Karnataka High Court
Gyanappa S/O Sharanappa Meti vs Yellawwa Ramappa Kaveri on 23 February, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 5947 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 5947 OF 2010 (DEC/INJ)
BETWEEN:
1. GYANAPPA S/O. SHARANAPPA METI,
AGE: 55 YEARS, OCC: BUSINESS,
R/O: JANGLIPETA OLD HUBLI,
PIN - 580024.
2. GADIGEPPA S/O. SHARANAPPA METI,
AGE: 52 YEARS, OCC: PRIVATE SERVICE,
R/O: VEERAPUR ONI, HUBLI,
PIN - 580024.
...APPELLANTS
(BY SRI. HAREESHA S.NAYAK AND
Digitally signed
by ROHAN
HADIMANI T
ROHAN
HADIMANI
Location: HIGH
COURT OF
KARNATAKA
SRI. G.G.GADAG, ADVOCATES)
T DHARWAD
Date:
2023.02.24
15:53:54
+0530
AND:
1. SMT. YELLAWWA RAMAPPA KAVERI,
AGE: 35 YEARS, OCC: HOUSEWIFE,
R/O: KALEGUDI ONI, BEVUR,
TQ AND DIST: BAGALKOT,
PIN - 587115.
2. HUBLI-DHARWAD URBAN DEVELOPMENT
AUTHORITY
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RSA No. 5947 of 2010
R/BY ITS COMMISSIONER,
NAVANAGAR, HUBLI,
PIN - 580025.
...RESPONDENTS
(BY SRI. SHRI ASHOK I.BADIGER AND
SRI. D.V.PATTAR, ADV. FOR R1[NOC],
SMT. SHARMILA PATIL, ADV. FOR R2;
SRI. B.N.DESAI, ADV. FOR C/R1)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGEMENT & DECREE DTD:05.08.2010
PASSED IN R.A.NO.245/2009 ON THE FILE OF FAST
TRACK COURT-II, DHARWAD SITTING AT HUBLI,
DISMISSING THE APPEAL, FILED AGAINST THE JUDGMENT
DT:12.10.2006 AND THE DECREE PASSED IN
O.S.NO.235/2005 ON THE FILE OF THE I ADDL. CIVIL
JUDGE (JR.DN.), HUBLI, DISMISSING SUIT FILED FOR
DECLARATION AND PERMANENT INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 24.01.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THIS COURT
MADE THE FOLLOWING:
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RSA No. 5947 of 2010
JUDGMENT
Present appeal is filed by the plaintiffs aggrieved by the judgment and order dated 05.08.2010 passed in regular appeal in R.A.No.245/2009 on the file of the Fast Track Court-II, Dharwad (hereinafter referred to as the 'First Appellate Court') in and by which the First Appellate Court while dismissing the appeal confirmed the judgment and decree dated 12.10.2006 passed in O.S.No.235/2005 on the file of the I Additional Civil Judge (Jr.Dn), Hubli (hereinafter referred to as the 'Trial Court').
2. The above suit in O.S.No.235/2005 was filed by the plaintiffs/appellants herein contending that Sri. Ambrappa Meti was their brother and Smt. Neelawwa was his wife. That their brother Ambrappa Meti and sister-in- law Neelawwa expired in the year 2004 without any children. That their sister-in-law Smt. Neelawwa was the absolute owner of the suit property being RS.No.88, Plot No.847 measuring 20ft.X30ft. situated at Arjun Vihar, -4- RSA No. 5947 of 2010 Raynal Village, Hubballi Taluk. The said brother Ambrappa Meti and sister-in-law Neelawwa were looked after by these plaintiffs and the plaintiffs were in joint possession and enjoyment of the suit property along with the said Neelawwa. That after the demise of the said Ambrappa Meti and Neelawwa, plaintiffs are their only legal hires and are in joint possession and enjoyment of the suit property. That even after the demise of the said Neelawwa, plaintiff continued to be in actual, physical possession of the suit property. That the defendant having no manner of right whatsoever attempted to interfere and obstruct the peaceful possession and enjoyment of the plaintiff over the suit property. That on 25.11.2004 plaintiffs gave application to defendant No.2/HDUDA to enter their names by deleting the name of the deceased Neelawwa, at that time, they learnt that the defendant No.1 had given a similar application on 23.11.2004 for entering his name on the premise of the said Neelawwa executing a Will in her favour. That on verification of the application filed by the plaintiffs and the defendant No.1, defendant No.2/HDUDA -5- RSA No. 5947 of 2010 vide order dated 02.12.2004 directed the parties to obtain necessary legal heirs certificate. Accordingly, plaintiffs approached the Tahashildar who in turn directed the plaintiffs to obtain a decree from a competent court of law. As such, plaintiffs filed a suit in O.S.No.162/2005 seeking necessary declaration from the competent court.
3. Defendant No.1 obstructed the plaintiffs' possession claiming ownership over the suit property on the basis of Will executed in her favour. Again plaintiffs approached the competent authorities and at that time, plaintiffs learnt that an order has already been passed by defendant No.2/HDUDA on 12.04.2005 in terms of which the name of the defendant No.1 has been entered in the revenue records in respect of the suit schedule property. That the said order has been passed without giving an opportunity of hearing to the plaintiffs.
4. It is the further case of the plaintiffs that alleged Will upon which the defendant No.1 is claiming -6- RSA No. 5947 of 2010 ownership over the suit property is a created, concocted and a fabricated document. As prior to her demise the said Neelawwa, had gone to her parents' house and at that time, defendant No.1 had induced her and had obtained signatures forcibly and as such, the Will which has been executed in favour of the defendant No.1 was thus illegal and was not binding on the plaintiffs. Since the defendant No.1 is not at all a close relative of the said deceased Neelawwa and on the basis of a fraudulent and fabricated Will, defendant was claiming right over the suit property, plaintiffs constrained to file the present suit seeking declaration that the alleged Will which has been executed in favour of the defendant No.1 as illegal, null and void and not binding on the plaintiffs and also for declaration that the alleged order dated 12.04.2005 passed by defendant No.2/HDUDA is illegal and not binding on the plaintiffs and for consequent relief of permanent injunction.
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5. Defendant No.1 filed written statement denying the case of the plaintiffs. It is contended that plaintiffs were never in actual possession of the suit property and that the defendant No.1 is the one who looked after the said deceased Neelawwa, and in consideration of love and affection which the deceased Neelawwa had towards defendant No.1 she had executed the Will in her favour bequeathing the suit propeprty and by virtue of the said Will, name of defendant No.1 was entered in the revenue records in respect of the suit property. That the aforesaid Will executed by the deceased Neelawwa has been duly registered. That the present suit was filed with an only intention of harassing the defendant No.1. Hence, sought for dismissal of the suit.
6. Defendant No.2/HDUDA in its written statement contended that the name of the defendant No.1 was entered in the revenue records based on the registered Will which was executed by the deceased Neelawwa in favour of the defendant No.1. Unless and until the -8- RSA No. 5947 of 2010 plaintiffs prove the illegality, they are not entitled for any relief. Hence, sought for dismissal of the suit.
7. Based on the aforesaid pleadings, the Trial Court framed following issues:
"1. Whether the plaintiffs prove that they were the sole legal heir of deceased Neelawwa?
2. Whether the plaintiffs prove that, they are in possession of suit property?
3. Whether the plaintiffs prove that, the Will dated 27- 10-2004 executed by deceased Neelawwa in favour of defendants is illegal, null and void?
4. Whether the plaintiffs prove that, the order dated 12- 04-2005 passed by HDUDA in plot No.847: 2004- 05:277 is illegal, null and void and is not binding upon them?
5. Whether the suit is bad for non-joinder of necessary parties?
6. Whether plaintiffs are entitled to the relief sought for?
7. What order or order?"
8. Plaintiff No.2 examined himself as PW.1 and also examined two witnesses as PWs.2 and 3 and exhibited 6 documents marked as Exs.P1 to P6. -9- RSA No. 5947 of 2010
9. Defendant No.1 examined herself as DW.1 and got another witness examined as DW.2 and exhibited 5 documents marked as Exs.D1 to D5.
10. On appreciation of evidence, the Trial Court answered the Issue No.1 in the affirmative, Issue Nos.2, 3, 4 and 6 in the negative and held Issue No.5 did not arise for consideration and consequently dismissed the suit by its judgment and decree dated 12.10.2006. Being aggrieved by the same, the plaintiffs filed regular appeal in R.A.No.245/2009 before the First Appellate Court.
11. Considering the grounds urged in the memorandum of appeal, the First Appellate Court framed the following points for its consideration:
"1. Whether the impugned Judgment and Decree passed in O.S.No.235/2005 dated 12.10.2006 by the learned I Additional Civil Judge (Jr.Dn.), Hubli needs interference by this Appellate Court?
2. What order?"
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RSA No. 5947 of 2010and answered the said point in the negative, consequently dismissed the appeal by its judgment and order dated 05.08.2010 confirming the judgment and decree passed by the Trial Court. Being aggrieved by the said dismissal of the appeal, plaintiffs are before this Court in the second appeal.
12. This Court by order dated 15.04.2014 framed the following questions of law for its consideration:
"1. Whether the trial Court as well as the First Appellate Court have committed a serious error in ignoring the material evidence placed on record in order to hold that the disputed Will in question has been proved in accordance with law and that the Will in question was executed by Neelawwa while she was in a sound disposing state of mind?
2. Whether the judgments of the trial Court as well as the First Appellate Court have become perverse and illegal for non-consideration of the material evidence on record?
13. Sri. Harresha S.Nayak, learned counsel appearing for the appellants/plaintiffs reiterating the grounds urged in the memorandum of appeal submitted that the Trial Court and the First Appellate Court grossly
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RSA No. 5947 of 2010erred in not appreciating the evidence. That the defendant No.1 has not only participated in execution of the alleged Will but has also admitted in the cross-examination to the effect that she had personally given information to draft the alleged Will in question. That the Trial Court and the First Appellate Court have failed to appreciate that the deceased Neelawwa was not in sound mind of disposal and the same is admitted by defendant No.1 in her evidence to the effect that the executor of the Will was suffering from TB and AIDS and that she died within 15 days after the date of execution of the Will. That the said circumstances lead to suspicion regarding the genuineness of the Will and also regarding the sound and disposal state of mind of the estator. That the Will has not been proved in the manner provided under Section 68 of the Indian Evidence Act, 1872. That the Trial Court and the First Appellate Court failed to appreciate that the defendant No.2/HDUDA even while directing the plaintiffs to approach Civil Court to obtain appropriate order, had in collusion with defendant No.1 entered the name of the defendant No.1 in the
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RSA No. 5947 of 2010revenue records without any notice to the plaintiffs and without even requiring them to obtain the letter of probate. Thus, the order dated 12.04.2005 passed by the defendant No.2/HDUDA was illegal and void. That the plaintiffs being the direct relatives of the deceased Neelawwa were entitled for the suit schedule property and there was no need or necessity for the deceased Neelawwa to execute the Will in favour of defendant No.1. Thus, the learned counsel for the appellants submits that the substantial question of law needs to be answered in favour of the appellants by allowing this appeal.
14. On the other hand, Sri. Ashok I.Badiger, learned counsel appearing for the respondent/defendant No.1 justifying the judgment and decree passed by the Trial Court and the First Appellate Court submits that the Will in question has been registered duly in accordance with law. That the witnesses to the said Will have been examined. Thus, there is a compliance with regard to Section 63 of the Indian Succession Act, 1925 as well as
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RSA No. 5947 of 2010Section 68 of the Indian Evidence Act, 1872. That though the appellants have alleged active participation by the defendant No.1 in execution of the Will, they have failed to prove and establish the said allegations. He contends that the deposition of DW.1 cannot be read in isolation to the entire facts of the case. That the defendant No.2/authorities have entered the name of the defendant No.1 only on being satisfied with regard to the entitlement of defendant No.1 based on the registered Will. No infirmity can be found thereof. That no substantial question of law arises for consideration and the same requires to be answered in favour of the defendant No.1 and seeks for dismissal of the appeal.
15. Heard. Perused records.
16. Apex Court in the case of H. Venkatachala Iyengar v. B. N. Thimmajamma, (1959) Supp (1) SCR 426: AIR 1959 SC 443 has observed that:
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"the mode of proving a will did 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 S. 63 of the Indian Succession Act. The onus of proving the will was on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and signature of the testator as required by law was sufficient to discharge the onus. Where, however, there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine. If the caveator alleged undue influence, fraud or coercion, the onus would be on him to prove the same. Even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court. Further, what are suspicious circumstances was also considered in this case. The alleged signature of the testator might be very shaky and doubtful and evidence in support of the propounder's case that the signature in question was the signature of the testator might not remove the doubt created by the appearance of the signature. The condition of the testator's mind might appear to be very feeble and debilitated and evidence adduced might not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will might otherwise indicate that the said dispositions might not be the result of the testator's free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document was accepted as the last will of the testator. Further, a propounder himself might take a prominent part in the execution of the will which conferred on him substantial benefits. If this was so it was generally treated as a suspicious circumstance attending the execution of the will and the propounder was required to remove the doubts by clear and
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satisfactory evidence. But even when where there suspicious circumstances and the propounder succeeded in removing them, the Court would grant probate, though the will might be unnatural and might cut off wholly or in part near relations."
17. The aforesaid principles of law have been reiterated in several pronouncements of the Apex Court. In the light of the aforesaid principles of law the present case needs to be looked at. It is not in dispute that the suit property absolutely belonged to the deceased Neelawwa. The fact that the suit property had been allotted to the deceased Neelawwa by the defendant No.2/HDUDA from the respondent No.2 under Ashraya Scheme is also not in dispute. It is also not in dispute that the Will in question is a registered document. Thus, it is the self acquired property of the said deceased Neelawwa.
18. Perusal of Ex.P1 reveals that the deceased Neelawwa executed the Will in favour of defendant No.1 who is her relative. The said Will also reveals that deceased Neelawwa in consideration of her lover and
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RSA No. 5947 of 2010affection towards defendant No.2 executed the Will with an intention that after her demise suit property belonged to defendant No.1.
19. DW.1 in her evidence has reiterated the contents of her written statement. Referring to the deposition of DW.1 to the effect that she had given information for execution of the Will, the learned counsel for the plaintiffs vehemently submits that there was active participation by the defendant No.1 in execution of the Will. But the further deposition of DW.1 would reveal that at the time of execution of the said Will along with deceased Neelawwa, defendant No.1, her children, DW.2/Krishnappa and their advocate were also present at the office of the Sub-Registrar and the deceased Neelawwa had affixed her signature in the office of the Sub-Registrar. DW.1 has categorically denied that Neelawwa was suffering from any mental or physical illness. DW.1 has also deposed that she did not know the contents of the Will. DW.1 in her evidence has admitted
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RSA No. 5947 of 2010that deceased Neelawwa had executed the Will in favour of defendant No.1 on her own volition as the suit property belongs to her.
20. DW.2 is one Krishnappa Mahadevappa Arkasali the attesting witness to the said Will, in his affidavit filed in lieu of his evidence, has deposed that the deceased Neelawwa was his close acquaintance and that her husband had passed away on 18.02.2004 and that she did not have any children and that the said Neelawwa was looked after by the defendant No.1 and that the said Neelawwa had informed him of her intention about executing the Will bequeathing the suit property in favour of defendant No.1 and accordingly she had requested him to come to the office of Sub-Registrar and affix his signature as a witness to the said document and that accordingly on 27.10.2004, he had gone to the office of Sub-Registrar and affixed his signature as the witness to the said Will. He has also deposed that the said Neelawwa was mentally and physically in good condition to execute
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RSA No. 5947 of 2010the said Will. The said witness in the cross-examination has stated that the said Neelawwa was healthy and that he was not aware that she was suffering from TB and AIDS. That he along with one Hanmanthappa had gone to the office of Sub-Registrar where the Will was executed. He also deposed that there were 4 to 5 persons who had gone to the office of the Sub-Registrar. That he is not aware as to who had written the Will. That as he was called upon to affix his signature as a witness, he had gone to office of Sub-Registrar. He is not aware as to who had given instruction to execute the will. That after writing Will, the said Neelawwa had affixed her signature. Thus, as seen from the deposition of DW.2 nothing had been elicited from the said witness to discredit the execution of the said Will.
21. The Trial Court and the First Appellate Court taking into consideration of the deposition of the aforesaid witnesses and the other circumstantial evidence have come to the conclusion that there is no any suspicious
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RSA No. 5947 of 2010circumstances in the aforesaid Neelawwa executing the Will in favour of defendant No.1.
22. Learned counsel for the appellants emphasizing the fact that the advocate who drafted the Will had appeared in the case on behalf of the defendant No.1 and also on the admission made by DW.1 that she had given information for drafting of the Will, vehemently submits that these two circumstances are sufficient enough to hold that the beneficiary of the Will namely defendant No.1 had taken active part in the execution of the Will. Learned counsel to buttress the aforesaid argument relies upon the judgment of the Apex Court in the case of KAVITA KANVAR Vs. MISS PAMELA MEHTA AND OTHERS in Civil Appeal No.3688/2017 decided on 19.05.2020. In that referring to paragraph No.24.1 of the said judgment wherein the Apex Court while encapsulating its earlier judgment in the case of H.VENKATACHALA IYENGAR V. B.N.THIMMAJAMMA reported in AIR 1959 SC 443 noted that the propounders themselves take prominent part in
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RSA No. 5947 of 2010execution of Wills which confers them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the Will and has received substantial benefit under it, that itself is generally treated as suspicious circumstance attending the execution of Will and propounder is required to remove the said suspicion by clear satisfaction. In the same judgment, the Apex Court at paragraph Nos.24.2 and 24.3 referring to its earlier judgment in the case of the RAVI PURNIMA DEBI v. KUMAR KHAGENDRA NARAYAN DEB reported in (1962) 3 SCR 195 and in the case of INDU BALA BOSE v. MANINDRA CHANDRA BOSE reported in (1982) 1 SCC 20 had pointed out that "where there are suspicious circumstances, onus is on the propounder to explain them to the satisfaction of the Court even before the Court accepts the Will as genuine."
23. Thus, referring to the aforesaid legal position and facts narrated hereinabove, learned counsel for the appellants submitted that there is suspicious
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RSA No. 5947 of 2010circumstances in deceased Neelawwa executing the Will bequeathing the suit property in favour of defendant No.1.
24. The Trial Court and the First Appellate Court have taken note of the deposition of the PW.1 who has deposed that since the suit property was the absolute property of deceased Neelawwa, she had executed the Will out of her own desire in favour of defendant No.1. It is not the case of the plaintiffs that the Neelawwa did not execute the Will but on the other hand it is the specific case that Neelawwa had gone to her parents' house and at that time defendant No.1 had induced her and obtained her signature and as such, the Will in favour of defendant No.1 is illegal and not binding. In other words, execution of the Will is not denied, but have pleaded inducement by the defendant No.1.
25. Defendant No.1 who has propounded the Will has produced the original Will which is a registered document. The defendant No.1 has also examined
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RSA No. 5947 of 2010DW.2/Krishnappa Mahadevappa Arkasali who is the attesting witness to the said document. As rightly taken note of by the Trial Court and the First Appellate Court, the plaintiffs have not disputed the thumb impression of the deceased Neelawwa on the Will dated 27.10.2004, it is their case that when Neelawwa had gone to her parental house, defendant No.1 taking advantage of her ill health and unsound mind, had got executed the Will. Since, the plaintiffs have pleaded that the execution of Will was under undue influence, misrepresentation, fraud and coercion, the plaintiffs ought to have proved the said allegation. The plaintiffs who have claimed that the deceased Neelawwa was suffering from TB and AIDS have also not produced any medical records in justification of their allegations. As already noted, defendant No.1 having discharged the initial burden approving the Will in accordance with Section 68 of the Indian Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925, has discharged the burden and no suspicious circumstances have been established by the plaintiffs
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RSA No. 5947 of 2010though the defendant No.1 and her witnesses have consistently pleaded and deposed that the deceased Neelawwa had gone to the Sub-Registrar office and had executed the said registered Will and that she was in sound mind of disposition. Merely because defendant No.1 accompanied deceased Neelawwa for execution of deed of sale, does not mean that she had taken active participation in executing the Will. In the factual circumstances of the case, there is nothing abnormal in deceased Neelawwa bequeathing her absolute property in favour of defendant No.1 who is her relative. Since, nothing has been established to discredit the evidence of the defendants' witnesses. No grounds are made out by the appellants warranting interference with the judgment and decree and order passed by the Trial Court. The substantial questions of law framed by this Court are answered in a negative.
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RSA No. 5947 of 2010
26. Consequently following:
ORDER i. Appeal is dismissed.
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JUDGE RH List No.: 1 Sl No.: 23