding on the plaintiff?
9. In support of the case, the plaintiff has given evidence and also produced documents marked as Exts. P-1 to P.65. He has also examined one more witness. The defendants in turn have examined 18 witnesses including defendant, 1 to 9. The documents produced by them have been marked as Exhibits D-I to D-60.
10. The trial Court upon considering the said evidence, held that the Mysore Hindu Law Women's Right to Property Act has no application to the case of the parties since its provisions are inconsistent with the provisions of the Hindu Succession Act, 1956. By applying the provisions of the Hindu Succession Act, the Court has ruled that the plaintiff was the nearest heir entitled to succeed to the estate of the deceased Halaswami and not Channabasamma.
On the question relating to the validity of the Will (Ext. D-11), the trial Court held that it was surrounded by grave suspicious circumstances and the propounder of the Will has not proved its due and valid - execution by removing the suspicious' circumstances by cogent and satisfactory evidence, it further held that the evidence of the scribe and attestors was artificial.
On the issue relating to the validity of the alienations in favour of defendants 2 to 16, it was held that they were made by Channabasamma without a semblance of right with a view to defraud the plaintiff.
With these findings, the trial Court decreed the suit in favour of the plaintiff with past and future mesne profits as prayed for.
11. In this appeal, upon the contentions urged by counsel on both sides, the following two principal points arise for consideration:
(1) Whether Channabasamma wais entitled to succeed to the estate of the deceased Halaswami to the exclusion of the plaintiff?
(2) Whether Channabasamma has proved that Halaswami executed the Will (Ext, D-11) bequeathing the suit properties in her favour ?
If these questions are answered against Channabasamma. then there would be one incidental question for
further consideration, that is, regarding the right to claim the house in her possession in lieu of her maintenance.
12. It is not in dispute that if Channabasamma falls within the category of 'agnate' as defined under the Mysore Act X of 1933, then she would be the legitimate heir to Halaswami. The cardinal question, therefore, is whether she was entitled to rely upon the definition of 'agnate' in the Mysore Act X of 1933 after the Hindu Succession Act, 1056 came into force. It may be relevant to remember that the Hindu Succession Act came into force on June 17, 1956 and Halaswami died on December 6, 1959.
13. We will now proceed to examine the first question with reference to the relevant provisions under both the enactments. The Mysore Act X of 1933. Section 3 (1) (a) . 'Agnate, means a relative connected by an unbroken line of male descent from a common ancestor, and includes a female related to an agnate by marriage. Section 4 provides for the order of Succession. Section 4 (1) , The succession to a Hindu male dying interstate shall, in the first place, vest in the members of the family of the porosities mentioned below,. and in the following order:-
(i) the male issue to the third generation;
(ii) the widow;
(iii) the daughters;
'Section 4 (2) :
On failure of the family of the propositus, family of the father of the propositus mentioned below. and in the following order:-
(i) brothers' male issue to the second generation;
Section 4 (3):
On failure of the family of the father of the porosities, the succession shall pass to the family of the paternal grandfather, and next thereafter to the family of the paternal great-grandfather, the members of each family ranking among themselves in the same relative order as the members corresponding to them in the family of the father.
Sections 4 (4), 4 (5) -and 4 (6) are omitted. -
Section 5 deals with the order of preference among the heirs. It provides :
'Except as otherwise specifically provided in the preceding section and in Section 12, the order of preference among heirs shall be regulated by the following rules:-
Firstly, a nearer line shall exclude one more remote.
Explanation to Rule I:- The descendants of the porosities constitute a nearer line than those of the father, the descendants of the father a nearer line than those of the grandfather, and so on, up to a limit of three degrees from and exclusive of the common ancestor in each case.
Secondly, within each line limited as aforesaid, agnates shall be preferred to cognates irrespective of degree.
Thirdly, among agnates and likewise among cognates, heirs nearer in degree to the propositus shall exclude those more remote; but where the degrees are equal, a male shall be preferred to a female.'
(Rest omitted as unnecessary)
We now move on to the corresponding provisions under the Hindu Succession Act, 1956.
Section 3(1) :
'Agnate' : A person is said to be agnate if the two are related by blood or adoption wholly through males.
(1) Save as otherwise expressly provided in this Act,-
(a) any text, rule, or interpretation of Hindu Law or any custom or usage as part of that law irk force immediately before the commencement of this Act, shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act 4hall cease, to apply to Hindus in so far it is inconsistent with any of the provisions contained in this Act.
The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:-
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class 11 of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
14. Section 4(1)(a) of the Hindu Succession Act supersedes the pre-existing customary usage with respect to any matter for which a provision is made; and Section 4(1)(b) thereof supersedes all other pre-existing laws in so far as they are inconsistent with any of the provisions contained in the Hindu Succession Act. In other words, all antecedent laws to the extent that they deal with matters which are inconsistent with the provisions of the Hindu Succession Act shall cease to have force and effect.
15. Mr. Sunderaswamy, learned counsel for the appellants and Pramila for an intervener, however, urged that both the aforesaid enactments were intended to ameliorate the conditions of women and our approach should not result in the deprivation of their right when particularly the Hindu Succession Act was also intended to enlarge their existing right and to confer more benefits on them. According to them, both the enactments are in part material and 'should therefore be construed together as one Code and explanatory to each other.' Craies on Statute Law. Seventh Edition, Page 134. To effectuate the intention of the Legislature, the counsel urged that the word 'agnate' defined under the Mysore Act X of 1933 should be read into the Hindu Succession Act.
16. It is true that the Mysore Act X of 1933 has not been expressly repealed. But in view of the overriding effect given to the Provisions of the Hindu Succession Act, we 'must first of all examine whether the Hindu Succession Act contains Provisions covering the rule of Succession to the estate of Halaswamy. Section 8 of this Act covers the general rules of succession in regard to a male Hindu dying interstate. It provides that the property of a male Hindu dying intestate shall devolve according to the provisions hereunder. His property shall devolve firstly upon the heirs specified in Class I of the Schedule and secondly, if there is no heir of Class I then upon the heirs in Class 11 of the Schedule; and thirdly, if there is no heir of the two Classes, then upon the agnates of the deceased, and lastly, if there is no agnate, then upon the cognates of the deceased. Section 9 provides orders of succession among the heirs in the schedule. It provides thereunder that heirs in Class I are'to succeed simultaneously; they form, in other words, one group of heirs and succeed in a body-, and heirs mentioned in Class 11 are excluded when their is single heir in Class I. He succeeds in preference to all others mentioned in Class .11. The order of succession amongst heirs in Class 11 of the schedule is quite different. The entire group is divided into 9 entries. The heirs mentioned in any one entry share equally in view of the provisions contained under Section 11. Any heir mentioned in the first entry is preferred to another heir mentioned in the second entry, But when we turn to Sections 4 and 5 of the Mysore Act X of 1933 we find that the scheme provided thereunder is quite different and in fact inconsistent with the order of succession provided under the Hindu Succession Act. Under Sections 4 and 5 of the Mysore Act X of 1933 among the heirs, the nearer will, exclude one more remote and they shall among themselves take in equal shares (per capita) with the male issue of the propositus taking according to stork (per stirpes). But the order of succession provided under Section 9 and the distribution of property among heirs in Class I under Section 10 of the Hindu Succession Act are quite different. They shall take the prescribed shares simultaneous1y and to the exclusion of all other heirs. These provisions are apparently repugnant to each other and there appears to be no scope at all for the appellants' counsel to rely upon the provision of the Mysore Act X of 1933 to claim a preferential right to succeed to the properties left behind by Halaswami.
17. The word 'agnate' has been defined under both the aforesaid enactments. The definition of that word under Section 3 (1) (a) of the Mysore Act X of 1933 is an artificial definition. It no doubt includes a female related to an agnate by marriage. This is quite different from the definition under the Hindu Succession Act whereunder it is defined to mean 'a person is said to be agnate if the two are related by blood or by adoption wholly through males'. If the word 'agnate' defined under the Mysore Act X of 1933 is read into the provisions of the Hindu Succession Act, Channabasamma will have to be preferred, But it would be impermissible to import a definition from one Act to *interpret the provisions of another Act when the Legislature has defined the same word under both the enactments. The word 'agnate' defined under Section 3 (1) (a) of the Mysore Act X of 1933 is only an aid to construe Section 4 thereof. Similar is the purpose of the definition of 'agnate' in Section 3(1) of the Hindu Succession Act. we cannot, therefore, ignore the definition of 'agnate' under the Hindu Succession Act and rely upon its definition under the Mysore Act X of 1933. That would be contrary to the canons of construction.
18. Under the Hindu Succession Act the Shastric difference between gotraja sapindas and bhinna-gotra apindas has been maintained. Agnates have been naturally preferred over the cognates. The female relations of the deceased have been conferred many rights which they never enjoyed before. As daughter she now inherits to her father's estate. As widow she inherits to her husband's estate and as mother she inherits to her son's state. A daughter, a widow and a mother have been placed on the same footing as a son. With the overriding effect given under Section 4, it sweeps away all the inconsistent provisions under the Mysore Act X of 1933 not including the definition of the word 'agnate' thereunder, So far as the case of intestate succession to a male is concerned, the Act Provides an entirely new scheme of heirs and it is completely an occupied field with no scope for survival of the provisions of Mysore Act X of 1933.
19. It was however urged for the appellants that the Mysore Act X of 1933 barring Section 6 has not been expressly repealed and the intention of the Parliament was therefore, to keep it alive for the benefit of the women in the Karnataka State. The counsel referred to us the provisions of the Miscellaneous Personal Laws (Extension) Act, 1959 (Act No. 48 of 1959) by which Section 6 of the Mysore Act X of 1933 was repealed.
20. We have examined the purpose of repealing Section 6 of the Mysore Act X of 1933. It appears to us that that repeal was a necessary consequence of the extension of the Hindu Gains of Learning Act, 1930 to the State of Karnataka as well. The Miscellaneous Personal Laws (Extension) Act, 1959 amended S. 2 of the Hindu Gains of Learning Act, 1930 by extending the Act with effect from February 1, 1960 throughout the territory of India except Jammu and Kashmir while simultaneously repealing Section 6 of the Mysore Act X of 1933. Section 6 of the Mysore -Act X of 1933 is analogous to the provisions of the Hindu Gains of Learning Act, 1930 and it became redundent and se was repealed. No other inference is possible in this context.
Re : The Second Question :
21. Channabasamma in her written statement has averred that Halaswami executed the Will on October 19, 1959, (Ext, D-11) bequeathing all the properties in her favour and it was his last testament The burden of proof of due execution of that will by Halaswami was entirely on Channabasamma being its propounder. It was for her to establish by cogent evidence that the Will was genuine and executed by Halaswami when he was in a sound disposing state of mind. In proof of due execution of the Will she has examined Shivalingappa (D. W. 5), Laxmanarao (D. W. 6), Kashinathiah (D. W. 7) and Bannikodi Rud-rappa (D W. 8). We will examine their evidence a moment later.
22. There is another aspect to be borne in mind in this context. Although the test to be applied in regard to the execution of a Will would be the usual test of the satisfaction of a prudent mind in such matter, there is yet one important feature which distinguishes the Will from other documents. That has been explained by the Supreme Court in H. Venkatachala Iyengar v. B. N. Thimmajamma AIR 1969 SC 443 at p. 452, para 20. Gajendragadkar, J.. as he then was, observed:
'There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the Will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases he Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator,'
23. It is in the light of these principles, we will first proceed to examine whether the execution of the will in the present case is surrounded by suspicious circumstances. Does the Will appear to be on the whole unnatural, improbable in the light of relevant circumstances? We find that there is one precious piece of suspicious circumstance. which is glaring and staring at Channabasamma. It was the omission to articulate the fact of execution of Ext. D-11 in her own will Ext. P-30. It is not in dispute that Channabasamma executed the Will on December 17, 1959 (Ext. P-30) bequeathing most of the properties left behind by Halaswami to her step-sister's children and other relatives. The material portion of the Will reads as follows:-
'I am the nearest heir to the said Halaswami according to law and entitled to all the immoveable and moveable properties of the deceased and I have been in enjoyment of all the movable. and immovable properties which were being enjoyed by the said Halaswami As I have no issues and as I am becoming old. I have decided to give my schedule properties as mentioned herein below with absolute rights thereto to my relatives and charitable institutions. under this Will.'
The said Will was executed by Channabasamma on the eleventh day of the death of Halaswami when 'Kailasasamardhane' was being performed. There is absolutely no mention in that Will that she became entitled to the properties as a legatee under the Will executed by Halaswami. According to her evidence, she was in possession of Ext. D-11 when she executed Ext. P. 30, If that is so, it was natural for her to state in plain terms that Halaswami had executed the Will bequeathing all his properties in her favour, and she wanted to give those properties to her relatives and charitable institutions. The fact remains that there was no such reference in Ext. P-30. She has, however, taken pains to explain in her evidence that the recitals in- Ext. P-30 are sufficient ' indication that she has also become the owner of the properties by virtue of the Will of Halaswami. She has gone a step further and stated that she showed the Will of Halaswami to the writer of Ext. P-30 - Mallabady Virupakshappa and asked him to write it accordingly. To quote from her own words :
'Mallabady Virupakshappa - writer of my will - lives at Kayipet. He is also not related to me. He is Jawali Lingayat. I asked him to write the Will, as per the Will of HalaswarnL I had not got prepared any draft of the Will.'
In support of this version, Channabasamma has examined two attesting witnesses of her Will, viz., Veerappa Puttappa Emme (D. W. 12) and Eswarappa (D. W. 15). Both these witnesses have no doubt corroborated her statement. D. W. 12 has stated that Channabasamma. asked the scribe 'why have you not written about Halaswami's Will in my Will'. Then the scribe was said to have replied that he has already written that she is 'Hakkudaralu' and 'Varasudaralu' and that would be a sufficient indication that she has become the owner of the properties under the Will of Halaswami. According to the scribe 'Hakkudaralull means, whatever is got by the Will and 'Varasudaralu' means, whatever is got by relationship. Upon that alleged explanation from the scribe, Channabasamma appears to have kept quiet. It has been so repeated by Eswarappa (D. W. 15). The words *Hakkudaralie' and 'Varasudaralu' appear to have been culled out by those witnesses from the following recitals in Ext. P-30.
(Matter in vernacular omitted here-Ed) We got this portion translated by our official translator and the translated version reads thus :
'I am the nearest heir to the said Halaswami according to law and entitled to all the movable and immovable properties which were being enjoyed by the said Halaswami)
There is no obscurity in the language' The disjointed Kannada words 'Hakkudaralull and 'Varasudaralu' referred to by those witnesses are no doubt used in Ext. P-30, but they do not denote the alleged twin rights of Channabasamma as explained by the witnesses. The recitals in Ext. P-30 indicate that she became the owner of all the properties left behind by Halaswami being the nearest heir entitled to according to law. The evidence aliunde produced in this context appears to be an afterthought to cover up the deficiency in Ext. P-30,
Secondly, we have no credible link to support the version given by Channabasamma that she has asked the scribe to write her Will as per the Will of Halaswami, The only proper person to lend corroboration to her version would be the scribe himself. Unfortunately. the 'scribe Virupakshappa has not, been examined although he was cited in the list of witnesses submitted to the Court on November 7, 1966. The records also indicate that summons was issued to Virupakshappa, but for the reasons best known to Channabasamma he was not put into the witness box. If Virupakshappa had been examined the explanation of Channabasamma that she showed the Will Ext. D-11 and asked him to write accordingly would have been tested. The non-examination of Virupakshappa further strengthens our suspicion that Ext. D-11 was not existing on December 17, 1959 when Ext. P-30 was executed. In this context, it would be useful to refer to the following observation of the Privy Council in Mt. Biro v. Atma Ram, AIR 1937 PC 101 at p. 1041' in which a similar omission in a testament was commented upon:
'In July 1920, she herself made a Will which confirmed the oral gift to Bhagat Ram and gave other properties to educational institutions. How does she describe in it the nature of the estate held by her and her power of disposing of it? It is significant that she does not say that she had received the estate under her husband's Will, but merely mentions the fact that she was holding it 'in the capacity of heir' of her hushand, Now, this description, which is usually employed to denote the estate which a Hindu widow gets upon her husbands' dying intestate, does not convey any idea of her having received the estate under her husband's Will. If that Will had been the foundation of her title, she would have made a prominent mention of it in this document, which was executed by her in relation to the property inherited by her from her husband.'
In the instant case, there was not much time lag between the death of Halaswami and the execution of Ext. P-30 by Channabasamma. She was so eager to execute her Will hat she could not even wait for a day after the 'Kailasasamaradhane... of the deceased. She selected the eleventh day of the death of Halaswami when not less than one thousand people gathered for the said ceremony. If there had been a Will of Halaswami in her favour, and if it were the foundation of her title to the suit properties, it would have been fresh with grateful memories in her mind and she would not have failed to make a prominent mention of it in Ext. P-30. This significant omission coupled with the non-examination of the scribe casts a cloud of suspicion over her case.
24. Channabasamma was in the habit of seeking legal advise on all matters. That has come from her own evidence. The recitals in Ext. P-30 also indicate that she must have had a legal advice for drafting her Will. Every sentence has been meticulously worded and marked with perspicuity. The attesting clause, in particular, at the end of the deed has been written in conformity with the legal requirement. Adroitly, it could not, have been the art of a layman. like that of the scribe. She had a host of relatives and was surrounded by advisers and advocates. Ganjiveerappa and his junior Nagaraja Rao were always handling her cases. The husband of one of the legatees under Ext. P-30 was also a lawyer. How then the existence of the Will of Halaswami was totally forgotten at the time of writing Ext. P-30? The reason, in our opinion, is not far to seek. It has been revealed from her own evidence. She has stated:
'I was contending that I am the nearest heir according to law to Halaswami and the plaintiff was contending that he was the nearest heir according to law to Halaswami. Channbasavaswamy and Ganjiveerappa had gone to Bangalore to consult lawyers. I do not remember in how many days they returned . '
It is clear from this part of her evidence that she was claiming the suit properties not as a legatee under the alleged Will of Halaswamy, but as his legitimate heir entitled to succeed. Ganjiveerappa, and Channabasavaswamy had gone to Bangalore to consult lawyers on the question. The first one was her lawyer and the second was her relation. Evidently they must have gone to Bangalore immediately after the death
Halaswami. If Halaswami had left behind a Witt, it would be unnecessary for them to go to Bangalore for obtaining legal opinion on the rival claims of Channabasamma and the plainfiff.
25. The other intrinsic evidence by which we could bring out the nugget of truth could be culled out from the recitals in the two deeds in question. We will first read the material portion of the Will said to have been executed by Halaswami (Ext. D-11).
'I have given my entire share of house and shop situate at our 'Halematha', near Nagannanagarad of the said city to Nanjundiah, undivided son of T. M. Rudriah, out of my relatives. I have received Rs. 9,0001- and Rs. 2,500/- from Hundekar Veerabbadrappa and Byadigi Mlippiah respectively ' and executed hypothecation deeds in their favour. In case the loans in respect of the said bonds are not repaid by me, my junior aunt alone has to discharge the same. The loan should be repaid from out of the consideration realised by the sale of these two properties, ie., house, where Military hotel is running at present, out of the properties hypothecated in favour of the aforesaid Hundekar Veerahhadrappa and the house hypothecated in favour of Byadigi Muppiah, out of the remaining amount, a sum of Rs. 2,500/should be paid in cash to the President of Sri Abhinava Renuka Mandir, Davanagere, for constructing two rooms in the premises of the said Mandir in my name for the use of the students, and a sum of Rs. 2,500/- should.be paid in cash to the President, Veerasaiva Vidhyavardhaka Sangha, Davanagere, for constructing two rooms in the premises of Sri. Sivayoga Mandir, in my name for the use of students.'
It will be observed from the above recitals that Halaswami bequeathed most of his properties in favour of Channabasamma. He has also given a portion of the house and Malige situate in Halematha near Nagannanagaradi in Davanagere to Nanjundiah the undivided son of T. BE Rudriah. Halaswami had earlier hypothecated two items of properties, one for Rs. 9,000/- and another for Rs. 2,500/- to Hundekar Veerabhadrappa and Byadigi Muppiah respectively. He has stated in his Will that in the event of the said debts being not discharged by him it would be the responsibility of Channabasamma to clear them, Accordingly, he has directed in his VAR that the house where the military hotel was there, should be sold for the purpose of clearing off the debts due under the mortgages and out of the balance remaining, a sum of Rs. 2,5M/should be paid in cash to the President of Sri Abhinava Renuka Mandir, Davangere for constructing two rooms in the premises of the said Mandir in his name, for the use of the students and a further sum of Rs. 2,500/- should be paid to the President, Veerasaiva Vidyavardhaka Sangha, Davangere for constructing two rooms in the premises of Sri. Sivayoga Mandir again in his own name for the use of students.
26. Now we will read the relevant portion of the Will (Ext. P. 30) executed by Channabasamma,:
'I am the nearest heir to the said l1alaswami according to law and entitled to all the immoveable and movable properties of the deceased and I have been in enjoyment of all the movable and Immovable properties which were being enjoyed by the said Halaswami. As I have no issues and as I am becoming old, I have decided to give my schedule properties as mentioned hereinbelow with absolute rights thereto to my relatives and charitable institutions, under this Will. I have not alienated my properties previously in any manner. This 'VT111 being my last Will, should come into force after my death. If there are any dues in respect of tax and loan, etc., relating to the respective schedule properties, the respective sharers who take the respective properties should be liable for discharging the same.
I have decided to give E Schedule properties belonging to me to the President, Veerasaiva Vidhyavardhaka Sangha, Davanagere, City. The President of the said Sangha should go on giving scholarships perpetually in my name to Veerasaiva girl students, out of the income realised from the said property.
I have decided to give my' Schedule properties to the President, Sri. Abhinava Renuka Mandir situate at Davanagere City. The President of the said Sangha should -go on giving scholarships perpetually in my name to Veerasaiva students, out of the income realised from the said property.'
The most astonishing feature in Ext. P-30 is that Channabasamma has not made any mention as is the charitable dispositions made by Halaswami. She has also not made any provision in her Will to carry out the Law directions of Halaswami. On the contrary, without referring to the said dispositions, she has bequeathed 'K Schedule property to the President of Veerasaiva Vidravardhaka Sangha Davanagere City with a direction to that President to give scholarships perpetually in her name to Veerasaiva girl students out of the income realised fr the said property. That IF Schedule property bears Doors No. 3568/19 which perhaps is one of the houses at Renuka Extensuxx She has also given another house bearing Door No. 35W19 which she has set out under 'F' Schedule to the President of Sri. Abhinava Renuka Mandir at Davanagere for giving scholarships to girls m her name.
These recitals clearly indicate the doubtful existence of the Will of Halaswami when Ext. P-30 was executed.
27. There are, however, three circumstances highlighted on behalf of the appellants in proof of the genuineness of the Will (Ext. D-11). The first concerns with the application dt. Dec. 12, 1959 said to have been given by Channabasamma to the Municipal Commissioner for transfer of Katha of the suit properties in her name; the second relates to the reply notice dt. Jan. 6, 1960 issued by the Advocates of Channabasamma; and the third pertains to the registration of Ext. D-1 1.
We will examine these contentions in turn.
28. On the first contention, it may be relevant to recall that on Dec. 14, 1959, the plaintiff filed an application (Ext. P-27) seeking transfer of Katha in respect of the suit properties in his name. That application was entered in the General Receipt Register of the Municipality under No. 4334 which has been marked as Ext. P-51 (a), Thereafter according to the procedure, that application was transmitted to the Revenue Division for entry in the Revenue Register. On Dec. 18, 1959, it was registered in the Revenue Register under G. Ft. No. 1286. The case of Channabasamma was that she had filed a similar application even two days earlier to Ext. P-27 along with a copy of the Will of Halaswami (Ext. D-11) for transfer of Katha of the same properties in her name. The question herein is whether there was any such application along with a copy of Ext. D-11. Her alleged application has been marked as Ext. D-1?. Tt was dt. Dec.* 12, 1959. But it does not find a pl-ice in the General Receipt Register of the Municipality. The entire Register has been marked as YW. P-51. Admittedly, her application was not entered in that register. It was, however, contended that that application was entered in the Revenue Register under G. R. No. 1435/59-M which has been marked as Ext. D-17 (e). But unfortunately we do riot find the date on which it was entered in the Revenue Register. The said Register, according (D. W. 10) was missing not produced. So much evidence regarding the application either in the Register or in the the Municipality.
The omissions in this regard were, however, sought to be explained in the evidence of G. R. Rangiah Naik (D. W. 9), Noor Ahmed Jan (D. W. 10) and D. A. Krishna Murthi (D. W. 11). Rangiah Naik was the then Assistant Commissioner in the Davangere Municipality. He retired in Nov., 1960. He has stated that Channabasamma had given her application for transfer of Katha on Dec. 12, 1959 along with a copy of the Will (Ext. D-11) accompanied by a vakalat of her Advocates Sri. Ganjiveerappa and H. V. Nagaraja Rao. He has also stated that he personally saw the original Will produced by Channabasamma and returned it asking her to produce it before the Revenue Officer whenever it was required. He has further stated that he made an order directing the transfer of Katha in her name after the receipt of a report from the Revenue Officer Sri. D. A. Krishna Murthi (D. W. 11).
There are too many infirmities in this part of the case. Rangiah Naik had to admit that all papers and applications received by the Municipality addressed to the President or the Municipal Commissioner were first noted in the General Receipt Register and thereafter they were routed through the concerned departments. The date seal of the Municipality was also required to be put on the applications received and the entries Made in seriatum. . That procedure was faithfully followed in respect of the application filed by the plaintiff; but not in regard to the application of Channabasamma. When this irregularitv was confronted to Rangaiah Naik (D W. 9), this is what he has stated:
'It is incorrect to suggest that Ext. D-17 and its enclosures were not received in Municipality on 12-12-1959. 1 cannot say why Ext. D-17 and its enclosures as well as the orignal Will said to have been produced along with Ext. D-17 do not bear the Municipal date, and the general receipt register numbers. I deny the suggestion to cover up these discrepancies, even though my abbreviation was I.P. I have subsequently put tMP.71
abbreviation was I.P. I have subsequently put 'M'
In his re-examination, he continued:
'I passed orders Ext. D-17 (d). It is possible that on account of pressure of work and galata that the municipal date seal and general receipt register might have been missed to be put on Ext. D-17 and its enclosures. In pressure of work I might have forgotten to put my initial to the enclosures of Fxt. D-17 including the vakalat. To the known person, if they present applications I put I. P. and if unknown persons present applications I put
We gave our anxious consideration to the evidence of this witness only to be left with an ambivalent blend of disgust and pitV for his conduct and behaviour. It is surprising that a public officer like the Commissioner of a Municipality had to forget the procedure prescribed by law for receiving and disposing of applications for transfer of Katha. He did not even issue notice to, the plaintiff who was the earlier applicant for a similar relief in respect of the same properties. He made an order in favour of Channabasamma behind the back of the plaintiff. When the plaintiff came to know of that order, he filed another application (Ext. P-54) on Feb. 5, 1960 requesting not to transfer the Katha of the suit properties in her name without giving an opportunity to him. On Sept. 13, 1960, D. W. issued a notice (Ext. D-2) to the plaintiff, but he closed the matter by recording that the Katha had already been transferred in the name of Channabasamma and it could not be altered without a succession certificate from the Court,
In our opinion, no credence can be given to the evidence of this witness. The only inference that we could draw from his evidence is that there was no such application presented by Channabasamma on Dec. 12, 1959 along with a copy of the Will (Ext. D-11) and it must have been introduced subsequently contrary to all the practice and procedure. If there had been any such application, it would have been entered in all the concerned registers maintained by the Municipality. D. W. 9 as required under law would have treated it as a disputed matter and disposed of the same after giving an opportunity to both the, applicants. There is no doubt that D. W. 9 has come forward to oblige Channabasamma.
Our inference gets confirmed if we read further the evidence of D. W. 9. According to him, when an application was presented in person, he would put the abbreviated form 'I. P., meaning thereby 'in person' and he has put that abbreviation on the application of the plaintiff (Ext. P-54); but he has not put any such abbreviation on the application (Ext. D-17) of Channabasamma. He had put the letter 'M' on her application. He has no doubt explained in his re-examination that if aknown person presented an application he would put 1. P.' and if an unknown person presented it he would put 'M'. Assuming. that he was consistent in his practice, we find two 'M's on Ext. D-l?; one at the top of the application and another on the reverse at the bottom. 'M' at the top bears the date Dec. 12, 1959 and the 'M' on the reverse bears the date Feb. 1, 1960, We have seen these dates from the original record. There was no explanation from D. W. () in regard to these two dates with two 'M's at different places.
Furthermore, if Ganjiveerappa had given his vakalat for Channabasamma, we fail to understand why she should have personally presented the application and why her Advocate has not presented it.
29. With that, we now proceed to consider the next contention urged for the appellants.
It was urged by Sri. Sunderaswamy, that there was a reference to the Will of Halaswami in the reply notice dt. Jan. 6, 1960 (Ext. P-25). It was urged that the lawyers could not have referred to that Will in the said notice it it was not within their knowledge or in their possession. Ext. P-25 was dt. Jan. 6, 1960. It was signed by M/s. H. Venkobachar and H. V. Nagaraja Rao, Pleaders, Davangere. It was addressed to the advocates of the plaintiff. While disputing the right of the plaintiff as being the alleged heir of Halaswami, they had asserted that Halaswami had executed a testament dt. Oct. 19, 1959 bequeathing all his properties in favour of Channabasamma. It is true that the lawyers have referred to Ext. D-11 in the said reply notice. But, the mere fact that there was a reference to the date of the Will does not itself indicate that there was such a Will existing on that day. Firstly, there is no evidence that those lawyers actuallv saw Ext. D-11 before issuing the notice. They have not entered into the witness-box to speak to the source of their knowledge. Secondly, if the lawyers Mls. Venkobachar and Nagaraja Rao had in their possession Ext. D-11 on the said date, they would not have failed to instruct Channabasamma to register it along with her own Will Ext. P-30. In our opinion, it would be wrong to seek an inference about the existence of the genuine Will of Halaswami from the mere mentioning of it in the said reply notice. It would be certainly hard to find it when it was not even referred to in Ext. P-30.
30. We now turn to the third circumstance relied upon by the learned counsel for the appellants. That pertains to the registration of the Will of Halaswami. Channabasamma presented that Will, for reg:istration on Feb. 5, 1960 and it was registered on Mar. 11, 1960. These are undisputed facts, but nothing turns out from them. The pertinent question to be asked is, why she did not register it along with her Will Ext. P-30 on Dec. 17, 1959 if she was really in possession of it. Her explanation for not getting both the Wills registered simultaneously runs as follows:
'The Will brought by Rudrappa and given to me was not registered. I did not ask him as to why it had not been registered. Rudrappa did not tell, me that it could be registered afterwards. Channabasaviah did not tell me that Halaswamils Will also may be registered when he advised me to have my Will registered. I myself said or, that day that Halaswami's Will can be registereal after consulting a vakil.'
It is clear from this part of her evidence that she did not take the Will Ext. D-11 for registration on the ground that Channabasaviah did not tell her that it could be registered and she also thought that she could take that step after consulting her lawyer. We have earlier stated that she was not lacking with the advice of lawyers. Sri Ganjiveerappa and Sri. Nagaraja Rao were always there. Sri. Jayadeviah - the son-in-law of Annapurna - was hovering around her. Ext. D-11 was the source of her title to secure all the properties of Halaswami. If it was available with her on the date of executing her Will Ext. P-30, she would not have falded to get it registered when she took the trouble of registering her own Will. The fact that she took her own time of two months to register Ext. D-11 indicates that in all probability, it was not in her possession or knowledge when she registered her Will Ext. P-30.
31. We shall now proceed to examine the evidence produced by Channabasamma in proof of the execution of the Will of Halaswami. We will, take a broad picture of this part of the case without too much concentrating on the contradictions pointed out by Sri. Krishna Murthy learned Senior Advocate ,for the respondents. Sivalihgappa (D. W. 5) was the scribe; Laxmanrao and Kashinathiah (D. W. 6 and D. W. 7) were the attestors. The case made out by Channabasamma (D. W. 4) was that Halaswami executed the Will bequeathing all the suit properties in her favour, without her knowledge and during her absence, and his intention was to keep it as a guarded secret. He kept the deed with Bannikodi Rudrappa (D. W. 8) who was stated to be his confident and who resided at a place fairly away from Davangere City.
32. D. W. 5 the scribe of the Will was not a professional writer. He has not written any Will or document before writing Ext. D-11. It appears that Halaswami sent for him without disclosing the reason, When he went there, Halaswami was alone in the house. He had not even kept the attesting witnesses ready. When he started writing the Will, Halaswami was looking at the window and at the same time reading the draft of a Will. After 4 or 5 lines were written, Laxmanrao (D. W. 6) came to the house of Halaswami. He was a tailor. He came there to demand tailoring charges of the garments which he had stitched for Halaswarni ten or fifteen days earlier. Halaswami asked him to wait. The writing of the Will continued. Hal.aswami was again looking through the window. He then saw Mallappa going on the road and Halaswami asked Laxmanrao to call Mallappa. Laxmanrao went outside and came with Mallama. This Mallapa has not been examined as a witness, Therefore, we do not know anything about him. The evidence of D. W. 5 further shows that when he went on writing further, Halaswami saw Kashinathiah (D. W. 7) going from Harihar Road towards railway line. Laxmanrao was again asked to call him also. Kashinathiah came and joined the 'writing party., The f act remains that Kashinathiah, Laxmanrao and Mallappa were all there by accident and they became the attesting witnesses. Sri. Krishna Murthy strongly criticised the evidence of these witnesses and according to him, it was not possible for Halaswami to sit inside his room and see the said persons when they were passing through the railway railings with the Nilgiri trees in front of the house. We do not, however concentrate on that criticism although it was not without force. We are only worried about why Halaswami if he wanted to execute the Will secretly and without even the knowledge of Channabasamma, should have chosen to invite the passersby as attesting witnesses. His intention and the act appear to be mutually destructive. It was certainly an unnatural conduct if not puerility of any person who wants to keep the execution of-such an important deed as sub rosa.
33. It was stated that after the execution of the Will, Rudrappa (D. W. 8) who was a resident of Bannikodi village came to the house of Halaswami. According to the evidence on record, he had met Halaswami on the previous clay and was asked to come on the next day that is, the date on which the Will was executed. He has stated that Halaswami was telling him that he would leave a Will in favour of Channabasamma. According to him, Halaswami gave the Will along with 2-3 papers and told him to deliver the Will to Channabasamma only after his death. This witness, even though he came to know of the death of Halaswami, did not go and hand over the Will to Channabasamma. It was only when Virupakshiah, a messenger from Channabasamma came to him, he thought of delivering the Will personally to Channabasamma. He did not, however, return the documents entrusted to him along with the Will. The said documents have been marked as Exts. D-29 to D-32. They did not see the light of the day before they were produced before the Court by D. W. 8 after so many years. We have perused those documents. They have no connection with the Will in question. We find it difficult to believe that Halaswami had given those documents for the safe custody along with the Will. D. W. 8 was an accused in a murder case. Of course he was acquitted. He was also an Agent of Ganjiveerappa. His younger brother Veerappa had purchased a site bequeathed under the Will. He was thus an interested witness.
34. We also do not see any reason why the Will should have been kept strictly sub rosa. Halaswami had no near or dear relatives to complain about the disposition dof his properties to Channabasamma or as a matter of fact to anybody else. There could not be any legitimate grievance from any quarter. Secondly, Halaswami did not want to spring a surprise giving all his properties to her. The idea to execute the Will apparently did not originate from Halaswami. It was indeed at the instance and request of Channabasamma. A passage in the cross-examination of Channabasamma at para. 82 will make this point clear :
'I was telling him 'you are a sickly man; convey all your properties to me. I was asking him like this from the time I went to his house after the death of Basalingamma. He used to say that he will do it. Just before 15 or 20 days before his death I asked him you had been telling that you will do something for me, please do it. To that he replied. 'I will do it'.,,
It is clear from this evidence that Channabasamma was pressing Halaswami to execute the Will in her favour since he was sickly and unmarried. According to her, even 15 or 20 days before his death, she reminded him to execute the Will. By then, if the story goes true, Ralaswami had already executed the Will. It was on October 19, 1959. if he had really executed the Will on that day, he would have told her or at least given some indication. That would be the natural conduct of any person who likes or loves the other.
35. Let us move on to consider the other part of the evidence of Channabasamma. She has stated that Rudrappa came with Virupkashappa and gave -her the Will and went away. What she further stated in this context appears to be interesting,
'I asked Rudrappa to read the Will. He went away to his village after reading the Will. He read the names of the attestors of the Will as Samnur Sivanna, Badami Veerappa, Kollor Ishwarappa and Mallappa, Rudrappa read the names of Shivlingappa as the writer of the Will.'
The persons mentioned above did not attest the Will which has been now produced as Ext. D-11. Laxmanrao (D. W. 6), Kashinathiah (D. W. 7) are the attesting witnesses to Ext. D-11 and not Samnur Sivanna, Badami Veerappa and Kollor Ishwarappa.
36. It appears that Halaswami did not keep the matter secret till his death. He told Channabasamma about two days prior to his death that he had already executed the Will in her favour. If that was true. fairness required him to get the Will from Rudrappa and deliver to her instead of putting her in some sort of agonising choice.
37. It was next urged for the appellants that it was natural for Halaswami to execute the Will in favour of Channabasamma since he h ad no other near or dear relatives and Channabasamma was alone looking after him and residing with him. It was also urged that the relationship of Halaswami with the plaintiff was bitter, and he would not have therefore left the properties for the plaintiff to inherit. It seems to us, that this is only one side of the picture. it was not as if the relationship of Haiaswami with Channabasamma was cordial. Halaswami had to defend two litigations instituted by Channabasamma. in 1939, Channabasamma adopted a minor boy called Rajasekariah alleging that she had the authority to adopt from her husband. The adopted child represented by Channabasamma filed a suit 0. S. No. 10/1939-40 for a declaration of his adoption against Halaswami and his mother Basalingamma. That suit was decreed by the trial Court, but on appeal preferred by Halaswami, the decree was reversed by the erstwhile High Court. of Mysore in R. A. Number 135/1940/41. The judgment of the appellate Court dated December 11, 1942, has been produced as Ext. P-24. On January 30, 1933, Channabasamma had filed another Original Suit No. 497/193233 claiming maintenance from Halaswami. That suit was decreed granting maintenance at the rate of Rs. 50/- per month. But upon appeal, the rate of maintenance was reduced to Rs. 25/-. The concerned judgments of the trial Court and the appellate Court have been produced as Exts. P-7and P-4, respectively.
From the aforesaid judgments, it is evident that Halaswami was not prepared to concede half of his properties to the adopted child of Channabasamma and successfully fought the litigation against her up to the High Court dislodging the adoption. He was also reluctant to pay her the maintenance. She obtained the decree for maintenance, she was driven to the execution every month to recover that small sum of Rs. 25/-. Against the background of this attitude of Halaswami, we fail to understand how he became all of a sudden so generous to give her almost all his properties under the Will. It is too difficult to conceive of the type of generosity attributed to Hala-wami towards a widow of more than 70 years without issues regard being had to human conduct what it is, in regard to properties.
38. It was, however, urged for, the appellants that the execution of the Will by Halaswami in favour of Channabasamma was quite natural since she was alone looking after him and residing with him till his death. But the plaintiff has seriously disputed this fact. Both the parties had adduced evidence in support of their respective contentions. We may not be justified in attaching much importance to the oral evidence produced by the parties since it is just oath against oath. We would like to examine the documentary evidence. Exts. P-18, P-19, P-20 and P-21 are the voters' lists produced by the plaintiff. They absolutely do not support the contention of Channabasamma. Ext. P-18 of the year 1952 which is a voters' list of Davangere Municipality shows that Halaswami and his servant Ramu were the only two occupants in his house. Ext. P-19- the voters' list of the year 1956 indicates that Halaswami was the onlv person residing in his house. Ext. P. 20 of the year 1959 making some alterations or additions in the existing voters, list does not show any addition so far as to the house of Halaswami is concerned. The position under Ext. P-21 is also no better. These documents thus indicate that Halaswanii was living in his house at the most with a servant and not at any rate with Channabasamma.
39. It was next urged that Channabasamma did not execute the maintenance decree after the death of Basalingamma and she must have gone and resided with him as stated by her. It is true that she executed the maintenance decree on1v up to 1948 and not thereafter. But nothing turns out from this fact in her favour on the question of residence in the house of Halaswami. Sri Krishna Murthy rightly contended that it was not necessary for her to execute the maintenance decree since Halaswami admittedly was bearing all the expenses of the family of Channabasamma after the death of his mother Basalingamma. Channabasamma herself has admitted this fact in her cross-exam; nation. She has stated thus :
'Annapoornamma has 8 daughters and one son It was Halaswami who was looking after and bearing all
the expenses of the family of Virupak shaiah and myself.'
If Halaswami was bearing all the expenses of the relations of Channabasamma, there was obviously no necessity for her to execute the maintenance decree and recover the paltry sum of Rs. 25/- per month. From this circumstance one cannot, however. reach the conclusion that either Channabasamma or her relations were residing in the same house along with Halaswami. It was not even the case of Channabasamma that her step-sister Annapoornamma with her children were residing in the house of Halaswami. They had their own house. Channabasamma under the ma:ntenance decree was given a separate house for residence. Therefore, the non-execution of the 'maintenance decree after 1948 cannot be a relevant factor to determine the residence of Channabasamma along with Halaswami.
If one looks to all these circumstances, the Will Ext. D-11 set up by Channabasamma, in our opinion, must fall to the ground.
40. There is yet another claim of Channabasamma which is relativelv of minor importance. Sri. Sunderaswarni urged that she was entitled as of right in lieu of her maintenance to the house in which Halaswami died as she was in possession of it. The said house is item No. 1 of the plaint 'A' Schedule. Sri Krishna Murthy very fairly conceded that she was entitled to a house in lieu of her maintenance under Section 14 of the Hindu Succession Act, but not the house under item No. 1 of the plaint 'A' Schedule as contended for. He urged that the maintenance decree itself gives the particulars of the house given to her and he has no objection for giving that house to her.
It seems to us that Sri Krishna Murthy is not unreasonable. We have earlier held that she was not residing in the house under item No. 1 of the plaint 'A, schedule. Nor it was given to her for residence under the maintenance decree. Ext. D-7 which is a Civil Register of Regular Suits of the year 1932-33, maintained in the Court of the Munsiff, Davangere discloses that she was entitled to maintenance at the rate of Rs 25/- per month along with a house for her residence. Therefore, she must be held entitled to only that particular house and not the house under item No. 1 of the plaint 'A' Schedule. The trial Court may identify that house if any claim is made on her behalf and allot the same to her legal representatives.
R. F. A. No. 69 of 1973.
41. This appeal by the 16th defendant has been preferred against the judgment and decree dated August 14,1972madein 0. S. No 25 of 1964, by the Civil Judge, Chitradurga so fas as it relates to item No. 16 in plaint 'A' Schedule property.
42. There is not much controversy in this appeal and it could be conveniently disposed of by referring to a few more facts. On June 13, 1954, defendant-16 has purchased the property set out under item No. 16 in a Court sale in Execution Case No. 35/1951-52. Halaswami challenged the validitv of that sale in the Miscellaneous Proceedings and upon becoming unsuccessful thereunder, he finallv instituted a regular suit in 0. S. No. I of 1958 in the Court of the District Judge, Shimoga, for a declaration that that Court sale was void and unenforceable The said suit has since been now transferred to the Court of the Civil Judge, Chitradurga, and renumbered as 0. S. No, 26 of 1964.
During the pendency of that suit, Halaswami died. Rudraiya filed an application to put him on record as the
sole legal representative of the deceased. Channabasamma made a rival claim. The trial Court rejected the claim of Rudraya and accepted Channabasamma as the legal representative of Halaswami.
On July 31, 1960. there was a compromise as between the parties resulting in the dismissal of suit as being settled out of court.
43. In the meantime, Rudrayya filed a Revision Petition in this Court challenging the order of the trial Court impleading Channabasamma as the sole legal representative of Halaswami. That Revision Petition was allowed with a direction to the trial court to decide afresh the rival claims of the parties to represent the estate of Halaswami.
44. We have already held in R.F.A. No. 4 of 1973 that Rudraiya was entitled to succeed to the properties left behind by Halaswami. In that view of the matter, the trial Court should now implead Rudraiya as the legal representative of the deceased Halaswami and proceed with the case.
45. It may be recalled that the suit filed by Rudraiya was decreed by the trial Court setting aside all the alienations complained thereof. Under that decree, item No. 16 which has been in the possession of the present appellant was also declared to be the propertv of Rudraiya on the ground that the alienation of that property was not valid and binding on Rudraiya. We must state here that the trial Court has not at all considered the evidence relating to the Court sale by which the appellant purchased the property under item No. 16. The trial Court abruptly came to the conclusion that all the alienations made by Channabasamma were illegal and not binding on Rudraiya. That finding, in our opnion so far as it relates to item No. 16 of the plaint 'A' Schedule cannot be sustained. Item No. 16 was not alienated by Channabasamma. It was as already stated,purchased in an execution
sale during the life time of Halaswami .The decree of the trial Court so far as it relates to item No.16 of the plaint 'A' Schedule shall therefore ,be set aside.
46. In the result and stated above, R. F. A. No.4 of 1973.fails and is dismissed. R.F.A No.69 of 1973. is allowed and the decree of the trail Court so far as it relates to item No. 16 of the plaint 'A' schedule is set aside. The decree in all other respects is kept undisputed (undisturbed?)
47. Before parting with the appeals, it may be necessary to refer to the last contention urged by the learned counsel for the appellants. It was urged that Channabasamma had cleared the debts of Halaswami. paid the taxes due on his estate and spent a large amount for his obsequies and it must be returned to her if she is held not entitled to the properties of Halaswami. There cannot be any dispute on this contention. We direct the trial Court to make an enquiry on all those claims and give set off against the mesne profits payable.
48. In the circumstances of the case, we make no order as to costs in these appeals.
49. It is needless to state that the Receiver appointed by the order of this Court on July 17, 1975, should render accounts to the lower Court of the rents collected by him in respect of Items 2, 3, 5 and 6 in the plaint 'A' Schedule and after accepting the accounts, the trial Court shall discharge the Receiver.
50. Order accordingly.