Sri. Vinayak Pai vs Sri. P. Ganesh Kamath on 23 January, 2023

[Cites 6, Cited by 0]

Karnataka High Court

Sri. Vinayak Pai vs Sri. P. Ganesh Kamath on 23 January, 2023

2. P. Ganesh Kamath instituted a suit against Vinayak Pai and M. Muralidhar Prabhu seeking for a decree of partition and to declare that he was entitled to 1/3rd share in property bearing R.S.No.347, TS No.424 measuring 10 cents of converted land in Kasba Bazar Village.

3. P. Ganesh Kamath contended that the suit property was owned by K. Panduranga Nayak, who had executed a registered Will on 12.09.2011 whereunder he had bequeathed the suit property in favour of himself, Vinayak Pai and M. Muralidhar Prabhu jointly. It was stated that K. Panduranga Nayak died on 11.06.2014 and on his death, the suit property devolved on all the three legatees and P.Ganesh Kamath was entitled to inherited 1/3rd share.

4. He stated that he was in joint possession of the property and since it was found difficult to manage the property jointly, he had -3- RFA No. 406 of 2017 intimated his inability to continue as the co-owner and had requested for a partition by meets and bounds.

5. He also contended that certain vested interests were falsely representing that they had an absolute right over the property and were setting up a title hostile to that of the plaintiff and therefore he had been constrained to issue a paper publication on 05.08.2014 warning the general public not to deal with the property since it belonged to him and the defendants jointly.

6. He stated that he had also issued a legal notice dated 08.08.2014 to Vinayak Pai and M.Muralidhar Prabhu demanding his share and in response, Vinayak Pai had given a false and frivolous reply. It was stated that in view of this reply, though M. Muralidhar Prabhu had supported the partition, he was constrained to seek for partition.

7. Vinayak Pai entered appearance and contested the suit by filing a written statement. He stated that the suit property was initially belonging to Rukuma Bai wife of K.Panduranga Nayak, she having acquired it under a Sale Deed dated 08.09.1969. He stated that Rukuma Bai had executed the Will dated 10.08.2006 in favour -4- RFA No. 406 of 2017 of her husband i.e., K.Panduranga Nayak and on her death on 25.10.2010, K.Panduranga Nayak had become the absolute owner of the suit property.

8. He stated that K. Panduranga Nayak had thereafter executed a registered Settlement Deed dated 20.11.2012 settling the property in his favour and he had thus became the absolute owner of the said property. It was stated that in view of the Settlement Deed executed by K. Panduranga Nayak during his lifetime, the question of the Will having come into effect on his death would not arise at all. He denied the assertion that the suit property was liable to be partitioned.

9. M. Muralidhar Prabhu also entered appearance and filed the written statement. He however supported the case of P. Ganesh Kamath and requested that the suit be decreed as prayed for.

10. The Trial Court framed, in all, six issues.

11. The first issue was as to whether P. Ganesh Kamath had proved the execution of the Will and the second issue was as to whether he had succeeded to the said property along with Vinayak -5- RFA No. 406 of 2017 Pai and M. Muralidhar Prabhu on the death of K. Panduranga Nayak and the third issue was as to whether the plaintiff was entitled to 1/3rd share.

12. The fourth issue that had been framed was as to whether Vinayak Pai had acquired the suit properties under the Settlement Deed dated 20.11.2012.

13. In support of his case, P.Ganesh Kamath examined himself as PW1 and also got five other witnesses examined. He also got marked in evidence 32 documents.

14. On behalf of M. Muralidhar Prabhu, he got himself examined as DW1 and also got examined two other witnesses and in all produced 67 documents.

15. The Trial Court on consideration of the evidence adduced before it came to the conclusion that P. Ganesh Kamath had proved the execution of the Will dated 12.09.2011 and it also came to the conclusion that the execution of the Settlement Deed dated 20.11.2012 in favour of Vinayak Pai was not proved. The Trial Court accordingly decreed the suit and granted P. Ganesh Kamath -6- RFA No. 406 of 2017 1/3rd share. It is against this decree granting 1/3rd share, the present appeal is preferred by Vinayak Pai.

16. Learned Senior Counsel appearing for Vinayak Pai contends that the entire plea of P. Ganesh Kamath was that there was a Will executed by K. Panduranga Nayak and on his death, the suit property had devolved on the three legatees mentioned therein and consequently, there should be a decree for partition. However, since it was clear that K. Panduranga Nayak during his lifetime had settled the property by executing a registered Settlement Deed on 20.11.2012, there was no question of there being a bequest, since the property itself had been disposed of by the Testator.

17. He submitted that to the legal notice of P.Ganesh Kamath, Vinayak Pai had given a categorical reply stating that the property had been settled in his favour under registered Settlement Deed and despite this specific reply neither P.Ganesh Kamath nor the other legatee i.e., M. Muralidhar Prabhu chose to challenge the Settlement Deed. He submitted that since there was no challenge to the Settlement Deed at all, the Trial Court had no jurisdiction to -7- RFA No. 406 of 2017 come to the conclusion that the execution of the Settlement Deed had not been proved.

18. He submitted that the Trial Court had committed a fundamental error in embarking upon an enquiry to test the validity of the Settlement Deed when it was not even the subject matter of the suit. He submitted that merely because an issue had been framed regarding the execution of the Settlement Deed, that would not empower the Trial Court to decide on the validity of the Settlement Deed when there was no challenge to it. He submitted that since the Trial Court had decided the validity of the Settlement Deed without there being a challenge, the entire judgment was vitiated.

19. Learned counsel appearing for P. Ganesh Kamath and M.Muralidhar Prabhu i.e., Sri. Pundikai Ishwara Bhat and Sri.G.Ravishankar Shastry supported the impugned order and contended that it was not very material for a challenge being laid to the Settlement Deed since no such plea had been raised by Vinayak Pai in his written statement. It was argued that if and only if Vinayak Pai had contended that the suit was not maintainable for -8- RFA No. 406 of 2017 lack of a challenge to the Settlement Deed, was P.Ganesh Kamath required to seek for a prayer regarding the Settlement Deed.

20. They submitted that since an issue had been framed and all the parties to the suit went into trial knowing fully well the issue that was to be decided, the question of there being a need to challenge the Settlement Deed would pale into insignificance.

21. It was contended that the Trial Court on a meticulous analysis of the evidences of the two doctors and other surrounding circumstances had recorded a clear finding that K. Panduranga Nayak was not of sound mental health when he had executed a Settlement Deed and therefore, the Trial Court was justified in coming to the conclusion that the Settlement Deed had not been proved.

22. It was also contended that the medical evidence on record clearly indicated that K. Panduranga Nayak was suffering from dementia from the end of November 2012 and having regard to the fact that the Settlement Deed was executed on 20.11.2012, an interference had rightly been drawn by the Trial Court that -9- RFA No. 406 of 2017 K.Panduranga Nayak was not in a sound state of mind when the Settlement Deed was executed.

23. Arguments were also advanced that the Settlement Deed was indeed surrounded by suspicious circumstances. It was contended that the evidence on record indicated that the defendant No.2 was all along residing with K. Panduranga Nayak and he was taking care of all his needs and despite this fact, a Settlement Deed had come about, which could not be believed.

24. It was also stated that the Settlement Deed had been executed by a counsel, who was none other than the brother-in-law of defendant No.1, who infact was the author of the Will and since there was absolutely no mention about the evocation of the Will in the Settlement Deed, the same would have to be ignored and the Trial Court has rightly ignored the same.

25. They contended that the lack of a challenge by itself to the Settlement Deed, would in no way invalidate the judgment of the Trial Court having regard to the facts and circumstances of the case.

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26. Having regard to the arguments advanced, the point that arises for consideration of this appeal is as to whether the Trial Court could have come to the conclusion that the Settlement Deed dated 20.11.2012 (Ex.D2) could have been declared to be invalid even though there was no challenge to the said Settlement Deed and consequentially, whether the Trial Court was justified in giving effect to the Will dated 12.09.2011 (Ex.P31).

27. It is not in serious dispute that K. Panduranga Nayak had executed a registered Will in favour of P. Ganesh Kamath, Vinayak Pai and M. Muralidhar Prabhu on 12.09.2011. Infact the evidence on record indicates that Vinayak Pai on the basis of the recital in the Will that he was to succeed to the Bank deposits had also acted upon the Will and had received the monies from the Bank. This singular fact by itself is sufficient to hold that the registered Will dated 12.09.2011 was admitted.

28. However, the question remains as to whether this Will dated 12.09.2011 could be of any significance in view of the case put- forth by Vinayak Pai that K.Panduranga Nayak had executed a

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registered Settlement Deed in his favour subsequently on 20.11.2012.

29. It cannot be in dispute that the testator would have the absolute right to dispose of the property during his lifetime notwithstanding the bequest that he had made during his lifetime. In fact, any disposition of the property in respect of which a bequest had been made would render the bequest invalid since fundamentally there would be no property available for the testament to come into effect. Thus, if the execution of the Settlement Deed is held to be proved, the execution of the Will on 12.09.2011 would be rendered superfluous and no rights would flow to any of the legatees under the Will.

30. It is strongly contended by the learned counsel appearing for P. Ganesh Kamath and M. Muralidhar Prabhu that the execution of the Settlement Deed was rightly not accepted by the Trial Court since the evidence on record indicated that K.Panduranga Nayak was suffering from dementia at that point of time. Reliance is sought to be placed on the evidence of two doctors - PW5 and PW6 and also the medical records. PW6 - Dr.Srinivas Kakkilaya

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stated that he was treating K. Panduranga Nayak for Diabetes and for his breathlessness and he has stated in his evidence that after the death of his wife, K.Panduranga Nayak showed symptoms of other ailments and he was talking less and his memory was also fading. He has stated that he had been admitted to Yenepoya hospital and at that point of time for cough, chest pain and mental illness and he had advised him and the said admission was made on his advise. He however during the course of his cross- examinations as deposed as follows:

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31. A reading of this deposition of PW6 would indicate that he had never treated K. Panduranga Nayak for dementia. He also is not very sure as to when K. Panduranga Nayak was affected by dementia. He also states that he did not conduct pathological examinations to determine whether K. Panduranga Nayak had suffered from dementia.

32. In order to prove that a person was not in a sound state of mind and he was not capable of understanding the consequences

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of his action, positive and credible evidence would have to be produced to establish this fact. When the doctor who was examined was unsure as to when exactly he noticed the signs of dementia and when he also admits that he had not treated K. Panduranga Nayak for dementia, it cannot be urged that the evidence of PW6 indicated that K. Panduranga Nayak was mentally not sound.

33. Similarly, the evidence of the other doctor i.e., Dr.Srinivas Bhat - PW5 would also have to be examined. Dr. Srinivas Bhat states in his evidence that he treated K. Panduranga Nayak when he was admitted to the Yenepoya hospital in the month of March 2013. He has also stated in his examination-in-chief as follows:

"zÉÃºÀzÀ°è ¸ÉÆÃrAiÀÄA CA±À PÀrªÉÄAiÀiÁUÀÄªÀÅzÀjAzÀ qÉ°jAiÀÄA gÉÆÃUÀ ¨Á¢ü¸ÀÄªÀ ¸ÁzsÀåvÉ EgÀÄvÀÛzÉ."

34. It is to be kept in mind that K. Panduranga Nayak was aged about 87 years old and the evidence on record of this doctor and the evidence of Dr. Srinivas Bhat that it is quite possible that due to a deficiency in sodium, the possibility of K. Panduranga Nayak having delirium cannot be ruled out. The case sheet pertaining to the admission of K. Panduranga Nayak has also been produced

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through him at Ex.P32. This indicates that K.Panduranga Nayak was admitted on 31.03.2013 and discharged on 04.04.2013. The chief complaints, as recorded in the initial assessment, for is that K.Panduranga Nayak was complaining of fever with chills and reflex for one day and had a compliant of one episode of vomiting after lunch. The column relating to history of present illness indicates that he had no history of cough and expectoration, pain abdomen, breathlessness, etc., The said history was stated to have been given by his daughter. Thus, initially when he was admitted, the provisional diagnosis indicated fever and evaluation.

35. It is no doubt true that thereafter there is an entry made on 01.04.2013 stating that K. Panduranga Nayak had dementia and visual hallucination, delirium - Hypoactive delirium and hyponatraemia and he was currently better with sodium reflectant The case sheet does not in any way indicate that he was suffering from dementia and was incapable of understanding the consequences of his action. As stated above, he was admitted with history of fever and chills and without any complaint relating to his dementia. The case sheet also indicates that he was better

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with sodium reflectant. As per evidence of the Psychiatrist, one of the known symptoms of a person having sodium deficiency is to be in a state of delirium. The case sheet indicates that K. Panduranga Nayak was suffering from sodium deficiency and therefore, the possibility of him suffering from delirium cannot be ruled out.

36. It is to be stated here that this doctor, who was examined as PW5, did not categorically state during course of his evidence that K.Panduranga Nayak's mental health was bad and he was incapable of taking a rational decision. Merely because K.Panduranga Nayak was admitted about four months after he executed the Settlement Deed, that by itself cannot lead to an inference that his mental health was not sound. As stated above, in order to prove the mental incapacity of a person there should be unimpeachable evidence to indicate that he was incapable of knowing the consequences of his action. Thus, the medical evidence adduced by P. Ganesh Kamath has in no way established that K. Panduranga Nayak was mentally unsound.

37. The defendant No.2 i.e., M. Muralidhar Prabhu claimed that he was residing with K. Panduranga Nayak. For reasons best

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known to M. Muralidhar Prabhu, apart from his own evidence, evidence of other relatives were not adduced to indicate that K.Panduranga Nayak was of an unsound mind and was incapable of taking any decision. The evidence of the other relatives who had knowledge about the health of K.Panduranga Nayak would have been a relevant factor, especially in a case where three of his legatees were litigating to succeed to his estate. The evidence of both P.Ganesh Kamath and M. Muralidhar Prabhu would have to be viewed as being interested, since both of them had a direct interest in contending that K. Panduranga Nayak was of unsound mind.

38. An argument was also advanced that the Settlement Deed had been drafted by Vinayak Pai's wife's brother and therefore, the possibility of collusion in order to usurp the property could not be ruled out. This counsel was examined as PW4. During the course of his cross examination, apart from making a suggestion that K. Panduranga Nayak was not mentally sound, no other admission is elicited from him as to his incapacity to give instruction for a drafting of the Settlement Deed. It is to be stated here that the

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counsel who drafted the Settlement Deed appeared before the Court on summons and clearly stated that he had been given instructions to draft the Settlement Deed. Unless key admissions were elicited from him that K. Panduranga Nayak was not aware of his actions, it will have to be held that there is no evidence at all to indicate the unsound mind of K. Panduranga Nayak.

39. K. Panduranga Nayak executed the registered Settlement Deed on 20.11.2012 and the counsel has stated in clear terms that he had prepared the Settlement Deed on his instructions and the photograph in the Settlement Deed also confirms the presence of K. Panduranga Nayak. Furthermore, the attesting witness to the Settlement Deed has also been examined to prove its execution.

40. It is to be stated here that there would always be a presumption regarding execution of a registered instrument and to dislodge this presumption it will have to be proved beyond all reasonable doubt that the person executing the Deed was unaware of the consequences of the execution of the Deed. In this case, there is absolutely no evidence forthcoming which remotely

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indicates that K.Panduranga Nayak did not know what he was doing.

41. The Trial Court has however chosen to take the view that the execution of the Settlement Deed was surrounded by suspicious circumstances. In my view, the Trial Court has applied the principles which are applicable to a Will for the determination of the validity of the execution of the Settlement Deed. The standard of proof required for execution of a Will and the execution of the Settlement Deed are completely different. Since the Settlement Deed was a registered Deed, credence would have to be given to the due execution thereof especially when the attesting witnesses and the counsel who drafted the registered Deed were examined. In my view, therefore, the finding of the Trial Court that the execution of the Settlement Deed was not proved and that K.Panduranga Nayak was not aware of the consequences of the Settlement Deed cannot be accepted. As stated above, since the testator K. Panduranga Nayak himself had executed the Settlement Deed during his lifetime, the question of the Will having any effect

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would not arise since there was no property capable of disposition by way of testament.

42. Learned counsel for the plaintiff / respondent No.1 relied upon the following judgments of the Apex Court and this Court to contend that it was not necessary for Vinayak Pai to raise a plea regarding invalidity of the Settlement Deed, since both the parties went into trial knowing fully well that the Settlement Deed has to be proved:

i. Bhagwati Prasad Vs. Chandramaul - AIR 1966 SC 735. ii. Union of India Vs. M/s. Khas Karanpura Colliery Co.

Ltd. - AIR 1969 SC 125 iii. Ram Sarup Gupta (Dead) by Lrs. Vs. Bishun Narain Inter College and others - AIR 1987 SC 1242 iv. Nagubai Ammal & others Vs. B. Shama Rao & Others

- AIR 1956 SC 593 v. Nedunuri Kameswaramma Vs. Sampati Subba Rao -

AIR 1963 SC 884 vi. K.Raghurama Rao Vs. H. Venkatesh Nayak - ILR 1985 KAR 3592 vii. Ganapati Santaram Bhosale and another Vs. Ramachandra Subbarao Kulkarni and others - AIR 1985 KAR 143 viii. B.C. Ravindra and another Vs. Deviramma - 2010 SCC online KAR 329.

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43. A perusal of all the citations relied upon by the learned counsel would indicate that the proposition of law propounded in those decisions is as to the requirement of a plea with reference to the evidence. In those decisions, the Apex Court as well this Court had stated that even if there are no specific pleadings, if both the parties were aware of the case of either of the parties, the evidence led by them could not be disregarded on the ground that there was no pleadings to support them.

44. In this case, the question of a pleading would not really arise, since the essential question to be considered is as to whether the plaintiff could have been granted a declaration that the registered instrument was invalid even seeking for a prayer in that regard.

45. In fact, the Constitutional Bench decision relied upon by Sri.Pundikai Ishwara Bhat in the case of Bhagwati Prasad, the Apex Court has itself stated that if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground need be covered either directly or by necessary implication. The Apex Court in the case of Bachhaj Nahar vs.

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Nilima Mandal and another - (2008) 17 SCC 491 at paragraphs 22 and 23 has held as follows:

"22. The observation of the High Court that when a plaintiff sets forth the facts and makes a prayer for a particular relief in the suit, he is merely suggesting what the relief should be, and that it is for the court, as a matter of law, to decide upon the relief that should be granted, is not sound. Such an observation may be appropriate with reference to a writ proceeding. It may even be appropriate in a civil suit while proposing to grant as relief, a lesser or smaller version of what is claimed. But the said observation is misconceived if it is meant to hold that a civil court may grant any relief it deems fit, ignoring the prayer.

23. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non-joinder of causes of action or parties, etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of rupees one lakh, the court cannot grant a decree for rupees ten lakhs. In a suit for recovery possession of property 'A', court cannot grant possession of property 'B'. In a suit praying for permanent injunction, court cannot grant

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a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc."

46. Thus, the fundamental requirement of law is that a party should ask for a relief on a clear and specific ground. If no relief at all is sought for in relation to the Settlement Deed, the Trial Court could not have given that relief to the plaintiff merely because it has framed an issue. In order to invalidate a registered instrument, a specific prayer and a specific challenge should have been laid to the Settlement Deed. In the absence of any challenge to the Settlement Deed, no amount of pleadings or no amount of evidence could have entitled the Trial Court to sit in judgment over the Settlement Deed.

47. In this view of the matter, I find that the judgment and decree of the Trial Court cannot be sustained and the appeal is accordingly allowed. The suit filed by P. Ganesh Kamath, would as a consequence, fail and it shall stand dismissed.

Sd/-

JUDGE SV List No.: 1 Sl No.: 37

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