Judgment:
(This RFA is filed u/s 96 of cpc against the judgment and decree dt. 15.10.03 passed in o.s.no.39/90 on the file of the civil judge (sr. dn.), sirsi, dismissing the suit for declaration, partition and possession.
this appeal coming on for final hearing this day, the court delivered the following:)
1. Plaintiff of an original suit bearing O.S.No.39/1990, which was pending on the file of the Court of Ci/il Judge (Sr.Dn.), Sirsi has approached this Court by filing an appeal under Section 96 of CPC. Respondents herein were defendants in the vsaid suit. Parties will be referred as plaintiffs and defendants 1 to 7 as per their ranking in the trial Court.
2. Plaintiff had filed a suit for the reliefs of declaration to the effect that he has become the owner to an extent of Vo. share in the suit schedule properties, on the basis of settlement deed executed by Mangesh Rao in favour of his paternal grand mother Ganga Bai on 09.08.1939 and for consequential relief of partition and separate possession by metes and bonds and also for mesne profits as contemplated under Order 20 Rule 12 of CPC.
One person by name Mangesh Rao was the husband of Ganga Bai. They had two sons namely Shankar and Vimalanand. The first son Shankar separated from his father Mangesh Rao, who gave some properties during his lifetime. He went out of the joint family somewhere in 1937 and 1938. He had only one son by name Krishna, the plaintiff, born out of his first wife Kama la. He bad taken a second wife by name Hemalata and there was no cordiality between himself and his father Mangesh Rac because of the second marriage. After Shankar -- first son separated from him, his grand son Krishna continued to live with Mangesh Rao. Vimalanand, the second son continued to live with Mangesh Rao and his mother Ganga Bai. In 1939 Mangesh Rao chose to execute settlement deed in favour of his wife Ganga Bai, with a condition that she was entitled to enjoy the estate during her lifetime and that after her death, the properties would equally devolve upon Krishna, the plaintiff and Vimalanand, second son of Mangesh Rao and Ganga Bai. With these conditions, the suit schedule properties were handed over to Smt. Ganga Bai.
Mangesh Rao, the settlor died in the year 1944; Vimalanand died in the year 1971, First defendant Vasantlatha is the wife of deceased Vimalanand, the second son of Mangesh Rao. Smt. Gangubai, paternal grandmother of the plaintiff and mother in law of the first defendant died during 1983. In view of restriction found in the settlement deed dated 09.08.1939, -he plaintiff chose to claim his half share. Since the first defendant did not give half share to him, he was forced to file a suit for the relief of declaration of y2 title and for demarcated by metes and bounds.
First defendant appeared before the trail Court and chose to file a detailed written statement denying all the material averments. The relationship between the parties is admitted . The averment that the settlement was done with a restrictive covenant restraining the interest of Gangubai only to her lifetime has been specifically denied. He has called upon the plaintiff to prove the contents of the plaint strictly.
According to the first defendant, Smt. Gangubai has bequeathed the schedule properties in her favour through a Will dated 22.12.1973 and that she has become the absolute owner of the property so bequeathed in her favour. The said Will is stated to have been executed by Gangubai while she was in a sound and disposing state of mind. It is further averred that she was entitled to bequeath tiie property as she was the absolute owner.
It is averred that Gangubai sold two items of properties during her lifetime through two separate registered sale deeds dated 23.10.1982 and 06,11.1982. Defendant nos.4 to 16 have been made as parties by the plaintiff in his suit as they are tenants of various tenaments of the building situated in the suit schedule properties. With these pleadings the first defendant had prayed for dismissal of the suit.
Defendant nos.2 and 3 have also filed a detailed written statement jointly on 10.02.1995 and that the pleadings are identical to the plea taken by the first defendant in his written statement.
3. On the basis of the above pleadings the following issues have been framed by the trial Court.
1) Whether the plaintiff proves that deceased Gangabai wife of Mangeshrao Mirjankar had only a life interest in the suit property and as such the Will deed dated 22.12.1973 executed by her in favour of defendant no.l is illegal and void?
2) Whether the plaintiff proves that the said Gangabai wifeof Mangeshrao Mirjankar has executed the alleged Will deed being under the obligation of defendant no.2 and as such defendant no.l has not acquired any right, title and interest under the said Will deed?
3) Whether the plaintiff proves that the registered sale deed dated 6.11.1982 of the suit land bearing S. No. 476/ 1A, iC/2 to the extent of 1 gunta 6 annas and building thereon in favour of defendant no,2 is unauthorized, illegal and void and as such, the same is not binding on the plaintiff's right over che said property?
4) Whether the plaintiff proves that the registered sale deed dated 23.10.1982 of the suit land bearing sy. No. 476/1A1C/1 to the extent of 14 gunthas and building thereon by Gangubai wife or Mangeshrao Mirjankar and defendant no. 1 in favour of defendant no.3 is illegal, unauthorized and void and as such right of the plaintiff over the same is not being affected by the said sale?
5) Whether the plaintiff proves that the suit schedule A to C properties are the joint family properties of himself and defendant no. 1?
6) Whether the plaintiff proves that he is entitled for partition and separate possession of his share in the suit schedule A and B properties?
7) Whether the plaintiff proves; that the business carried out by defendants 4, 5 and 16 is the joint family business of himself and defendant no.1 and as such he is entitled for his share out of the profits in the suit business right from the year 1987 till filing of the suit?
8) Whether the plaintiff proves that he is entitled for further mesne profits with respect to the business being carried out by deft. Nos,4, 5 and 16 and also with respect to the suit AB schedule properties?
9) Whether defendant no. 1 proves the alleged previous partition of the year 1937 between plaintiffs grand father Mangeshrao and plaintiffs father fihankar and allocation of shares to them in the said partition?
10) Whether defendants 2 and 3 prove that this Court has no jurisdiction to entertain the suit and grant the relief claimed?
11) In the event of decree for partition, what is the share of plaintiff and defendant no.l and in which of the suit schedule properties?
12) Whether the plaintiff is entitled for a decree for taking of the accounts of the business which is being carried on bv defendant nos. 4, 5 and 16?
13) To what relief the plaintiff is entitled for?
14) What order and decre?
Addl. Issues.
1) Whether the plaintiff proves that deft. 1 is running the suit schedule C petrol bunk business through defendants 4, 5 and 16?
2) Whether the deft. No. 1 proves that deft. 16 is in no way connected to and related with the suit schedule C business?
3) Issue deleted
4) Whether the defendant no. 1 proves that the suit of the plaintiff is barred by law of limitation?
4. Plaintiff himself has been examined as P.W. 1. Veeresh Raghavesh Suresh is the power of attorney holder of the first defendant and he is examined as D.W. 1. Subraya Rama Bhat who is stated to be an attestor to the Will alleged to have been executed by Gangubai in favour of first defendant, is examined as D.W.2. In all 34 exhibits have been got marked on behalf of the plaintiff and 3 exhibits on behalf of the first defendant.
5. After hearing the arguments and perusing the records the learned Senior Civil Judge has answered issue nos. 1 to 8 and 11 and 12 in the negative; additional issue nos. 1, 2 and 3 have been held stating that they do not survive for consideration and accordingly deleted; additional issue no.4 is answered in the negative. Ultimately the suit is dismissed. Hence the plaintiff is before this Court challenging the same u/S 96 CPC.
6. Several grounds have been urged in the appeal memo contending that the trial Court has not properly appreciated the oral and documentary evidence in right perspective and that the evidence has not been tested on the touchstone of intrinsic probabilities. Further it is contended that the trial Court has misinterpreted the provisions of Sec. 14(1) of Hindu Succession Act to come to the conclusion that the estate held by Gangubai was her absolute estate being in lieu of her right to claim maintenance. It is further contended that the circumstances under which the settlement deed was executed by Mangesh Rao have been virtually ignored and that there is no satisfactory evidence in regard to the proof of execution of Will stated to have been executed by Gangubai in favour of the first defendant. It is further contended that the first defendnat has not entered into the witness box and therefore the evidence of her power of attorney holder does not stand the judicial scrutiny in any manner. The judgment and decree of the trial Court is stated to be opposed to law, facts and probabilities.
7. I have heard arguments from the learned counsel appearing for the parties. The following points arise for consideration of this Court.
1. Whether the trial Court is justified in coming 10 the conclusion that the contents of the Settlement Deed marked as Ex. P. 34 and 34A conclusively establishes that the suit schedule property given to Gangubai by her husband was in recognition of her right to claim maintenance and therefore it had become her absolute property?
2. Whether the tnal Court is justified in coming to the conclusion that the Will marked as Ex.D.3 has been satisfactorily proved and that all the suspicious circumstances have been warded out?
3. Whether an interference is called for by this Court ana if so to what extent?
8. Point No.1: This aspect revolves upon the aspect of interpretation of Ex. P. 34 and 34A, the settlement deed dated 09.08 1939 executed by Mangesh Rao in favour of his wife. It is to be seen that Mangesh Rao had only one ancestral property, i.e., the house in which he was residing with his wife and children. He had only two sons, namely, Shankar and Vimalanand. During the lifetime of Mangesh Rao himself marriage of Shankar had been solemnized with Vimala and plaintiff is the only son to Shankar through his first wife. Shankar, the first son of Mangesh Rao had taken a second wife by name Hemalatha and there were serious differences between the father and son in this regard and the circumstances went to such an extent that Shankar went out of the family taking few properties from his father. The share so given to Shankar by Mangesh Rao were the self-acquired properties. At the time when this Settlement Deed was executed his grandson Shankar, the plaintiff was living with him and he continued to live with him and his wife Gangubai.
9. Second son Vimalanand was also living with Gangubai and Mangesh Rao. Admittedly, Mangesh Rao executed Settlement Deed on 09.08.1939. Execution of this document is not at all in dispute. The dispute is in regard to the interpretation of the covenants of Ex.P.34 in so far as it relates to the applicability of Sec. 14(1) or 14(2) of Hindu Succession Act. While interpreting a document of this type not only the nomenclature will be important but also the surrounding circumstances under which the document has come into force and the various covenants of the document. This Court cannot forget that when the Settlement Deed was executed by Mangesh Rao his grandson was living with him and his another son was also living with him. At the time when Ex. P. 34 was executed the plaintiff was a minor. The circumstances were such that the genetic father of the plaintiff went out of the house taking some properties and deserted his son and therefore grandfather and grandmother had to lookafter him . There was also an added responsibility to support his another son Vimalanand who was very much living with him.
10. It is true that as a husband Mangesh Rao was obliged to make necessary arrangement for the maintenance of his wife, liiore particularly when he was aged about 60 years. The contents of Ex.P.34 would disclose that the Settlor Mangesh Rao was 60 years and that he knew that he was expected to make some provision for maintenance of his wife. At the same time it was also incumbent upon him to make necessary provision for his grandson, the plaintiff and another son Vimalanand.
11. In Ex. P. 34 it is mentioned that the properties were being given to Gangubai with a condition that she could enjoy the same during her lifetime and thereafter it would devolve equally between his grandson, the plaintil; and another son Vimalanand. It is mentioned in the Settlement Deed that the house in which they were living would go to Vimaland and open space abutting the said house measuring around 15 guntas would go to plaintiff. The remaining property would be equally divided between the plaintiff and Vimalanand.
12. What is argued before this Court by the learned counsel for the appellant is that the properties were not settled absolutely in favour of Gangubai and that the said settlement was not made in recognition of her pre-existing right. Therefore, he has relied upon a decision reported in Sharada Subramaniyan Vs. Soumi Mazumdar and Others reported in (2006) 8 Supreme Court Cases 91 (2006 Law Suit page 63- decided on 28.04.2006).
13. What is argued before this Court is that nothing is indicated either in Ex. P. 34 or externally to show that properties had been given to Smt. Gangubai in recognition or in lieu of her right to maintenance. It is further argued that the first defendant has not even whispered anything about this fact. It is furlther argued that the first defendant's written statement is very much silent about this aspect. It is also argued that without there being any basis in the pleadings of the first defendant, it cannot be contended that the settlement so made was an absolute settlement made in favour of Gangubai in recognition of her right to maintenance.
14. Per contra learned counsel for the first respondent has vehemently argued contending that intrepretation of Sec. 14(1) and 14(2) made by the Hon'ble Supreme Court in lulasamma's case way back in 1977 as reported in AIR 1977 SC 1267 has to be kept in mind. It is further argued that the
Hindu Females right to maintenance is not an empty formality or a claim being considered as a matter of course and generasity; but it is a tangible right against property which flows from the relationship between the husband and wife. It is further argued that provisions of Sec. i4(l) and the explanation appended thereto have been couched. In such a way so that Sec. 14(1) must be libei ally considered in favour of the females in order to advance the object behind 1956 Hindu Succession Act.
15. It is further argued by the learned counsel for the first respondent that the trial Court has taken all these aspects into consideration and has applied the provisions of law and the decision in Tulasamma's case.
16. What is further argued before this Court by the learned Counsel for the first respondent is that the leading decision rendered by a Bench consisting of three Hon'ble Judges of the Supreme Court in Tulasamma's case has been followed with rigor even in Maharaja Pillai Lakshmi Ammal Vs. MaharajaPillai Thillanayakom Pillai reported in 1987 Law Suit (8C) 789 and therefore, the approach adopted by the trial Court is consistent and it cannot be considered as -wrong approach to the real state of affairs. Hence it is argued that the decision in Maharaja Pillai's case is a binding precedent under Article 141 of the Constitution. Keeping in mind the various decisions cited before this Court, it is useful to refer to the covenants found in Ex.P34 the settlement deed.
17. As already discussed, the circumstances under which the settlement deed came into being will have to be kept in mind while inteipreting the document. As already discussed, the first son went out of the family and deserted his own son and as a result of the same, plaintiff had to live with his grandfather. Second son was still young and was aged about 24 years. Protecting the interest of his grandson and son was also very much in the mind of Mangeshrao. Similarly he wanted to protect the interest of his wife who was dependent oil him and her son and grandson. Here is a father who gave certain properties of his own to his son who went out of the family and in fact there was no obligation for him to have given some properties to his son Shankar who went out of the family, since the properties given to Shankar by Mangeshrao, were the self-acquired properties of Mangeshrao. Reasonable inference that can be drawn from the attending circumstances and the covenant is that Mangeshrao wanted to see that his wife's interest was well secured, as long as she lived and thereafter the properties to go to his grandson and his son equally.
18. Learned Counsel for the first respondent has relied upon a decision reported in Maharaja Pillai's case. Of course a leading decision rendered in Vaddeboyina Tulasamma and Others Vs. Vaddeboyina Sesha Reddi (dead) by L.Rs reported in AIR 1977 SC 1944 has been followed with all rigour . Paragraph-5 of the said decision in Maharaja Pillai's case is relevant. As per the facts discussed in paragraph-5 of tire said decision, it is clear that wife of Maharaja Pillai was living in the house allotted to her husband and had been maintained by her husband. After his death, she was 111 exclusive possession of 'A' schedule property and was taking income generated from 'A' schedule property and she had a right to utilise that income for her maintenance as it was conferred on her under Ex.DJ. At the 3ame time her children had also been allotted properties under Ex.Dl. Hence the decision rendered in Maharaja Pillai's case is clearly distinguishable on facts vis-a-vis the facts of that case in the present case, more particularly no properties had been exclusively given to the plaintiff by Mangesh Rao in this case.
19. No properties had been given or settled in favour of either his grandson or second son Vimalanand. The covenant used is that they would get these properties equally except the house and the open space after the death of his wife Gangubai.
20. In another decision reported in the case of Sharad Subramanyan Vs. Soumi Mazumdar reported in 2006 LawSuit (SC) 366, the Hon'ble Supreme Court has held that as per the facts of the said case there were no indications, either in the Will or externally, to indicate that the property had been given to the female Hindu in recognition of or in lieu of her right to maintenance. Even in the present case, there is no mention about the right of maintenance of his wife. It is true that in Tulasamma's case, the Hon'ble Supreme Court has unequivocal^ held that liberal construction should be made insofar as it relates to the right of female under Section 14(1) of Hindu Succession Act. But looking to the circumstances under which Ex.P34 came into being, this Court is of . the opinion that the settlement made by Mangeshrao in favour of Gangubai with a restriction to use the same till her death and thereafter to devolve equally between his grandson and son, will not attract Section 14(1) of 1he Hindu Succession Act.
21. Learned Counsel for the first respondent has vehemently argued that the decision reported inTulasamma's case and subsequently followed in Maharaja Pillai's case are binding precedent under Article 141 of the Constitution of India and therefore, the trial Court is justified in coming to the conclusion that the settlement so made is an absolute settlement conferring absolute right in favour of Gangubai and therefore it has enlarged itself into an absolute right under Section 14(1) of the Hindu Succession Act.
22. What is the value of precedent and how it has to be ascertained has been eloquently dealt by a Bench consisting of three Hon'ble Judges of the Supreme Court in the case of The State Financial Corporation and another Vs. M/s.Jagadamba Oil Mills and another reported in AIR 2002 834. What is held in the said decision is that precedents must not be equated to the statutes and setting of the facts under which a decision has been rendered must be looked into. It is held at page 836 as follows:
"Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrase and provisions of a statute, it m.ay become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two copses. Disposal of cases by blindly placing reliance on a decision is not proper."
23. Relying upon the words of Lord Denning, it is observed by the Hon ble Supreme Court that mere similarity of colour would be insufficient to come to the conclusion that a particular observation is a binding precedent. It is further held that the purpose is only to trim the dead wood lest we would be lost in the thicket. Taking into consideration that the facts of the case are distinct from the decision rendered in Maharaja Pillai's case, this Court is of the opinion that the interpretation made by the trial Court is not consistent with the factual scenario. Taking into consideration that the settlor had also kept in his mind the interest of his grandson and another son, that too, when his son had parted out of him, it can be said that Section 14(1) is not applicable to the facts of this case.
24. Apart from this, the first defendant has tried to resist the suit of the plaintiff. Nowhere in her written statement first defendant has whispered anything about the fact that the settleme.ni so made in favour of Gangubai was in recognition of her right to maintenance. This aspect has not been considered by the trial Court while evaluating the evidence. Pleadings are sacrosanct and they will have to be kept in mind while evaluating the evidence. In the light of the absence of even a feeble plea to this effect in the written statement of defendant no. 1, the trial Court is not justified in interpreting the document to be within the perview of Sec. 14(1) of Hindu Succession Act.
25. Taking all this into consideration, this Court is of the opinion that the approach adopted by the trial Court in regard to the interpretation of the contents of Ex.Dl is not proper and legal. Hence this Court is of the considered opinion that the settlement so made by Mangeshrao in favour of his wife Gangubai cannot be construed as an absolute right so as to rope in the same within the purview of Section 14(1) of Hindu Succession Act, 1956. The trial Court has not tested the evidence on the basis of intrinsic probabilities and has not analyzed the setting of the case under which Ex.P.34 came into being. Hence point No.l is answered in the negative.
26. Re,Point No.2:Ex.D3 is the Will on which the first defendant has relied upon. What is argued before this Court by the learned Counsel for the appellant is that the evidence of DW1 cannot be considered, since first defendant has not entered into the witness box. Hence it is argued that an adverse inference will have to be drawn under Section 114(g) of the Evidence Act. Whoever relies upon the Will and whenever the authenticity of such a Will is disputed, the mandate of Section 63 of Hindu Succession Act and Section C?8 of Evidence Act is that one of the attestors must be necessarily examined. Admittedly, the Will in question has been attested by two persons. DW2 is an attestor to the said document. What is argued by the learned Counsel for the appellant is that the testator was already aged about 80 years and her hands were shaking as on the date of alleged execution of the Will and therefore somebody from the family should have been examined to vouchsafe that she was in a sound and disposing state of mind.
27. This Court is unable to accept the said contention for the reason that nothing is imputed to DW2. He is a disinterested witness. DW2 was already 65 years of age when lie was examined before the trial Court. Admittedly the Will is of 1973 and he was examined in the year 2000. 27 years had already passed by. We cannot expect such a person to remember all the circumstances surrounding the execution of the Will. He has no axe to grind against the plaintiff.
28. Though Gangubai was aged 80 years and her hands were shaking, nothing is placed on record to show that she was incapable of understanding the contents of the Will or that she had made an improper disposition. Suffice to state that DW2 v/ho is the attestor to Ex.D3 has withstood the rigor of the cross-examination.
29. Another aspect pointed out before this Court is about the presence of DW1 the beneficiary under the Will at the time of execution of the Will. This cannot be blown out of proportion tor the reason that admittedly Gangubai was living -with Vimalanand her second son and first defendant daughter-in-law. It is but natural that a lady like Gangubai who was aged about 80 years needed somebody's help to move about of her house. It is not suggested even remotely toDW1 that she had actively participated in the execution of the Will and therefore it is a circumstance which necessarily required to be warded off effectively.
30. Taking into consideration the overall circumstances of the case and the evidence of DW2 the trial Court has come to the conclusion that the Will in question has been effectively proved. This Court does not find any reason to interfere with the well reasoned factual finding given by the trial Court in regard to the due execution of the Will and the sound disposing state of mind of the Testator at that point of time. Therefore this Court wants to concur with the finding of the trial Court, insofar as it relates to the due execution of the Will. Suffice to state that no suspicious circumstances had surrounded the execution of the Will. Even if one were to accept that there were some circumstances which were suspicious in nature they have been effectively warded off. Hence point No.2 is answered in the affirmative.
31. Re.Point No.3 In view of categorical finding of this Court on Point No. 1, it is to be held that the properties held by Gangubai under the settlement deed were not her absolute properties within the provisions of Section 14(1) of Hindu Succession Act. On the other hand, restricted covenants imposed in the deed coupled with the circumstances under which the settlement deed had come into being, the suit will have to be decreed as prayed for, notwithstanding up Holding of the due execution of the Will.
ORDER
Appeal filed under Section 96 of CPC challenging the judgment and decree dated 15.10.2003 passed in O.S.No.39/1990 by the Civil Judge (Sr.Dn.), Sirsi, is allowed. Consequently, the suit of the plaintiff in O.S. No. 39/1990 stands decreed and it is declared that plaintiff is entitled for half share in all the suit schedule properties and the same is to be demarcated by metes and bounds as contemplated under Section 54 of CPC read with Order 20 Rule 18 of CPC.
Taking into consideration the facts and circumstances of the case and the relationship of the parties there is no order as to costs.