Karnataka High Court
Smt N Amruthavalli vs M Rajagopal on 9 October, 2023
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.No.508/2008(DEC)
BETWEEN
1. SMT N AMRUTHAVALLI
DECEASED BY LR AND SON
N. NAGARAJAN
2. N NAGARAJAN
AGED 50 YEARS
S/O LATE SRI M NATARAJAN
RESIDING AT NO.23 (BACK HALF PORTION)
MEANE AVENUE ROAD
BANGALORE-560 042
...APPELLANTS
(BY SRI K.C.SUDARSHAN, ADVOCATE)
AND
M RAJAGOPAL
DECEASED BY LRS
(a) SMT. RADHA
AGED 60 YEARS
WIFE
(b) S N KODANDARAM
AGED 42 YEARS
FIRST SON
2
(c) SMT LAKSHMIDEVI
AGED 38 YEARS
DAUGHTER
(d) JAGANNATHAN
AGED 38 YEARS
SECOND SON
(e) GOPINATH
AGED 36 YEARS
THIRD SON
RESIDING AT NO.23 (FRONT HALF PORTION)
MEANE AVENUE ROAD
BANGALORE-560 042
...RESPONDENTS
(BY SRI K.SUMAN, SENIOR COUNSEL ALONGWITH
SRI SIDDHARTH SUMAN, ADVOCATES FOR R1 TO R5)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 R/W ORDER XLI OF CIVIL PROCEDURE CODE
AGAINST THE JUDGMENT AND DECREE DATED 10.1.2008
PASSED IN O.S.NO.443/1991 ON THE FILE OF THE VII
ADDITIONAL CITY CIVIL JUDGE, BANGALORE (CCH-19),
PARTLY DECREEING THE SUIT FOR PERMANENT INJUNCTION
AND DECLARATION.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
3
JUDGMENT
Defendants in O.S.No.443/19991 are challenging the validity of the judgment and decree passed in the said suit dated 10.01.2008, passed by the VII Additional City Civil Judge, Bengaluru (CCH-19) in this appeal.
2. Parties are referred to as plaintiffs and defendants for the sake of convenience as per their original ranking before the Trial Court.
3. Sri M. Rajagopal, the original plaintiff filed a suit against the defendants for decree of declaration of permanent injunction in respect of front portion of the premises bearing new No.23, old No.1/3 situated at Meanee Avenue Tank Road, Corporation Division No.78(old Dvn.No.53), Civil Station, Bangalore, bounded on:
North by : Private property and tank road, South by : House belonging to defendants described as 'B' schedule property in the Will dated 01.06.1980 East by : Private property formarly belonging to Sri Narayana Reddy and 4 Sri Muniswamappa West by : Private property (premises bearing No.Old No.2 and 8 of Osborne road) (Hereinafter referred to as suit property)
4. Plaintiff contended that he is the absolute owner, in actual and physical possession over the suit property as the same was purchased by Smt. Kamalammal, who is the mother of the plaintiff on 17.05.1961 from G.A. Samuel and Smt. Mary Grace Samuel. Parents of the plaintiff had two sons namely; plaintiff and his elder brother Natarajan. First defendant is the wife of said Natarajan and second defendant is the daughter of the said Natarajan. Natarajan said to have died in the year 1953-54. Father of the plaintiff died when plaintiff was hardly aged about 10 months old and mother of the plaintiff had executed a registered Will on 01.06.1980, bequeathing one house i.e., portion of premises No.23, shown as EFGHI in the sketch to the Will in favour of the defendant out of sympathy and rest of the property shown as ABCDEFG in the sketch of the Will in favour of the plaintiff 5 out of love and affection comprising of three houses, as he was attending to the needs of the mother and plaintiff has let out two of the houses in favour of different tenants with the consent of his mother and rent from the tenants was being collected by his wife Smt. Radhamma for the sake of convenience. When the matter stood thus, in March 1989, Kamalammal being feeble and owing to her old age, was not keeping good health and that by taking undue advantage of the same, defendant started to call Smt. Kamalammal frequently and in August 1989 when mother of the plaintiff was not in sound state of mind, she was confined by the defendants. Since the said action of the defendants was fishy and suspicious, plaintiff approached the jurisdictional police and lodged a complaint on 09.02.1990.
5. Police called the defendants to explain regarding the contents of the complaint and at that juncture, defendants claimed ownership over the suit property by producing the settlement deed dated 28.12.1989 purported to have executed by Smt. Kamalammal in favour of first defendant 6 by modifying her earlier Will dated 01.06.1980 and cancellation deed dated 28.12.1989 and Will dated 10.11.1989.
6. According to plaintiff, those documents were null and void and Smt. Kamalammal was not in a position to understand the worldly things having regard to the advanced stage and fragile health.
7. The plaintiff also claim that in view of the documents executed by Smt. Kamalammal are null and void, they did not convey any right, title and interest in favour of defendants and sought for an order of injunction and filed the suit as aforesaid.
8. In response to the suit summons, defendants put in their appearance through Advocate and resisted the plaint averments by filing a detailed written statement. In the written statement they admitted the Will dated 01.06.1980 executed by Smt. Kamalammal, but contended that Kamalammal executed another Will on 10.11.1989 and again 7 executed another settlement deed dated 28.12.1989, whereby the plaintiff cannot interfere with the peaceful possession and enjoyment of the property of the defendants shown as ABCD in the subsequent deeds. They further contended that Kamalammal and plaintiff have succeeded to half share each in the suit property and therefore, sought for dismissal of the suit.
9. In view of the rival contentions of the parties, learned Trial Judge framed the following issues.
"1. Whether the defendants prove that Kamalammal executed will dated: 10.11.1989?
2. Whether the defendants prove that Kamalammal executed cancellation deed dated: 28.12.1989 canceling the earlier will dated: 1.6.1980?
3. Whether the defendants prove that Kamalamma executed settlement deed dated: 28.12.1989 settling the rear portion of the premises No.23, old No.1/3, meanee Avenue Tank Road, Civil Station, Bangalore in favour of 1st defendant?
4. Whether the plaintiff is entitled for the relief of declaration as prayed for?8
5. Whether the plaintiff is entitled for permanent injunction as prayed for?
6. What order?"
10. However, there was recasting of the issues by order of the High Court of Karnataka passed on 20.09.2006 in writ petition No.37228/2003, whereby the issues were recasted as under:
1. "Whether the plaintiffs prove that the registered Will dated: 10.11.1989 is null and void and not binding on him?
2. Whether the plaintiffs prove that the Deed of cancellation of will dated 29.12.1989 is null and void and not binding on him?
3. Whether the plaintiffs prove that the registered deed of settlement dated: 28.12.1989 executed by Smt.Kamalammal is null and void and not binding on him?
4. Whether the plaintiffs prove the alleged interference of the defendant?"
11. In order to prove the issues and additional issues, on behalf of the plaintiff, Sri R. Kodandaraman who is the one of the legal heir of the plaintiff got examined as P.W.1, Sri A.Gomatheesan and C.V. Divakaran are examined as D.Ws.2 9 and 3. On behalf of the plaintiff, as many as 22 documents were exhibited and marked as Exs.P.1 to P.22 comprising of Will dated 01.06.1980 as Ex.P.1, Sketch as Ex.P.1(a), Copy of complaint as Ex.P.2, Legal Notice as Ex.P.3, Legal Notice as Ex.P.4, Covering letter as Ex.P.5, Legal notice as Ex.P.6, Copy of reply as Ex.P.7, Acknowledgement as Ex.P.8, Letter dated 01.12.1990 as Ex.P.9, Death certificate of Kamalammal as Ex.P.10, Certified copy of order in Misc.No.234/98 Ex.P.11, Certified copy of deposition in Misc.No.234/98 as Ex.P.12, Certified copy of will deed as Ex.P.13, Certified copy of cancelled will deed as Ex.P.14, Certified copy of settlement as Ex.P.15, Ration card as Ex.P.16, Intimation card as Ex.P.17, Notices as Exs.P18 and 19, Complaint as Ex.P.19A, Written statement as Ex.P.20, Order sheet as Ex.P.21, Photo as Ex.P.22."
12. To counter the evidence placed on record by the plaintiff, on behalf of the defendants six witnesses were examined as D.ws.1 to 6. On behalf of the defendants 12 documentary evidence were placed on record, which were 10 exhibited and marked as Exs.D.1 to 12 comprising of RTC as Exs.D1 to D3, Will as Ex.D.4, Sketch as Ex.D.4A, Cancellation deed as Ex.D.5, Registration deed as Ex.D.6, Sketch as Ex.D.6A, Complaint as Ex.D.7, Acknowledgement as Ex.D.7A, Complaint as Ex.D.8, Endorsements as Exs.D.9 to D11, Tax receipt as Ex.D.12.
13. On conclusion of recording of the evidence, the learned Trial Judge heard the parties in detail and after considering the material on record in cumulative manner, decreed the suit of the plaintiff as under:
"The suit of the plaintiff is decreed in part. The plaintiffs are hereby declare that they are the absolute owners of the schedule property described within ABFG in the sketch appended to Ex.P1 and have right to pass through the common passage described under CDEF in the sketch appended to Ex. P1. Further, the will and deed of cancellation as well as deed of settlement marked at Exs.P13 to P16 (Exs.D4 to D6) dated:10.11.1989, 29.12.1989 and 28.12.1989 respectively purported to have been executed by Smt. Kamalammal are hereby declared as null and void and not binding on the plaintiffs or on the schedule property. It is further ordered by way of permanent 11 injunction that the defendant or his men or any representative under him are hereby restrained, from interfering with the peaceful possession and enjoyment of the plaintiffs over the schedule property described under ABFG or the right of the plaintiffs to pass through the common passage described under CDEF in the sketch appended to Ex.P1."
14. Being aggrieved by the same, the defendants have preferred the present appeal on the following grounds:
It can be seen from the pleadings that the suit was filed as early as on 18.1.1991. At that time, that was the only suit that was pending between the parties in regard to the suit schedule property was O.S.No.443/1991 as per the pleadings. During the course of cross examination of DW-1 certified copies of the plaint in O.S. No.11286/1997 on the file of City Civil Judge, Mayo Hall, Bangalore, the written statement filed by the defendant in that suit and the order sheet in the said suit were confronted to him and got marked as Ex. P19, Ex.P20 and Ex.P21. That suit as per Ex.P-21 in OS.No.11286/1997 was filed on 5.12.1997 while the suit in OS.No.143/1991 was filed on 18.1.1991. Evidence for the plaintiff commenced only on 16.6.2000 after the death of the original plaintiff M.Rajagopal on 31.5.1995, more than five years earlier. After PW-1 was examined and his cross-examination came to be concluded on 1.2.2003, the affidavit of PW-2 12 A.Gomatheesan was filed on 18.2.2003 and he was cross examined on 5.3.2003. The evidence for the plaintiff came to be concluded on 9.4.2003 with cross examination of PW-3 C.V.Divakaran whose affidavit had been filed on 5.3.2003. Therefore, the plaintiff had plenty of opportunity to seek amendment of the plaint making reference to the suit in OS.No.11286/1997 which came to be dismissed for non-prosecution. Since evidence of PW-1 was commenced only on 16.6.2000, it was open to the LRS of the plaintiff to have sought amendment of the plaint pleading about the said suit in O.S.No.11286/1997. They did do so. Yet, the learned trial court judge has placed extensive reliance upon the said suit to come to the conclusion that the defendant had failed to make out a case to prove exhibits D4, D5 and D6. It is well settled principle of law that any amount of evidence is of no consequence unless there is plea in support of the same. Reliance is placed upon the Division Bench judgment of this Hon'ble Court in 1967 [1] Mysore Law Journal page 70 - Rudrawwa versus Balawwa for the proposition that evidence without pleadings cannot be looked into. That being so, the learned trial court judge wholly erred in placing reliance upon the entire evidence pertaining to Ex.P19-A, Ex.P- 20 and Ex.P-21 as the same was not pleaded in the plaint by means of amendment of the plaint. The latest judgment of the Supreme Court in regard to amendment of the pleadings is reported in AIR 2000 Supreme Court page 806. In that judgment, the 13 Supreme Court has taken the view that the trial is deemed to have commenced on the day the issues are framed. In the present case, the issues were originally framed long back for the first time on 3.1.1994 and again after remand from the High Court on 27.1.2007.
Even at the time of framing of additional issues it was open to the LRS of the plaintiff to plead with reference to the later suit and let in evidence in support of that plea. They failed to do so. That being so, the learned trial court judge wholly erred in coming to the conclusion that the plaintiff was entitled to the reliefs sought in the suit.
Another serious error committed by the learned trial court judge is in failing to take note that the plaintiff had sought four declarations and one injunction. In regard to those declarations, the burden was entirely upon the plaintiff having regard to Sections 101, 102 and 103 of Evidence Act. It was the duty of the plaintiff to have established by means of evidence that the Will registered on 10.11.1989, the Deed of Cancellation registered on 29.12.1989 and the Deed of Settlement also registered on 29.12.1989 [Ex. D4, D5 and D6] did not take away the effect of the earlier Will said to have been executed by Smt.Kamalammal on 1.6.1980. The evidence of PW-1 does not at all meet with the requirements of Section 62 and Section 63 of Indian Succession Act, 1925, under which, it was mandatory for the plaintiff to examine the witnesses who had 14 attested the Will of Smt.Kamalammal on 1.6.1980. They did not do so. The age of PW-1 as on 16.6.2000 was 34 and the previous Will is said to have been executed on 1.6.1980, nearly 20 years earlier. It means, the age of PW-1 R.Kothandaram was about 14 years as on 1.6.1980 and it was difficult for him to comprehend what was a document called Will. The evidence of PWS 2 and 3 is of no consequence because they are not the attestors to the Will. Yet, the learned trial court judge has come to the most erroneous finding that the LRS of the plaintiff are entitled for declaration as sought by them rejecting the evidence In regard to the Will registered on 10.1.1989, the Deed of Cancellation registered on 29.12.1989 and the Deed of Settlement also registered on 29.12.1989.
The plaintiff claims title to the suit schedule property only under Will dated 1.6.1980. Therefore, the burden was on him to establish that the said Will was duly executed by Smt.Kamalammal. He did not discharge that burden.
The learned trial court judge has dealt with Issues 1 to 3 and Additional Issues 1 to 3 together. The said issues throw the burden equally on plaintiff and defendants of proving Exhibits D4, D5 and D6 which are same Exhibits P13, P14, and P15. They are the Will registered on 10.11.1989, the Deed of Cancellation registered on 29.12.1989 and the Deed of Settlement registered also on 29.12.1989 In respect of proving these documents 15 the burden was equally on both the plaintiff and the defendant. Having regard to the prayer made in the suit namely declaration that the plaintiff is the sole and absolute owner of the suit schedule property under Will dated 1.6.1980 namely Ex.P1, it was incumbent upon the LRS of the plaintiff to prove Ex.P1 in accordance with law by examining the attestors to the Will. They did not do so. They did not discharge their burden under Sections 62 and 63 of Indian Succession Act, 1925. That means, Ex.P1 remained un-proved. The learned trial court judge, after considering pleading of the parties, could have himself raised an issue in regard to the burden upon the plaintiff to prove Ex.P1. He erroneously did not do so. Order XIV Rule 5 of CPC provides that, at any time before passing judgment, the court is entitled to, on its own, raise any additional issue, delete any issue and modify the issues already framed. The discretion vested in the court is not in any way restricted. That discretion can be exercised by the court on its own, not withstanding the fact of any of the parties not raising the matter before the court. Therefore, keeping in mind the first prayer in the suit of seeking declaration that the plaintiff is the sole and absolute owner of the suit schedule property under the Will dated 1.6.1980 alleged to have been executed by Smt.Kamalammal, the learned trial court judge wholly erred in not exercising the jurisdiction vested in him in not raising the issue in regard to burden of proof pertaining to Ex.P1. On the other hand, he has 16 proceeded under the wrong presumption that the defendants have admitted Ex.P1. Notwithstanding the alleged admission on the part of the defendants which they hereby specifically deny, it was incumbent upon the plaintiff to prove Ex.P1 in accordance with law having regard to provisions of Section 63 of Indian Succession Act, 1925. He failed to do so. Consequently, the learned trial court judge wholly erred in decreeing the suit as prayed for.
In regard to exhibits P13, P14 and P15 which are exhibits D4, D5 and D6, the defendants have let in abundant evidence by examining as many as six witnesses, who are material witnesses such as attestors to the Will, the Advocates who helped in drafting the Will and the Advocates who were present at the time of execution and registration of the Will Ex.D4, the attestors to the Deed of Cancellation of the Will and the attestors to the Deed of Settlement. The learned trial court judge has completely ignored the evidence of DWs 1 to 6, while he has given undue importance to the evidence of PW-1. As already stated, the evidence of PWs 2 and 3 is of no consequence as far as Ex.P1 is concerned. Neither they are attestors to the Will nor in any way concerned with the Will. They claim to be merely neighbours of the plaintiff. That being so, the only evidence that could have been considered by the learned trial court judge on the relevant issues, is the evidence of PW-1 namely M.Kothandan the first son of 17 deceased Plaintiff M.Rajagopal. As already stated, he was 14 years of age when P-1 came to be existence. Therefore, he had no idea of what document a Will is and how it should be proved in accordance with law. The learned trial court judge himself has made observation that the facts concerning Ex.P1 would have been known better to the deceased plaintiff M.Rajagopal. Thereby what can be inferred is that PW1's evidence in regard to Ex.P1 is not credit worthy. He was deposing only after Ex.P1 had come into existence twenty years earlier. Therefore, his evidence should have been rejected completely by the learned trial court judge. On the other hand the learned trial court judge has committed a serious error in giving undeserved Importance to the evidence of PW-1. The learned trial court judge has completely omitted to consider Ex.D1, D2 and D3 namely Exhibits P13, P14 and P15 in the light of evidence of DWs 1 to 6. Having regard to the nature of evidence given by PWs and the nature of evidence given by DWs, in the respectful submission of the appellants, the evidence of DWs is more credit worthy and more relevant on the issues than the evidence of PWs. Even then, the learned trial court judge has proceeded to erroneously to record a finding in regard to the reliefs claimed in the suit, in favour of the plaintiff.
In regard to O.S.No.11286/1997 filed by the defendants, the learned trial court judge has completely 18 ignored the evidence of DW1 that the said suit was dismissed for non prosecution. That is the last sentence in the last but one paragraph of DW1's evidence. Though it is a statement made voluntarily by DW1, there was no further cross examination on that statement and therefore even that voluntary statement made by DW1 should have been considered in proper perspective.
The learned trial court judge has given undue importance to the police complaint dated 9.2.1990, namely Ex.P2 given by the deceased plaintiff while completely ignoring Ex.D7 dated 29.11.1989, Ex.D.8 dated 12.2.1990 and Ex.D9 dated 21.3.1990, which are also police complaints given by Smt.Kamalammal and the police endorsement."
15. Sri K.C. Sudarshan, learned counsel appearing on behalf of the appellants reiterating the grounds of the appeal memorandum contended that there is no dispute that the property belonged to Kamalammal and she executed the Will on 01.06.1980. Further contended that subsequently Sri Kamalammal changed her mind and executed another Will on 10.11.1989 and then again, executed a settlement deed on 28.12.1989 and both the documents are registered 19 documents and whereby the property held by Kamalammal is ordered to be divided among the plaintiff and defendants equally by granting half share and the same has been rightly substantiated by the defendants by placing both oral and documentary evidence on record which has been totally ignored by the learned Trial Judge resulting in decreeing the suit of the plaintiff, whereby there is miscarriage of justice in the impugned judgment and therefore, sought for allowing the appeal.
16. He further contended that Kamalammal in her last days took a decision to divide the property in half share to each of her sons, executed a Will and settlement marked at Exs.P.13 and P.15, thereby she wanted to divide her property peacefully among her children and therefore, the Trial Court ought to have believed the Settlement Deed and should have dismissed the suit of the plaintiff and sought for allowing the appeal.
17. He also contended that the learned Trial Judge has not properly considered the principles of law which would govern 20 the execution of the Will and proof thereof in proper and pragmatic manner, resulting in passing of the impugned judgment, whereby there is gross injustice caused to the rights of the defendants and sought for allowing the appeal.
18. Per contra, learned Senior counsel appearing for the respondent Sri K. Suman, supported the impugned judgment by contending that the Will dated 10.11.1989 and settlement deed dated 28.12.1989, marked at Exs.P.13 and P.15 have not been properly proved on behalf of the defendants and there is a lot of suspicion surrounding the Will dated 10.11.1989 and the settlement deed dated 28.12.1989 which have been elicited in the cross-examination of the witnesses examined on behalf of the defendants and the same has been rightly appreciated by the learned Trial Judge while holding that Exs.P.13 and 15 are not properly proved and whereby, Will dated 01.06.1980 stands proved before the Court and the learned Trial Judge has rightly decreed the suit of the plaintiff in terms of the Will dated 01.06.1980 and therefore, the appeal is to be dismissed.
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19. He also pointed out that Kamalammal's health condition as on the date of execution of Exs.P.13 and P.15 would go to show that she was physically and mentally ill and taking advantage of the same, she has been confined by the defendants illegally and took her thumb impression only with an intention to annul the effect of Ex.P.1 (Will) dated 01.06.1980 and within a short span of time executing another Will dated 10.11.1989 and cancelling the same and executing a settlement deed dated 28.12.1989 show the guilty mind of the defendants in concocting the documents which have been rightly appreciated by the learned Trial Judge in the impugned judgment and sought for dismissal of the appeal.
20. In view of rival contentions of the parties, the following points would arises for consideration:
1) Whether plaintiff has successfully established that the Will dated 10.11.1989 and Settlement Deed dated 28.12.1989 is not properly executed by Smt. Kamalammal in sound and disposing state of 22 mind, resulting in the documents being termed as null and void?
2) Whether the plaintiff is entitled for the suit relief as claimed?
3) Whether the defendants have successfully established that Kamalammal was in sound and disposing state of mind and was in a position to understand the worldly things as on the date of execution of Exs.P.13 and P.15, whereby she has cancelled the bequeath made in her Will on 01.06.1980 and therefore, the defendants are entitled to half share in the suit property?
4) Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference?
5) What order?
21. Regarding Point Nos.1 to 4: In the case on hand, to establish the case of the plaintiff, R.Kodandaraman, A.Gomatheesan and C.V. Divakaran were examined as P.Ws.1 to 3. The Will dated 01.06.1980 having found its place in the subsequent Will dated 10.11.1989 and cancellation of the said Will and settlement deed dated 28.12.1989, stands proved as Kamalammal herself stated 23 that she has executed a Will on 01.06.1980. Therefore, the burden cast on the plaintiff to prove that the Will dated 01.06.1980 marked at Ex.P.1 gets automatically discharged. Further, there is no dispute that Kamalammal had executed Ex.P.1 on 01.06.1980.
22. Therefore, now the Court has to find out as to the Will dated 01.06.1980 got revoked by execution of another Will dated 10.11.1989 vide Ex.D.4=Ex.P.13. Subsequently, by cancellation of deed Ex.D.5=Ex.P.14, Settlement deed was executed by Kamalammal giving up her intention to bequeath the property as per Ex.P.1 and Ex.D.4=Ex.P.13.
23. In other words, Ex.D.4 and Ex.D.5 have been successfully established by the defendants is the question that needs to be answered and the answer to that question would consequently decide the rights of the parties as per Ex.P.1.
24. Ex.D.6=Ex.P.15 is the settlement deed dated 28.12.1989. How, Exs.D.4 and D.5 have come into being is 24 also not of much relevance, though parties have joined issues on the genuineness and veracity of those documents as well. Even according to the defendants, Ex.D.6=Ex.P.15 has replaced Ex.P.1, Ex.P.13 supersedes Ex.D.5=Ex.P.14. Therefore, it is necessary for this Court to bestow its attention in appreciating the material evidence on record with regard to Ex.D.6=Ex.P.15.
25. In the backdrop of above factual aspects, if the oral evidence of P.W.1 is analyzed, it would establish that P.W.1 claimed right over the property by strongly placing reliance on Ex.P.1 which according to him is the last Will executed by Kamalammal. He has further deposed that Exs.P.13 to P.15 = Exs.D.4 to D.6 have been executed when Kamalammal health condition was fragile. He further deposed that taking advantage of her old age, Kamalammal had been confined by the defendants and got a show of execution of those documents. Cross-examination of P.W.1 is not of much relevance, inasmuch as there is no dispute as to Ex.P.1 on 25 behalf of the defendants and other suggestions are incidental to the case.
26. The oral evidence of P.Ws.2 and 3 are also practically in line with the oral testimony of P.W.1. In their cross- examination also, no useful material is elicited so as to probabilize the case of the defendants.
27. Ex.P.2 is the complaint made by plaintiff on 09.02.1990 to the Commissioner of Police, bringing into the notice of the police that Kamalammal has been confined by the defendants. Exs.P.3 and P.4 are the notices issued by Kamalammal and Amruthavalli to the tenants a week earlier to the death of Kamalammal. As the health condition of Kamalammal was deteriorating and she had a poor eyesight even as per the contents of the documents which the defendants placed reliance and also as per oral testimony of defendants' witnesses. As such, it may be improbable that Kamalammal would have ventured to issue legal notice to the tenants few days earlier to her death.
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28. The deposition marked in Miscellaneous No.234/1998 arising out of HRC No.1446/1997 initiated by Smt. Radhamma, who is the wife of the original plaintiff. First defendant Amruthavalli has been examined as P.W.3 by the tenant, wherein she has ventured to depose that Manjunath was in occupation of the house premises as an independent house. So also first legal heir of the original plaintiff got evicted Manjunath and also another tenant by name Subramani as per the letter dated 01.12.1990 vide Ex.P.9.
29. Since the above evidence on record is accepted, then the mere settlement deed marked at Ex.D.6=Ex.P.15 creates doubt in the mind of the Court as to its genuineness. Further, the defendants had filed O.S.No.11285/1997 claiming decree of partition in the suit house on the strength of Ex.D.4 to D.6 = Exs.P.13 to P.15 against the legal representation of original plaintiff - M. Rajagopal. Said suit was contested by the legal representatives of Rajagopal and issues were also framed in the said suit. However, said suit came to be dismissed following the dictum in the case of 27 Sagar Enterprises v. Registrar, City Civil Court, Bengaluru, reported in ILR 2004 KAR 4376. The defendants who are the plaintiffs in the said suit however, did not challenge the same and accepted the dismissal. It is also pertinent to note that in the said suit, the defendants have not pleaded about Ex.P.19 (a) which is the copy of plaint in O.S.No.11286/1997 challenging the validity of the original Will marked at Ex.P.1.
30. On cumulative consideration of these aspects of the matter, it is crystal clear that the plaintiff has acted upon Ex.P.1 and it is only to counter Ex.P.1, Exs.D.4 to D.6=Exs.P.13 to P.15 have come into being. Now it is the task of this Court to find out whether the material evidence placed on record would sufficiently establish the genuineness of Exs.D.4 to D.6=Exs.P.13 to P.15. No doubt, these documents are registered documents. However, as could be seen from the cross-examination of D.W.3 R.Dayalmurthy, who is the colleague of S.Thyagarajan (D.W.5). Ex.D.4 is drafted by D.W.5 and he had not seen Kamalammal earlier to 28 the day of execution of Ex.D.4. He has specifically answered that Ex.D.4 was prepared around 6.00 p.m., on previous day and they visited the Sub-Registrar Office for registration of Ex.D.4 on 10.11.1989 at about 12.30 p.m. Whereas, D.W.5 in his cross-examination has specifically answered that second defendant had brought Kamalammal to his office and he has seen her for the first time. He has further answered that he does not know whether Ex.D.4 was subsequently cancelled by preparing a cancellation deed. He has answered that as on the date of preparing Ex.D.4, Kamalammal was aged 60 years, whereas, D.W.3 was not in position to estimate the age of Kamalammal as on the date of Ex.D.4.
31. D.W.5 further admitted in his cross-examination that as on the date of executing the same, Ex.D.4 got registered. He has answered that he has not met Kamalammal after execution of Ex.D.4.
32. One of the attesting witnesses to Ex.D.4 Sri V.Gajendran, who is a driver, has admitted in his cross- examination that he does not know who gave the instructions 29 to prepare Ex.D.4 and by whom it was prepared. He admits that age of Kamalammal at the time Ex.D.4 is 80 years. He has answered that he went to the Sub-Registrar Office, Mayohall around 1.30 pm., and he has signed Ex.D.4 and earlier to him, Sri. Palaniswamy signed Ex.D.4 and thereafter Kamalammal put her thumb impression which was attested by D.W.3 Dayalmurthy. He has further answered that except Ex.D.4, he has not signed any other document on that day.
33. He further answered that said Will was also cancelled on 28.12.1989 and he has signed the cancellation deed and it is Sri. C.Mohan who has identified for registering and executing Ex.D.5.
34. He has further answered that Ex.D.6 was signed by Kamalammal, where under Kamalammal has settled the property by modifying contents of Ex.D.4 on account of torture imparted to her by plaintiff.
35. M.R. Vasanthi (D.W.6) in her cross-examination has admitted that she was a tenant in one of the portions of the 30 property and it is Radha who evicted her from tenement. She has further answered that Kamalammal settled two houses in favour of first daughter-in-law under Ex.D.6. She has also stated that D.W.3 has attested Ex.D.6 and Sri Mohan has signed Ex.D.6 as scribe.
36. On cumulative analysis of material evidence in regard to Exs.D.4 to 6, it is pertinent to note that the defendants have taken the assistance of Dayalmurthy and Thyagarajan, (Advocates) who are examined as D.Ws.3 and 5 for the purpose of execution of Ex.D.4.
37. However, without there being any reason whatsoever, they have not taken assistance of D.Ws.3 and 5 for the purpose of cancellation of the Will - Ex.D.4 as per Ex.D.5. Scribe of Ex.D.5 is one Mohan, a document writer.
38. Further the contents of Ex.D.6 reads as under:
"NOW THIS INDENTURE OF SETTLEMENT witnesseth that in pursuance of the aforesaid agreement and desire the Settlor is desirous of transferring the schedule mentioned immovable property in favour of the Beneficiary who is her daughter-in-law, is a widow and having lost her 31 husband is entirely depending upon the Settlor, for her future, and for the said reasons the Settlor does hereby Grant, Assign and transfer the schedule mentioned immovable property Unto and to the Use of the Beneficiary and the Beneficiary shall be at full liberty TO HAVE TO HOLD AND TO ENJOY the same peaceably for ever as her personal property free from all kinds of encumbrances, lawful evictions, arrears of taxes, other dues, claims and demands whatsoever made either by the Settlor or any body claiming through or in trust for her."
39. Ex.D.6 is also drafted by same Mohan who is the document writer for Ex.D.6. It is D.W.4 V.Gajendran and Vasanthi who are attesting witnesses to Ex.D.6. Ex.D.6 is also a registered document. The LTM of Kamalammal is not attested by the deed writer, but it is attested by V.Gajendran who is examined as D.W.4 as he was a driver.
40. It is pertinent to note that said V. Gajendran is also an attesting witness to Ex.D.4. V. Gajendran has therefore played a vital role in getting Exs.D.5 and D.6 executed by Kamalammal not with the assistance of D.Ws.3 and 5 who are the Advocates, but through the help of a deed writer. 32
41. Kamalammal if she has executed a Will on 10.11.1989, why would she cancel the very same Will by executing Ex.D.5 within short span of a month and more, is a question that needs to be explained by the defendants by placing cogent and convincing evidence on record.
42. It is in this context, the complaint given to the police by the plaintiff vide Ex.P.9 assumes significance. It has been specific contention in Ex.P.9, that taking advantage of old age of Kamalammal and her fragile health, it is the defendants who have kidnapped her and confined her in their house and within that period, Exs.D.4 to 6 have come into being.
43. Ex.D.4 is subsequently cancelled through Ex.D.5, which loses its significance and it is only now by virtue of Ex.D.6 the alleged settlement, Kamalammal has divided the property in favour of Smt. Amrutha Valli who is referred to as beneficiary (1st defendant). In Ex.D6, age of Kamalammal is mentioned as 85 years and Kamalammal has expressed her 33 desire for transferring rear portion of the immovable property in favour of Amruthavalli. The schedule mentioned in Ex.D.6 reads as under:
"ALL THAT PIECE AND PARCEL of the REAR PORTION out of Corporation New No.23, Old No.1/3, situated in MEANEE AVENUE TANK ROAD, Corporation Old Division No.53, New No.78, CIVIL STATION, BANGALORE, bounded on the East by : private property, on the West by : private property, on the North by :remaining half portion measuring 30'-9" by 24'6 retained by the Settlor, and common passage and on the South by : private property and measuring on the East : 30"-9", on the West : 30'-9", on the North : 28' and on the South : 28', as per RED COLOUR portion marked in the plans attached herewith, together with the right to use the common passage situated towards the eastern side starting from the said Meanee Avenue Tank Road, measuring 3'-6" in width and 67'-3" in length as per Blue colour marked in the plans attached herewith. Valued at Rs 75,000/-."34
44. But on perusal the sketch attached to Ex.D.6, there is no portion marked in red colour and what has been marked is in pink colour. Nevertheless, in respect of remaining property, there is no mention at all. But, in Ex.P.1, Kamalammal has bequeathed the property granting portion of the premises bearing new No.23, old No.1/3, Meanee Avenue, Division 53, together with the buildings thereon, described in blue colour with letter EFGHI in the plan. In other words, a lesser portion of the property was bequeathed in Ex.P.1 in favour of first defendant and the same is now modified in Ex.D.6.
45. It is pertinent to note that at the time of Ex.D.6 when Kamalammal is aged 85 years, there was no necessity to execute the settlement deed in favour of Amruthavalli. But, Ex.D.4 would have been suffice if the intention of Kamalammal was to settle the property in favour of defendants wherein the portion of the property which are mentioned as green and red colour in the sketch attached to Ex.D.4. What made Kamalammal to execute a cancellation 35 deed cancelling Ex.D.4 within a short span of time and again execute a settlement deed on the very same day i.e., on 28.12.1989 is a question that remains unanswered on behalf of the defendants.
46. Further, the health condition of Kamalammal and her capacity to understand the worldly things as on the date of Exs.D.4 to D.6 is itself doubtful inasmuch as the oral evidence of V. Gajendran who is examined as D.W.3 and oral evidence of Vasanthi, who is examined as D.W.6 would not inspire confidence in the Court in removing all the suspicious circumstances that surrounds in execution of those documents.
47. Non taking the help of Advocates who are examined as D.Ws.3 and 5 in getting Ex.D.4 being cancelled by Ex.D.5 and Ex.D.6 being drafted by a deed writer also raises further doubt as to the genuineness of the claim of the defendant in propounding that Kamalammal being unable to bear the torture of plaintiff, decided to execute Exs.D.5 and D.6. Since Kamalammal had already had the advantage of lawyers 36 who are examined as D.Ws.3 and 5, Kamalammal could have definitely taken recourse to legal action if there was any harassment or torture imported by the plaintiff to cancel Ex.D.4. Why such a course was not taken by the defendants or Kamalammal is not explained in the defence of the defendants.
48. On the contrary it is the plaintiff who has taken positive stand in approaching the police vide Ex.P.9 complaining about the high handed activities of the defendants in confining her in their house and got executed Exs.D.4 to D.6, when Kamalammal was in their custody.
49. On cumulative consideration of these aspects of the matter, this Court is of the considered opnion that defendants have not been able to properly established the genuineness and the validity of Exs.D.4 to D.6 resulting in Ex.P.1 Will being put to operation as there is no dispute about the genuineness of Ex.P.1.
37
50. These aspects of the matter has been rightly appreciated by the learned Trial Judge in the impugned judgment while answering the issues and additional issues with cogent and convincing reasons.
51. On re-appreciating the above material evidence on record, this Court is of the considered opinion that the reasoning offered by the learned Trial Judge while recording findings on issues and additional issues in the impugned judgment are sound and logical.
52. Accordingly, from the foregoing discussion, this Court does not find any legal infirmity or perversity insofar as the finding recorded by the learned Trial Judge. There cannot be any dispute as to the principles of law enunciated in the judgments relied on by the learned counsel for the appellant and learned counsel for the respondent.
53. However, it is worthy to place reliance on the celebrated judgment of Hon'ble Apex Court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma and 38 others reported in AIR 1959 SC 443. The relevant paragraphs of the same is culled out hereunder for ready reference:
"18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe 39 the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 40 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of 41 the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated."
54. The oral evidence of D.Ws.3 and 5 who are the Advocates in not specifically answering about the age of Kamalammal or her capacity to understand the worldly things would go to show that Ex.D.4 has not been properly proved.
55. Even assuming that Ex.D.4 stand proved for the sake of arguments alone, since it is cancelled under Ex.D.5, no rights are flown under Ex.D.4 which would counter the claim of the plaintiff in the suit. Insofar as Ex.D.6 is concerned, the best person that could have been examined on behalf of the defendants is scribe Sri Mohan, who has drafted Ex.D.5 and Ex.D.6.
56. Sri. V. Gajendran and Vasanthi are the two witnesses to prove Ex.D.6. V. Gajendran being the driver, and vasanthi being the tenant who have been evicted by Smt. Radha, one 42 of the legal representatives of original plaintiff, had good reasons to depose in favour of defendants and against the plaintiff and therefore, their testimony interested testimony.
57. In the absence of required legal proof to prove Ex.D.6, the principles of law relied on by the appellants to assail the correctness of the impugned judgment is of no avail. Accordingly, point Nos.1 and 2 are answered in the Affirmative and point Nos.3 and 4 are answered in the Negative.
58. Regarding point No.5: In view of findings on point Nos.1 to 4, this Court pass the following order:
ORDER Appeal grounds are meritless and is hereby dismissed.
No order as to costs.
Sd/-
JUDGE MR