Karnataka High Court
Satappa S/O Timmanna Narsgond vs Shantappa S/O Paris Algur on 22 March, 2017
Bench: Anand Byrareddy, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF MARCH, 2017
PRESENT
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
AND
THE HONOURABLE MR.JUSTICE K.SOMASHEKAR
REGULAR FIRST APPEAL No.4153 of 2012
Between:
1. Satappa son of Timmanna Narasgond,
Age: 72 years, Occupation: Agriculture,
Resident of Algur-587 301,
Taluk: Jamkhandi, District: Bagalkot.
2. Shri Siddappa son of Timmanna Narasgond,
Age: 67 years, Occupation: Agricutlure,
Resident of Algur-587 301,
Taluk: Jamkhandi, District: Bagalkot. ... Appellants
(By Shri. Srikant D Babladi, Advocate)
And:
1. Shri Shantappa son of Paris Algur,
Age: 52 years, Occupation: Agriculture,
Resident of Takkalaki, now at Shirol-587 313,
Taluk: Mudhol, District: Bagalkot.
2. Shri Jinnappa son of Paris Algur,
Age: 47 years, Occupation: Agriculture,
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Resident of Takkalaki, now at near
Mallikarjun Temple,
Jamkhandi-587 301,
District: Bagalkot.
3. Smt. Tangewwa wife of Venkappa Narasgond,
Age: 62 years, Occupation: Household,
Resident of Algur-587 301,
Taluk: Jamkhandi, District: Bagalkot.
4. Shri Bhujappa son of Nemanna Narasgond,
Age: 43 years, Occupation: Agriculture,
Resident of Alagur, Taluk: Jamkhandi,
District: Bagalkot.
5. Shri Bahubali son of Nemanna Narasgond,
Age: 39 years, Occupation: Agriculture,
Resident of Alagur, Taluk: Jamkhandi,
District: Bagalkot. ... Respondents
(By Shri. Mrutyunjay Tata Bangi, Advocate
for caveat respondent Nos.1 to 3,
Shri. Avinash Banakar and
Shri Sachin S Magadum, Advocate
for respondent Nos.4 and 5.)
This appeal is filed under Section 96 read with Order XLI
Rule 1 of Code of Civil Procedure, 1908, against the judgment
and decree dated 13.09.2012 passed in O.S.No.49 of 2005 on the
file of the Prl. Senior Civil Judge, Jamakhandi, dismissing the suit
filed for declaration and injunction.
This appeal coming on for hearing, this day, Anand
Byrareddy J., delivered the following:
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JUDGMENT
Heard the learned counsel for the appellants and the learned counsel for the respondents.
2. The parties are referred to by their rank before the trial court for the sake of convenience.
This appeal is by the plaintiffs.
3. The facts of the case as stated is as follows. The genealogical tree of the plaintiffs is said to be as under .
Thimmanna Narasgond (Propositus)
(Died about in the year 1954)
=Neelawwa(Wife)
(Pre-deceased)
Satappa Siddappa Venkappa Annappa
(Plff.No.1) (Plff-2) (Died) (Died issuless)
Chandrappa Tangewwa Sushilawwa
(Wife) (Wife)
(Deft.No.3) (Died on
16.03.03)
It is stated that the family owned several items of landed properties and houses and particulars of the same are provided in the Schedule to the plaint. Admittedly, the said properties are said :4: to be standing in the names of several members of the family, including Annappa, the deceased brother of the plaintiffs, survived by his widow. Annappa is said to have died issueless. It is asserted that though the properties stand in the name of different members of the family, there has been no formal partition of the properties.
Defendants no.1 & 2 are said to be the brothers and defendant no.3 is the sister of the plaintiffs. One sister, Sushilawwa is said to be no more. That after the death of Annappa, the revenue entries in respect of the suit properties are said to have been effected in favour of Sushilawwa, at the instance of defendants 1 & 2. After the death of Sushilawwa, as on 16.3.2003, it is the claim of the plaintiffs that defendants no. 1 & 2 are seeking to claim that Sushilawwa had succeeded to the properties, who thereafter had bequeathed the same in their favour. It is asserted that Sushilawwa was a humble and illiterate woman and not worldly wise and had not executed any will. It is also claimed that before her death, she was ill and infirm and was not of a sound disposing state of mind.
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The plaintiffs had thus contended that the said will of Sushilawwa was a false and fabricated document. And that in any event, Sushilawwa never had the competence, capacity or the right to bequeath the lands which were jointly held by the family. The plaintiffs were claiming as Class II heirs of the deceased Annappa and Sushilawwa, along with defendant no. 3 and that the properties were joint family properties.
It was asserted that defendants no. 1 & 2 had nothing to do with the family of the plaintiffs and defendant no.3. But they had, on false representations and on the strength of bogus documents, had got the revenue entries in respect of the suit properties made in their favour. These revenue entries are said to be subject matter of challenge before the Assistant Commissioner, Jamkhandi, by way of two appeals, in respect of the lands which are said to be situated in two villages, Algur and Shirol, which however, were said to have been dismissed. Revision Petitions filed against the said orders of dismissal were also said to have been rejected, with an observation that the plaintiffs are required to have the will of Sushilawwa, on the strength of which the revenue entries had been :6: made, set at naught before a civil court, as a first step, to set up any rival claim. That view has been affirmed by this court in its writ jurisdiction, in a writ petition filed by the plaintiffs challenging that order of the Deputy Commissioner.
It is in the above background that the suit was filed seeking a declaration that the plaintiffs are joint owners in possession of the suit properties, along with defendant no.3 and for consequential reliefs of injunction and other incidental reliefs.
Defendant no. 1 had entered appearance and filed written statement to deny the plaint averments. It is stated the genealogy of the family of the plaintiffs and the defendants was not correct as Thimmanna, the propositus of the family of defendants and the plaintiffs, had died first and after him Newlawwa died. After his death, the sons, plaintiffs, Venkappa and Annappa got their names entered in respect of the lands in RS no.203/2/5, RS no.204 and RS 207/1/6 of Alagur.
It is stated that after the death of Thimmanna, his four sons, Satappa, Siddappa, Venkappa and Annappa got their names entered in respect of the lands in RS Nos.204/1, 203/2/5, and :7: 207/1/6 of Alagur under Mutation Entry No.3312 of Alagur on 31-07-1959.
The plaintiffs and Annappa and Venkappa had effected a partition in respect of the family lands of Alagur village in RS No.89/2A, 14/2/1, 213/4, 216/6, 34/2B, 94/B/1, 85/5, 88/A, 125/2, 126/3, 35/5/1 as per Mutation Entry No.4802 dated 1-10-1973. The land fallen to the share of each of the sons as shown below:
I. Satappa: RS No.84/1A, 89/2A, 149/2/1, 213/4, 216/6 of Alagur.
II. Annappa: R.S.No.84/2B, 98/2A, 98/2B,
171/2B/1, 126/3 and 36/5.
III. Siddappa: R.S.No.36/5/2, 84/2C, 89/2B, 171/2B/2.
IV. Venkappa: R.S.No.84/1B1, 85/5, 88/A1, 125/2 as per M.E. no.4802 dated 1.10.1973.
After the said partition, the respective persons enjoyed their lands separately as exclusive owners of the same. Hence, the joint family of plaintiff, Annappa and Venkappa had been disrupted. Therefore, it was contended that the plaintiffs could not claim jointness of the said family. The defendants had produced :8: the relevant certified copies of the mutation entries and the relevant Record of Rights extracts of the said lands.
After the death of Annappa, his widow Sushilawwa got her name entered as his successor in respect of the Alagur lands, which fell to the share of Annappa, as per Mutation Entry No.9405 dated 25.10.19999. Since then, the said Sushilawwa was in separate possession and enjoyment of the said lands as an exclusive owner. Moreover, Sushilawwa also got her name entered as an heir to her deceased husband Annappa in respect of the lands in RS No.276/6, 243/2/2B, 274/2, 275/4, 276/3, 277/4, 278/1, 279/1, 273/2+3,1 and 273/2+3/5 of Shirol village, under Mutation Entry No.9979 dated 20.1.2000. Since then, the said Sushilawwa was in separate possession and enjoyment of the same and cultivated them personally through the help of her brother, Jinnappa.
It was contended that after the death of her husband, Venkappa, defendant No.3 Tangewwa got her name entered in the revenue records, insofar as lands in RS. No.84/1B/1, 85/5, 83/1A and 125/2 of Alagur under Mutation Entry No.10122 dated :9: 19-6-2001 and to the knowledge of the plaintiffs, since then, the said Tangewwa has been in exclusive possession and enjoyment of the same, was cultivating the lands with the help of her brothers Shantappa and Jinnappa. The said Tangewwa had got her name entered in the revenue records in respect of the lands of her deceased husband Venkappa in R.S. No.276/6, 243/2/2B, 274/2, 275/4, 275/3, 277/4, 278/1, 279/1, 273/2+3/1 and 273/2+3/5 of Shirol village under Mutation Entry No.11248 dated 16.8.2001, to the knowledge of the plaintiffs. Since then, the said Tangewwa has been in exclusive possession and enjoyment of the same and cultivating the said lands through the help of her brothers Shantappa and Jinnappa. Inspite of the same, the plaintiffs had deliberately and with a mala fide intention, had shown the said lands of Shushilawwa and Tangewwa as their joint family lands at para no.3 of the plaint. The same was denied by defendants 1, 2 and 3.
It is pointed out that a writ petition filed by the plaintiffs, in WP 32587/2004 before this court, was to challenge the mutation entry and the orders of the Revenue authorities on the basis of a : 10 : Will Deed executed by the deceased Sushilawwa in favour of defendants 1 and 2. The plaintiffs had challenged the validity of the said Will. This Court had observed that as per M.E. no.4802, there was a partition of the family properties and the same was suppressed by the petitioners. This Court had also observed that after the death of Annappa, his widow Sushilawwa inherited his properties as Class-I heir and as such the said properties were standing in the name of Sushilawwa, being the absolute owner of the said properties, had even a right to execute the will in favour of respondent nos.4 and 5 therein and that the plaintiffs, who were the petitioners, could not claim that they were joint family properties and that they had a share in the same.
The defendants contend that they had produced ample documentary evidence to show that the partition had taken place between Satappa, Siddappa, Venkappa and Annappa long ago. Hence, the plaintiffs could not claim their right of joint ownership and joint possession of the said lands.
It is contended that the defendants had purchased land belonging to the Maharaja of Mudhol out of their separate income, : 11 : jointly, in the name of other persons. And that the defendants had produced documentary evidence regarding the same. The said land of Maharaja of Mudhol after purchase has been sub-divided and the divided strips have been separately cultivated by the said purchasers. The defendants had produced a hand sketch map regarding the same. And hence had sought for dismissal of the suit.
On the basis of the above pleadings, the trial court had framed the following issues:
"1. Whether the plaintiffs prove that the suit schedule properties were belonging to propositus Thimmanna?
2. Whether defendants prove that the plaintiffs have effected partition during the life time of Annappa and Venkappa?
(Issues Nos.3 to 5 are deleted and the Additional Issue No.1 is framed as per the order dated 5.9.2008 passed by this court on I.A.No.V)
6. Whether the defendants prove that there is no cause of action to file this suit?: 12 :
7. Whether defendant prove that court fee paid is not proper and correct?
8. Whether the plaintiffs are entitled for the relief as prayed for?
9. What order or decree?
ADDITIONAL ISSUE
1. Whether defendant No.1 and 2 prove that deceased Sushilawwa executed will deed in their favour?"
The trial court has answered Issues no. 1, 7 and 8 in the negative and Issues no. 2,6 and additional issue no. 1 in the affirmative and has dismissed the suit. It is that which is under challenge.
4. The learned Counsel for the plaintiffs contends that when the plaintiffs had asserted and emphasized that Sushilawwa, under whom defendants no.1 & 2 are claiming title to the property by virtue of her will, was said to be illiterate and not worldly wise and at the time of her death was unwell and was not of a sound disposing state of mind and therefore, could not have been expected to make any : 13 : will in favour of the said defendants, it is contended that the court below had failed to place the burden of proof on the said defendants as regards the due execution of the will by Sushilawwa in a sound state of mind. And that they were also required to dispel the suspicious circumstances surrounding the alleged will.
It is contended that the defendant no.1 had not provided any particulars of the will, as regards the date of the will, the properties said to have been bequeathed, names of the legatees or such other basic particulars. In the absence of which the trial court having chosen to frame an additional issue and to have answered the same in favour of defendants no. 1 & 2 was an unnecessary exercise.
It is contended that the normal presumption is that the family is joint in food and worship. Given the joint family, it continues to be so, as long as there is no partition by metes and bounds. In the present case, though respondents no.1 and 2 have set up a defence of a previous partition amongst the appellants and their deceased brothers namely, : 14 : Venkappa & Annappa, they did not give full particulars. No document of partition was produced and they did not state in whose presence, the alleged partition took place. No Gruhasta was examined to prove the alleged partition set up by the respondents. Respondents 1 and 2 are not the members of the family of the appellants and respondent no.3. Therefore, their evidence regarding the alleged partition is hearsay. Therefore, the court below ought to have answered issue no.1 in the affirmative and issue no. 2 in the negative and thereby decreed the suit of appellants.
It is contended that the court below has failed to note that it is not the case of respondents that the partition of the year 1973 was partial one. It is the definite case of appellants that there is no partition in the past between them and their deceased brothers. The property extract produced as Exhibits D-23, D-24, D-32 and D-33 would indicate that the family is joint. If really there was any such partition, the same should have been spelt out in the above said document. It is submitted that the name of sons of the : 15 : propositus Thimmappa appeared in the panchayat records even after 1973. Therefore, it is contended that the court should have negatived the contention of the respondents regarding a previous partition.
It is contended that the appellants and their deceased brothers namely, Venkappa & Anneppa purchased several properties, jointly. They had also purchased the structure by jointly obtaining a bank loan. If really there was separation, there was no need for them to jointly purchase the properties and use them as joint family properties. The very fact that the properties were jointly purchased and there is no division in the same is clear from the documents produced by the respondents themselves. Therefore, the court below should have decreed the suit of appellants and held that there is no partition in the family.
It is contended that respondents no. 1 & 2 had failed to prove the alleged 'wills' marked at Exhibits D.1 and D.35. The appellants are the nearest relatives of the deceased Sushilawwa. No explanation was offered in the : 16 : alleged 'wills' to exclude the appellants. Therefore, the wills were not free from serious doubts. Respondents No.1 and 2 being the propounders were required to prove the same in terms of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1968. The evidence that was let in fell much short of minimal requirements. Therefore, the court below should have held that respondents no.1 & 2 had failed to prove Exhibits D-1 and D-35.
The court below has failed to note that the alleged 'wills' marked as Exhibits D-1 and D-35 were not executed and registered as required under law. Sushilawwa was an illiterate and aged woman. The Sub-Registrar was required to read over the contents of the 'will' and explain to the executant and accordingly make an endorsement in the same. In the present case, the Sub-Registrar did not make such an attempt. Therefore the claim of respondents based on Ex.D1 & D35 should have been negatived.
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It is contended that the court below has failed to note that the mere registration of a will does not dispense with its proof. The evidence tendered by the respondents was not sufficient to hold that Exhibits D-1 & D-35 are proved. Besides that, no references were made by respondents 1 and 2 in their pleadings.
Hence, it is sought that the appeals be allowed and the impugned judgment be set aside.
5. On the other hand, the learned counsel for the respondents seeks to justify the judgment of the trial court and draws attention to the reasoning of the trial court which would render the grounds raised in the present appeal and the contentions urged by the learned counsel as being irrelevant and otiose.
6. In the light of the above contentions and on an examination of the record, the points that arise for determination in the present appeal are :
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"(a) Whether there was a prior partition in the family of the parties ?
(b) Whether the will said to have been executed by Sushilawwa in favour of the defendants no. 1 & 2 was proved ?"
To answer point no. 1 above, it is the settled position that there is a legal presumption of jointness in respect of Hindu family that it continues to be a joint family till its division is proved by evidence and there is no such legal presumption of jointness in respect of the properties purchased by different members of the family and standing in the names of different members of the family. The burden of proving that such properties are joint family properties is on the party who makes such assertion. In the present case on hand, the case of the plaintiffs is that the properties are in the names of different members of the family and the suit schedule properties are the joint family properties. The burden of proving that the suit schedule properties are joint family properties is on the plaintiffs themselves. But the defendants' specific contention is that the : 19 : partition among plaintiffs and their deceased brothers Venkappa and Annappa has already taken place in the year 1973. So, the burden of proving the fact of partition is on the defendants.
The suit schedule item Nos.1 to 6 are agricultural lands situated in Algur village and item Nos.7 to 16 are the agricultural lands situated in Shirol village. According to the defendants, item Nos.1 to 6 of the suit schedule have fallen to the share of the deceased Annappa in the partition effected in the year 1973. The details of other properties which are allotted to plaintiff No.1, plaintiff no.2 and deceased Venkappa in the partition of the year 1973 are furnished in the written statement. Few properties were in the name of the propositus Thimmanna and they were lands bearing survey Nos.204/1, 203/2/5 and 207/1/6 situated in Algur village. The case of the defendants is that after the death of the propositus Thimmanna, the plaintiffs and their brothers, namely Venkappa and Annappa got their names entered in respect of the lands belonging to the propositus Thimmanna as per M.E.No.3312 dated 31.7.1959. According to the defendants, the plaintiffs and their brothers, namely, Venkappa and Annappa have : 20 : subsequently, effected partition in the family properties of Algur village in the year 1973. The case of the defendants was that the suit schedule item Nos.7 to 16 lands situated in Shirol village limits are purchased by defendants and many other persons subsequent to the partition and that those properties are already divided among different purchasers. Therefore, according to the defendants, the plaintiffs are not entitled to claim joint ownership in the suit schedule item Nos.7 to 16 lands of Shirol village.
Defendant No.1 Shantappa has stated in his cross- examination that after the death of propositus Thimmanna, the family partition has taken place amongst the sons of the deceased Thimmanna during the year 1973. He has further stated that a deed of partition was written and that it was not registered. But the defendants have not produced the said unregistered partition deed. They have also not stated the date of said partition deed. They have also not stated the date of the said partition deed. But the defendants have produced a mutation extract bearing No.4802 dated 1.10.1973 as per Exhibit D.3. It reveals that the mutation is effected on the basis of the partiton Wardi. It states that Satappa, : 21 : Annappa, Venkappa and Siddappa, the sons of Thimmanna Narasgond have effected partition in eleven landed properties situated in Algur village. The details of those eleven lands are also mentioned in the said mutation extract. The said mutation entry is approved on 26.11.1973. The details of the properties which are allotted to different members are also separately mentioned in detail in the said Exhibit D.3, mutation extract. The date of this mutation entry is 1.10.1973. It is very important to note that this mutation entry dated 1.10.1973 is not challenged till this date by the plaintiff s or by any other member of the family.
Further, Exhibits D-5 and D-6, mutation extracts, bearing Nos.4295, 4304 to 4309 dated 15.12.1983 and Exhibit D.7, mutation extract bearing No.6801 dated 7.1.1993 show that Annappa and Venkappa and some other persons together did purchase the suit schedule item No.7 to 16 in the year 1983. By that time, the joint family was not in existence. Therefore, the defendants have rightly contended in their written statement that the plaintiffs are not entitled to claim joint ownership in the suit schedule item Nos.7 to 16. In this regard, a perusal of Exhibit D.4 : 22 : containing M.E.No.4294, Exhibit D.5 containing M.E.No.4295 and the Exhibit D.6 containing M.E.Nos.4304 to 4309 clearly shows that the lands situated in Shirol village are purchased in the year 1983 i.e, after the partition in the year 1973. These mutation entries clearly show that the suit schedule item Nos.7 to 16 belonged to the deceased Annappa.
The defendants have pleaded about the partition in their written statement at Para Nos.3,4 and 19(i) of the written statement of the defendants Insofar as the property extracts at Exhibit D-23, D-24,D-32, and D-33 which still remained joint even after the alleged 1973 partition are concerned, a perusal of Exhibits P-23, P-24, P-32, and P-33 reveal that these pertain to one house property and one open site. The names of all the sons of propositus Thimmanna appeared jointly in these extracts for a long time even after 1973.
PW.1 himself has stated that the members of the family have been residing separately. This indicates that there is no dispute about the division of the house properties. It is quite possible that the joint names in the house and site records have : 23 : continued to be in existence. PW.1 himself has admitted that the members of the family got entered their names in the records of their respective house and site in the year 1992 when those properties were submerged in the back waters of the Upper Krishna Project. In the year 1992, they got their names entered in the records of their respective house and site properties probably with an intention to get more number of plots from the government by way of compensation.
Several documents, such as revenue receipts which are marked as Exhibit D-9, Certificates showing payment of compensation amount on account of acquisition to the individual members of the family which are marked as Exhibit D.10 to 13, the mutation extracts Exhibit D.14 and D.27, by which the name of the deceased Sushilawwa has been mutated in respect of the suit lands, the electricity bills which are marked as Exhibit D.16 etc., have been produced. The partition which is said to have taken place in the year 1973 is fully acted upon. Exhibits D.14 and D.27, mutation entries, by which the name of the deceased Sushilawwa is mutated in respect of the suit schedule properties is : 24 : not challenged by the plaintiffs. Two sale deeds, Exhibits D.36 and 37 were produced by the defendants show that the land bearing R.S.No.171/2B/2 is sold by plaintiff No.2 and his sons subsequent to the 1973 partition i.e., on 19.8.2005. As per the 1973 partition, this land bearing RS NO.171/2B/2 was allotted to plaintiff No.2 towards his shares in the family properties. These sale transactions are made by plaintiff No.2 and his sons independently, without the consent of any other members of the family. These sale transactions Exhibit D-36 and D-37 clearly showed that the joint family was not in existence after 1973.
Plaintiff Nos.1 and 2 are the co-parceners of the family of propositus Thimmanna and these plaintiffs were parties to the 1973 partition and these plaintiffs themselves have filed this suit. Therefore, these plaintiff nos.1 and 2 were the competent persons to speak about the 1973 partition. But they have not entered into the witness box to give oral evidence in this case. An adverse inference is to be drawn against the case of the plaintiffs in this regard.
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Hence, point no.1 is answered in the affirmative and the finding of the trial court in this regard is affirmed.
To answer point no.2 above, it is to be seen that as per the finding already given, the family partition has taken place in the year 1973. The suit schedule item nos.1 to 6 has fallen to the share of deceased Annappa. This fact is evident from Exhibit D.3, a mutation extract bearing No. ME 4802 dated 1.10.1973; Exhibit D.4 containing M.E.No.4294, Exhibit D.5 containing M.E. No.4295 and Exhibit D-6 containing M.E.No.4304 to 4309, which clearly showed that the lands in Shirol village are purchased in the year 1983 i.e., after the 1973 partition and these mutation entries showed that the suit schedule item Nos.7 to 16 belonged to the deceased Annappa.
It is contended that after the death of Annappa, his wife Sushilawwa got her name entered as per M.E.No.9405 dated 25.10.1999 in respect of the Algur lands which have fallen to the share of Annappa, as a legal heir of the deceased Annappa. Sushilawwa got her name entered as per M.E.No.9979 dated 21.1.2000 in the revenue records in respect of the Shirol lands : 26 : bearing Survey Nos.276/6, 243/2/2B, 274/2, 275/4, 276/3, 277/4, 278/1, 279/1, 273/2+3/1 and 273/2+3/5. This fact is evident from Exhibit D.14, mutation extract bearing M.E.No.9405 dated 25.10.1999 of Algur village and Exhibit D.27, mutation extract bearing M.E.No.9979 dated 20.1.2000. Annappa died on 26.8.1999. The name of Sushilawwa has been entered in respect of the suit lands as a class-I heir of her deceased husband Annappa on the basis of the Wardi given by Sushilawwa.
The case of the defendant is that Sushilawwa has executed a will dated 14.9.2001 in respect of suit schedule item nos.1 to 6 and house and shop properties of Algur village in favour of defendant Nos.1 and 2 and another will dated 14.6.2002 in respect the suit schedule item Nos.7 to 16 of Shirol village in favour of defendant No.2.
Sushilawwa died on 16.3.2003. On the basis of Exhibit D.35, one of the wills by Sushilawwa, defendant Nos.1 and 2 gave a wardi for getting their names entered in the records in respect of suit schedule item Nos.1 to 6 properties of Algur village. Plaintiff Nos.1 and 2 filed their statement of objections to : 27 : the said wardi before the Tahsildar. In this regard, the case bearing No.RTS/SR/6/2003-04 was heard and decided on 10.9.2003. Mutation Entry No.10965 is approved and the names of defendant nos.1 and 2 are entered in the records of suit schedule item nos. 1 to 6. The order passed in the said case is produced by defendants as Exhibit D-24. The above was challenged by the plaintiffs in an appeal. The said appeal was dismissed. The plaintiffs had challenged the said order dated 5.2.2004 by filing a revision petition No.RB/RTS/61/2004-05 before the Deputy Commissioner, Bagalkot. The said revision petition was also dismissed on 29.4.2004. The plaintiffs challenged all the above orders in a writ petition. The petition was dismissed.
The plaintiffs had filed a writ appeal in WA 5248/2004 against the above mentioned order dated 30.9.2004. The writ appeal was also dismissed. It was observed as follows:
"After the death of Annappa Narasgond, mutation entry No. 9405 was made entering the name of his widow namely Smt. Susheelavva as Class-I heir. In that view of matter, no exception Id be taken to Smt. Susheelavva executing the will in favour of respondents No. 4 and 5. It is also pointed out that the existence of : 28 : mutation entry No. 4802 after the partition of the properties is not disclosed in the writ petition. In that view of the matter, there is no good ground made out for us to interfere with the order of the learned Single Judge. In that as it may, the issue brought before the court relates to title and possession of the landed property and, therefore, only the competent Civil Court can decide such questions conclusively and finally."
The defendants have proved that the plaintiffs have effected partition during the life time of Annappa and Venkappa. Annappa has died intestate after coming into force of the Hindu Succession Act, 1956 (17.6.1956) leaving behind his wife Sushilawwa as his sole heir. Item Nos.1 to 6 of Algur village are mutated in the name of Sushilawwa as a class-I heir. Item Nos.7 to 16 were purchased by Annappa and Venkappa and some other persons together in the year 1983.
When a Hindu male dies possessed of property after coming into force of the Hindu Succession Act, his heirs as per the schedule, take it in terms of Section 8 of the Act. The heir or heirs take it absolutely. There is no question of any limited estate descending to the heir or heirs. Therefore when a male Hindu dies : 29 : after 17.6.1956 leaving his widow as his sole heir, she gets the property as a class-I heir and there is no limit to her estate or limitation on her title. In such circumstances, section 14(1) of the Act would not apply on succession after the Act, or it has no scope for operation. In other words, even without calling in aid section 14(1) of the Act, she gets an absolute estate. (See: Sadhu Singh vs. Gurdwara Sahib Narike and others, AIR 2006 SC 3282) Annappa has died on 26-08-1999. His wife Sushilawwa is his sole Class-I heir. She becomes the full and absolute owner of suit schedule properties without the aid of section 14(1) of the Hindu Section, 1956. Sushilawwa could dispose of the suit schedule properties by way of testamentary disposition. Exhibit D-35 is a registered will. The defendants have produced the original will. Exhibit D-1 is also a registered will. The defendants have produced it.
Ex.D-35 is written on a plain paper and it is a registered one. The details of the properties which Sushilawwa wanted to dispose of are mentioned in it. Her intention to convey those properties to defendants Nos.1 & 2 is clearly mentioned. It bears : 30 : two left thumb marks of the deceased Sushilawwa. It is signed by two witnesses namely, A.S.Janawad of Algur village and Srimant, son of Paris Khidrapur. Exhibit D-35 is type-written and its scribe namely, S.R. Siddar, District Document Writer, Jamkhandi has endorsed Dastur on it and has put his signature. Similarly, the Exhibit D-1 is another will dated 14-06-2002 in respect of suit schedule item Nos. 7 to 16 in favour of defendant No.2 only. This Exhibit D-1 is written on stamp paper and is a registered one. The details of the properties which Sushilawwa wanted to dispose of are mentioned in it. Her intention to convey those properties to defendant No. 2 is clearly mentioned in it. It is signed by two witnesses namely, Shivaji Sripatirao Nigade of Shirol village and Srimant, son of Paris Khidrapur of Algur village. Exhibit D-1 is type written and its scribe namely, Shanmukhappa, son of Basappa Anneppanavar, a Deed Writer, Mudhol has endorsed Dastur on it and has put his signature.
DW-3, Srimant Khidrapur is the attesting witness for both the wills. He has fully supported the case of defendants in respect of execution and attestation of the wills. The plaintiffs have failed : 31 : to point out any suspicious circumstance about the execution and attestation of Exhibit D-35 and Exhibit D-1.
Exhibit D-1 is a will in respect of the properties situated in Shirol village and this will was executed and registered in Mudhol. The scribe of Exhibit D-1, namely, Shanmukhappa Basappa Anneppanavar was examined by defendants as DW-4. The attesting witnesses for Exhibit D-4, namely, Srimant Khidrapur and Shivaji Nigade were examined by defendants as DWs.3 and 5, respectively. Exhibit D-35, a will is in respect of the properties situated in Algur village and it is executed in Jamakhandi. The scribe of Exhibit D-35, will, namely, Siddappa Siddar was examined by defendants as DW-2 and one of its attesting witnesses, namely, Srimant Khidrapur was examined by defendant as DW 3.
DW-4 Shanmukhappa was the deed writer working at Mudhol. He has stated that on 14-06-2002, Sushilawwa and two other persons came to him and told him that she has no children and that she was aging and because of that reason, she wanted to execute a will. He has further stated that she had brought the : 32 : property extracts of her properties in respect of which she was intending to execute the will and that she gave him the necessary information for preparing the will. DW-3 Srimant was a resident of Algur village. He has stated that Sushilawwa and her brothers Shantappa and Jinnappa were known to him. He has further stated that on 14-06-2002,Sushilawwa took him to Mudhol town for executing a will in respect of her properties situated in Shirol village. DW-3 has further stated that DW-5 Shivaji S. Nigade had also come along with Sushilawwa. DW-3 Srimant has further stated that Sushilawwa took both of them to the office of a deed writer at Mudhol, namely, Shanmukhappa Basappa Anneppanavar at Mudhol. DW-5 Shivaji was a resident of Shirol village. He has also stated the same.
DW-4 Shanmukhappa, DW-3 Srimant and DW-5 Shivaji have clearly stated that DW-4 Shanmukhappa prepared the will as per the say of Sushilawwa, got it type-written and read it over and explained to Sushilawwa. All of them have stated that Sushilawwa had said that the contents of said will are correct and that in their presence, she had put her Left thumb mark on Ex.D- : 33 :
1. All of them have further stated that they have also put their signatures to the Ex.D-1 in presence of Sushilawwa and thereafter it was taken to the Sub-Registrar's office and it was registered. All the witnesses, DWs 4, 3 and 5, have further stated that at the time of execution of Exhibit D-1, Sushilawwa was physically and mentally in a fit condition to execute the said Will.
DW-2 Siddappa Rayappa is the scribe for Exhibit D-35, a will. DW-3 Srimant Paris Khidrapur is one of the attesting witnesses to the will. DW-2 Siddappa was a deed writer working at Jamkhandi. He has stated that he has been working as a deed writer since from last 18 years and that Sushilawwa was known to him. He has stated that on 14-09-2001, Sushilawwa with two other persons, came to him and told him that she has no children and that she wanted to dispose of her properties by way of a will. He has also stated that she had brought the property extracts in respect of which she wanted to execute a will and that she gave him the necessary information for preparing the will. DW-3 Srimant has also stated that on 14-09-2001, Sushilawwa took him to Jamkhandi. He has also stated that Sushilawwa had come along : 34 : with one Atteppa Shankar Janawad. He has further stated that all of them together went to the office of DW-2 Siddappa at Jamkhandi. Both DWs.2 and 3 have stated that Sushilawwa gave the information to DW-2 Siddappa for preparing the will and that the said Siddappa prepared the will and got it type-written. They have further stated that DW-2 Siddappa read over the contents of the said will to Sushilawwa in their presence and that Sushilawwa told DW-2 that its contents were correct. They have further stated that Sushilawwa put her left thumb mark the said Exhibit D-35 in their presence. Both DWs.2 and 3 have stated that they have also affixed their signatures on the will in the presence of Sushilawwa. Thereafter, Exhibit D-35 was taken to the Sub Registrar's Office and it was registered. Here, it is also to be noticed that DW-3 Srimant has stated that Atteppa Shankar Janwad had also affixed his signature on Exhibit D-35 in his presence and in the presence of Sushilawwa. DW-2 Siddappa has also stated the same. Both DWs.2 and 3 have stated that on 14-09-2001, Sushilawwa was physically and mentally in a fit condition to execute Exhibit D-35. : 35 : The learned Counsel for plaintiffs has not elicited any admission from DW-2 Siddappa in support of the plaintiffs' case.
Therefore, it is to be noticed that both the wills, Exhibits D- 35 and D-1 are in writing. Sushilawwa has put her left thumb mark on both the wills in the presence of the scribes and attesting witnesses. The scribes and attesting witnesses have identified their signatures contained in both the wills. Both the wills are attested by two attesting witnesses. Therefore, the special requirements of Section 63 of the Indian Succession Act, 1925 with regard to execution and attestation of both the wills are fulfilled in this case. Under these circumstances, this court is of the opinion that the defendants have proved that deceased Sushilawwa has executed the Ex.D-35 and Ex.D-1, wills. The execution and attestation is in conformity with settled principles. In that, the provisions of Section 90 of the Evidence Act keeping in view the nature of proof required for providing a will have no application. A will must be proved in terms of the provisions of Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act 1872. In the event the provisions thereof cannot be : 36 : complied with, the other provisions contained therein, namely, Sections 69 and 70 of the Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for providing an ordinary document is not sufficient, as Section 68 postulates that execution must be proved by at least one attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence. Where, however, the validity of the will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator. In a case where the will is surrounded by suspicious circumstance, it would not be treated as the last testamentary disposition of the testator. (See: Bharpur Singh v. Shamsher Singh, AIR 2009 SC 1766).
As per Section 2(h) of the Indian Succession Act, 1925, a will means the legal declaration of the intention of a testator with respect to his property, which intention he desires to be carried out into effect after his death. As per this definition, the will must have four essential characteristics. Firstly, it must be legal i.e., it must be in conformity with the provisions as regards the execution : 37 : and attestation as provided by Section 63 of the Indian Section Act, 1925. Secondly, it should relate to the property of the testator which he wants to dispose of. Thirdly, the testator must have the intention to convey the benefits by the instrument i.e. the testator must have the animus testandi. Lastly, it must be intended to take effect after the death of testator. The special requirements as per Section 63 of the Indian Section Act, 1925, as regards the execution and attestation of the Unprivileged Will are as under:
a) It must be in writing. It is not really important whether a will is typed or hand written.
b) It must be signed by the testator. The testator must be a person of sound mind and he must not be a minor by age.
c) It must be attested by at least two witnesses who must each have seen the testator sign or affix his marks on the will. Each witness must sign in the presence of the testator and after he shall have executed it. : 38 :
However, it is to be noticed that it is not necessarily registerable and it need not be written on stamped paper. There is no prescribed form of a will. It may be written in any language, but the words used should be clear and unambiguous.
In the present case on hand, the testamentary disposition by Sushilawwa in favour of defendants no. 1 & 2 conforms to the above principles and rules of evidence, there are no suspicious circumstances present as sought to be urged by the plaintiffs. The defendants no. 1 & 2 have established that the suit properties are bequeathed to them in accordance with law.
Hence, the appeal lacks merit and is accordingly dismissed. No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE nv*