Karnataka High Court
Shri Mangesh Mohan Kadle, vs Shri Satish Mohan Kadle, on 1 June, 2012
Author: Subhash B.Adi
Bench: Subhash B.Adi
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS 1' THE DAY OF JUNE,. 2012
THE HON'BLE MRJUST1CE SUBHASH B. ADI
1
R[A4i
P AR ,'210
BETWEEN:
Shri Mangesh Mohan Kadle,
Age, 55 years. 0cc: Business.
R/o Viflage Benkanhafli,
Begaum590 001. APPELLANT
(By Sri G. B. Shastry, RM. Kulkarni and
Smt KS. Hemaekha, Advs)
A
' Li
1. Shri SaUsh Mohan Kadie,
Age: 66 years, 0cc: Retired,
RIo Near Bus Stand,
Bus Stand Road,
Hahyal, Dist: Karwar-581 023.
'r r--
Age 64 years, 0cc: Housewife,
r/o 1/11, Jeevan Saritha Building,
Tejpal Scheme, Road Nol
Vile Pane (F), MumbaH400 057.
3. Mrs Mancala Vilay Desai,
A'i &1 nrc (rr
r/o 217, Rani .hannarnma Nagar,
Dharwad-580 001,
4. The Manager,
Saraswat Coop. Bank,
Sarnadevi GaIN, BeIgaurn590 001.
5. The Manager,
Punjab National Bank,
CoHege Road,
Belgaum590 001. RESPONDENTS
(By Sri Sachin P. Bichu, Adv. for P.1
Sri CV. Angadi, Adv. for R3
Sri Sangram S. Kulkarni, Adv, for R4,
Sri V. A. Byatnal, RA,Purohit, Adv. for R5)
This RFA is filed under Sec96 of CPC, praying to set
aside the judgment and decree dated 130L2010 in
OSNoS/2005 on the file of the III Addi. Civil Judge (Sr.Dn.)
& AddMACT, Belgaum, in O.S,No,8/2005, and etc.
The appeal coming on for hearing this day, the Court,
deliverd the following:
JUDGMENT
This appeal is by the defendant4 in 0,5,8/2005 dated 13,1,2010 on the file of the III Addl. Civil Judge, Sr, Dn, Resooncient1 in this apoeal was the plaintiff and respondents 2, 3, 4 and 5 were the defendants2. to 5 ,-, :3: Parties will be referred to as per their ranking before the Trial Court.
2. The suit is one for partition and separate possession of d 113 share In the suit schedule A to C properties and for permanent injunction restraining defendant-i from transfer or alienation or creating charge on the suit schedule property and for a decree for declaration declaring that the Will dated 24.i2.i999 alleged to have been executed by late Mohan Kadle is not valid and genuine will and is null and void. The case of the plaintiff was that, the plaintiff and defendants 2 and 3 are real brothers and sisters. Plaintiff Is the eldest son of Mohan Kadle. Defendant-i is another brother and defendants 2 and 3 are sisters. Their father Mohan Annaji Kadle expired on
21.ii.2004 at Belgaum. The mother of the plaintiff predeceased to him on 20.7.i997. Late Mohan Kadle was in private service. Thereafter, he came to Belgaum and settled at Benkanahalli village, late Mohan Kadle had purchased the suit A-schedule property in the year i966 and had planted I 4* :4: more than 400 mango trees and various other trees. Defendants-2 and 3 beIng daughters of late Mohan Kadle, after their marriage they have been residing In their respective matrimonial houses.
3. PlaIntiff's father passed away on 21.11.2004 in Belgaum due to old age. He had never executed the Will dated 24.12.1999 in favour of defendant-i and the said will is concocted, false and bogus document. Defendant-i in order to grab the entire suit property of plaintiff and defendants, got created the alleged document, which Is a sham and colorable document. That their father was not In a position to understand the effect of the Will as his physical and mental health was not stable and by taking advantage of such a situation, defendant-i has got the said will executed from the father and the said Will was registered in the office of the Registrar at Belgaum. Thus, defendant-i started acting prejudidal to the interests of the plaintiff. Though, plaintiff requested the defendant-i that all the legal heirs of late Mohan Kadle have share in the schedule properties and I :5: they are required to be given their respective share In the same. Defendant-i ruled out any partition. Hence, plaintiff was constrained to file suit for partition and separate possession.
4. Defendant-i flied separate written statements admitting the relationship between the plaintiff and defendants and admitted that the suit A-schedule property was acquIred by the father of the plaintiff and defendants. However, denied that the plaintiff has any share In the suit schedule property and claimed that the father of the plaintiff and defendants, has executed registered Will bequeathing the suit schedule property In favour of defendant-i under the registered Will dated 24.i2.99. Their father was hail and healthy and capable of understanding. He was well educated and was working as Business Executive in MIs Glilanders Arbuthnut & Co. Ltd., in Mumbal. It was a British Company. Defendants' father had earned good name as Business Executive. A-schedule property was purchased by their father out of his own income. Plaintiff had left the house of :6: the defendant at the age of 21 years. The relationship between defendant's father and plaintiff had strained much prior to the birth of defendant-i.
5. Father of the defendant gave a very good educatIon to the plaintiff. Plaintiff acquired diploma in Mechanical Engineering and he was working at various places. He was very well placed in the society. Defendant's mother died in 1997. PlaIntiff had never come to see his mother prior to her death. He only came to collect the documents. Though the defendant Informed the death of the mother to plaintiff, but plaintiff had not attended the funeral. Even at 1 death anniversary which was performed by defendant-i was also not attended by plaintiff.
Defendant-i after completion of his SSLC, suffered paralytic stroke and as such, he discontinued his studies and became defunct on his part. He suffered the stroke on account of prolonged treatment given by the doctor and thereafter he became handicapped and crippled. His father was looking after him and helping in cultivation of :7: agricultural property. He denied the claim of the plaintiff for partition and denied cordial relationship with plaintiff with the father. He denied that this defendant-i had taken the Will from his father, by taking advantage of his old age and ailment. With these pleas the 1 defendant contested the suit.
6. Defendant no.2 contested the suit by filing separate written statement. However, defendant-3 supported the plaintiff.
7. The Trial Court on the basis of the pleadIngs framed the following issues:
1. Whether plaintiff proves that the 'Will' dated 24.12.99 is false, bogus and concocted?
2. Whether the defendant proves that Will dated 24.12.1999 has been validly executed?
3. Whether the plaintiff is entitled to 114 m share In the suit schedule property?
4. What other reliefs plaintiff is entitled to?
5. What Order or Decree?:8:
8. Before the trial Court plaintiff got examined himself as PW.i and got marked Ex.P.i to P.10. On behalf of defendants, 5 witnesses were examined as DW.1 to DW.5. DW.1 is defendant-3, DW.2 is defendant-i, DWs-3 and 4 are independent witnesses. Defendant-S is attesting witness to the Will.
9. The Trial Court on appreciation of evidence, held that the plaintiff has proved that the Sale Deed dated 24.12.1999 is bogus and concocted. Consequently, It held issue no.2 in negative and held that defendant No.1 has failed to prove the validity of the Will, accordingly, held that, the plaintiff is entitled for th 114 share in the suit schedule properties. It Is against the said findings and judgment and g 1 decree of the Trial Court, the defendant Is in appeal.
10. Smt Hemalekha, learned Counsel for the defendant-i submitted that, the plaintiff In his pleadings as well as in his evidence has admitted that the suit A-schedule properties are self-acquired properties of the father of the plaintiff and defendants. He has admitted that the father was :9: earning a good income. He admits that defendant-i and plaintiff are sons and defendants 2 and 3 are daughters of late Mohan Kadie. He also admits that the plaintiff's father gave very good education to the plaintiff. In 1965 itself plaintiff completed diploma in Mechanical Engineering. He has also admitted that he worked at various places and took voluntary retirement and settled in life. He has also admitted In his evidence that, defendant-3 was working as Professor in Karnataka College and she is well settled and her daughter is working in U.S. He also admits that defendant-2 is also married and settled. Further, admits that, only defendant-i who could not continue his education as he became handicapped due to stroke he suffered while he was studying in I PIJC. Plaintiff has not disputed the fact that his father has executed registered Will Ex.D.39.
11. In the cross-examination, plaintiff has admitted that he could not attend funeral of his father and his mother.
Even the V and 2
nd
death anniversary of his father was not attended by the plaintiff. The plaintiff's evidence itself 4--
:10:proves that the plaintiff was well educated and well placed and proves that the relationship between the plaintiff and the father was not cordial and it was strained. Further, It is admitted that defendant-i had become handicapped and was depending on his father and was living with him all throughout. It is also admitted that the suit properties are self-acquired propertIes of late Mohan Kadle.
i2. Registered Will Ex.D-39 discloses the reason as to why other children were excluded In the Will by the father. The father has stated that the other children are well placed and defendant-i has suffered paralytic stroke and has become dependent and he was living with him. It Is in these circumstances, the father out of his own love and affection and concern to the defendant-i had executed the registered WIll. Father being an educated having served In a British Company as a Business Executive and when the Will was executed he was hail and healthy and he died nearly after five years thereafter. Plaintiff has admitted in his evidence : 11: that even during 1999 their father was looking after the• agricultural land i.e., when the Will was executed.
13. These admitted facts do not create any doubt or suspicion in bequeathing the entire suit schedule property only in favour of defendant-i. The exclusion of other children is not by itself is a reason to doubt the genuineness of the Will. May be It is one of the circumstances but it depends on the circumstances under which the testamentary document has come into existence.
14. She also submitted that the trial Court only on the ground that other children have not been given any share in the Will, has held that the Will is not genuine. This finding is not in consonance with evidence on record. Further, submitted that, the Apex Court in the judgment reported in AIR 2008 S.C300 In the case of Savlthrl & Ors. vs. Karthyayani Amma and Others, has observed that the deprivation of a due share by the natural heirs Itself is not a factor which would lead to the conclusion that there exist suspidous circumstances.
fle :12: In the said case son had not taken care of his father, he had not attended to him, he has not even met the expenses of the treatment of his father and the testator was living with his sister and one child. Taking these circumstances, the Supreme Court held that deprivation of other natural heirs of their legitimate share is not a ground to hold that there exists suspicious circumstances.
15. Learned Counsel also submitted that this Court held In the judgment reported in 2010(2) AIR KAR. 533, in the case of P.N. Balakrlshna & On Vs. H. B. Bhavani Shankar & On. has held deprivation of natural heir of the natural shares by itself is not a circumstance to say will Is suspicious.
To prove the Will apart from that It is registered, signature of the testator is admitted, the attesting witness DW..5 has been examined who has stated in his evidence that, after going through the Will, the testator has put his signature, and DW-5 saw the testator putting his sIgnature on the Will. He identifies the signature of the testator. This :13: proves the due execution of the Will and also proves that there was no suspicious circumstance dothing the Will Despite that the trial Court wrongly held that the Will jr not proved.
16 Sri C .V. Angadl, learned Counsel appeanng for Defendant-3 submItted that, once, if the father who excludes his natural succession it creates a serious doubt as to the genuineness of the Will. In this case, the father had love and affection to all the children. He would not have bequeathed the entire suit schedule property only in favour of defendant 1 Exclusion of the other sharers is a strong and suspicious circumstance as to the genuineness of the Will 17 S Sachi 1 p Bichu. learned Court.el for the plaintif upporti gtl-efi dirgs fthetraic ur s mtted that the plaintiff could not attend the funeral as he was away f a ta na r tçc and aico participated in the final rites of 'us father. Merely b au e 'e 1a tif co Id ot atte. id ne fur ra ,4 Ins p renc c nno b tratid trat he el iontsip of bc '-4 V :14: plaintiff with his father was strained. He also submitted that there was no reason for the father to exclude the other children In the testamentary document and submitted that defendant-i taking advantage of the old age of the father and the circumstances that the father was suffering from cancer, has forcibly got the signature on the Will, as such, the said Will Is not a genuine Will.
i8. Sri V.A. Byatnal, learned Counsel for respondent- 5, submitted that there was no reason for the father to exclude the daughters from the Will. He had great love and affection towards all his children and as such the Trial Court has rightly held that the Will Is not proved.
i9. In the light of the above submissIon, the points that arise for consideration are:
1. Whether the first defendant has proved the Will
- Ex.P39, by removing all suspidous drcumstances?
2. Whether the findings of the trial court call for interference?:15:
20. The plaintiff has not disputed execution and registratIon of the Will and also the signature of the father on the Will. What is disputed Is that the father was not physically and mentally sound and stable and defendant-i has taken advantage of such a situation to get the Will executed from the father.
21. In the evidence plaintiff admIts that his father gave him good education in famous institutions. He completed Diploma in Mechanical Engineering In 1965. His father wanted the plaintiff to go to U.K. However, the plaintiff did not show any interest. He admits that defendant-3 was working as a Professor at Karnataka College, Dharwad. She got married in 1970. Her marriage was against the wishes of the parents. Plaintiff and defendants belongs to Saraswath Brahmin community but the husband of defendant-3 was Gujarathi. He admits that the father had great attachment to the property. He purchased the property after resigning from his Job.
16:
22. Plaintiff adt'nits that, defendant-2 had passed SSLC.
Defenant-1 is a matriculate. One year he went to college and then discontinued. As defendant-I was suffered by paralysis stroke, he discontinued his college. It was in I year PUC, when he suffered paralysis. He suffered the same due to viral infection, Plaintiff's mother died of old age and two days prior to her death he had come to Belgaum. Defendant-I telephoned him and informed plaintiff about the serious condition of their mother. But, by the time he came to Belgaum his mother was on death bed.
23. A specific question was asked to the plaintiff as to whether his mother was bed-ridden for six months and what he did. PlaAnhff has answered that he was away from Beigaum for his avocation, and he could not come to know about the illness. He was specifically asked whether he attended the death anniversary of his mother, he stated t.hat he was in service and his father told him that, no need to attend the death anniversary of his mother. He also admits that he was informed or: ohone snout the deatn of his father r 1 :17:
on 22.11.2004, but states that, on 23.11.2004 he came to know his father was suffering from cancer. He also came to know that the cremation had taken place on 21.11.2004 itself. Since he was informed on 22.11.04 about the death of his father on 21.11.2004, he could not attend the funeral of his father. He does not even know where his father was taking treatment. He admits that he had not attended his father's death anniversary and further admits that on the th 13 day ceremony of death of his father he wrote a letter to Sanmathl Co-operative bank and Punjab National Bank requesting not to make payment to anybody from the account of his father.
24. Defendant No.2 got married in 1968. He also admits that he had not mentioned as to the monetary condition of his father in the pleadings. He also admits defendant-i was looking after the transactIons. He also pleads ignorance as to the cultivation of crop thereon and yearly contract of mangoes given tot he buyers.
1% :18:
25. The evidence of the plaintiff categorically show s that he was given good education by his father and was working at various places till his retirement and his two sisters married in 1968 and 1970 are also well place d. It also shows there was difference of opinion between the parents and himself as he was away from the father for long time. It Is also admitted that, except the defendant No.1 , all others were well educated and settled in life.
26. SimIlar is the evidence of defendant-3. Defendant-3 does not dispute that the defendant No.1 is physically handicap person.
27. WIll Is a registered document. It is attested by an attesting witness. Though the attesting witness DW-
5 was cross-examined at length, but nothIng has been elici ted. The signature of the testator on the Will Is also not in disp ute.
Will is executed In 1999 and the testator (father) died In 2004. The evidence shows that, though he was suffe ring from Cancer, but was still working and cultivating land s. He was mentally and physically sound. Testator was worldly '4, :19: wise, educated, he had served as business exe cutive in a private British company and had earned good name and income. He was looking after the agricultural land even as on the date of execution of the Will. There is nothing on record which shows that he was incapable of und erstanding or mentally incapable of understanding.
28. It is not always the exclusion of natural heir or natural successor or natural inheritance would be a ground to hold that the will is dothed with suspldous drc umstances.
Each case depends on the facts and circumstan ce of that case.
29. In this case, facts are very clear that the test ator had 4 children. Two sons and two daughters. The first son-
plaintiff was given good education by his fath er. He had compieted his Diploma in Mechanical Engineer in 1965 itself.
He admit that he worked at various places and retired from service. The evidence also shows that defendant-3 was working as Professor in Karnataka College, Dha rwar, and it also shows that against the will of the par ents she had 20:
married to a Gujarathi and defendant-2 has not contested the suit and she is also married in 1968 and is settled.
30. There Is no dispute that amongst the 4 children of the testator, only defendant-i could not continue his education. It is admitted fact that after he completed his matriculation, when he was studying in PUC-I, due to wrong treatment he suffered paralytic stroke and became handicapped and crippled. Amongst 4 chIldren, 3 children were well placed and one has become handicapped incapable of maintaining himself, and was dependant on his father and he lived with his father. In these circumstances, as father, he could not have thought anythIng better than bequeathing his property to a son who was dependant on him rather than dividing the same amongst the other children as they were well settled In life. In a case where all children are well placed and one is physically handicapped and not capable of maIntaInIng himself, it cannot be said that the father with whom the handIcapped son stayed all throughout and father himself was lookIng after him, could have Ignored the father • 21:
of such son and could have partitioned the property amongst other children treating him also on par with other children.
rhis is very st ong ira ii star ce to exclude i ther natural heir or depnve the natural heir of the share It Ic not the case of the plaintiff or defendant No.3 that they have no means, they are not educated and they have no inco me But both plaintiff and defendan-3 are educated well place d in society Comparing them with defendant-i who is physically handicapped it cannot be said that the testator having regard to the circumstances would have executed the Will bequeathing the property amongst other ieir al. o
31. The Tnal Court erroneously ignore' th dm tted e i eic° j j'la.rti i J data. cgr s n . aids,, of defenda it-! and aJrni,sio,i of olaintift and defe ndant-3 hit hej are c,ei piaccc, arid af'n the evidenee Psa' the &i i sij o' the p antif' ii I dc. t ida it NC Ia N caIOr vit jr! sias a ocil 'airtfhad 10 ver irqt &tcrded , ft;'e' ' ,' j 1 -pj t.ta "phr'r :jq .r,cd r ' i tis he pi .'t.r rst In ci
--
(.Cvr 22 Though he was informed about the death of his fdther, he did not attend the funeral These circumstan ces also show that the plaintiff's relation with the father was not cordial
32. So also, aefendant No.3 who being from a fam ily of Saraswath Brahmin had marned to a Guj arathi boy against the wishes of her parents. These circum stances have been not considered by the tnal court. Will Is the ultimate desire and intention of the testator. Court mu st appreciate and evaluate the entire evidence and the circ umstances to find out the ultimate ntention of the testator and not to jump to . sudden conclus ion only on the ground that the cther teir are not given share ii the Will, hence, Will is not genuine.
33 inte *ior s clear not o "' from the Will bu al
troir the sur o mdi g c r i. mstar i es and the evidence 1 he
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:23:
34. In my opinion, the reasoning given by the trial Court that the exclusion of other children from the Will is a very suspicious circumstance to disbelieve the Will is absolutely perverse and capricious. The same is not based on proper appreciation of the evidence. The trial court has failed to appreciate the documentary evidence as well as oral evidence in arriving at the conclusion. In these circumstances, I find the judgment of the trial Court requires to be set aside.
Accordingly, I pass the following;
ORDER Will -- Ex.D39 is held proved.
The appeal is allowed. Judgment and Decree of the trial Court is set aside.
The suit stands dismissed with cost.
safr sub/KNM/