Judgment:
Anand Byrareddy, J.
1. Heard the Counsel for the parties.
2. The parties are referred to by their rank before the Trial Court for the sake of convenience. The defendant is the appellant herein. The respondent was the plaintiff They are brothers and are the children of late Puttamma. Puttamma had purchased the property at No. 8, 1st cross, Srinivasa Colony, Bangalore. It transpires that she had partitioned the property under a registered deed dated 9.11.1981, whereby the northern portion was allotted to the defendant and the southern portion to the plaintiff. She was said to be residing in the southern portion of the property alongwith the defendant. A portion of the southern portion that was allotted to the plaintiff is the suit schedule property. It transpires that after the partition, there was disharmony in the family, especially, as between the plaintiff and his mother, which compelled her to tile civil suits in O.S. No. 11014/1995 for injunctory relief against the plaintiff and O.S. No. 10630/1996 for a declaration that the partition dated 9.11.1981 though executed and registered was never implemented and for other reliefs before the City Civil Court, Bangalore. The said suit for partition and separate possession was dismissed by a judgment dated 29.6.1999. This was carried in appeal in RFA 840/1999 before this Court. The appeal was dismissed while granting right of residence during the lifetime of Puttamma to her and the same attained finality. It is thereafter that the plaintiff instituted a civil suit in O.S. No. 8204/2002, seeking ejectment of the defendant from the suit schedule property and for possession, apart from damages towards use and occupation The Trial Court having decreed the suit in favour of the plaintiff, the present appeal is filed.
3. Shri V. Tarakaram, Senior Advocate appearing for the Counsel for the appellant would submit that the Trial Court has completely overlooked the fact that Puttamma had, under the partition deed, retained for herself the schedule property. Though the plaintiff was allotted a quantified share, he was not satisfied with the same and was constantly harassing Puttamma. It is this circumstance that prompted her to prefer a civil suit against the plaintiff. Since the defendant had all along taken care of Puttamma and out of love and affection, she had executed a registered will on 29.5.1986 bequeathing her estate in favour of the defendant, he has been in occupation of the suit schedule property by virtue of the same. The bequest made in favour of the defendant drove the plaintiff to harass Puttamma even more and she would have been thrown out of the house, if not for the presence of the defendant and it was this circumstance which compelled her to file a civil suit for partition.
The said suit was dismissed, on account of the fact that Puttamma, who was a plain and ignorant lady, had made a statement in the course of her evidence that it was her intention to partition the property between her sons and that she has not retained any portion for herself and has reaffirmed this during the course of cross-examination.
The Trial Court having proceeded to dismiss the suit in the face of the partition deed indicating that Puttamma had, in fact, retained a share in the southern portion of the property, the same has been summarily affirmed by this Court. Hence, the legal question whether the oral evidence as regards a written document could overthrow the right conferred under the document and whether the same could have been bequeathed in favour of the defendant is an important aspect that has not been addressed either in the earlier suit and appeal or in the present suit and hence, this would warrant consideration by this Court.
Further, the prior suit for partition having been disposed of and having attained finality by the judgment in appeal, notwithstanding, the will executed by Pattamma in favour of the defendant was not directly and substantially in issue in those proceedings. The question, therefore, is whether the will executed by Pattamma is valid and enforceable insofar as the bequest of her estate in favour of the defendant is concerned. The defendant was no a party to the prior proceedings. He claims his right under the will and therefore, the defendant could not have been denied his claim merely on the basis of the findings in the earlier suit filed by Puttamma. The right of the defendant in the present context arises on the death of his mother. The mere concession afforded to the mother and recorded in the judgement in appeal does not raise a presumption as to the right to a share in the schedule property which Puttumma held under the partition deed stood extinguished. In other words, the partition deed does indicate that Puttamma had an undivided share alongwith her younger son and his wile. All three were co-owners. HER prior suit for partition tailed which would only mean that she had an undivided share and the right in respect of that share which she had created by her will in favour of her elder son was not in issue. Incidentally, Nagarathuamma, the daughter-in-law of Puttamma was a proper and necessary party to the suit as she was allotted a share jointly with the plaintiff and his mother. Inspite of a contention having been taken as to non-joinder, the Trial Court has overlooked the said infirmity. The Trial Court's finding is that the will has not been proved as required under Section 68 of the Evidence Act, 1872. However, the Trial Court has tailed to notice that the will was never disputed and therefore, there was no burden cast on the appellant to prove the will.
4. On the other hand, the Counsel for the plaintiff-respondent would submit that the appellant seeks to trace his right to the share which was claimed by late Puttamma The suit for partition filed by her in this regard having been dismissed and the same having been affirmed in appeal and the said claim to the share having been set at naught, the execution of a will bequeathing her share by Puttamma was a futility. And if such a contention is accepted and if the argument of the defendant is accepted, it would result in the judgment of this Court rendered in appeal being reversed by the Trial Court which is neither contemplated nor capable of being granted. And hence, the Counsel would submit that the Trial Court has rightly negatived the plea of the defendant.
5. In this background, having regard to the earlier proceedings, whereby Puttamma had sought for partition and possession of her share in the suit properly and having failed, the same has attained finality. Hence, if that share was not available to her, a bequest being made and the same being set up by the defendant in respect of that share, cannot be countenanced, especially by the Trial Court in the face of the earlier judgment having been affirmed by this Court. Even the fact that the partition deed did record that Puttamma had retained a share in the property, which may not have been effaced by her oral testimony to the contrary, the judgments of the Trial Court and this Court have attained finality and therefore, it cannot be urged by the defendant nor can the Trial Court record a finding to the contrary. Hence, it cannot be said that the Trial Court has committed any error in negativing the defendant's contention. It, therefore, follows that even if the bequest under the will made by Putlamma was an independent right which the defendant has acquired and the same not having been the subject matter of the earlier proceedings initiated by Putlamma, to which she was not a party, the Courts are not in a position to ignore the earlier proceedings which would have a direct bearing in deciding the claim over the very same property which was the subject mailer of earlier proceedings. Therefore, it cannot be said that the Trial Court has committed any error in the impugned judgment Accordingly, the present appeal fails and is hereby dismissed.