Karnataka High Court
Smt Poornima vs Sri Manjunath on 13 January, 2023
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
REVIEW PETITION NO.121/2020
IN
RFA NO.1952/2013
BETWEEN:
1. SMT. POORNIMA
D/O LATE M.L. SRINIVASA MURTHY,
AGED ABOUT 50 YEARS,
R/AT NO.29/1, HARINAGAR CROSS,
KONANAKUNTE,
MUNIYAPPA BUILDING,
BENGALURU-560068.
2. SMT.SAVITHA
W/O D.A. SATYAPRAKASH
AGED ABOUT 45 YEARS,
R/A 8TH 'A' MAIN ROAD,
J.C. LAYOUT,
BENGALURU-560036.
...PETITIONERS
(BY SRI. KAMALESHWARA POOJARY, ADVOCATE)
AND:
1. SRI MANJUNATH
S/O LATE M.L. SRINIVASA MURTHY,
AGED ABOUT 50 YEARS,
R/AT NO.437, 17TH CROSS,
2
6TH PHASE, J.P. NAGAR,
BENGALURU.
2. M.L. KODANDARAMA SHETTY
S/O LAKSHMI VENKATARAMANA SHETTY,
AGED ABOUT 91 YEARS,
R/AT NO.152, DARSHAN, 13TH CROSS,
3RD PHASE, GIRINAGAR,
BENGALURU-560085.
3. G.K. BALAJI
S/O GAJULA M. KRISHNAIAH SHETTY,
AGED ABOUT 59 YEARS,
R/A NO.2222:E, 2ND CROSS,
KUVEMPU NAGAR, CHANNAPATNA,
RAMANAGARA DISTRICT-562 160.
4. G.K. JAGADISH
S/O GAJULA M. KRISHNAIAH SHETTY,
AGED ABOUT 55 YEARS,
R/A NO.2222:E, 2ND CROSS,
KUVEMPU NAGAR,
CHANNAPATNA,
RAMANAGARA DISTRICT.
5. G.K. VENKATESHA
S/O GAJULA M. KRISHNAIAH SHETTY,
AGED ABOUT 53 YEARS,
R/AT NO.2222:E, 2ND CROSS,
KUVEMPU NAGAR,CHANNAPATNA,
RAMANAGARA DISTRICT-562 160.
...RESPONDENTS
(BY SRI K.S.RAMESH, ADVOCATE FOR R1;
VIDE ORDER DATED 01.09.2022, NOTICE TO R2 IS
DISPENSED WITH; SRI SUHAS T.L., ADVOCATE FOR R3
AND R5; VIDE ORDER DATED 26.09.2022, NOTICE TO LRS
OF DECEASED R4 IS DISPENSED WITH)
3
THIS REVIEW PETITION IS FILED UNDER ORDER 47
RULE 1 READ WITH SECTION 114 OF CPC, PRAYING TO
CALL FOR THE RECORDS IN RFA NO.1952/2013 AND
REVIEW THE JUDGMENT DATED 16.01.2020 PASSED BY
THIS HON'BLE COURT IN RFA NO.1952/2013 AND PASS
SUITABLE ORDERS.
THIS REVIEW PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 24.11.2022, COMING ON FOR
'PRONOUNCEMENT OF ORDERS' THIS DAY, THE COURT
MADE THE FOLLOWING:-
ORDER
1. This Review Petition is directed against the judgment passed by this court in RFA No.1952/2013 dated 16.01.2020. Review Petitioners are the respondent Nos.1 & 2 in RFA No.1952/2013 and respondents are the appellant and respondent Nos. 3 to 6 in the Review Petition.
2. Brief facts which are necessary for disposal of the Review Petition are as under:
Review Petitioners are the plaintiffs who are no other than the daughters of M.L. Srinivasa Murthy who had filed OS No.6828/2006 on the file of the XXII Additional City 4 Civil and Sessions Judge, Bengaluru. First respondent in the Review Petition is the first defendant before the Trial Court who is the brother of the Review Petitioners.
Respondent No.2 Kodanda Rama Shetty, who is the brother of M.L. Srinivasa Murthy and respondent Nos.3 to 5 are the purchasers of the few items of the ancestral properties which are not the subject matter of the suit.
Thus, it is the first respondent who is the contesting party in the present Review Petition.
3. In the suit, plaintiffs claim share by way of a partition on the ground that their father M.L. Srinivasa Murthy died intestate and after his death, he left behind his wife Vijayalakshmi, who died on 14.01.2006. Suit property was the property of M.L. Srinivasa Murthy and after his death plaintiffs and first defendant are entitled to 1/3rd share in the suit property.
4. In the suit, first defendant put forth his defence and resisted the suit on the ground that M.L. Srinivasa Murthy had executed a Will on 05.08.1992 and 5 therefore, he is the absolute owner of the suit property and therefore, suit was not maintainable.
5. The Trial Court after raising necessary issues and after considering the oral and documentary evidence placed on record, decreed the suit of the plaintiff in OS No.6828/2006.
6. Being aggrieved by the said judgment, first defendant filed RFA No.1952/2013 before this court.
7. This court after securing the records and on re-
appreciation of the facts and law, allowed the appeal in RFA No.1952/2013 holding that the Will is valid and thereby the suit of the plaintiffs came to be dismissed.
8. Being aggrieved by the said judgment, passed in RFA No.1952/2013 dated 16.1.2020, the plaintiffs being the Review Petitioners have filed the present Review Petition on the following grounds:
The judgment and decree passed by this Hon'ble Court in reversing the judgment and decree of the trial court vide judgment dated 16- 6 01-2020 in R.F.A. No.1952/2013, is suffered with error apparent on the face of the records and as such it would call for interference in exercise of review jurisdiction by this Hon'ble Court under Order 47 Rule 1 of the C.P.C. As such, present review petition which call for interference by reviewing the judgment and decree of this Hon'ble Court.
The execution of the will Ex.D4 has not proved. With great respect to this Hon'ble Court while allowing the RFA and accepting the will Ex. D4 none of the ingredients as enumerated under Section 63(c) of the Indian Succession Act, 1925 has not been looked into. Except LR's of two attesting witnesses no other person was examined for establishing due execution of the will. DW2 and DW3 were only able to indentify about the signature of the attesting witnesses. They admitted in their evidence that they were not present at the time of executing the will. The name of the scribe was also hided in Ex. D4.
DW2 in his affidavit evidence stated that his mother/ one of the attesting witness was passed on 24/11/2012. DW3 in her affidavit evidence stated that her husband /another attesting witness was passed away on 10/04/2010. It is pertinent note here that the 1st defendant has filed his written statement before the Hon'ble Court below on 7 2/11/2007. It is also not ruled out that the 1st defendant and attesting witnesses were conspired together and created the Ex.D4 only to defeat the rights of the plaintiffs with help of skilled person. To prove that aspect the evidence of the DW3 is clinching that she gone to the extent that she has given her evidence only to help Defendant No.1.
The custody of the will Ex. D4 itself is doubtful, since the evidence of DW1 and DW2 are inconsistent and not corroborating to one another. In the affidavit evidence of DW2 it is stated that "My mother has shown me the Will dated 5/08/1992, as it was in her custody until my aunts death (mother of the plaintiffs and defendant). Subsequent to the death of my aunt, the I said will was handed over to Defendant No.1". But in the cross examination of the DW2 consistently stated that "Ex.D4 was in the custody of the son of my senior aunt. After the death of my Senior Aunt Ex.D4 came into the custody of her son M.S. Manjunath at no point of time the will Ex.D4 was in my custody or in the custody of my mother"
The plaintiffs have strongly disputed the signatures found in the Ex.D4 and according to plaintiffs M.L. Sreenivasa Murthy did not execute such document during his life time. Hence acceptance of Ex.D4 without examining the other 8 relevant acceptable evidences which are already on record rather than believing the evidences of DW2 and DW3 are highly impermissible in the eye of law.
It is submitted that the trial court disbelieved Ex.D4 Will dated 05-08-1992 on multiple reasons while recording common findings on issue Nos.1, 2, 5 and 7. According to the trial court, the following suspicious circumstances are enumerated in the course of the judgment viz.,:-
On review of the entire evidence available on record, both oral and documentary, prima facie it would reveals there was no occasion for M.L.Srinivasa murthy, the father of the plaintiffs and defendant No.1 to execute the Will as claimed by defendant No.1 Sri Manjunath.
The reasons put forth by defendant No.1 for execution of the Will by his father is his contribution in the business and construction of the building. However, the trial court, on appreciation of evidence, clearly of the view that the business what was referred to is the business of the father and any assistance as a member of the family is no consequences to accept the reason for execution of the Will Ex.D4 in favour of defendant No.1.
Apart from that findings, the clinching evidence of PW1 is also having much consequences 9 to come to right conclusion. PW1 in her evidence clearly stated that the 1st defendant was not having good conduct and always he used to spend money in a irresponsible manner without taking care of his future days and her father many times objected the attitude and behaviour of 1st defendant.
PW1 in her affidavit evidence further stated that her father has not executed any will in respect of the suit schedule property and moreover before filing the written statement by the 1st defendant before the Hon'ble Trial Court he did not whisper anything about the alleged will and even he has not taken such stand before the Corporation for changing the khatha in his name. According to the findings of the trial court, the Will was related to the year, 1992 and testator M.L. Srinivasamurthy has died on 26/05/2005 and his wife Vijayalakshmi has died on 14-01-2006. The learned trial court observed that there is a lot of time gap between 1992 until the death of M.L. Srinivasamurthy upto the year 2005. There are no compelling reasons mentioned as to why M.L. Srinivasamurthy had to make this will, when his children are around the age of 20 years. It is further observed that, the evidence discloses that M.L.Srinivasamurthy was attacked with paralysis on 27/11/1992 and thereafter survived up to 2005. Therefore, there is 10 a suspicious as to the executing of this will Ex.D4 in the year 1992 by the testator. Therefore, on that scope, the Will was disbelieved;
Secondly, it is alleged in the Will that the life interest was created to his wife Smt.Vijayalakshmi. According to 1st defendant the execution of the said will was not known to Smt. Vijayalakshmi much less 1st defendant. The family of M.L. Srinivasa Murthy was a small family, one son with two daughters and his wife and he was leading very cordial and comfortable life with his family members and there is no reasons to believe that M.L. Srinivasa Murthy could hide the execution of such will to his wife and children if it had really executed.
Thirdly, the DW1 Manjunath in his cross examination stated that one week after the death of his mother his aunt given the said will Ex.D4 to him. The son of his aunt DW2 in his cross examination has stated that after the death of mother of DW1, DW1 got the custody of Ex.D4 and further stated that at no point of time the will Ex. D4 was in his custody or in the custody of his mother. Hence, the existence of the will itself is doubtful which clearly spelt out from the mouth of the DW1 and DW2.11
Fourthly, PW2 in her affidavit evidence clearly stated that in the year 1992 she was unmarried and having more love and affection with her father and her father did not use to take any decision without her knowledge and she consistently stated that her father did not make any such documents in the year 1992 as alleged by the 1st defendant.
Fifthly, though the marriage of the 1 petitioner was performed in the year 1992, the 1st petitioner was not happy in her matrimonial home. This fact is also brought home by the 1st defendant in the cross examination of the PW1. The PW1 in her cross examination has stated that "it is true to suggest that in about 3 to 4 months in to my marriage I had attempted suicide and my father had got me treated". When such clinching evidences are available on records the contents of the alleged will Ex.D4 could not have believed.
The contents of the will on face of record shows that it was drafted by professionally skilled person. The name of the scribe is hided. It can be safely presumed that either M.L.Srinivasa Murthy or the witnesses as mentioned in the alleged will could not have drafted so. Moreover, the usual practice in executing the will would be either in stamp paper or it be registered documents. Here the alleged will was typed on some green sheets, it 12 further indicates that the person who created the will was having thorough knowledge to the unprivileged will. The learned trial court has rightly noticed such miscreants and rightly disbelieved the said alleged will.
The trial court recorded the finding that 1992 itself M.L.Srinivasa Murthy had suffered with paralysis stroke and who suffered such disease on 26-11-1992 and he survived up to 2005. According to the trial court, execution of the Will in the year 1992 by the testator is one of the suspicious circumstances and that was not legitimately removed in terms of the evidence available on record.
Sixthly, the usual style of signature which is available in various records in related to the signature of the testator M.L.Srinivasa Murthy was in Kannada; but the Will was signed in English and to that effect Ex.P15 the Engagement Invitation Card was referred to and it was compared with Ex.D4 and time span of gap between Ex.D15 and Ex.D4 is only one year. Therefore, no proper explanation for the change of signature within a gap of one year is lacking: The learned Trial court has held that this is another suspicious circumstances in to account.13
One of the strongest suspicious circumstance taken note of by the trial court is after the demise of M.L.Srinivasa Murthy, defendant No.1 Sri Manjunath had approached the Corporation with a request to change of khatha of the schedule property in his name. A reference was made to document Exs.P11 and P12. Ex.P11 is the Affidavit and Ex.P12 is the Genealogical Tree. But these two documents made it as a basis to seek transfer of khatha in his favour by defendant No.1, there is no reference so far as Ex.D4 Will is concerned. This is one of the strongest suspicious circumstances noticed by the trial court;
As could be gathered in so far as the alleged disputed Will is concerned. The Will is typed on a plain green sheet of paper and it is not even registered also. It is an undisputed fact as reflecting from the evidence that late M.L.Srinivasa Murthy was working in Indian Military Service, he was well acquainted with worldly affairs and it is highly unbelievable that such a literate could execute the will in a manner what it is executed. This is one of the suspicious circumstances taken note of by the trial court;
The Learned trial court taken note of that, the 1st defendant has sold the property situated at Channapatna to G.K.Balaji and others on 23/01/2008 will cast a suspicion about the Will. For 14 what reason the 1 defendant alone has executed the sale deed in respect of Channapatna Property, is not explained by him. It only reveals that the 1st defendant was trying to encroach upon the plaintiffs rights over Channapatna Property.
The purchaser of the said property replied to the notice issued by the plaintiffs as could be seen in Ex.P7 by stating that the grandfather of the plaintiffs and 1st defendant during his life time had made some arrangement in favour of 1 defendant and by virtue of such arrangement the 1st defendant became the owner of the said property by the time of death of P. Lakshmi Venkataramana Shetty. It further indicates that it is the habit of 1st defendant to cheat the family members and purchasers. Therefore, the intention of the defendant no. 1 to take the properties for himself can be seen by this act. Later the purchasers have realized the miscreants act of the 1st defendant and requested the plaintiffs for settlement and accordingly the plaintiffs have entered in a compromise with the defendants No.2 to 5 and by receiving some amounts regarding Channapatna Property, the compromise is recorded.
The Hon'ble Trial Court consistently held that, But the act of the 1st defendant again cast a doubt about the execution of the will by deceased M.L.Srinivasamurthy. The contentions of the 1st 15 defendant that the plaintiffs have also received more amount while executing the confirmation deed in respect of the Channapatna property and that is also towards the plaint 'A' Schedule Property is unacceptable.
The learned Trial Court held that the 1st defendant has not able to remove to these circumstances. The evidence of DW2 and DW3 can be only used as an evidence for complying section 70 of the Indian Evidence Act. Their cross examination reveals that they were not present while executing the will. Therefore, the burden is heavy on the 1st defendant to remove all these suspicious surrounding of the will. Under these circumstances, the defendant No. 1 has failed to prove the due execution of the will.
In addition to the above, there are other genuine and legitimate suspicious circumstances are taken note of and will was accordingly held to be disproved by the trial court.
It is submitted that the apparent errors on the face of the judgment of this Hon'ble Court in the first appeal, only on the evidences adduced through DWs-2 and 3 this Hon'ble Court had arrived for a conclusion that the will has been legitimately proved. The law is settled in so far as the issue in controversy based on the will is 16 concerned, merely because there is an acceptable evidence tendered by the attesting witnesses or the signature of the attesting witnesses have been identified by the family members, that itself does not ipso facto empowers the Court to grant a decree believing or accepting the will. All piece of evidence to be looked into while appreciating or testing the legitimacy of the will is concerned. If the will is surrounded with major suspicious circumstances, it is invariable on the part of the first Appellate Court to re-appreciate the evidence available on record to take the different stand as taken by the trial court and that invariable exercise is lacking in the impugned judgment which is the subject matter of this review petition. When the trial court has recorded multiple suspicious circumstances, keeping those suspicious circumstances intact and without recording any consistent findings upon re-appreciation of oral and documentary evidence produced by the parties, but holds the legitimacy of the will has been proved only on relaying upon the evidence of DWs/2 and
3. Therefore, the judgment as passed by this Hon'ble Court in the First Appeal, is an apparent error on the face of the records and it would call for review by exercise of the power under Order 47 Rule 1 of the C.P.C.17
It is submitted that compliance of Section 68 of the Indian Evidence Act, is one of the mode to prove the signature of the attester if the attester is not alive. Merely because the attesters signatures have been identified by DWs-2 and 3, this Hon'ble Court ought not to have held that the legitimacy of the will is held to be proved. On perusal of the judgment as passed by this Hon'ble Court, there is no exercise is forthcoming to re-appreciate the evidence for the purpose of impeaching the findings recorded by the trial court on rest of the suspicious circumstances are concerned. Unless and until all the findings recorded by the trial court in related to the surrounding of the suspicious circumstances of the will, the first Appellate Court ought not to have held that the legitimacy of the will has been proved and such an exercise rendered by this Hon'ble Court is suffered with apparent error on the face of the records. Therefore, it is a fit case to the judgment in exercise of power under Order 47 Rule 1 of the C.P.C."
9. Re-iterating the grounds urged in the Review Petition Sri Kamaleshwara Poojary, vehemently contended that the learned Single Judge of this court has not properly considered the material evidence on record, allowed the 18 appeal in gross violation of the said principles of law and sought for allowing the Review Petition.
10. Per contra, Sri K.S. Ramesh, learned counsel appearing for the first respondent vehemently contended that having regard to the scope of the first appeal, learned Single Judge re-appreciated the material evidence on record and also took into consideration the additional evidence placed on record and rightly allowed the appeal.
He further contended that if the plaintiffs are aggrieved by the said judgment, the remedy for the plaintiffs is to file an appeal against the order of the learned Single Judge before the Hon'ble Apex Court, having regard to the scope of the review as is contemplated under Section 47 of the CPC. The Review Petition lacks merit and sought for dismissal of the Review Petition.
11. In reply, learned counsel for the Review Petitioner has contended that the scope of review is well settled and if there is an error apparent on record, this court can very well exercise the power vested under Order 19 47 of CPC and sought for allowing the Review Petition and in this regard, he has relied on the following judgments::
1. In the case of Board of Control for Cricket in India and another v. Netaji Cricket Club and others reported in AIR 2005 SC 592, wherein the Hon'ble Apex Court in paragraphs Nos.88, 89 and 90, it is held as under:
88. We are, furthermore, of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be ex facie bad in law. Section 114 of the Code empowers a court to review its order if the conditions precedent laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit.
89. Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.20
90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit".
2. In the case of Sri J.T.Surappa and another vs. Sri Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and Others reported in ILR 2008 KAR 2115, the Hon'ble Apex Court in paragraphs 56 and 57, it is held as under:
"56. Therefore, before a Will is said to have been duly executed, it has to pass through the dual test prescribed under Section 68 of the Evidence Act as well as Section 63 of the Act.
Section 68 makes it clear that the said document shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the 21 process of the Court and capable of giving evidence. Before the execution of the Will is held to be proved, examination of one attesting witness at least is a must, but that by itself will not prove the due execution of the Will. The said Will also should satisfy the other requirements prescribed under Section 63 of the Act. In so far as attestation is concerned, sub- rule (c) of Section 63 explains, what attestation means which is in pari materia with the definition of the word "attested" found in Section 3 of the Transfer of Property Act. Before a document is said to be duly attested, evidence has to be adduced to the effect that two of the attesting witnesses have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will in the presence and by the direction of the testator or in order to receive from the testator a personal acknowledgement of his signature or mark or the signature of such other person. It is thereafter each of the attesting witnesses shall sign the Will in the presence of the testator.
57. The aforesaid provision makes it clear for due execution of a Will it is not necessary that both the attesting witnesses be present at the same time. But, the question is if both the attesting witnesses are not present at the same time and has not seen the testator affix his signature or mark to the Will how is attestation proved? If only one attesting witness was 22 present at the time the testator affixing his signature to the Will, it is obvious that the other attesting witness has not seen with his eyes the affixing of signature by the testator to the Will and also the other attesting witness signing the Will in the presence of the testator. The requirement of law is, each of the attesting witnesses shall sign the Will in the presence of the testator. In such event, in order to prove due attestation, it is necessary to examine both the attesting witnesses. Though the requirement of Section 68 of the Evidence Act is satisfied by examining only one attesting witness, in such circumstances the requirement of due attestation as contemplated under Section 63(c) of the Act is not satisfied. Non- examination of the other attesting witness in such circumstances would be fatal. If the other attesting witness is not available, the propounder is not helpless. To prove due attestation under Section 63(c) it is open to the propounder of the Will to examine a person who was present at the time of attestation, who saw the testator acknowledging to such attesting witness who was not present at the time of the testator affixing his signature to the Will, acknowledging his signature or mark and then the attesting witness signing the Will in the presence of the testator. That would meet the requirement of clause (c) of Section 63. If an attesting witness is not present when the 23 testator affixed his signature and if the testator does not acknowledge his signature to the said attesting witness, before the attesting witness affixes his signature to the Will, then this requirement of law is not fulfilled and the Will is not proved. In those circumstances, if the other attesting witness is not examined or other evidence is not adduced regarding due attestation, the requirement of Section 63(c) is not complied with, Will is not proved."
3. In the case of Sri Janki Narayan Bhoir vs. Narayan Namdeo Kadam reported in AIR 2003 SC 761, the Hon'ble Apex Court in paragraph Nos.9 and 10 it is held as under:
"9. It is thus clear that one of the requirements of due execution of a will is its attestation by two or more witnesses, which is mandatory.
10. Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. It flows from this section that if there be an attesting witness alive capable of giving evidence 24 and subject to the process of the court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a 25 court of law by examining at least one attesting witness even though the will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of clause (c) of Section 63 viz. attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by the other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the 26 other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."
12. In view of the rival contentions of the parties, the following points would arise for consideration:
(i) Whether the Review Petitioner has made out a case for allowing the Review Petition by exercising powers of this court under Order XLVII Rule 1 read with Section 114 of Code of Civil Procedure?
(ii) What Order?
13. In the case on hand, the relationship between the plaintiffs and first defendant is not in dispute. So also filing of OS No.6828/2006 by the plaintiffs seeking partition of their 1/3rd share which is mentioned in Suit 'A' schedule property. The suit on contest came to be decreed. The defence taken up by the first defendant was 27 that M.L. Srinivasa Murthy had executed a Will on 05.08.1992 and as per the Will, the property had fallen to the share of the first defendant.
14. In the case on hand, M.L. Srinivasa Murthy, who was the owner of the suit property died on 26.05.2005. The suit 'A' schedule property was the self acquired property of M.L. Srinivasa Murthy. He left behind his wife Smt. Vijayalakshmi and Vijayalakshmi said to have died on 14.01.2006. Therefore, the plaintiffs claim that plaintiffs and first defendant are entitled to 1/3rd share in the suit property. Suit 'A' Schedule property is none other than the residential house bearing No.437, 17th cross, 6th Phase, JP Nagar, Bengaluru, to the extent of 1200 Square fee east to west 30 feet and north to south 40 feet bounded on East - House No.436, West - House No.438, North - 17th Cross and South - Private Property and built up area is situated.
15. In so far as the Suit 'B schedule property is concerned, the same relates to property bearing katha site 28 No.2124 situated at 7th cross, Kuvempunagar, Channapatna Municipal Road, Channapatna, measuring east to west 40 feet and north to south 100 feet consisting of old tiles roof house and not suitable for residence The parties among themselves have come to a consensus and the same was disposed of in terms of the consensus so reached. Thus, the scope of the case would be exclusively suit 'A' Schedule property, rights on which to be adjudicated among plaintiff Nos. 1 & 2 and defendant No.1.
16. Therefore, now the suit was confined only with regard to the share of the plaintiffs and defendant in respect of Suit 'A' schedule property. It is contended that in a partition deed dated 2.3.2006, Suit 'B schedule property was apportioned. It is further contended that plaintiffs' father M.L. Srinivasa Murthy was carrying on business and during 1992 he had suffered Paralysis stroke.
There is no dispute that Suit 'A' schedule property is the self acquisition of the M.L. Srinivasa Murthy. It is the 29 specific case of the defendant that M.L. Srinivasa Murthy had executed a Will on 5.8.1992, wherein he bequeathed Suit 'A' schedule property exclusively to first defendant denying the share of the plaintiffs.
17. The materials on record also discloses that the marriage of the first plaintiff was performed on 16.02.1992 and second plaintiff on 15.12.1994
18. In the Will itself, which is marked at Ex.D4, the reasons assigned is he has married his daughters. His son who is the first defendant has studied only upto 10th standard and he is un-married. It is also stated that the suit property is the self acquisition and after the demise of his wife, Suit 'A' schedule property would devolve of first defendant absolutely for ever. In other words, there was a life interest created in favour of the Smt. Vijayalakshmi who was the wife of the testator and after her demise, the property would fall to the share of the first defendant. He has also stated that for some reason, if he is unable to marry his second daughter, the defendant shall perform 30 her marriage and he shall also look after his wife Vijayalakshmi and in the event of non marrying second daughter he has to look after the second daughter also.
There is a further condition in the same Will in the event of second daughter being not married, his second daughter and the first defendant would have equal share in the Will.
The said Will Ex.D4 reads thus:
"THIS IS THE MY LAST WILL AND TESTAMENT of Sri SRINIVASA MURTHY, Son of Late Sri. Lakshmivenkataramana Setty, aged about 60 years, residing at No.437, 17th Cross, Sarakki VI Phase, Extension, Bangalore - 560 078;
Heretofore I have not executed any Will codicil. This will be operative after my demise. I am aged about 60 years, I am in a sound disposing state of mind. I am quite hail and healthy, having understood the nature of disposition, I am making, I am executing this WILL.
I was working as a truck driver in Military. After retirement I came to Bangalore, and I was residing in a rented house. I commenced the business in Stationery during the year 1965 in a rented premises.
31I married Smt.S.Vijayalakshmi during the year 1966. I and my wife have got 3 children namely Smt M.S. Poornima, Kumari M.S.Savitha and M.S.Manjunath. My first daughter Smt. M.S.Poornima has married and living with her husband Sri.Srinivasa Murthy. I have performed her marriage. At the time of her marriage I have given her the jewels as well as some cash. My son Sri.M. S. Manjunath has passed S. S. L. C. and discontinued his studies. From the year 1987 he is doing business of stationery in the premises wherein I was doing business. He is unmarried. My another daughter Kumari Savitha has passed her S.S.L.C. examination and continuing her education. My wife Smt.Vijayalakshmi is staying along with me and other two children and has been taking care of household affair.
A site bearing No.437, Sarakki VIth Phase, Bangalore was allotted to me by the B. D. A. during the year 1982. I was put in possession of the property and a lease-cum-sale agreement was also executed in my favour. Our of my own earnings, savings, out of money borrowed from the financial institutions and some money contributed by my son I have constructed a residential premises which is more fully described in the Schedule hereunder and has been living with my family members. It is my self acquired property. I have got absolute right 32 to dispose off schedule property in any manner I desire. It is my intention and desire to give the schedule property to my wife Smt. S.Vijayalakshmi after my demise, my wife shall enjoy the property during her lifetime. My wife has no right to sell or to create my charges over the schedule property during her life time.
After the demise of my wife, the schedule property shall devolve upon my son Sri. M.S. Manjunath, absolutely and forever. The schedule property shall be for the use and benefit of my son only after the demise of my wife. If my wife predeceased me the schedule property shall devolve upon my son absolutely for ever after my demise.
If for any reason I do not perform the marriage of my another daughter Kumari M.S.Savitha, it is the duty of my son to perform her marriage and my son shall maintain and look after my wife during her lifetime and also my unmarried daughter, if or any reason my son does not perform the marriage of my unmarried daughter my wife has got right to raise funds by mortgaging the schedule property. Except the right of mortgage my wife has no other right over the schedule property. If for any reason my unmarried daughter does not get married and in that event 33 my son and unmarried daughter shall have equal right after the demise of my wife.
M.L.Srinivasa Murthy Testator SCHEDULE All that property bearing No.437, 6th Phone, Sarakki, Bangalore, measuring East to West : 9.15 meters and North to South 12.20 meters and bounded on the i East by : Property bearing No.436;
West by : Property bearing No.438;
North by: Road; and
South by: Private Property;
IN WITNESS WHEREOF, I have herein set and subscribed my signature on this the 5th day of August 1992 at Bangalore.
M.L.Srinivasa Murthy Testator"
Therefore, the learned counsel for the Review Petitioner however, contended that these aspects of the matter has not been properly considered by the learned Judge of this Court, who passed the judgment in RFA No.1952/2013. In respect of the same, the Paragraph Nos.14 to 22 it has been held as under:34
"14. The contention of learned counsel for plaintiffs is that M.L.Srinivas Murthy obviously has signed in English on the Will whereas he used to sign in Kannada that becomes abundantly clear on examination of Ex.P-15 which is the matrimonial engagement card stated to have been written on the date of engagement on 15.08.91. Learned counsel for plaintiffs would submit the forged nature of the will becomes crystal clear on examining the very signature on the said document. Both the attestors and SriVallabha and Nagarthna are dead. Insofar as impact of attestors of the Will Ex.D-4 is concerned it is necessary to mention Section 68 of the Indian Evidence Act, 1872.
68. PROOF OF EXECUTION OF DOCUMENT REQUIRED BY LAW TO BE ATTESTED -
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.35
15. Insofar as Will is concerned it is marked as Ex.D-4 and it is unregistered and dated 05.08.92. The oral evidence of DW-2 Vinayaka stated to be the son of Nagartna, attestor No.2 and in the light of death of attestor No.2 Smt.Nagaratna DW-2 Vinayaka has given oral evidence regarding the Will wherein he avers that his mother had shown the Will dated 05.08.92 to him. Learned counsel for respondents would submit that the very custody of the Will with Nagartna as spoken to by DW-2 establishes the concocted nature of the Will as she was not the person who was supposed to hold custody of the Will. DW-3 S.S.Lakshmi wife of S.K.Vallabha identifies the signature. She says her husband had shown the Will to her. In this connection learned counsel for plaintiffs would submit that whether it is DW-2 or DW-3 go to the extent of saying that SriVallabha and Nagarthna have showed the Will to the witnesses i.e., in case of DW-2 Nagarthna to her son B.K.Vinayaka, and S.S.Lakshmi- DW-3 wife of S.K.SriVallabh. They spoke and deposed regarding the signature found on the Will Ex.D-4 D(a) and (b) respectively i.e., attestor No.1 -D-4(a) son of Nagarthna and S.S.Lakshmi D-4(b) wife of S.K.SriVallabh.
16. In the above set of circumstances learned counsel for plaintiffs relied on the following citations:
361. Janki Narayan Bhoir Vs Narayan Namdeo Kadam reported in AIR 2003 SC 761
2. M.V.Chayapathi Rao and others Vs M.V.Sathyanarayanarao and another reported in Kar.LJ 31
3. Sri J.T.Surappa and anr Vs Sri Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and others reported in ILR 2008 Kar 2115.
17. In the present case it is to be noted that the first attestor -SriVallabha's wife Lakshmi and Vinayaka son of attestor No.2-Nagarathna who are respectively examined as DW-3 and DW-2.
18. In this connection Section 63(c) of the Indian Succession Act, 1925 requires to be mentioned and the same is as under:
Section 63(c) - The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
19. Further the present case is with reference to examining the persons acquainted with 37 the signature of the attestors who are dead. As Section 68 of the Evidence Act mandates in case of death of testator the person known to be acquainted with the signature of testator may speak about signature.
20. In the circumstances the Transfer of Property Act, 1882 which defines the term "attested" is also necessary to be examined which is as under:
Attested - in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.
21. Thus, principle of examining atleast one of the attestors is mandatory as per Section 68 of Evidence Act. However same section or provision of law proceed further to state what are the recourse in case of both the attestors are dead and the subsequent provision of law are complied with. Further it is the question of succession to the estate 38 of Srinivas Murthy father of plaintiff Nos.1 and 2 and defendant No.1. It is normal rule upon death of holder of estate his estate would be inherited as per the rules of succession as provided in the respective personal law of the parties. The moot question here would be whether testamentary succession can exclude intestate succession.
22. When property is under the absolute ownership and possession of the testator and disposal of property is one of the instances of ownership and it can exclude intestate succession. Section 8 of the Hindu Succession Act that provides for intestate succession is as under:
8. General rules of succession in the case of males.--The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter--
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased."39
19. The grounds urged in the Review Petition is that the learned Trial Judge who disposed of the RFA No.1952/2013 has not taken into consideration the arguments put forth on behalf of the plaintiffs while passing the impugned judgment. The aforesaid paragraphs in RFA No.1952/2013, which were extracted supra clearly establish that the learned Judge has taken into consideration every one of the grounds urged by the Review Petitioner and then passed the impugned judgment.
20. Having regard to the scope of the review as is contemplated under Order 47 of CPC, this court is of the considered opinion that the grounds urged in the Review Petition are not sufficient to set aside the judgment passed in RFA No.1952/2013.
21. It is settled principles of law that Review Petition is not a second chance for the parties to ventilate their grievances seeking adjudication of the matter which has already disposed on merits.
4022. As rightly contended by the learned counsel for the contesting respondent, remedy for the Review Petitioners lies elsewhere. Further, there cannot be any dispute as to the principles of law enunciated in the judgment relied on by the learned counsel for the Review Petitioners.
23. But, in the case on hand, having regard to the factual aspects that the Will is properly proved by the propounder and the same has been properly appreciated by the co-ordinate bench of this court in RFA No.1952/2013 being the first appellate court re-
appreciated the said aspects of the matter as extracted supra in clear and categorical terms and has passed the judgment on merits.
24. Therefore, this court is of the considered opinion that none of the grounds urged in the Review Petition are sufficient to set aside the judgment passed in RFA No.1952/2013 or to re-consider the same on merits 41 afresh in accordance with law. Accordingly, the point raised is answered in the Negative and pass the following:
ORDER The Review Petition is merit less and hereby dismissed.
Sd/-
JUDGE PL*