IMPORTANT POINT
Construction of a document of title or of a document which is foundation of rights of parties, necessarily raises a question of law.

JUDGEMENT

H.L. Gokhale J.:-This Civil Appeal raises the question as to whether the will of one Smt. Nagammanni was validly executed, and whether the same was duly proved by the respondent no.1 and another (original plaintiffs). There is one more connected issue raised in this appeal as to whether a learned Judge of the High Court of Karnataka was right in interfering in Second Appeal, into the concurrent findings of the Trial Court and the Lower Appellate Court in exercise of High Court’s powers under Section 100 of Code of Civil Procedure.

Facts leading to this Civil Appeal are as follows:-

2. The respondent no.1 and another, the original plaintiffs are the sons of a cousin of one Smt. Nagammanni who died on 21.11.1970. It is claimed by them that she left behind a will executed way back on 24.10.1943, and registered with the Sub-Registrar at Mysore, on 25.10.1943. The original plaintiffs claimed that through the said will she has bequeathed her property in their favour. The property referred in the will is her ancestral property. The property of late Smt. Nagammanni consisted of 11 parcels of dry land situated in village Mallinathpuram, and 2 parcels of wet land situated in village Kaggalli, both in taluk Mallavalli in district Mandya, State of Karnatka. Out of these 11 parcels of dry land those at Sl. Nos.2, 5 and 10 (from the list referred in the plaint) were not covered in the will.

3. It was the case of the original plaintiffs that they were in possession of these parcels of land, and their possession was sought to be disturbed by the appellant herein (original defendant no.1 and others). Smt. Nagammanni is the widow of one C. Basavaraje Urs, whereas the appellant is the son of this C. Basavaraje Urs from his second wife. After the death of Smt. Nagammanni, the plaintiffs, as well as the defendants, applied for entering their names in the revenue records as the owners of the concerned lands. The Mutation Registrar however passed an order on 29.3.1971, in favour of the defendants. The plaintiffs preferred an appeal against the same to the Assistant Commissioner Mandya. However, when they found that taking advantage of the said order the defendant No 1 was trying to disturb their possession over the suit properties, they were required to file a suit, on the basis of the will, which they filed in the Court of Principal Civil Judge at Mandya, and which was numbered as Suit No.32 of 1975. They prayed for a declaration of their title to the suit property, and for a permanent injunction restraining the defendants from interfering with their possession thereof. Alternatively, they prayed that in case it is held that they were not in possession, a decree be granted for recovery of possession of the property with future mesne profits.

4. The suit was contested by the defendants, the appellant herein, by contending that Smt. Nagammanni was not the owner of the suit property, and in any case the will relied upon by the respondents was not a valid one. It was additionally submitted that the relations of Smt. Nagammanni and the appellant were cordial, and the claimed will must have been revoked, which revocation was being suppressed by the respondents.

5. The learned trial judge raised in all ten issues. The first out of these issues was whether the plaintiffs proved that the suit property rightly belonged to Smt. Nagammanni, and the learned Judge answered it in the affirmative. This finding has not been disturbed by the fist appellate court, nor seriously contested in the present Civil Appeal also. It is the second issue framed by the trial judge which is the crucial one, namely, whether the plaintiffs prove that Smt. Nagammanni executed a registered will dated 24.10.1943 in favour of the plaintiffs, and bequeathed the suit properties to them.

6. The plaintiff no.1 (PW-1) examined himself in support of his case. He examined three more witnesses in support, out of whom the second witness P. Basavaraje Urs (PW-2) is the most relevant