Karnataka High Court
T. Raghuramaswamy vs M. Venkataswamy on 10 July, 2024
Author: Krishna S Dixit
Bench: Krishna S Dixit
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RFA No. 32 of 2011
C/W RFA No. 33 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 32 OF 2011 (RES)
C/W
REGULAR FIRST APPEAL NO. 33 OF 2011 (INJ)
IN R.F.A. No.32 OF 2011
BETWEEN:
1. T. RAGHURAMASWAMY
SINCE DEAD BY HIS LRS.
1(A). SMT. KAMALAMMA
W/O LATE T. RAGHURAMASWAMY
AGED ABOUT 45 YEARS
1(B). R. SHASHIDHAR
S/O LATE T. RAGHURAMASWAMY
Digitally signed
by SHAKAMBARI AGED ABOUT 23 YEARS
Location: HIGH
COURT OF
KARNATAKA APPELLANT No.1(A) AND 1(B)
R/AT NO.117, 8TH CROSS
WILSON GARDEN
BANGALORE 27
2. B.V. CHANDRASHEKHAR
S/O LATE VENUGOPAL
AGED ABOUT 47 YEARS
RESIDING IN A PORTION OF PREMISES
NO.117, NEW NO.36
8TH CROSS
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NC: 2024:KHC:26438-DB
RFA No. 32 of 2011
C/W RFA No. 33 of 2011
WILSON GARDEN
BANGALORE 27
...APPELLANTS
(BY SRI. SUNIL KUMAR PATEL FOR
SRI. S.K. VENKATA REDDY, ADVOCATES [PH])
AND:
M. VENKATASWAMY
S/O LATE CHIKKAMUNISWAMAPPA
SINCE DECEASED BY HIS LRS
1(A). V. SRINIVASA MURTHY
S/O LATEL M. VENKATASWAMY
AGED ABOUT 50 YEARS
1(B). V. MANJUNATHA
S/O LATE M. VENKATASWAMY
SINCE DECEASED BY HIS LRs
(I) SMT. PRAMILA K
W/O LATE V. MANJUNATHA
AGED ABOUT 41 YEARS
(II) MASTER VIKAS M
S/O LATE V. MANJUNATHA
AGED ABOUT 19 YEARS
(III) KUM. SUSHMA M
D/O LATE V. MANJUNATHA
AGED ABOUT 17 YEARS
MINOR REPRESENTED BY HER GUARDIAN
NATURAL MOTHER - SMT. PRAMILA K
ALL ARE R/AT NO.793
2ND 'E' MAIN ROAD
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NC: 2024:KHC:26438-DB
RFA No. 32 of 2011
C/W RFA No. 33 of 2011
VIII BLOCK, KORAMANGALA
BENGALURU-560 095
...RESPONDENTS
(BY SRI. C. SHANKAR REDDY, ADVOCATE FOR
R1[A] AND R1[B] [I-III] [PH])
THIS RFA IS FILED U/S 96, R/W, O-41, RULE-1 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 01.10.2010
PASSED IN O.S.7558/1999 ON THE FILE OF THE VIII-ADDL.
CITY CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FOR
GRANTING PROBATE OF WILL.
IN R.F.A. No.33 OF 2011
BETWEEN:
B.V. CHANDRASHEKHAR
S/O LATE VENUGOPAL
AGED ABOUT 47 YEARS
RESIDING IN A PORTION OF PREMISES
NO.117, NEW NO.36
8TH CROSS
WILSON GARDEN
BANGALORE -560 027
...APPELLANT
(BY SRI. SUNIL KUMAR PATEL FOR
SRI. S.K. VENKATA REDDY, ADVOCATES [PH])
AND:
M. VENKATASWAMY
S/O LATE CHIKKAMUNISWAMAPPA
SINCE DECEASED BY HIS LRS
1(A). V. SRINIVASA MURTHY
S/O LATEL M. VENKATASWAMY
AGED ABOUT 50 YEARS
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NC: 2024:KHC:26438-DB
RFA No. 32 of 2011
C/W RFA No. 33 of 2011
1(B). V. MANJUNATHA
S/O LATE M. VENKATASWAMY
SINCE DECEASED BY HIS LRs
(I) SMT. PRAMILA K
W/O LATE V. MANJUNATHA
AGED ABOUT 41 YEARS
(II) MASTER VIKAS M
S/O LATE V. MANJUNATHA
AGED ABOUT 19 YEARS
(III) KUM. SUSHMA M
D/O LATE V. MANJUNATHA
AGED ABOUT 17 YEARS
MINOR REPRESENTED BY HER GUARDIAN
NATURAL MOTHER - SMT. PRAMILA K
ALL ARE R/AT NO.793
2ND 'E' MAIN ROAD
VIII BLOCK, KORAMANGALA
BENGALURU-560 095
...RESPONDENTS
(BY SRI. C. SHANKAR REDDY, ADVOCATE FOR
R1[A] AND R1[B] [I-III] [PH])
THIS RFA IS FILED U/S 96, R/W, O-41, RULE-1 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 01.10.2010
PASSED IN O.S.8508/1996 ON THE FILE OF THE VIII-ADDL.
CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DISMISSING
THE SUIT FOR THE PERMANENT INJUNCTION.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED THE
FOLLOWING:
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NC: 2024:KHC:26438-DB
RFA No. 32 of 2011
C/W RFA No. 33 of 2011
JUDGMENT
In these two appeals, the moot question involved is, "whether the parties to this appeal succeed to the schedule property by way of testamentary succession or under the general law of succession under the provisions of Hindu Succession Act, 1956 (for short `the Act') as two Wills are involved in both these appeals?"
2. Original petition in P & SC No.32/1997 was filed by the original plaintiff for grant of probate of the Will dated 5.5.1985 stated to have been executed by late A.Muniswamappa S/o.Late Gullekayappa bequeathing the suit schedule property in his favour and for issuing necessary certificate or to issue direction in accordance with law enabling the plaintiff to enjoy the suit schedule property as owner thereof with other ancillary reliefs. As the respondents in the said petition filed detailed objections, the original P & SC petition was converted into testamentary Original Suit No.7558/1999.-6-
NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011
3. These two appeals arise out of a common judgment passed in three clubbed suits in a testamentary suit OS No.7558/1999, OS No.8406/1996 and OS No.8508/1996. As parties to all the suits are one and the same, as the testamentary suit was the oldest suit, the parties to this appeal are referred to as per their rank in the testamentary suit in OS No.7558/1999.
4. Plaintiffs in OS No.8406/1996 sought permanent injunction against the defendant or anybody claiming through him from interfering with his possession and enjoyment of the suit schedule property with other reliefs. So also, plaintiff in OS No.8508/1996 has sought similar relief in respect of the schedule property. The property involved in both the suits is one and the same.
So far as granting relief in OS No.8406/1996 is concerned, no appeal is preferred by the defendant therein. Therefore, the judgment so passed in the said suit has attained finality.-7-
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5. The records of this case do reveal that, the plaintiff in OS No.7558/1999 is the defendant in both OS No.8406/1996 and OS No.8508/1996. The defendants in OS No.7558/1999 are the plaintiffs in OS No.8406/1996.
Defendant No.2 in OS No.7558/1999 is the plaintiff in OS No.8508/1996. Plaintiff in OS No.8406/1996 is not a party in OS No.8508/1996. Likewise, plaintiff in OS No.8508/1996 is not a party in OS No.8406/1996.
The facts in brief as narrated by the plaintiff in OS No.7558/1999 are as under:
6. It is the case of the plaintiff that, one late Sri Gullekayappa was resident of Koramangala. He had two sons by name A.Muniswamappa and Chikkamuniswamappa. One late Smt.Chowdamma was the wife of late Sri A.Muniswamappa. This couple had no issues. A.Muniswamappa died on 5.10.1985 and his wife Chowdamma died on 9.1.1991. The aforesaid Chikkamuniswamappa is the father of plaintiff and plaintiff -8- NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 is the only son to him. His father died about 40 years prior to filing of the suit and his mother died in the year 1968.
7. According to the plaintiff, the said A.Muniswamappa and Chikkamuniswamappa lived together during their lifetime. It is stated that, out of their income so earned, the schedule property was purchased in the name of A.Muniswamappa. The property was improved during their lifetime. Subsequently, both started living separately.
8. It is averred in the plaint, that in the schedule property, there are nine tenements and it was A.Muniswamappa who rented out the said tenements to various tenants including defendants. Father of defendant no.1 Sri M.Thimmaiah was the brother of Chowdamma. He was also one of the tenant of a tenements situated in the schedule property. It is stated that, after demise of M.Thimmaiah, it was defendant no.1 who became the tenant in one of the tenements situated in the suit schedule property.-9-
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9. It is alleged by the plaintiff that, both A.Muniswamappa and his wife Chowdamma were very fond of him and they had lot of love and affection towards him during their life time. It is alleged that, during the lifetime of A.Muniswamappa in a sound disposing state of mind, on 5.5.1985 executed a 'Will' in respect of the suit schedule property in favour of the plaintiff with a condition that, till the lifetime of Smt.Chowdamma, she has to enjoy the property without any right of transfer or claim any rights over the schedule property.
10. It is stated by the plaintiff that, on demise of A.Muniswamappa, his wife Smt.Chowdamma became the owner of the property as per the Will. After few months, the tenants stopped tendering rent. Therefore, plaintiff by virtue of the said Will initiated eviction proceedings under the provisions of then Karnataka Rent Control Act. In the said proceedings, it was directed to get the title of the plaintiff declared by approaching the Civil Court. In the said proceedings, defendants appeared without any
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 manner of right, title or interest and they set up a Will dated 24.8.1993 stated to have been executed by late A.Muniswamappa in favour of defendant nos.1 and 2. Therefore liberty was given by the Court in favour of the plaintiff to protect his right by initiating appropriate legal proceedings.
11. It is alleged that, the said late A.Muniswamappa never executed any Will in favour of the defendants. The Will in favour of the plaintiff is the latest Will and it prevails under the law. By virtue of the 'Wil'l dated 5.5.1985, it is the plaintiff who has become the absolute owner of the schedule property. Therefore, he prayed to grant relief of declaration and other reliefs as sought in the plaint and also prayed to dismiss the suit of defendant nos. 1 and 2.
12. In the said suit, the defendants therein appeared and resisted the suit of the plaintiff by filing detailed written statement contending inter alia, that the
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 suit is not maintainable either on law or on facts. It is barred by limitation. With regard to the 'Will' set up by the plaintiff in the said suit dated 5.5.1985, is denied. It is a concocted document just to grab the schedule property. Plaintiff has not acquired any title over the schedule property by virtue of the said Will. There was no occasion for A.Muniswamappa to execute the Will.
13. According to defendants, the schedule property was the self-acquired property of A.Muniswamappa and himself and his wife died issueless. It is denied that, these defendants were the tenants under A.Muniswamappa. According to them, they are the close relatives of Chowdamma and the said Chowdamma and her husband brought up defendant no.1 and father of defendant no.2. In fact, both couple lived with these defendants till their last breath. It is contended that, out of love and affection, said A.Muniswamappa bequeathed the southern portion of schedule property to defendant no.1 and northern half portion in favour of defendant no.2 by virtue registered
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 Will dated 24.8.1983. It is further contended that, because of the said Will, now the defendants have become the owners of their respective properties bequeathed to them by the deceased testator A.Muniswamappa. It is contended that, subsequently, these defendants, effected the partition of the schedule property and now they have been rented out to the tenants. It is contended that, the plaintiff has no manner of right, title or interest or possession over the schedule property. It is contended that, by creating false documents, it is plaintiff who is trying to interfere with the possession of defendants and their tenants. Though the defendants approached the Police but, no purpose was served. Therefore, they filed aforesaid two suits seeking permanent injunction.
14. The pleadings in all these suits of the respective parties is one and the same. In the testamentary suit, plaintiff claims title by virtue of the 'Will' dated 5.5. 1985 and these defendants also claim their title by virtue of 'Will' dated 24.8.1983.
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15. Based upon these rival pleadings, the learned trial Court framed the following issues: O.S. No. 7558 of 1999
"1. Was Plaintiff's father Chikkamuniswamappa, the brother of A.Muniswamappa?
2. Was suit property jointly acquired by plaintiff's father- Chikkamuniswamappa and the said A. Muniswamappa jointly?
3. Did A.Muniswamappa executed registered Will dated 24.08.1983 bequeathing his property in favour of 1st defendant and father of 2nd defendant, as alleged by defendants?
4. Did said A.Muniswamappa executed his last Will dated 05.05.1985 while in sound disposing mind, in favour of plaintiff?
5. Is plaintiff entitled for grant of probate of the said Will dated 05.05.1985?
6. Is the Petition for probate barred by time?
7. What Order or Decree?"O.S. No.8508 of 1996
"1. Whether the plaintiff proves his lawful possession over the suit schedule property?
2. Whether the plaintiff further proves the cause of action as alleged in the plaint?
3. What Order or Decree?"
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16. The trial Court records reveal that, in the testamentary original suit in OS No.7558/1999, the evidence was recorded in respect of all the suits stated above.
17. To substantiate the case of the plaintiff in OS No.7558/99, he himself was examined as PW.1 and also examined one witness by name Sri Munikrishna as PW.2 and got marked Ex.P1 to P31. On behalf of the defendants, defendant no. 1, defendant no.1(b) and two witnesses, were examined as DWs 1 to 4. On behalf of the defendants, 21 documents were marked.
18. The learned trial Court having heard the arguments and on perusal of the evidence placed on record by both the side, has held that both the Wills set up by the plaintiff and defendants are not duly proved in accordance with law and however, by invoking the provisions of Section 15 and 16 of the Act, decreed the suit of the plaintiff in OS No.7558/1999 in-part and
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 awarded 1/4th share each to the plaintiffs in the suit schedule property with liberty to the plaintiffs to get demarcation and possession of their separate share in accordance with law. So also, decreed the suit in OS No.8406/1996 in-part by directing the plaintiff in the testamentary suit restraining him from interfering with the possession and enjoyment of the properties by defendant no.1 till he is evicted under due process of law, over a portion of the suit schedule property as shown in Ex.P15 so described in the operative portion of the order. OS.8508/1996 was dismissed by the trial Court.
19. Now, being aggrieved and dissatisfied by the aforesaid judgment of the trial Court, the defendants in the testamentary suit are before this Court.
20. During the pendency of the suit, defendant no.1 in testamentary suit died and his legal heirs are brought on record in the connected suits. So also, plaintiff in testamentary suit by name M.Venkataswamy died and his
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 LRs. are also brought on record and accordingly cause-title came to be amended.
Submissions of the counsel for the appellants:
21. It is submitted by the counsel for the appellants in both these appeals that, the deceased A.Muniswamappa is not at all related to the plaintiff in the aforesaid testamentary suit in OS 7558/1999. Therefore, there was no occasion for the testator to bequeath his properties in favour of the original plaintiff. He submits, even the original plaintiff based upon a false and fabricated Will filed petitions for eviction of the tenants under the provisions of the then Karnataka Rent Control Act. When these defendants-appellants filed interim applications to implead them in the said petitions and took up a serious contention of title over the tenements, the Rent Control Court directed the plaintiff to get his title declared by approaching the Civil Court. He submits, even one such case was allowed and the matter came up to this Court and a Single Bench of this Court by allowing the Revision
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 Petition directed the plaintiff to approach the Civil Court. The witnesses examined by the plaintiff in proving the Will dated 5.5.1985 themselves have not identified the signature of the testator. The said Will is not duly proved in accordance with law. He submits that, the trial Court after assessing and evaluating the evidence placed on record by both the side have rightly concluded that the Will set up by the plaintiff is not duly proved in accordance with law.
22. He further submits that, when the said Will is not proved in accordance with law by the plaintiff, the question of he succeeding to the schedule property does not arise at all. In support of his submission, he relied upon the evidence placed on record by the plaintiff both oral and documentary.
23. It is his further submission that, deceased A.Muniswamappa during his life time was with defendant nos. 1 and 2. It is they who used to take care of the testator. He had too much of love and affection towards
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 these defendants. As he lived together with the defendants till his last breath, out of love and affection, he executed a registered Will dated 24.8.1983 in the name of DW.1's father T.Venugopal and his uncle T.Raghuramaswamy. To the said Will, two attesting witnesses have signed and it was scribed by one B.Thimmaiah. When the plaintiff based upon a false Will filed the HRC petitions before the Small Causes Court seeking eviction of the tenants, the legatees under the said Will dated 24.8.1985 resisted the same and set up a title by virtue of the said Will. It his submission that, the said Will dated 24.8.1983 is a valid Will and being registered, have got a presumptive value with regard to its genuineness. When the said Will so set up by the defendants is proved by them by adducing acceptable evidence by examining the witnesses, now the plaintiff cannot deny the title of the defendants. Therefore, he submits that the appeal has to be allowed and the judgment and decree so passed is liable to be set aside.
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24. Countering this submission, the learned counsel for the defendants-plaintiffs submitted that, the Will so set up by the defendants is a suspicious document. The legatee under the Will has taken the active part in creation of the said Will. The so called attesting witnesses are the strangers to the family of the defendants. The Will itself is doubtful. When plaintiff is the nearest relative of testator A.Muniswamappa excluding his brother's children, how the testator bequeath the entire property, is not explained by the defendants. He submits that, the Will dated 24.8.1983 which has not seen the light of the day till the Khatha proceedings are initiated, gives room to doubt the said Will. The evidence of the witnesses examined by the defendants is highly doubtful and their conduct is also improbable to believe so far as the attestation of the alleged Will. When the so called Will dated 24.8.1983 came into existence, whether the testator had mental physical and medical capacity to execute the Will is not explained. He too relies upon oral and documentary evidence lead by both the parties and also the findings of
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 the trial court stating that the trial Court has disbelieved the Will set by the defendants and invoked the provisions of Section 15 and 16 of HS Act and decreed the suit in part. Being aggrieved by the said finding, no cross- objections are filed by the plaintiff. He submits that, there is no merit in both these appeals.
25. In the light of the above submission, now this Court has to analyse the moot point so stated above that whether plaintiff is able to prove the said Will marked at Ex.P1 dated 5.5.1985 or the defendants are able to prove the Will dated 24.8.1983 marked at Ex.D.12. That means, both plaintiff and defendants are under obligation to prove the respective Wills, if one succeeds, the another is out of Court and visa-versa.
26. Evidently, Ex.D12, the Will set up by the defendants is a registered document whereas, the Will Ex.P1 set up by the plaintiff is an unregistered document. It is settled principle of law that Will is not a compulsorily registerable document. Therefore, merely because the Will
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 is registered, it cannot be stated that a presumption is very much available with regard to its genuineness.
27. In the above background of the pleadings, defence and the oral and documentary evidence available on record when perused, PW.1 Plaintiff M.Venkataswamy has reiterated the plaint averments in his evidence on oath. He is specific about the relationship between himself and deceased A.Muniswamappa which is denied by the defendants. In support of his pleadings, he relied upon various documents marked at Ex.P1 to P32. This PW.1 was subjected to intensive cross-examination. His specific answers in the cross-examination show his relationship with deceased A.Muniswamappa. He admits with regard to the objections being raised by the defendants before the BBMP when he moved an application for change of khatha. He denies his signature on the Will set up by the defendants as that of A.Muniswamappa. But, states that when the Will Ex.P1 came to be executed he was not present. He denies the suggestion that, just to grab the
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 property of Munsiwamappa after demise, the said Will was created by him. So also, he denies the suggestion, to assert his right in the schedule property he has paid the tax. He admits that, till demise of wife of Muniswamappa no attempt was made to get the change in khathas in respect of schedule property. He has denied all the suggestions so directed to him.
28. With regard to relationship between A.Muniswamappa and Chikkamuniswamma, it is suggested to PW.2 in para.10 of cross-examination that, A.Muniswamappa and Chikkamuniswamappa are children of single mother and they have got properties at Koramangala. To this suggestion, this PW.2 has given positive answer. So also, DW.1 B.V.Chandrashekhar in his evidence has stated that father of plaintiff is Chikkamuniswamappa and his brother A.Muniswamappa used to reside at Koramangala. R.Shashidhar, S/o.T.Raghuramaswamy during the course of his cross-
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 examination admits relationship in between testator and father of plaintiff PW.1.
29. Thus, the admission on the part of the defendants in their respective cross-examination attracts the provisions of Section 31 of Indian Evidence Act. During the course of argument, the counsel for the defendants took us to the cross-examination portion wherein, the appellant no.2 examined as defendant no.1(b) in OS No.7558/1999 in his cross-examination dated 25.7.2007 admits in so many words that the plaintiff in a testamentary i.e. defendant in OS No.7558/199 is the son of Chikkamuniswamappa who is the younger brother of Mr.A.Muniswamappa.
30. On scrupulous reading of the aforesaid evidence and the further evidence of defendant no.1(b), it is noticed that no further examination is conducted for explaining this admission. As per the provisions of Sec.31 of Indian Evidence Act, the admissions are not conclusive but, however, they assume the character of conclusiveness, if
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 not shown to be incorrect, as referred to in Law of Evidence by Woodroffe and Amir Ali (20th Edition - Vol II) wherein the judgment of Hon'ble Apex Court in Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and Others reported in (1974) 1 SCC 242 has held as under:
"Admission in pleadings or judicial admissions, admissible under Section 58, made at or before the hearing of a case by the parties or their agents stand on a higher footing than evidentiary admissions. The former are fully binding on the party making them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admission received at the trial are not conclusive and may be shown to be wrong......"
31. In United India Insurance Co. Ltd and another v. Samir Chandra Chaudhary reported in (2005) 5 SCC 784 held that:
".... in the backdrop of Section 31 of the Indian Evidence Act, 1872 it is true that evidentiary admission are not conclusive proof of the facts admitted and may be explained or shown to be wrong; but they do raise an estoppel and shift the burden of proof placing it on the person making the admission or his representative in interest....".
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32. Thus, in view of the clear admission of the defendants as rightly observed by the learned trial Court though the defendants deny the relationship but, in view of the admissions, the said denial pales into insignificance. When the defendants themselves admit the relation, it cannot be stated that these defendants have denied the relation for the sake of denial. This possibility cannot be ruled out.
33. So far as Wills are concerned, as narrated in the foregoing paragraphs, it is a bounden duty of the propounder of the Will to prove the Wills in accordance with law. To prove the Will set up by the defendants, they too rely upon the evidence of DW.1 D.V.Chandrashekhar, DW.2 R.Shashidhar, S/o.T.Raghuramaswamy, DW.3 G.N.Lakshman Rao, DW.4 G.Srinivas. On scrupulous reading of evidence of these witnesses, though DW.1 state about his relationship with testator and this relationship is not denied by the plaintiff. Merely because the relationship is admitted, what made the testator A.Muniswamappa to
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 execute the Will in favour of defendants T.Raghuramaswamy and another has to be explained by them. As rightly observed by the trial Court, though intensive cross-examination is directed against this witness, but, nothing worth is elicited from his/her mouth of witnesses as to defendants are unable to prove the Will.
34. So far as ownership of schedule property by A.Muniswamappa is concerned, PW.1 in his evidence has spoken to in his evidence on oath. In view of contents of Ex.P1 the so called Will, it shows that, the suit schedule property was acquired independently by A.Muniswamappa and not himself and his brother. Thus, A.Muniswamappa was the absolute owner of the schedule property. To disbelieve such a title in favour of A.Muniswamappa there is no evidence placed on record by the plaintiff. As per the defence of the defendants, A.Muniswamappa bequeathed the schedule property in favour of defendant no.1 and father of defendant no.2 by virtue of Will dated 24.8.1983.
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 By virtue of the same, they have become the owners of the same.
35. As plaintiff and defendants independently claimed their right based upon Ex.P1 and D.12 so called Wills alleged to have been executed by deceased A.Muniswamappa and the claim of both the parties is depending upon the findings on the said issues, it is just and proper to ascertain the genuineness and validity of the said Ex.P1 and D.12. Therefore, now we proceed to decide the validity, genuineness and enforceability of Ex.P1 as claimed by the plaintiff.
36. As per the pleadings set up by the plaintiff, late A.Muniswamappa and his wife late Smt.Chowdamma were having too much love and affection towards the plaintiff and because of that fondness, this A.Muniswamappa executed a Will dated 5.5.1985 when he was in sound disposing state of mind bequeathing the suit schedule property. A recital is incorporated in the said Will that till lifetime of Smt.Chowdamma she had to enjoy the schedule
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 property. Thus it is stated that after demise of A.Muniswamappa it was his wife Chowdamma became the owner of the schedule property by virtue of the said Will.
37. To prove the said Will, he examined one Munikrishna, S/o.Annayappa the attesting witness who had worked with A.Muniswamappa in his profession. As per his evidence, on 5.5.1985, A.Muniswamappa in his presence executed the Will Ex.P1 in his sound state of mind and he is one of the attesting witness to the said Will. It his evidence that, always A.Muniswamappa, whenever PW.2 met him, he used to express his intention to execute the Will in respect of his property in favour of T.Raghuswamy and T.Venugopal. This PW.2 has been thoroughly cross-examined by the defendants.
38. To prove the said Will PW.1 was examined before the trial Court and so many documents were marked in evidence. When Ex.P1 was confronted to him, during the course of his cross-examination, this PW.1 was unable to identify the signatures on Ex.P1 as belongs to
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 A.Muniswamappa. According to him, those signatures are not the signatures of said A.Muniswamappa. It has come in the evidence of PW.1 that an application was filed before the BBMP for change of khatha and the BBMP did not transfer the Khatha in the name of plaintiff. He had produced the so called Will alleged to have been executed by A.Muniswamappa. But, the BBMP has lost the said Will. This evidence of PW.1 is noticed in para.7 of the cross- examination of PW.1.
39. Thus, in view of the answers given by PW.1, as rightly observed by the trial Court, that the original Will is not at all produced by the plaintiff before the trial Court as it was lost in the office of BBMP. Even no attempt was made by the plaintiff to summon the responsible official before the trial Court to give evidence regarding loosing of the said Will in the office BBMP. Ex.P1 so marked as per the evidence of PW.1(a) is not the signature of A.Muniswamappa. Plaintiff also examined one Munikrishna to prove the contents of Ex.P1. As per the evidence of
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 PW.2, he was well acquainted with the family of A.Muniswamappa and in his presence, Ex.P1 was executed by him. He has deposed that one Bhadrachar and Bhairappa also signed the said Will as attesting witnesses. He states that, Ex.P1(a) is the signature of the said executor of the Will. But, PW.1 denied Ex.P1(a) as the signature of Muniswamappa. Thus, the evidence of PW.1 and P.W.2 are contrast with each other. Even this PW.2 was confronted with Ex.D12 so called Will set up by the defendants but, he is unable to identify the signature on the same. The learned trial Court, on evaluation and by applying the provisions of Sec.73 of Indian Evidence Act has come to the conclusion that, the said Ex.P1 is not duly proved in accordance with law. Coupled with this, on reading the pleadings and evidence brought on record by the plaintiff, certain suspicious circumstances also arise with regard to the genuineness of the said Will. They are summarized as under:
i) Signature of the Testator is not identified by PW.1 as per Ex.P1(a) so shown to him as that
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 of signature of deceased A.Muniswamappa (Page-8/11 of Cross-examination)
ii) BBMP authority has lost the Will when the plaintiff presented the same along with the documents for change of khatha. No efforts were made to trace the lost Will till date.
iii) No evidence is placed on record by the plaintiff that, so called lost Will was subsequently traced and it is produced as Ex.P1.
iv) Evidence of PW.1 and PW.2 is quite contrary with regard to the signatures found on Ex.P1 as that of A.Muniswamappa.
v) PW.2 is so called attesting witness is not definite about the signature on Ex.P1 and D12.
vi) PW.2 has deposed ignorance of property purchased by A.Muniswamappa.
vii) On scruitiny of Ex.P1, it shows erasing of earlier name and on that there is a writing of name of Muniswamappa and date was filled up subsequently.
viii) There is denial of this Will by the defendants in toto.
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40. These suspicious circumstances gathered from the evidence are not dispelled by the plaintiff by leading cogent and acceptable evidence so as to believe the genuineness and validity of the said Will. Therefore, it can be stated that, A.Muniswamappa as well as his wife Chowdamma intestate i.e. without leaving any Will.
41. So far as Will set up by the defendants marked at Ex.D12 is concerned plaintiff denies about the same. As stated supra, merely because the said Will is registered document, as per the provisions of Indian Succession Act as well as Evidence Act, the defendants have to prove the genuineness of the said Will with legal evidence. On reading the pleadings and evidence spoken to by DWs.1 to 4 following suspicious circumstances arise with regard to the said genuineness and validity of the Will marked at Ex.D12 dated 24.8.1983:
i) When Ex.D12 came into existence i.e. 24.8.1983, this DW.2 R.Shashidhar was one year 10 months old baby as he was born on 26.10.1982.
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 That means, he had no personal knowledge about the Will.
ii) Scribe is dead and his son DW.3 G.N.Lakshmanarao was examined. There is no evidence through DW.3 that, it was A.Muniswamappa executed Ex.D12.
iii) DW.4 Srinivas was a tenant under late A.Muniswamappa against whom, plaintiff has filed the eviction proceedings against him therefore, that must have prompted DW.4 to favour defendants to give evidence against plaintiff.
iv) DW.4 is unable to identify Ex.D.12 (a) as signature of A.Muniswamappa and states that it was not his signature.
v) DW.1 B.V.Chandrashekhar is not the attester of the Will but, beneficiary under the Will who actively participated in the execution of the Will as per the evidence brought on record.
vi) The genuine signatures of Muniswamappa are available at Ex.D7 dated 3.5.1968 being the registered
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 mortgage deed which were not confronted to any of the witnesses.
vii) So called Will Ex.D12 was written on 20.08.1983 at 10.00 a.m. but, was registered on 24.08.1983. The delay in registration of the said Will is not explained.
viii) Smt.Chowdamma as per the evidence brought on record had studied upto 2nd Standard but, she had put her thumb impression on Ex.D12 where as, it has come in the evidence of DW.1 that, Chowdamma used to put her signature on promissory notes.
ix) The attestation of the Will Ex.D12 by Chowdamma is suspicious.
x) When A.Muniswamappa died, the so called legatees Rangaswamy and Venugopal were tenants to whom plaintiff demanded to pay the rent as per the evidence of DW.4.
xi) Though the so called Will was registered on 24.8.1983, it has not seen the light of the day till revenue/khatha proceedings commenced by the plaintiff after death of Chowdamma.
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011
xii) Defendants did not make any attempt to make change khatha in their name based upon Ex.D12 after demise of A.Muniswamappa (so called testator).
xiii) Plaintiff flatly denies the
contents of Ex.D12.
xiv) Will is not compulsorily
registerable document and hence, no presumption of its genuineness is available to the defendants.
42. If the aforesaid suspicious circumstances are put together, defendants also have utterly failed to prove the genuineness and validity of the said Will Ex.D12 in the manner known to law.
43. The Hon'ble Apex Court in catena of judgments, have categorically held with regard to the proof of Will and duties of the Court in deciding the Will. How Ex.P1 and D12 are shrouded with suspicious circumstances, culled out suspicious circumstances hereinabove. Though A.Muniswamappa had his brother's children, what made him to execute Ex.D12 in favour of the legatees under the
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 said Will is not explained. Therefore, aforesaid suspicious circumstances which are not dispelled by both the parties create serious doubt about the execution of Ex.P1 and D12.
"In H.Venkatachala Iyengar v.
B.N.Thimmajamma and others (AIR 1959 SC
443), it has been held as follows:-
''The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act. Proof in either case cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. The onus must be on the propounder and in absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will can be accepted as genuine. If the caveator alleges undue influence, fraud or coercion the onus will be on him to prove the same. Where are no such pleas but the circumstances give rise to such doubts, it is for the propounder to satisfy the conscience of the Court. What are suspicious circumstances must be judged in the facts and circumstances of each particular case. If the propounder takes a prominent part in the execution of the will which confers substantial benefits on him, that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in such a case, the court should proceed with an open but nevertheless vigilant and cautious mind.'' As per Sections
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 67, 68, 45 and 47 of the Indian Evidence Act, 1872, to prove the Will, onus of proof lies on the propounder and it is the duty of the Court to appreciate the nature of evidence.
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. 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. It would be 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 63 of the Indian Succession Act. 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 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. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators.(Jarman onWills Vol.1, 8th Edition, page 50) ways that the general rule is 'that the onus probandi lies in every case upon the party propounding a Will and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator'. He adds that, if a Will is rational on the face of it, and appears to be duly executed, it is presumed, in the absence of
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 evidence to the contrary, to be valid. (Williams on Executions and Administrators Vol.1, 13th Edition Page 92) has observed that, generally speaking where there is proof of signature, everything else is implied till the contrary is proved, and evidence of the Will having been read over to the testator or of instructions having been given is not necessary".
44. The aforesaid judgment is called as Bible on proof of Will.
45. Whether the testator had disposable state of mind and capacity, it is for the propounder to establish the same. In this regard, the Hon'ble Apex Court "Ram Piari v. Bhagwant and others reported in (AIR 1990 SC 1742), it has been held as follows:-
"Although freedom to bequeath one's own property amongst Hindus is absolute both in extent and person, including rank stranger, yet to have testamentary capacity or a disposable mind what is required of propounder to establish is that the testator at time of disposition knew and understood the property he was disposing and persons who were to be beneficiaries of his disposition. Prudence, however, requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him. Absence of it may not invalidate a Will but it shrouds the disposition with suspicion as it does not give any linking to the mind of testator to enable the Court to judge if the disposition was voluntary act".
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011
46. The burden to prove the said Wills is on the propounder of the Will and judicial process of thinking also is quite necessary. Except the interested testimony of the plaintiff and defendants which is tendered in this case with regard to the proof of the Will, there is no evidence placed on record by both the parties in proving Ex.P1 and D12. The attestation has to be proved so also identification of the signatures etc.. So also, the propounders of the Will have to satisfy the ingredients of Sec.63 of Indian Succession Act and 68 and 71 of Indian Evidence Act. In this regard, the Hon'ble Apex Court in Madhukar D. Shende v. Tarabai Aba Shedage reported in [(2002) 2 SCC 85], ".......It is well settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law".
47. Yet in another judgment, the Hon'ble Apex Court have categorically held that, the profounder to explain the suspicious circumstances and has to dispel the
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 same to the satisfaction of the Court before the Will can be accepted as genuine. The said principle is laid down in the following judgments in Sridevi and others v. Jayarajua Shetty and others reported in [(2005) 2 SCC 784], it has been held as follows:-
"It is well settled proposition of law that mode of proving the will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act, 1925. The onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine.....The propounder of the will has to show that the will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged".
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011
48. In Smt.Jaswant Kaur v. Smt.Amrit Kaur and others reported in [(AIR 1977 SC 74(1)] it has been held as follows:
"In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the pro- pounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a 'cogent and convincing explanation of the suspicious circumstances surrounding the making of the will. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will...".
49. There is no evidence brought on record by the plaintiff and defendants that, who was the scribe who were all the attesting witnesses in the proper manner. Even exclusion of the nearest relatives by the testator also gives room to suspect the genuineness of the Will. When so called legatees under Ex.D12 were tenants under A.Muniswamaappa was it necessary for him to execute the Will in the name these tenants leaving his own wife and
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 also the plaintiff is a big question. It is also one of the strongest circumstance to disbelieve the execution of D12 by the testator. Thus heavy burden which was cast on the plaintiff and defendants is not discharged. Even the signatures on the said Will vide Ex.P1 is denied by plaintiff himself. Thus, either the plaintiff or the defendants have not dispelled the various suspicious circumstances so narrated above.
50. The evidence of PW.1 and 2 and DW.1 to 4 appears to be artificial in nature. The presence of PW.2 and DW.2 to 4 when the so called Wills were attested by them in their presence is highly doubtful. Except the self- serving testimony of the so called beneficiary under the Will, no evidence is placed on record by both the side. Therefore, when a doubt is created with regard to the condition of the testator as well as execution of Will, it can never be stated that, Ex.P1 and D12 are duly proved in accordance with law by the parties to the suit.
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011
51. From the above principles, it is very much clear that, the burden which was on the propounder to offer an explanation and get over such suspicious circumstances which are narrated above are not dispelled by both the parties. If the entire evidence if looked into, the propounders of both the Wills did not offer any acceptable explanation in proving the respective Wills. The said Wills are full of suspicious circumstances.
52. The learned trial Court after analyzing the entire oral and documentary evidence on either side has not satisfied as to the genuineness of the Wills propounded by the plaintiff and defendants. It is now well settled that requirement of the proof of execution of a Will is a same in case of certain other documents, for ex., Gift or Mortgage.
53. The plaintiff and defendants have utterly failed to prove their case with legal evidence. Therefore, both the Wills Ex.P1 and D12 are not proved in accordance with law. Therefore, the moot point stated above is to be
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 answered against both plaintiff and defendants as rightly held by the trial Court.
54. Now the question arises that when the both the `Wills' are not duly proved in accordance with law, who has to succeed to the property left behind by A.Muniswamappa and Chowdamma who died intestate. Evidently, the plaintiffs were held not entitled for probating the Will dated 5.5.1995. In view of the admissions of defendants as well as plaintiff's relationship with A.Muniswamappa and Chowdamma, we have to invoke the provisions of Hindu Succession Act. 1956. Section 15 and 16 of the Hindu Succession Act speaks of general rules of Succession in the case of female Hindus and order of succession and manner of distribution among heirs of a female Hindu.
Section 15. General rules of succession in the case of female Hindus. - (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16
(a) firstly, upon the sons and daughters (including the children of any
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),-
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.
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55. Evidently, the schedule property was exclusively belonging to A.Muniswamappa and after his death, Smt.Chowdamma being the only legal heir succeeds to the said property by operation of Hindu Succession Act being the class-I legal heir as defined under the schedule of Hindu Succession Act.
56. The defendants being the relations of Chowdamma from her parent side cannot claim their right under Section 15 and 16 of the HS Act, 1956. Therefore, plaintiff being the legal heir from her husband's side is entitled for share and after his demise it is now his legal heirs. The defendants are in possession of property which is not denied by the plaintiff. That means till defendant no.1 is dispossessed from the schedule property without following due process of law, his possession has to be protected and his possession is protected by the trial Court by passing the decree in OS No.8406/1996 in part. We do not find any factual or legal error by the trial Court for invoking the provisions of Section 15 and 16 of Act. So,
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NC: 2024:KHC:26438-DB RFA No. 32 of 2011 C/W RFA No. 33 of 2011 therefore, the appeals filed by the appellants fail and are liable to be dismissed by confirming the common impugned judgment.
Resultantly, we pass the following:
ORDER
(i) Appeals dismissed.
(ii) Common judgment and decree dated 1st October 2010 passed by the VIII Additional City Civil and Sessions Jduge at Bengaluru City in OS No.7558/1999 clubbed with OS No.8508/1996, are hereby confirmed.
(iii) Costs made easy.
(iv) Send back the Trial Court Records along with a copy of this judgment forthwith.
Sd/-
JUDGE Sd/-
JUDGE SK/-
List No.: 1 Sl No.: 3