Karnataka High Court
Sabu S/O Goudappa Goudappagol vs Balappa Claiming To Be Adopted on 23 April, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2024:KHC-K:3196
RSA No. 7361 of 2011
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
DATED THIS THE 23RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 7361 OF 2011 (DEC/INJ-)
BETWEEN:
SABU S/O. GOUDAPPA GOUDAPPAGOL,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O. KAKHANDAKI, TAL: BIJAPUR-586101.
...APPELLANT
(BY SRI SHIVAKUMAR KALLOOR, ADVOCATE)
AND:
BALAPPA CLAIMING TO BE ADOPTED SON OF
RAMAPPA GOUDAPPAGOL,
AGE: 24 YEARS, OCC: NIL,
R/O. KAKHANDAKI, TAL: BIJAPUR-586101.
...RESPONDENT
(BY SRI M.V.V. RAMANA, SENIOR COUNSEL FOR
SRI SANGANABASAVA B. PATIL, ADVOCATE)
THIS REGULAR SECOND APPEAL FILED UNDER SECTION 100
OF C.P.C. PRAYING TO SET ASIDE THE JUDGEMENT AND DECREE
CHANDRASHEKAR
LAXMAN
KATTIMANI PASSED IN R.A.NO.60/2010 DATED 17-9-2011 IN THE COURT OF
Digitally signed by
CHANDRASHEKAR
THE IIIRD ADDITIONAL DISTRICT JUDGE BIJAPUR IN THE INTEREST
LAXMAN KATTIMANI
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
OF JUSTICE. SUIT OF THE PLAINTIFF MAY KINDLY BE ALLOWED AS
PRAYED IN O.S.167/2000 IN THE COURT OF PRL. CIVIL JUDGE (SR.
DN) BIJAPUR; COSTS OF THE PROCEEDINGS MAY KINDLY BE
AWARDED.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 14.09.2023, AND TAKEN FOR 'FURTHER HEARING' ON
01.02.2024 AND 15.02.2024, COMING ON FOR PRONUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-K:3196
RSA No. 7361 of 2011
JUDGMENT
Challenging judgment and decree dated 17.09.2011 passed by III Additional District Judge, Bijapur in R.A.no.60/2010, this appeal is filed.
2. Appellant herein was plaintiff while respondent was defendant in O.S.no.167/2000, and will hereinafter be referred to as such. O.S.no.167/2000 was filed for declaration of plaintiff's title over suit property, for consequential relief of injunction and alternative prayer for partition and separate possession of plaintiff's share in suit property. In plaint, it was stated that plaintiff-Sabu S/o Goudappa Goudappagol was natural brother of Ramappa Goudappagol of Kakhandaki village, whose wife was Smt.Bhagavva. They had no issues and died prior to suit. Said Ramappa owned land bearing Sy.no.631/1+2B measuring 9-Acres 32-Guntas situated at Kakhandaki village of Bijapur (suit property). After his death, Smt.Bhagavva became absolute owner of suit property. It was stated that defendant Balappa was claiming to have gone in adoption to Goudappagol family under registered adoption deed dated 17.06.1989 allegedly executed by Smt.Bhagavva, -3- NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 which would be unsustainable. Therefore, adoptee cannot claim co-ownership or heirship on basis of alleged adoption. It was stated that even after alleged adoption, name of defendant entered in revenue records continued to be associated with name of his natural father Adiveppa S/o Basappa Saravad.
3. It was further stated, defendant claimed to have got his name entered in record of rights in pursuance of a Waradi allegedly given by Smt.Bhagavva resulting in M.E.no.9825. It was stated, there could be no valid divesting of title by mere Waradi and appearance of name did not create any right by itself. It was also claimed that plaintiff was nephew of Smt.Bhagavva as his father Goudappa was brother of Ramappa, her husband. She had love and affection towards plaintiff and therefore, executed a registered Will dated 24.08.1998 bequeathing suit property in favour of plaintiff. It was stated that said Will was her last testament and she died on 29.02.2000. In view of her death, plaintiff became absolute owner in possession of suit land. He also reported same to concerned Village Accountant appending copy of Will for mutation.
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NC: 2024:KHC-K:3196 RSA No. 7361 of 2011
4. It was stated, O.S.no.318/1995 stated to be filed by Smt.Bhagavva and another was by exploiting her innocence and illiteracy and suit suffered from various short comings. Filing of said suit came to knowledge of plaintiff only when he received caveat notice issued by defendant. Only then plaintiff realized attempts to denying his legitimate title over suit property and gave rise to cause of action for filing suit.
5. Upon entering appearance, defendant filed written statement denying plaint averments and specifically asserting that Smt.Bhagavva was sister of Basappa Saravad, who was grandfather of defendant - Balappa and father of Adiveppa Saravad. Therefore, Smt.Bhagavva had taken her nearest relative in adoption, which took place as per customs and rites prevailing amongst Lingayaths and registration of deed of adoption on same day. It was stated that during adoption ceremony, presence of Smt.Bhagavva, deceased Yallavva D/o Smt.Bhagavva and Laxmibai D/o Yallavva were present as indicated in photograph taken. Waradi by Smt.Bhagavva to enter name of defendant in respect of suit property was admitted. It was asserted that adoption deed was valid and acted upon. After lapse of 6 years and on instigation Mallappa -5- NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 husband of Yallavva, Smt.Bhagavva had filed O.S.no.318/1995 before Prl.Civil Judge (Jr.Dn.), Bijapur for declaration against adoption, by including Laxmibai as plaintiff no.2, where, in plaint paragraph no.3, it was stated that suit property was inherited by her husband Ramappa and her grand-daughter Laxmibai who had become absolute owners and therefore, it should be transferred to name of plaintiff no.2. It was stated, Smt.Bhagavva had also challenged M.E.no.9825 before Assistant Commissioner, who set it aside on 21.03.1997. Said order was challenged by defendant in W.P.no.10471/1997. In said petition, a bogus sale deed stated to be executed by Bhagavva on 20.09.1996 in respect of VPC no.163 of Kakhandaki village was produced. Taking note of irregularities, this Court directed entry of names of defendant and Smt.Bhagavva jointly in revenue records, which continued till her death. It was stated that due to old age, Smt.Bhagavva fell down in bathroom, fractured her leg and was bedridden. Taking advantage of her condition, Goudappa practiced fraud on her, took her thumb impression on blank papers and got created Will. It was stated that Bhagavva was not in sound state of mind as on date of alleged Will. She was also suffering -6- NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 from loss of vision and was short of hearing and as such, not in sound state of mind for execution of Will. Further, as Will sought to exclude her only nearest relative Laxmibai, Will was not genuine and executed with free will. Instead of filing petition for probate of Will, suit was filed, which was barred by Section 213 of Indian Succession Act. It was also stated that prayer for declaration of absolute title and for partition cannot go together under same cause of action.
6. Based on pleadings, trial Court framed following:
ISSUES
i) Whether plaintiff proves that Smt.Bhagavva executed a Will on 24.08.1998 in favour of plaintiff?
ii) Whether plaintiff proves that he is owner of suit property?
iii) Whether plaintiff proves that he is in lawful possession of suit property as on date of suit?
iv) Whether cause of action arose to file this suit?
v) Whether plaintiff is entitled for reliefs sought for? If so, for which relief?
vi) What order or decree?
ADDITIONAL ISSUE
i) Does the suit of plaintiff is hit by Section 123 of Indian Succession Act?
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7. To prove his case, plaintiff examined himself and two others as PWs.1 to 3 and got marked original WILL as Ex.P1. On other hand, defendant examined himself and five others as Dws.1 to 6 and got marked Exs.D1 to D37.
8. On consideration, trial Court answered issues no.1 and 5 in affirmative, issues no.2 and 6 partly in affirmative, issue no.3 as not arising for consideration, issue no.4 and addl. issue no.1 in negative and issue no.7 by decreeing suit. Aggrieved thereby, defendants filed appeal on several grounds. It was contended that impugned judgment and decree passed by trial Court was contrary to law and evidence and probabilities of case. Decree was perverse, capricious and unsustainable. Though WILL was surrounded with suspicious circumstances, there was improper consideration while concluding that WILL was proved. Trial Court did not assign proper reasons for rejecting claim of defendant.
9. Based on contentions urged, first appellate Court framed followings points for consideration:
1) Whether the appellant/defendant proves that Affirmative finding recorded by the lower Court on Issue-1 holding that the due execution of the Will -8- NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 dated 24.08.1998 is perverse, capricious and legally not sustainable?
2) Whether the appellant/defendant proves that the Negative finding recorded by the lower Court on Issue-4 holding that the execution of adoption deed dated 17.06.1989 is perverse, capricious and legally not sustainable?
3) Whether the interference of this Court is required?
4) What order?
10. On consideration first appellate Court answered points no.1 to 3 in affirmative and point no.4 by allowing appeal, setting aside judgment and decree passed by trial Court and dismissing suit. Aggrieved by said judgment and decree, plaintiff is in appeal.
11. Sri Shivakumar Kallur, learned counsel for plaintiff submitted that plaintiff filed O.S. no.167/2000 for relief of declaration and injunction along with alternative prayer for partition and separate possession in respect of suit property namely Sy.no.631/1+2B measuring 9 acres 32 guntas of Kakhandi village. It was submitted that plaintiff was son of Goudappa, brother of Ramappa. Ramappa's wife was Smt.Bhagavva who became absolute owner of suit property after death of Ramappa on 11.05.1968. Though defendant claimed to have gone in adoption on 17.06.1989 as per -9- NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 Ex.D.35, he was natural son of Adiveppa and Smt.Gangavva. Adiveppa had earlier married Smt.Yallavva daughter of Smt.Bhagavva, and after abandoning her had married Smt.Gangavva. Said Yallavva thereafter married Mallappa and had a daughter Smt.Laxmibai through him.
12. When defendant illegally got his name mutated in revenue records, Smt.Bhagavva challenged it. It was contended that Smt.Bhagavva had executed registered WILL in favour of plaintiff on 24.08.1998, prior to her death on 29.02.2000. It was contended, both as legatee under WILL as well as by operation of law i.e. Section 15(1)(b) of Hindu Succession Act, plaintiff had right to question adoption. By virtue of Ex.P1- WILL, he got half share of Smt.Bhagavva. It was submitted that Smt.Bhagavva along with Smt.Laxmibai had filed O.S.no.318/1995 challenging adoption, but died during its pendency. Since plaintiff was not party to said suit, compromise entered into between defendant and Smt.Laxmibai would not bind him. It was also contended that Ex.D2- compromise decree would be unenforceable as it was not drawn on stamp paper and registered as held required in case of A.P.Madanna (deceased) by Lrs., vs. A.P.Kushalappa
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NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 and others reported in AIR 2002 KAR 439 and Sha Champalal Oswal vs. Peralu Achanna and another reported in 1998 (1) Kar.LJ 365.
13. It was submitted that in Ex.P1-WILL, testator had clearly averred about filing of O.S.no.318/1995 questioning adoption. Since defendant had attempted to interfere with plaintiff's peaceful possession, plaintiff had filed present suit. During trial, plaintiff produced registered WILL as Ex.P1 and examined scribe as PW1, attesting witness as PW2. They deposed in favour of WILL and sustained cross-examination. Thus, Ex.P1 stood proved. Consequently, judgment and decree passed by trial Court would be justified.
14. On other hand, defendant examined DWs1 to 6 and got marked Exs.D1 to D37. Since original deed of adoption was not produced and its certified copy was got marked as Ex.D35, trial Court disbelieved adoption as no foundation was laid for leading secondary evidence on adoption. Since testator herself had contested O.S.no.318/1995, compromise decree passed would not bind plaintiff. Therefore trial Court was justified in
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NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 holding that WILL was proved and decreeing half share of Smt.Bhagavva to plaintiff.
15. However, first appellate Court allowed appeal of defendant stating Plaintiff cannot challenge adoption and he is stranger, even though burden lies on defendant to prove adoption was legal and valid. It was submitted, there must be recitals in registered adoption deed of both parents of giving and taking and both parents should sign document. Ex.D.35, reveals that there are no signatures of both parents on document of adoption. On said finding, trial Court held adoption as invalid. First appellate Court failed to see that Bhagavva will get half share after death of Ramappa as per Section 8 (a) being Class-I heir, so trial Court gave half share. It was further contended that Ex.P1 being registered WILL was duly proved by PW-2, PW-3 evidence trial Court findings. Main ground urged against plaintiff's challenge against adoption on ground that said right was available only to family member would not hold water as Hon'ble Supreme Court in Moturu Nalini Kanth v. Gainedi Kaliprasad, reported in 2023 SCC OnLine SC 1488 and any relative could challenge it. It was contended that since Smt.Bhagavva herself had questioned adoption, defendant
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NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 cannot claim any right as adoptee. It was lastly contended that first appellate Court failed to frame proper points for consideration and meet requirements of Order 41 Rule 33 of C.P.C. Reliance was also placed on decision of this Court in case of Virupanna and others V/s Earanna and others in RSA No.7282/2010 dated 31.01.2024 for a proposition that to establish valid adoption recitals and signatures of both giver and taker are necessary.
16. It was submitted that appeal was admitted on 09.03.2012 to consider following substantial question of law:
"Whether first appellate Court was justified in reversing the finding of trial Court contrary to pleadings and evidence available on record?"
17. Based on above grounds, learned counsel sought for answering same in favour of appellant and to allow appeal.
18. On other hand, Sri M.V.V.Ramana, learned Senior Counsel appearing for Sri Sanganabasava B.Patil, learned counsel for defendant sought to oppose appeal.
19. It was submitted O.S.no.167/2000 was filed for declaration and consequential injunction or in the alternative
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NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 for partition based on an alleged WILL supposed to have been executed in his favour. At outset, it was submitted a stranger cannot seek for partition as plaintiff did not fall within list of class-I heirs, especially when even according to plaintiff, testator had a daughter, and daughter of pre-deceased daughter would be Class-I heir. Therefore, alternative prayer for partition was not tenable.
20. Further, defendant was adopted on 19.06.1989 under registered adoption deed and his name entered in record of rights in respect of suit property as per waradi given by adopted mother - Smt.Bhagavva, who was widow at time of adoption as Ramappa her husband died on 11.05.1968. Admittedly, suit property was ancestral property of Ramappa. On adoption, adopted child severs all relationship with his natural family and would be deemed born into adoptive family from date of adoption. Hence, defendant would be deemed coparcener and entitled to inherit coparcenary property.
21. It was submitted contention urged about non- production of original adoption deed would be diluted as Smt.Bhagavva had filed O.S.no.318/95 for cancelation of
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NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 adoption deed and even in WILL on which plaintiff was staking his claim, there was mention about adoption. It was submitted adoption deed was registered and deposition of one of witnesses of adoption namely photographer who took photographs during adoption function, would confirm adoption.
22. Insofar as WILL, it was submitted that it was allegedly executed during pendency of suit i.e. on 24.08.1998 and testator died on 29.02.2000. Thereafter, suit ended in a compromise, whereunder, surviving plaintiff accepted defendant as her adopted brother of her mother and said decree has attained finality. It was contended that in alleged WILL, there was not only reference to above suit as well as about mutation entries in favour of defendant.
23. Thus, being aware about suit and mutation in favour of defendant, and decree having attained finality, plaintiff would not be entitled to seek declaration of his title. It was submitted as per ratio laid down by this Court in Veerabhadrayya R. Hiremath and others Vs. Irayya A.F. Basayya Hiremath reported in ILR 2006 Kar. 1740, under normal circumstances adoption can be challenged either by
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NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 natural parents of boy or by adoptive parents or by child who was given in adoption.
24. Admittedly, adopted mother and her grand- daughter had challenged adoption, which ended in a compromise. Since plaintiff is not among those who would be entitled to question adoption, compromise decree would be binding.
25. Referring to recitals in WILL wherein Testator stated that she was executing WILL as she was confident of winning suit, it was contended that Testator was aware that she did not have title in respect of suit property. Therefore, WILL was contingent on winning in O.S.no.318/95. Since suit ended in compromise, contingent bequeathal would evaporate.
26. It was submitted this Court in Babu Ningappa Yalgundri Vs. Arunkumar reported in AIR 1987 SCC OnLine KAR 297, had held, adoption by widow of deceased coparcener, even as per classic Hindu law would be on behalf of her deceased husband and not for herself. It was submitted as a consequence of adoption, course of succession would be altered. It was further observed that in accordance with
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NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 provisions of Hindu Succession Act, if she died intestate, in regard to what constitutes her absolute estate, Section must be read not in terms of a widow who has an interest in properties of a Joint Hindu Family under customary law but with reference to rights of a female hindu dehors Mithakshara Joint Hindu Family System who may pass on her absolute estate to her adopted child.
27. It was further submitted in Ashwani Kumar Vs. Smt.Vidya and others reported in 2007 SCC OnLine All 20, High Court of Allahabad, following decision of Apex Court in Deu Vs. Laxmi Narayan, reported in 1998 (8) SCC 701, in view of Section 16 of Hindu Adoption and Maintenance Act, 1956 ('HAMA' for short), whenever any registered document is produced before any Court purporting to record an adoption made and is signed by persons mentioned therein, Court shall presume that adoption has been made in compliance with provisions of said Act, unless and until it is disproved and there would be no scope for collateral challenge. It was submitted, further observation that in view of Section 16 of HAMA, it was open to them to disprove such deed of adoption in an independent proceeding, would render instant suit, untenable.
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28. It was lastly submitted, this Court in Smt.Rudramma Vs. Shivamurtheppa and others in RFA no.100102/2015 disposed of on 08.05.2020, held that as per Article 57 of Limitation Act, 1963, suit for declaration about invalidity of adoption has to be filed within three years from date of adoption or knowledge. In view of above, present suit filed about 11 years after date of adoption would be barred by limitation. Hence, first appellate Court would be justified in setting aside judgment and decree passed by trial Court and dismissing suit. Consequently, it was prayed for dismissing appeal.
29. Heard learned counsel, perused impugned judgment and decree and records.
30. From above, it is seen plaintiff is seeking for declaration that he is absolute owner of suit property, for consequential permanent injunction against interference and alternatively for partition. Nature of suit property as ancestral joint family property of Ramappa is not in dispute. That Smt.Bhagavva, was widow of late Ramappa is also not in dispute. While plaintiff is claiming title over suit property under
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NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 Ex.P.1 - registered WILL dated 24.08.1998 executed by Smt.Bhagavva, defendant is claiming title under Ex.P.35 - registered deed of adoption dated 17.06.1989, whereunder, Smt.Bhagavva adopted defendant as her son. Hence, both plaintiff and defendant are claiming title through Smt.Bhagavva.
31. Admittedly, Ramappa and Smt.Bhagavva, had a daughter - Yallavva. Therefore, after death of Ramappa, his property would devolve upon his widow and daughter. In case, adoption of defendant is held established, he would become coparcener. Even if it is held not proved, testator Smt.Bhagavva would not be absolute owner in presence of daughter - Yallavva. Even if Yallavva had died, her daughter Laxmi Bai, would be her Class-I heir. Therefore, Smt.Bhagavva, would not be absolute owner of suit property. Consequently, right to bequeath suit property would be limited to her share only. Hence, even if plaintiff were to establish Ex.P.1 - WILL as valid, his claim would be limited as above to share of testator.
32. While passing judgment and decree, trial Court observed that defendant had not sought for any counter claim
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NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 based on adoption deed nor plaintiff sought for declaration that adoption deed was null and void or for its cancellation. It took note of fact that there was failure to produce original adoption deed. After analyzing evidence to explain reasons for its non- production, it observed such reasons untenable and therefore, held there would be no justification for permitting defendants to prove adoption by secondary evidence. From admission by DW.1 that there were no recitals in adoption deed produced about performance of ceremony of 'giving and taking', contradicted about date of adoption as 19.06.1989, while in examination-in-chief by way of affidavit stating it as on 17.06.1989, in addition to fact that defendant had accepted summons, even though it was issued in name of Balappa son of Adiveppa Sarawad and also taking note of name of parents of defendant in Ex.D.1 - SSLC marks card, issued much later than date of alleged adoption as Gangamma and Adiveppa, came to conclusion that defendant had failed to establish valid adoption.
33. Insofar as Ex.P.1 - WILL, it held that by production of original WILL, failure of defendant to dispute LTM on Ex.P.1 was that of testatrix, examination of scribe of WILL as PW.1 and attesting witness as PW.2, who deposed consistently about
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NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 due execution of WILL, plaintiff had established validity of WILL. Before such finding, it examined material available to rule out suspicious circumstances. It noted denial of suggestions about testator being physically unfit due to blindness, deafness and also about broken leg, by scribe and attesting witnesses to conclude that WILL did not suffer from suspicious circumstances.
34. Insofar as Smt.Laxmi Bai, grand-daughter of testatrix, it observes that neither defendant had taken up contention about non-joinder of necessary party nor plaintiff establishing that testatrix was absolute owner of suit property. It also noted that plaintiff had failed to file rejoinder to written statement, denying Smt.Laxmi Bai had any right, title or interest over suit property. Therefore, it drew adverse inference and proceeded to hold that plaintiff would be entitled to claim right under WILL to extent of share of testatrix in suit property. Since, testatrix and Smt.Laxmi Bai, were both Class-I heirs, it apportioned plaintiff's right to half share in suit properties. It also observed that mere revenue entries would not confer title.
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35. On other hand, first appellate Court observed that there was failure to produce original adoption deed. It observed Ex.D.33 was letter by defendant for return of original adoption deed submitted while requesting mutation of name of defendant in year 1989 and reply by Tahsildar as per endorsement at Ex.D.34, as laying down basis for leading secondary evidence. On said reasoning, it held production of certified copy of adoption deed as per Ex.D.35 would be sufficient to establish adoption by referring to presumption available to registered deed under Section 16 of HAMA. It also holds plaintiff as a third party cannot challenge validity of adoption by referring to decision in Veerabhadrayya Hiremath (supra). It also noted fact that defendant had examined photographer and attesting witnesses of deed of adoption, in addition to acknowledgement by Smt.Bhagavva herself in O.S.no.318/1995.
36. It further observed that as defendant was aged 2-3 years at time of adoption, admissions elicited from him would be immaterial and therefore, inferences drawn by trial Court based on such admissions would not be justified.
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37. Insofar as WILL, it observed that mere examination of scribe and attestor would not be sufficient and propounder would be required to explain away any suspicious circumstances surrounding WILL. It held that there was no explanation for excluding Smt.Laxmi Bai - natural heir from bequeathal of entire joint family property.
38. Referring to deposition of PW1 - scribe that testatrix had given record of rights for drafting WILL, but there was reference to pending suit also in said WILL, presumed that it was prepared based on instructions given by someone else also. It also holds since, PW.1 did not state that he went to Sub-Registrar's office, he could not be treated as attesting witness. It holds deposition of PW.2 as attesting witness was unreliable by referring to his statement that contents of WILL were not read over to him and without enquiring about same, he had signed WILL. Reason assigned is that testatrix had asked him to accompany her to Bijapur, as she was executing sale deed in respect of suit property. It also observed that PW.3 propounder of WILL had not stated anything about exclusion of Smt.Laxmi Bai. Based on above observations, it holds that in absence of trustworthy and unimpeachable evidence to
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NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 establish genuineness and authenticity of WILL, it must be held as not duly proved. It observes "Court has to sit in the armchairs of the testator and examine the genuineness of the WILL and appreciate the evidence on record in deciding as to whether the WILL is duly executed by the executant or not and in making such decision, it should repose confidence of the Court that it is the true intention of the testator who has executed the WILL."
39. First appellate Court also held that long time gap after adoption would be suspicious circumstances as per decision in Siddalingaiah (deceased by LRs) v. H.K. Kariappa reported in AIR 2009 (NOC) 888. Further referring to decision in P Ramachandran Nair v. Smt.Suparna Tapandas reported in AIR 2003 Bom. 457 and B. Rajegowda & Anr. v. H.B. Shankaregowda & Ors. reported in ILR 2005 Kar.5501, it held failure to disclose name of attesting witnesses in plaint would also required to be considered. Based on above observations, it concluded that finding of trial Court on genuineness and validity of Ex.P.1 - WILL was contrary to material placed on record and as such, unsustainable.
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40. In instant case, plaintiff's claim under WILL is opposed on ground that WILL is shrouded in suspicion. Law regarding proof of WILL and suspicious circumstances has seen substantial evolution with celebrated decision in H. Venkatachala Iyengar v. B.N. Thimmajamma, reported in AIR 1959 SC 443, wherein it was held propounder of WILL must examine one or more attesting witnesses and onus would be on propounder to remove all suspicious circumstances with regard to execution of WILL. It clarified that as in proof of other documents proof need not be with mathematical certainty and standard to be applied would be satisfaction of prudent mind.
41. In Jaswant Kaur v. Amrit Kaur, reported in (1977) 1 SCC 369, it was held when WILL is challenged as being shrouded in suspicion lis ceases to be between plaintiff and defendant and question which would arise for consideration is, whether evidence led by propounder would satisfy conscience of Court that WILL was duly executed by testator. It was clarified that such conclusion cannot be ruled out unless propounder offers cogent and convincing explanation with regard to suspicious circumstances.
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42. In Bharpur Singh v. Shamsher Singh, reported in (2009) 3 SCC 687, it was held three aspects must be proved by propounder:
16. ... (i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and
(ii) when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of propounder, and
(iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein."
43. An illustrative list of suspicious circumstances was also enumerated in above decision:
"23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will:
(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
(iv) The dispositions may not appear to be the result of the testator's free will and mind.
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(v) The propounder takes a prominent part in the execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts."
44. In B. Venkatamuni v. C.J. Ayodhya Ram Singh reported in (2006) 13 SCC 449, it was clarified that there exists distinction between well founded suspicion and bare suspicion. It was held, Court must not start with suspicion and close its mind to find truth as resolute impenetrable incredulity is not demanded even if there exists circumstances of grave suspicion. As held in Anil Kak v. Sharada Raje, reported in (2008) 7 SCC 695, Court has to adopt rational approach to satisfy its conscience, as an order granting probate is judgment in rem. In Leela Rajagopal v. Kamala Menon Cocharan, reported in (2014) 15 SCC 570, weighing of suspicious circumstances was further elucidated as under:
"13. A will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a will or the unnatural circumstances surrounding its execution will definitely justify a close scrutiny before the same can be accepted. It is the overall assessment of the court on the basis of such scrutiny; the cumulative effect of the
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NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 unusual features and circumstances which would weigh with the court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a will or a singular circumstance that may appear from the process leading to its execution or registration. This, is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us."
(emphasis supplied)
45. Thus, judicial verdict has to be on consideration of all unusual features and suspicious circumstances put together without being carried away on any single circumstance. In instant case, substantial time gap after adoption for execution of WILL; exclusion of natural heir; statement of scribe that record of rights were handed over, but not referred in WILL; assertion about probable result of suit; omission of scribe to state his attendance at Sub-Registrar's Office; admission by PW.2-attesting witness that contents of WILL were not read over to him and he signed without enquiring about contents of WILL rendered him unreliable witness. It also upholds execution of WILL long after adoption as a suspicious circumstance. Failure to disclose attesting witness in plaint was also taken into account.
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46. This Court in RFA.no.1156/2006, disposed of on 17.06.2022 has held omission to state regarding record of rights would not be fatal. Further, PW.1 is scribe and not attesting witness. His attendance before Sub-Registrar is not required by law. Though, adoption is in year 1989 and WILL is executed on 24.08.1998, after about nine years, such execution is a short while after testatrix had filed suit for declaration against adoption. In any case, since WILL can be executed at any time, time gap after date of alleged adoption would be irrelevant.
47. There is no requirement in law that attestor is also required to know contents of deed/document, which he attests. Insofar as requirement to establish that testator had knowledge of intent and purport of WILL, PW.1 has stated that contents of WILL were read over and testatrix admitted it to be correct. Suggestions about testatrix being deaf and blind are denied. Only elicitation is that PW.1 did not accompany to office of Sub- Registrar. In fact, tenor of cross-examination is total denial of testatrix meeting PW.1 to give instructions for preparation, execution and registration of WILL. Contrary to it, it is suggested at time of writing WILL, only Kallappa Gonganaik,
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NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 Hanumanth Jamkhandi and testatrix were present. PW.2 - attestor, deposed that as per instructions of testatrix, he accompanied her to Bijapur for acting as attesting witness. In fact, in cross-examination of PW.2, it is elicited that scribe had read over contents to testatrix. Only material elicitation is about his lack of knowledge of contents of WILL. Said circumstance cannot be considered as suspicious.
48. PW.3 - propounder of WILL has deposed that testatrix was hale and healthy at time of execution of WILL and died about one and half years after execution of WILL. Only elicitation was that about four days prior to death, she was suffering from fever. It is also elicited that about one week earlier, testatrix had informed propounder about execution of WILL and she had handed over WILL to him after execution. Interestingly, there are no suggestions about propounder's participation at time of execution of WILL or WILL suffering from undue influence.
49. Moreover, judgment and decree passed by trial Court was by same learned Judge, who recorded portion of evidence. Admittedly, interference with judgment and decree of
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NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 trial Court is not on ground of failure to consider any part of evidence. Hon'ble Supreme Court in its celebrated decision in Santosh Hazari v. Purushottam Tiwari, reported in (2001) 3 SCC 179, has held:
"15. ......While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai [(1983) 1 SCC 35) The rule is -- and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [1950 SCC 714: AIR 1951 SC 120]) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. ....."
(emphasis supplied)
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50. As noted above, first appellate Court has applied standard of arm chair of testator to know genuineness and validity of WILL and cast burden on propounder to lead trustworthy and unimpeachable evidence to establish genuineness and authenticity of WILL, which would be contrary to law. As observed above, conclusion on all circumstances by first appellate Court would be contrary to law. In fact, except circumstance about exclusion of natural heir, they cannot be considered as material suspicious circumstances. In fact, said issue was addressed by trial Court holding that testament could not affect or alter course of natural succession and restricting bequeathal only to extent of share of testatrix in joint family properties. Consequently, there would be no basis for interference with judgment and decree passed by trial Court. Hence, substantial question of law is answered in negative. Hence, following:
ORDER Appeal is allowed, impugned judgment and decree dated 17.09.2011 passed by III Additional District Judge, Bijapur, in
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NC: 2024:KHC-K:3196 RSA No. 7361 of 2011 R.A.no.60/2010 is set aside. Consequently, judgment and decree dated 26.03.2010 passed by Principal Civil Judge (Sr.Dn.) Bijapur, in O.S.no.167/2000 is restored.
Sd/-
JUDGE Psg* List No.: 19 Sl No.: 1