Karnataka High Court
Smt Shakuntala Reddy W/O Late Mr Gangi ... vs Smt Geetha Reddy on 14 October, 2009
Author: Anand Byrareddy
Bench: Anand Byrareddy
" _ HAIL Ii'"StaTg,e, IN THE HIGH COURT oE KARNATAKA AT DATED THIS THE i4"'DAY OF ocTojEEr<i.e:;'oQ9 T , BEFOELE; « , THE I-ION'BLE MR. IUsTICE'AI§1AI\II) 13TYRAR]EnL3,DY" TOS.NO.1 OF 2005 BETWEEN: Smt.Shakunta_Ia-AR'eddy,,' I ~. Wifeofi,ateiMr.§Z3ang.i'Re€1dy, Hindu, Aged Resident of=,No'.-- 357-3 E ) I33I:3«, ~ Defen.Ce%'C0loHy, Sainikpuri Post}. " Secunderaoad, N ow Ifesidifig at No-.580, 6"' Cross, 83', £5/Iaira, New ' Thippasandara Post, » vBaIIga.,Eo1*e.'«.,_ PETITIONER H Iahwanath, Advocates) AND: V A A1 Smt.Geetha Reddy, A Wife of Late Major, L.Vijaya Bhupa1Reddy, Hindu, Aged about 50 years, @ 2. Sri.Karthik Reddy, Son of Late Major, L.\/"ijaya Bhupal Reddy, I Hindu, Aged about 20 Yearsj Respondenfs No.1 and 2 are residentsof Care of Mr.VittaI Reddy, No.58.,_"V_ Nehrunagar Housing Society, V' Maredpalli East, . _ Secunderabad--500 026, _ Andhra Pradesh. ff5RE_SPONDENTS (By Shri.R.B,Sadas'_hiva¥ppa§, .Adv'oeate').. "['_h_i_s Probate .PetitionH_is filed under part IX of the Indiar1v'iSuccesIsion §4\c't,,1')25. praying to allow the petitioner to prove the '-said .,date4da.u.iVOthi September 1995 in common form and to 'grant pmba:e-- o'E--..__the"'. annexed Wiii in favour of this petitioner,iWini .respect._ the movables and immovables as mentioned in-»Sc'hedu1'e A to the petitioner to have effect 2 throiiighout India iiinth-e"interest of justice and equity and etc., The V' Petition has been converted into TOS vide order dated 15~'~Q==?.-§005"t ._ been heard and reserved on 21.08.2009 and_4coming":nn for pronouncement of orders this day, the Court deliveredthe foilowingz »«-- ORDER
Heard the counsel for the parties.
2. The plaintiff is the mother of the de:{;%as¢ci§§i'a3§i:~i'e L.Vijaya Bhupal Reddy. The first dieifendanti--,is the deceased and the second, defendan't._ is son' cf;
a deceased and the first defendant.' Major Reddy 13 oniiili3ii"ili.2000 at Bangalore, wherehe He is said to have left behind dateda. he plaintiff is named as the Major' the Indian Army and when serving at l3hep.al iW.as7.a 'vic.tim of a gas leak that occurred at a Ciairbiide iFactory...l(illing a large number of people and :severely affected. Reddy was said to have been hcqiitialisediiiibethveen 3" December 1984 to l6"' May 1986 at i"-Bhopal .and Pune. He was subsequently invalidated out of A on medical grounds with effect from 13"' September i"*;w1§86.
6 4
3. alt is the contention of the plaintiff that when Major Reddy was hospitalised as aforesaid, the first defendant had withdrawn from her matrimonial home and had taken away defendant no.2 who was a young child and had Reddy without reasonable cause. It is further stated that. being discharged from hospital all:.ieffo:ri:s«.were'A Reddy to bring the first defendant b'a_ck-- homeviigbut sl'gei"riei/er joined her husband till his death} hospital, he had voluntarily executed _the 'bequeathing all his moveable and imngioveablei properties in favour of the plaintiff. The two attestingtvitiiesses to the will were also then serving officers in , Thieplaintiff has furnished particulars of the bank accounts, if "sliaresand debentures and an apartment said to be left behind by Reddy, afiart from the particuiars of inherited property in V which he had ah. undivided share. The plaintiff claims that she 3 5 being the sole beneficiary under the will seeks grant of probate of the said will.
4. The suit is contested by the defendants denying the execution of the will by Major Reddy. The r_réost~.._:is~triking circumstance being that when there is no defendants are the widow and son of the.deceased'?*~.--¥theV'be_que'st of T n all properties of the deceased being ;é.¢1ei1y to the plaintiff, who is well provided 'inpherxowh' llthelllfurther fact . """ . . 3 that the willt'ma1<es no reference.to the defendants at all..L§/further indication that thealleged---.w'ill"is false.
1. - .1t_is therefore' alllegeld that the document is falsely set up by to lay claim to ali the properties of late Reddy, to the eXciusi'on"'_of thiedefendants.
5"-.l_Th'e first defendant claims that she and her son are if sufiiiving with great difficulty out of the family pension. On the hand, the plaintiff was well provided for by her husband ~»-« 'apart from a house at Secunderabad she has a Kerosene Agency. Her other son has retired as a Brigadier and is assisting her in Z all respects. In these circumstances, it is difficult to accept the alleged will naming the plaintiff as the sole bene_ficiar:y~..._ The signature of the testator is denied. It is also-iidelriie§1p:~._thai--lithe attesting witnesses have signed the »will ofthet. testator.
It is also denied that de.fend.a:1tiliadtyeiiier'deserted the deceased Major Reddyi Onl'the.hand,i itis 'claimed that it was the first defendantillwhlopp when he was hospit_alised.' ~ _V iii 6;' Theppissues --that'a_z;i'se"for consideration on these pleadings are i "
a,)i:'ii'Wheitl1ei*'the plaintiff proves that Late Major L.Vijaya Bhupal ._ his last will and testament dated l0.9.l985, l.'4étnd"'-whether the same is valid?
if b)"--Whether the defendants prove that the said will dated if l.0.9.l985 produced by the plaintiff is false and concocted? Z She has spoken about her strained re'lat_ionshiph'A.yvith defendant no.1. And she has also spokenV__al2outiVi_ithe between defendant no.1 and the 7._1She* she is unable to read Eng1ishV.;T"he atte_st'i--ng "is examined as PW--2. Apart falet'-t.hati': they testator had signed the will in his had "signed as the attesting witness. has denied theflfamily of the testator or his pr'operty'.*'ii,:»VHei7has.stated_thatl the will was executed at the Military' Hospital_lin.'g'Ptiiiel:"v.ihere the testator and the witness himself were undergoing treatment.
hrother of the testator is examined as PW--3. He has discord between the testator and defendant no.1 andof eourtllproceedings relating to their marriage and custody of if .. defendant no.2. He has spoken about the testator having taken up isarious assignments at Agra, Bombay, Chennai, Kodaikanal, Secunderabad and Bangalore -- after he was invalidated from é service. He has stated that defendant no.1 did not {attend the funeral of the testator.
The defendant on the other hand heI'stelf~«abSl'a_ witness and though she had cited two other? witnesses 'éitheygvhave I not been examined as responderit.xwitnesses.V T§1el'1¥gg.pondenti denied the case of the plaintiff h_as._refuted« the allegations that there was discord an'df_heI'»» husband or that she lived away frorn vhirnrr V'd'c::rl'ied that she had not attendeduthe' of tjhcgtestatorll' V The 'Coon-nsel_"'fo.r'«the plaintiff while taking this court thrcgughy the and the evidence would point out that there is_fabundan:ti"rnaterial on record to indicate that the testator and ,4die.fendarit*v_V.a_o.~:;l"were living apart from each other over the years. Thot.tgli:«'.th'e.l defendant no.1 has denied the statements made by
2 i:i)f\7'v'.;'l and PW--3 as regards the strained relationship of the testator and defendant no.1 ~--« there is no material placed on record to establish that they were living to-gether. On the other hand, the acrimony between them iéwrit large in the face of several court ll ((3) Adivekka and others vs. Hanamavva kom Venkatyesh and another, 2007 (7_)SCC .9]
(d) Gurdev Kaur and others vs. Kaki and others, 546
(e) Patrick Rebello and others v.Vicr0r Rebéiio, 2006(3) KLI637 V V _ _ 2 V
9. While on the other hand, the would submit that the will document propoundednbgy 'M andiiliigrfihrouded in suspicion;-- 'It iscjontendewdiilithath the very manner in which it has surfaced ids'--suspicioustv would point out that the will was said '~ _ it1.rtl1e_ persoi1"'v3----ahnirah of the plaintiff amongst the papers of said to have been discovered by PW~3. The will itself is. which seems to be a duplicate of a original pdocurzmerit --~ it is suggested that the original is not even produced 0' *i.Vbefolre the Court.
10. The Counsel for the plaintiff would further contend that there was no need for a young person of 38 to make a will - and to Z5 32 disown and ignore his wife and only son, in the entire property in favour of his __n11other._--"""The':.p'la.intiffv has' deliberately engineered the pre_paration'_'_ioflthéfalse to deprive the defendants of have succeeded ~ since admittedly theplai-ntiff was ne'ver-alt>le to accept i" ' " if if there defendant no.1 from inception' and "'l1e'nce--'._ was total discord between thern, r pg --
It the deceased who retired as a over PW~2 to compel him to claim as allegedirwitness to the will and his testimony ought 10. be 'dismissed as that of an interested witness seeking to his mother in her evil design.
Thie*v_v..__C~ou'nse1 seeks to place reliance on procedures prescribiedifor serving officers in the Army to make a will while in 2 serviceland contends that no attempt is made in the present 'proceedings by the plaintiff or her son, PW-3, to ascertain on such will said to have been executed by him and filed with the authorities.
é 13 Reliance is placed on the following authorities to claim that the suit be dismissed:
a) Ramachandra Rambux vs. Champabai and or/2er.sr,:965 SC 354
b) Kalyan Singh vs. Smr. Chhori an(«:"tm':er.r, 3'v96g l C) H. Venkatachala Iyengar vs. AIR .1959 SC 443
d) Parappa and or/1e.r'is'~~.v.s. ctri1othet*, [LR 2008 KAR. I840 " - C1 /§nt_i"it that the burden is heavy on the plairitiff to remoye all suspicion surrounding the alleged execution 0fl_.ljasi.._reportedly laid down by the apex Court and which present case, is hardly in a position to do. And therefore, submits that the suit be dismissed.
" I In the backdrop of the above, the original will that was liproduced by the plaintiff which was kept in a sealed cover was opened at the time of arguments by counsel. It is a brief will and it was said that it is in a format normally used in the Army. While Z 14 it was suggested by the Counsei for the defendantyvas obviously a duplicate copy, even assuming that the testator fact executed such a will. It clearly::.hear_s' 'tl1vei".g_igr"1at:t_..:ir"es».3iQhic_hi'are'l~.._ if identified by witnesses as that of restator oriisiof attesting witnesses. There is the; signature of the testator is forged hifirhe if will was in duplicate or triplicate:..-..s.incei--.i_;h_e' produced bears original sign.a.t!.1re:'{i_t--.'issafe. to ac__eept thatma will has been executed and diilyiiattesgtedii Hence, issue no.(d) is answered in the affirmative and is.sneii.'rio.f("e.)i:'i's "answered in the negative. issue'no,.(c):i Thehurden of establishing that the testator was of unsiotindiinnindgat or about the time that the will was executed, is on is not enough for the defendant to allege that a purp'orted! .V\i/'ill may have been executed taking advantage of the tesita_tor's iii-health. There is no attempt made by her to tender leg/iderice to support the stand taken that the ill--hea1th of the testator was of a nature where his state of mind had deteriorated and that the plaintiff had taken advantage of the same. It is only 6 15 an argumentative suggestion made by defendant no.£ and elaborated by her counsel. In fact it is a contradiction in terms to deny the existence of any will and in the same breath'to_""co'n'tend that what is produced is only a copy and not original contend that it has been executed vvher1« .the..gtestator._was:7not. of'. it sound mind. On the other hand, thei'testator had-.'lASiyffered4 isevieragl disorders on account of the gas"s-leak at Bhoipali-Zbutti it is not on record that he was in afioma orisaffere_d_any mentaliincapacity. It is clairned itha'tV_Vhe ihad.4un_dertal<en various assignments all over India even afterilieivvas in'-.rali«dated from service. This as stated by PW--;3 has notv-been' challenged in cross--examination. Hence, it would that he did recover even from the physical disal3.ility"'l1e. srziiffered temporarily. Hence, issue (c) is answered in theihiiiegaitiveil issue For all of the above reasons, the suit of the plaintiff is 'decreed with costs. Probate is granted in favour of the plaintiff Q 16 with a copy of the will annexed. The p1aintiffi.iié"
months time to file inventory and or_1_e...y<:_ar's iiifié 'm'_';Vfi 1é"a{:co1::;tsI.' . ii 35935?