Kerala High Court
K. Madayya Shetty vs Durgaparameshwari And Ors. on 20 October, 2000
Equivalent citations: AIR2001KER77, AIR 2001 KERALA 77
Author: D. Sreedevi
Bench: D. Sreedevi
JUDGMENT D. Sreedevi, J.
1. This Second Appeal is directed against the decree and judgment In A.S. 12/1986 of the District Court, Kasaragod, which arose out of the decree and judgment in O.S. 98/1979 of the Additional Sub Court, Kasaragod. Defendant No. 10 before the trial Court is the appellant before this Court.
2. The above suit was filed by the plaintiffs for partition and delivery of 1 /13 share in the plaint A schedule properties. The plaintiffs and defendant No. 33 are the widow and children of K.P. Narasimha Shetty. They claimed 1/13 share over plaint A schedule properties which, according to them, belongs to the joint family of Narasimha Shetty. They claimed their share as per the provisions of the Hindu Succession Act, as he died after the commencement of the said Act.
3. The suit was resisted by various sets of defendants setting up earlier oral partition. The second defendant raised a contention that K.P. Subbayya Shetty had executed a Will Deed, Exhibit B3, in the year 1966 and hence she is entitled to get the share of Subbayya Shetty. The plaintiffs and defendant No. 33 denied the execution of the Will. The trial Court on a consideration of the relevant aspects passed a preliminary decree holding that the execution of the Will had not been proved. It was also found that the propounder has not explained the suspicious circumstances surrounding the alleged execution of the Will. Therefore, the trial Court allotted the share of Subbayya Shetty to defendant No. 10. Defendants 1 to 7 filed appeal. The lower appellate Court confirmed the finding of the trial Court that there was no oral partition. Regarding the execution of the Will, the learned first appellate Judge reversed the finding of the trial Court and held that the Will alleged to have been executed by Subbayya Shetty has been duly proved. Aggrieved by the said decree and judgment, this Second Appeal has been filed by the 10th defendant.
4. The questions of law involved in this case arc the following :-
(i) In the light of the suspicious circumstances surrounding the alleged execution of the Will Ext. B3 is the lower appellate Court justified in law in upholding it without the propounders being able to explain such suspicious circumstances?
(ii) is the lower appellate Court justified in law in holding that Exhibit B3 Will is proved to have been duly executed ?
(iii) Have the defendants 1 to 7 discharged the burden cast on them to prove Exhibit B3 Will Deed ?
5. Heard both sides.
6. The learned counsel Mr. S.V. Balakrishna Iyer appearing for the appellant challenged the finding of the learned Subordinate Judge on various grounds. According to him, the lower appellate Court erred in holding that Exhibit B3 is proved to be the last Will and Testament of Subbayya Shetty. It also erred in ignoring the various suspicious circumstances surrounding the execution of the Will and that the Court below has failed to see that the burden is on the propounder both to prove the due and valid execution of the Will and to explain the suspicious circumstances surrounding the Will.
7. The second defendant is the legatee under Exhibit B3 Will. The execution of the said Will is denied by the respondents. So, under Section 68 of the Indian Succession Act, the Will has to be proved by examining at least one of the attesting witnesses. DW-1 is the husband of the second defendant. Exhibit B3 is a Will executed by the first defendant's brother Subbayya Shetty bequeathing his share in the joint family properties to the 2nd defendant. The Will is dated 7-12-1966. It is recited in the document that the testator had 1/13 share over the properties as per the provisions of the Hindu Succession Act. The second defendant has also obtained, under Exhibits Bl and B2, the undivided shares of Manjayya Shetty and Ramayya Shetty, who are the brothers of Subbayya Shetty. Those documents were executed by the legal heirs of Manjayya Shetty and Ramayya Shetty. Defendants 8 to 11 are the legal heirs of Subbayya Shetty. DW-4 is one of the attestors to Exhibit B3. He has admitted his signature in Exhibit B3, but stated that he does not remember whether he signed it as attestor or only as an identifying witness. He was examined before Court on 17-7-1981 long after the execution of Exhibit B3 Will. So, DW-4 may not be able to remember each and every minute details regarding Exhibit B3 document. He is also an attestor to Exhibit B 1 release deed executed on the very same day. He remembers that he has signed the documents at the request of DW. 1, the second defendant's husband. The other attestor to the Will was no more on the date of his examination. DW-5 is the scribe of Exhibit B3. He is a retired Sub Registrar. He would state that he saw the execution of the document and the attestors putting their signature in the document. He has also stated that he could say so only from seeing the document and not from his memory. He was examined more than 15 years after execution of the document. Therefore, every person cannot be expected to remember the details surrounding the execution of the document. He would state that he usually prepares documents on instructions from the executant and in the case of execution of Exhibit B3 also the same thing must have happened. For registration of the document, the executant appeared before the Sub-Registrar and admitted the execution of the document. He was acquaintance with the testator ever since his childhood. He used to approach him for writing rent receipts. He remembers that there was a draft prepared a day prior to the execution of Exhibit B3 and he gave instructions. According to him, at the time when he gave instruction, he has a sound disposing mind. Exhibit B3 was executed in his office. He has also stated that Narayana Rai and Ramanna Ral were present at the time of execution of Exhibit B3. According to him. the two attesting witnesses and himself have seen the testator signing the document and the testator has also seen the attestors signing Exhibit B3. He had read over Exhibit B3 to the testator and the testator admitted the contents of the document. After admitting the contents of the Will, the testator signed the document. He also states that it was he who had told time to give his thumb impression. He in unequivocal terms has admitted that Subbayyp Shetty was in a sound state of mind at the time of execution of the Will Deed. Even after the execution of the Will Deed, he lived for about seven years. According to him, he was healthy also that time. He admits that the testator and the scribe have put their signature while they were in his office and after complying with all the formalities, he has sent the document to Sub-Registrar's Office for execution.
8. On going through the evidence of DW. 5, I do not find any reason to disbelieve him. The scribe has seen the testator signing the Will and the testator has also seen the attestors signing the Will. By the evidence of DW-5, the propounder of the Will has proved the execution of the Will. On the very same day, the children of Ramayya Shetty also executed a release deed in favour of the second defendant.
9. It is submitted that Subbayya Shetty conveyed all his properties to his niece, disinheriting his wife and children, and that is a suspicious circumstance. The second defendant is the niece of Subbayya Shetty. Among the Marumakkathayees, the elderly people used to prefer their nephews and nieces rather than the wife and children. Therefore, the mere fact that he has executed Will Deed in favour of his niece will not raise suspicious circumstance. What he iias bequeathed by the Will is only his fractional interest in his family properties. His two brothers by Exhibits Bl and B2 conveyed their properties to the second defendant. Therefore, Subbayya Shetty also might have thought it fit to convey his properties to his niece. 1 do not find any suspicious circumstances surrounding the Will. The plaintiffs have no case that the Will Deed is vitiated by undue influence or fraud. Subbayya Shetty died in the year 1973 only. It is also relevant to note that the Defendants 8 to 11 have not chosen to challenge the validity of the Will during the life time of Subbayya. Shetty. That is also a circumstance which favour the execution of the Will Deed. Defendants 8 to 11 have also not made any attempt to claim their alleged share in the suit properties. No counter claim was also filed in the Written Statement of this case to set aside the said Will. Therefore, the learned District Judge found that the Will has been properly proved. I do not find any reason to set aside the findings of the learned first appellate Judge. The points of law stipulated are answered in favour of the respondents.
10. In the result, this Second Appeal is dismissed. No costs.