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Sri Sidharood Swamy Math Trust Committee Vs. Mallappa and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberR.S.A. No. 1078 of 1975
Judge
Reported inILR1985KAR1440; 1985(1)KarLJ331
ActsEvidence Act, 1872 - Sections 68 and 90
AppellantSri Sidharood Swamy Math Trust Committee
RespondentMallappa and ors.
Appellant AdvocateJ.S. Gunjal, Adv.
Respondent AdvocateJaya Vittal Kolar, Adv. for R-1
DispositionAppeal allowed
Excerpt:
.....are related to rudrawa and balavva and that the plaintiffs have failed to prove that the suit property was the stridhana property of rudrawa and therefore, balavva had authority to dispose of the property by will. but these entries are more than sufficient to show how the revenueauthorities had in exercise of their public duties, recorded the fact that was available and how the properties in question were being enjoyed and by whom. it would be immaterial to go into the question of title of either rudravva or balavva who enjoyed the property. the plaintiffs have contended that the suit property is the stridhana property while the defendants contended that the properties belonged to dodbasappa and his brothers who jointly enjoyed. if the material was only to the effect that the..........case of the plaintiffs is that balavva wife of basappa being the original owner who inherited the suit property from her mother rudrayva executed a registered will ex. p.5 in the year 1919(5-10-1328 fasli) bequeathing them in favour of plaintiff no. 1. she died issueless. after her death plaintiff no. 1 took over possession of the suit lands. plaintiff no. 1 leased the suit lands to plaintiff no. 2 in 1953. plaintiff no. 2 continued to be in possession thereof as tenant of plaintiff no.1. plaintiff no. 2 secured right as a protected tenant and a certificate was accordingly issued to him in the year 1950. the defendants being in no way related to balavva, have colluded with the village officer and got their names entered in the revenue records as khatedars. this had happened in the year.....
Judgment:

Nesargi, J.

1. The appellants are plaintiffs 1 and 2 in Case No. 128/1/1975 in the Court of the Munsiff, Yelburga. The Respondents are defendant No. 1's legal representatives and defendant No. 2 in the case. The subject matter of the suit consist of two lands-S. No. 828 ofTadkal Village and S. No. 2 of Talbal village, Yelburgra Taluk. The plaintiff filed the suit for possession of the lands and for declaration that plaintiff No. 2 or in the alternative plaintiff No. 1 is entitled to get the sale proceeds of the crop that stood on S. No. 2 amounting to Rs. 1,000/- which amount is lying in Court deposit and for mesne profits of the suit lands for the years 1956-57 and also for future mesne profits. The Trial Court decreed the suit on 23-12-1959. The defendants preferred R.A. No. 2 of 1970 in the Court of the District Judge, Raichur. The District Judge allowed the appeal and reversed the judgement and decree of the Trial Court on 15-7-1974. The judgement and decree of the lower Appellate Court is challenged in this appeal.

2. The simple case of the plaintiffs is that Balavva wife of Basappa being the original owner who inherited the suit property from her mother Rudrayva executed a registered Will Ex. P.5 in the year 1919(5-10-1328 Fasli) bequeathing them in favour of plaintiff No. 1. She died issueless. After her death plaintiff No. 1 took over possession of the suit lands. Plaintiff No. 1 leased the suit lands to plaintiff No. 2 in 1953. Plaintiff No. 2 continued to be in possession thereof as tenant of plaintiff No.1. Plaintiff No. 2 secured right as a protected tenant and a certificate was accordingly issued to him in the year 1950. The defendants being in no way related to Balavva, have colluded with the village officer and got their names entered in the revenue records as khatedars. This had happened in the year 1951 or so. Even during that agricultural year, plaintiff No. 2 had cultivated the lands and got the right of harvest. The defendants obstructed the plaintiff's act. Because of that, proceedings under Section 145 Cr. P.C. on the basis of the report of the concerned police officers, who apprehended that there was Likelihood of breach of peace, were initiated by passing a preliminary order dated 9-11-1951. The standing crops were sold for a sum of RS. '1,003/- and that amount is in Court deposit. Proceedings under Section 145 Cr. P.C. were dropped on 31-3-1950. Parties were directed to approach the Civil Court to get their title established.

3. The defendants contended that the suit property was the ancestral property of the defendants. Dodbasappa husband of Balavva was the eldest uncle of the defendants. He was joint with them. The suit property was not the 'Stridhana' property of Balavva and therefore he did not inherit it from his mother Ruddravva. Gonappa and Honakerappa were the other brothers of Dodbassappa. They were living jointly. After the death of Dodbassappa, Balavva's name came to be shown in the revenue records as if by way of transfer who had remained in possession of the suit property. The defendants inducted plaintiff No. 2 as their tenant from the year 1946 and continued to be so on the land till 1951. The Will, relied upon by the plaintiffs is nor genuine and had not been executed by Balavva. They raised other contentions on the question of limitation and so on, which, in my opinion are not necessary to narrate, because, the suit has been instituted on 3-4-1957 within twelve years from 1951 during which period, plaintiff No. 2 admittedly was in actual possession of the suit lands.

4. The Trial Court framed as many as 11 issues. The relevant issues are, issue Nos. 2, 3, 4, 5 and 6. They read as follows :-

(2) Whether the suit lands were the Stridhana of deceased Balavva w/o Dodbasappa and she was full owner and possessor of the suit property till or death ?

3. Whether Balavva executed registered Will deed dated 5-10-1323 Fasli in favour of Sri Siddharoodh Swamy Math, Hubli and she was competent ?

4. Whether Sri Siddharoodh Swamy Math Hubli was in possession of the sui property as owner from the time of the death of Balavva i.e., 1941 ?

5. Whether the suit property was leased by the Math to plaintiff No. 2 in the year 1953 and plaintiff No. 2 remained in possession of it till 5-4-1956?

6. Whether defendants dispossessed plaintiff No. 2 from the suit property on 5-4-1956?

The Trial Court held in favour of the plaintiff's on all these issues. As already stated, the lower Appellate Court has disagreed.

5. The plaintiffs have not only relied on the oral evidence but also on the documentary evidence. The defendants have relied on the oral evidence, viz., they examined as many as ten witnesses. D.W. 4 is responsible for getting the names of the defendants entered as Kabjedar, that too, for the year 1951. On the basis of that, they succeeded to the suit schedule property.

6. The Trial Court has held that the Will Ex. 5 being more than 30 years old, presumption available under Section 90 of the Indian Evidence Act would come into play and therefore, the execution and attestation of the Will should be held in favour of the plaintiffs. Reliance has been placed on various decisions including the decision of Privy Council in Munnalal vs. Kashibai, AIR 1947 PC 15. The lower Appellate Court has in this connection, referred to the evidence of D.W. 1 Rama Rao Ranga Rao Desai. D.W. 1 has stated that one Ranga Rao said to be one of the attestation to the said Will is still alive. The lower Appellate Court has held that when Ranga Rao, the attestation of the Will is still alive, the plaintiffs ought to have proved the Willin accordance with the requirement of Section 68 of the Indian Evidence Act. (This provision is not quoted by the lower Appellate Court). It has on this basis, concluded that the plaintiffs have failed to prove the Will as required by the law.

7. Section 90 of the Indian Evidence Act reads as follows;

'PRESUMPTION AS TO DOCUMENTS THIRTY YEARS OLD: Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the hand writing of any particular person, is in that person's hand writing, and, in the case of a document executed or attested that it was duly executed and attested by the person by whom it purports to be executed and attested'.

There was divergence of opinion of various High Courts in India whether in that statutory presumption available would be applicable in such cases. That has been stated in the afore-said decision. The Privy Council has held that a party setting up a will is required to prove that the testator was of sound disposing mind when he made his will but, in the absence of any evidence as to the state of the testator's mind presumption that he had executed a will in the presence of witnesses must lead to a presumption that he was of sound mind and understood what he was about and this presump-tion can be fortified under Section 114 of the Indian Evidence Act.

8.An attempt was made by Sri Jaya Vittal Kolar Learned Counsel appearing for the Respondents by contending that in the said decision the Privy Council has referred to presumption that can be raised is only regarding sound disposing state of mind of the testator and not to hold that the executor has executed the will and the will has been duly attested. A reading of the decision shows that it is not so. Their Lordships of the Privy Council have held that in view of the terms of the provisions of Section 90 of the Indian Evidence Act, execution and attestation of the Will have to be presumed and this presumption will also include the presumption that the executor was in sound disposing state of mind. Therefore, it will have to be held that the lower Appellate. Court has applied the principle of law erroneously.

9. At this stage, it is appropriate to advert to the reasoning of the lower Appellate Court based on the evidence of D.W. 1. Of course, D.W. 1 has stated that Ranga Rao who is shown to be one of theattestations to the Will was alive. If that were to be so, one has to wonder as to why this Ranga Rao himself was not summoned by the defendants to give evidence. Apart from that, even if it is taken for arguments sake that what D.W. 1 stated is true that Ranga Rao was in fact alive, the question would be, what is in law the effect of that fact. Section 90 of the Indian Evidence Act does not refer to examination of witnesses. It lays down that when a document is an ancient document, being 30 years old, presumption arises as provided therein. Therefore it has to be held that whether the witnesses to the document are alive or dead, statutory presumption does arise. This view of mine is fortified when the scope of Section 90 of the Indian Evidence Act including the original is taken into consideration. Reference to Law of Evidence by Learned Author Taylor shows that this provision has been incorporated in the Evidence Act, on the basis of the law in this behalf prevailing in England, English Courts have dealt with this aspect vis-a-vis witness being available, viz., raising presumption. In the decisions in Ooe vs. Burdett, 4 A & E 19 and Marsh vs. Colinett, 2 ESP 666 it has been held that the presumption is not affected by the proof that the witnesses are living. This principle is put in clear wording in Section 90 of the Evidence Act. If witnesses are available, their evidence may be useful in rebutting the presumption that statutorily arises, because the presumption under Section 90 is necessarily in law a rebuttable presumption. Henceeven if it is true that the said Ranga Rao was alive, his evidence could have been made use of to rebut the presumption. Then certainly that burden cast on. thedefendant has not been discharged, In Shiam Sunder -v.- Jagannath, A.I.R. 1925 Oudh 465 it has been held as against the evidence of the only surviving witness who spoke against dueattestation that genuineness was presumed. Hence the reasoning of the lower Appellate Court is erroneous in law. This disposes of issue No. 3

10. Sri Jaya Vittal Kolar argued that the lower Appellate Court had come to the conclusion that the defendants are related to Rudrawa and Balavva and that the plaintiffs have failed to prove that the suit property was the Stridhana property of Rudrawa and therefore, Balavva had authority to dispose of the property by Will. I find that exactly is the conclusion of the lower Appellate Court. But the lower Appellate court has nowhere in the process of reasoning while reaching to this conclusion adverted to the importantdocumentary material that had come into existence in the remote past at an undisputed point of time. Ex. 11 is the report made by the then village officer of Tadkal informing the Tahsildar that Rudravva who was the pattadar of Sl. No.2 of Talbal village had expired. She was also the pattadar of the other land. This report is dated 21-11-1313 Fasli. 21-11-1313F is for the year 1904 A.D. Ex 8 is the certified copy of the report made by the village officer of Tadkal stating that Balavva is the only daughter of Rud-rawa. Ex. 12 dated 5-1-1314F (1905 A.D.) is the certified copy of the report stating that proclamation had been issued in view of the reports at Ex.8 and Ex. 11 and no claimants had come forward to claim succession to Rudravva's property. viz., the suit scheduleproperty. Then follow Exs. 13 and 14 which are of 1326 F (1917 A.D.) These are the copies of mutations effected in favour of Balavva in regard to the suit schedule land. In this connection, copies of the aphanites from 1351to 1359 F except for the year 1352 F because the same is not produced, have to be looked into (1326 F is round about 1917 A.D., 1352 F to 1359 F will be round about 1942 to 1950 A.D. These show that Balavva continued to be in possession as Khatedar and pattadar. The name of Balavva continued to appear in respect of Sl.No. 2 as Kabjedar for the year 1954 A.D. though she had undisputedly died in 1941 A.D. All this material has been left out of consideration by the lower Appellate Court.

11. The conclusions that flows from the said material are that the revenue authorities in discharge of their duties issued proclamation calling upon the persons claiming to' be the successors to Rudravva. No one came forward. The name of Balavva, the only daughter of Rudravva, came to be mutated in the place of Rudravva in regard to these lands and Balavva's name continued to be shown as pattadar and cultivator for considerable number of years thereafter. That is how the state of affairs continued right from the date when Rudravva expired. Sri Jaya Vittal Kolar argued that the entries in the revenue records, particularly, the mutuation, do not in law confer title on any one. There can be no quarrel on this proposition of law. But these entries are more than sufficient to show how the revenueauthorities had in exercise of their public duties, recorded the fact that was available and how the properties in question were being enjoyed and by whom. It would be immaterial to go into the question of title of either Rudravva or Balavva who enjoyed the property. In this connection, the case of the plaintiffs and the defendants will have to be considered in juxtaposition. The plaintiffs have contended that the suit property is the Stridhana property while the defendants contended that the properties belonged to Dodbasappa and his brothers who jointly enjoyed. Further on, they have contended in the course of their evidence that the properties were purchased from Rudravva's sister and her husband Kenchappa by Balappa father of Dobdasa. ppa who admittedly was the husband of Balavva. They have not produced any evidence of this transaction apart from the oral evidence of D.W.9. D.W. 9 hassworn that Gonappa brother of Dodbasappa had informed about purchase of these lands and in fact, there was no sale deed in that regard. No Court can consider this statement assufficient to constitute as evidence, under any of the provisions of the Indian Evidence Act. But the lower Appellate Court has strangely enough attached more importance to this evidence. Sri Jaya Vittal Kolar is right in contending that this may be the weakness in the case of the defendants and the plaintiffs are not entitled in law to take advantage of this. But when the parties have come up with specific cases, it is to be examined in juxtaposition with each other. This factor cannot be left out of consideration. If the material was only to the effect that the defendants had failed to prove acquisition of the suit schedule property by Balappa and the Trial Court had come to the conclusion that in view of that fact the plaintiffs must be held to have proved the fact that the suit property was the Stridhana property of Rudravva, the contention of Sri Jaya Vittal Kolar would be sound. But that is not so. It is in this connection the other Exhibits 11, 8, 12, 13 and 14 play an important role. It is because of Exhibits 11, 8, 12, 13 and 14 and the fact that defendants themselves have come up with a case in the course of their Evidence that the property had been purchased from Rudravva's sister and her husband Kenchappa and have failed, one and the only conclusion is that the propertyoriginally belonged to Rudravva's family. That is also the case of the plaintiffs. Therefore, the conclusion of the lower Appellate Court that the defendants being close relations of Rudravva and Balavva, it will have to be held that the properties were joint family properties of Doddabasappa, Goneppa and Honeker-appa is not fortified by any acceptable reasoning based on the material available on record. Even if it is held that the defendants are related to Rudravva and Balavva, it does not necessarily follow that the suit schedule properties were joint family properties of Dodbasappa, Gorieppa and Honekerappa. This disposes of issue No. 2.

12. Balavva died in the year 1941 having willed away the property in favour of plaintiff No. 1 under Ex. 5, certified copy of which is Ex, 15. Therefore, issue No. 4 has to be answered in favour of the plaintiffs.

13. Issues 5 and 6, in a way go together. Plaintiffs have claimed that plaintiff No. 1 leased the suit property in the year 1953. Per contra, defendants have contended that they leased the suit schedule property to plaintiffs No. 2 from the year 1946 to 1951. The hard fact is that plaintiff No. 2 was admittedly in possession during this period from 1946 to 1951. Plaintiff No. 3 himself has given evidence in support of the case put forth by him and plaintiff No. 1. Therefore it follows that plaintiffs must have been dispossessed after 1951. The plaintiffs have stated that they were dispossessed on 5-4-1956. Of course, there is no reliable material produced in regard to the exact date. As already pointed out, the question has bearing on limitation. As the suit was instituted on 3-4-1957, the question of limitation does not arise. The fact remains that plaintiff No. 2 has been dispossessed. Sri Jaya Vittal Kolar argued, that dis possession as put forth by the plaintiffs had not been proved by the plaintiffs. He further argued that in that case, under the Hyderabad Tenancy of Agricultural Lands Act, remedy of plaintiff No. 2 was to approach the revenue authorities for restoration of possession from his landlord. It is sufficient to point out that so far as this contention is concerned, such a case has not been put forth in the Courts below. As such I do not consider it necessary to go into that question.

14. Plaintiff No. 2 had claimed that he became the tenant under plaintiff No. 1. Admittedly, plaintiff No. 2 was on the land right from 1946 and uptill 1951. Therefore, finding defendants are related to Rudravva and Balavva, it does not necessarily follow that the suit schedule properties were joint family properties of Dodbasappa, Gorieppa and Hone-kerappa. This disposes of issue No. 2.

12. Balavva died in the year 1941 having willed away the property in favour of plaintiff No. 1 under Ex. 5, certified copy of which is Ex, 15. Therefore, issue No. 4 has to be answered in favour of the plaintiffs.

13. Issues 5 and 6, in a way go together. Plaintiffs have claimed that plaintiff No. 1 leased the suit property in the year 1953. Per contra, defendants have contended that they leased the suit schedule property to plaintiffs No. 2 from the year 1946 to 1951. The hard fact is that plaintiff No. 2 was admittedly in possession during this period from 1946 to 1951. Plaintiff No. 3 himself has given evidence in support of the case put forth by him and plaintiff No. 1. Therefore it follows that plaintiffs must have been dispossessed after 1951. The plaintiffs have stated that they were dispossessed on 5-4-1956. Of course, there is no reliable material produced in regard to the exact date. As already pointed out, the question has bearing on limitation. As the suit was instituted on 3-4-1957, the question of limitation does not arise. The fact remains that plaintiff No. 2 has been dispossessed. Sri Jaya Vittal Kolar argued, that dis possession as put forth by the plaintiffs had not been proved by the plaintiffs. He further argued that in that case, under the Hyderabad Tenancy of Agricultural Lands Act, remedy of plaintiff No. 2 was to approach the revenue authorities for restoration of possession from his landlord. It is sufficient to point out that so far as this contention is concerned, such a case has not been put forth in the Courts below. As such I do not consider it necessary to go into that question.

14. Plaintiff No. 2 had claimed that he became the tenant under plaintiff No. 1. Admittedly, plaintiff No. 2 was on the land right from 1946 and uptill 1951. Therefore, finding on issue No. 5 as recorded by the Trial Court has to be upheld though only oral evidence is there to show that plain-tiff No. 1 leased the land to plaintiff No. 2 in the year 1953. In this connection, copies of the receipts issued by plaintiff No. 1 to plaintiff No. 2, that too, for the year 1951 for having received rent of Rs. 600/- or so in alump sum will be sufficient to reach the conclusion in favour of the plaintiffs, particularly, when the case of the plaintiffs and defendants are considered in juxtaposition.

15. The findings recorded in the preceding paragraph show that the judgement and decree passed by the lower Appellate Court cannot be sustained. Hence I allow the appeal, set aside the Judgment and decree dated 1-7-1974 passed by the District Judge, Raichur in R.A. No. 2 of 1970 and restore the Judgment and decree dated 23-12-19 59 passed by the Munsiff, Yelburga, in case No. 128/1/1957.

16. It is submitted that plaintiffs are not particular about the costs of this appeal. Hence parties are directed to bear their own costs.


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