Karnataka High Court
Smt Rathnabai vs Yalloji Rao Dead By Lrs on 9 September, 2008
Bench: Manjula Chellur, Ravi Malimath
IN THE HIGH COURT OF KARNATAKA, BANGALORE. DATED THIS THE 9Th DAY OF SEPTEMBER, 2008 | PRESENT ce THE HON'BLE MRS. JUSTICE "MANJULA CHELLUR- THE HON'BLE ae MALIMATH RFA NO.752/2003 c/w RFA NO.806/2003 meazsziaoas BETWEEN SMT RATHNABAL, "52 YEARS W/O SHANKAR RAO SHINDE NO 72/2, HONDADA ROAD _ SHIVAJINAGAR _ DAVANAGERE APPELLANT my (By Sri: ™ R KRISHNAMURTHY & SATISH DEWAKAR, AD! ) AND / 1 YALLOJI RAO DEAD BY LRS -. | a) SUBHADRA BAI W/O YALLOJI RAO 71 YEARS R/O BHARMOJIGALLI HONDADA ROAD, DAVANGERE b) RAJA RAO PAWAR S/O DURUGOJI RAO 40 YEARS a R/O BHARMOJIGALLI ssi' HONDADA ROAD, DAVANGERE c) BABU RAO PAWAR. S/O DURUGOJI RAO 37 YEARS. R/O BHARMOJIGALLI HONDADA ROAD. DAVANGERE d) SHARADA. W/O NAGARAJA - (42 YEARS. - DURGIGUDI, NEAR LAKSHMI SAW MILL HONNALI, SHIMOGA DIST e) KAMALA - 35 YEARS. W/O NARAYANA RAO 3ANNAPURA POST, NEW TOWN -- BHADRAVATHI SHIMOGA DIST -f) VEENA 44 YEARS W/O PARASURAM ° BHARMOJI GALLI HONDADA RAOD, DAVANGERE SHAMBOJI RAO MAJOR R/O NO 1753/1, 3RD MAIN, 3RD CROSS VINOBHANAGAR DAVANGERE 3 ERRESWAMY MAJOR a R/O NO 1753/1, . 3RD MAIN, 3RD CROSS © VINOBHANAGAR, DA /ANGERE 4 RAMA ANJANEYA MAJOR . R/O NO 1753/1,3RD MAIN, 3RD CROSS VINOBHANAGAR, DAVANGERE 5 ANANDA, MAIOR : R/O NO 2753/1, 3RD MAIN, 3RD CROSS: VINOBHANAGAR, DAVANGERE 6 KALINGA RAO, 'MAJOR R/O. NO 1753/1, 32D MAIN, 3RD-CROSS VIN: OBHANAGAR: DAVANSS ERE 7 SANGAPPA, MAJOR RYO NO 1753/1, - 3RD MAIN, 3RD CROSS _ VANOBHANAGAR DAVANGERE . 8. RAMANNA, 46 YEARS S/O APPAIAH R/O AVARAGOLLA VILLAGE DAVANAGRE TALUK 9 AYYARASWAMY 50 YEARS, FATHERS NAME NOT KNOWN TO THE APPELLANT R/O NO 235/2, KALASAPURA GALLI -- 7 DAVANGERE Loos 10 KALYANAMMA, 51 YEARS W/O AYYARASWAMY =" R/O NO 235/2, KALASAPPARA GALLI DAVANGERE | _ RESPONDENTS (By Sri: R B 3 SADASHIVAPPA FOR Ri b- -FyADV, ) o oR RFA 752/2003 IS -FILED-U/S.96 OF CPC AGAINST THE JUDGMENT. AND DECREE DATED 8.1.2003 PASSED IN O.8.NO, 128/1 996 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN.), DAVANGERE, PARTLY DECREEING THE SUIT FOR PARTITION & SEPARATE POSS ESSION WITH | MESNE PROFITS. A ea dodomns | BETWEEN 4° YALLOJI RAO S/O LATE SRI DURGOJI RAO DEAD BY LRS a) SUBHADRA BAI W/O YALLOJI RAO 65 YEARS R/O BHARMOJIGALLI HONDADA ROAD DAVANGERE -- b) RAJA RAO PAWAR S/O DURUGOJI RAO. | 34 YEARS _ R/O BHARMOJIGALLI HONDADA ROAD, DAVANGERE ~ c) BABU RAO PAWAR S/O DURUGOIJI RAG 31 YEARS. ee R/O BHARMOJIGALLI HONDADA ROAD. DAVANGERE d) SHARADA. 70 LATE YALLOJI RAO WiC ne SARAIA RIO JANNAPUR POST, NEW TOWN, _ BHADRAVATHI e) KAMALA 35 YEARS W/O NARAYANA RAO _ JANNAPURA POST, NEW TOWN ~.. BHADRAVATHI, SHIMOGA DIST Ff) VEENA, 38 YEARS W/O PARASURAM, D/O LATE YALLOJI RAO BHARMOJI GALLI, HONDADA RAOD, DAVANGERE. APPELLANTS (By Sri : R B SADASHIVAPPA, G.S. VENKATASUBBA. RAO & T. MOHAN KUMAR , apy). AND SMT RATHNA BAI 59 YEARS W/O SHANKAR RAO SHINDE NO 72/2, HONDALA ROAD > SHIVAJINAGAR DAVANAGERE = RESPONDENT (By Sri: MR KRISH NAMURTHY ADV). kK RFA 806/2003 IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT. AND DECREE DATED 6&.1.2003 PASSED IN 0.5.N0.128/1996 ON THE FILE OF THE PRL; CIVIL JUDGE (SR.DN.), DAVANGERE, PARTLY DECREEING THE.SULIT FILED BY THE RESPONDENTS 7 ~ HEREIN, AGAINST THE APPELLANTS HEREIN FOR . PARTITION AND SEPARATE POSSESSION OF HALF "SHARE IN THE ITEMS (d) & (g) OF THE SUIT SCHEDULE PROPERTIES TOGETHER WITH MESNE PROFITS. "These Appeals coming on for DICTATING ORDERS, this day, MANJULA CHELLUR.J, delivered the following: JUDGMENT
These two appeals arise out of a / commen Judgment and Decree in oe S. NO, 128/196 on 'the file of the Civil Judge (SF. Dn. ) Davangore.
2. The fest appes ai Is filed by. the plaintiff and the 2" appeal. is s filed by the L RS. ot the defendant before the trial. Court.
3; The br ier r fects that led to the filing of the suit for partition. of properties by Smt. Rathna Bai are as "unger:
| "One Durgoji Rao had two children by name Rathna Bai and Sri. Yelloji Rao. They were plaintiff and defendant before the trial Court, Said Durgoji Rao died in the year 1986 almost 20 years after the "marriage of the plaintiff/appellant Smt. Rathna Bai with one Shankar Rao Shinde. It is an undisputed fact that subsequent to the marriage of Smt. 'pathna Bai, "
she was living with her husband in the matrimonial home at Davangere. It is also nor in dispute that mr. 7 Durgoji Rao till he died in 1988 was living with his son. Yalloji Rao along with the farnity of Yalloj Rao.
The entire problern arose after the death of Mr. Durgoji Rao is 'the year: 1986. According to the appellant/plainit ali the suit schedule properties were in joint possession of olainuf defendants 1 & 2 and late Durgoji Rao tn he 'died in the year 1986. After the. Geath of Durgoji Rao only, the defendants 1 & 2 : started. enjoying the suit schedule properties though ; iate Durgoyi Rao was intending to give half the share in "the. entire Suit schedule properties to Smt. _-- Rathnabai. According to her, during the life time of oo Durgoji Rao itself, at the instance of father of the appellant/plaintiff, a panchayath was held. However, it did not materialise.
After the death of Durgoji Rao the a defendant ; was managing the properties elonging | to both the - plaintiff and the defendants and defendants 3 to 8 | were the tenants in respect of the house property described in the °D'. schedule. Al the rents 5 including the advance amount was received by the 1* defendant and with the "income from the other properties according te trie plaintif, the 1° defendant has. constructed the "building on the 'E' schedule property. He 'purchased "C' schedule property also from. the income of "A' and *B' schedule properties. : Therefore, the properties of jate Durgoji Rao and so
- "also. the properties acquired from the income deserve to be shared equally between the plaintiff and the
- : defendants was the contention before the trial Court ~ by the plaintiff's sisters.
The contesting defendants were the brother, brother's wife and mother of the plaintiff who died 10 during the pendency of the suit. + Tay parties but denied all other material averments. According to them, the fe 'of Duraoj Rao 'started with the occupation as a hamali at Davangere and with his hard work he could acquire properties at "A' and *B' schedule. _ After purchase °of these properties, his business came to be closed and he started mainly depending on agricultural lands. Even the husband of plaintitt Sri. "Shankar Rao was living in the house of Durgoy! Rao as he. 'had no family of his own and os therefore, he. was brought up by late Durgoji Rao.
\ ; During the life time of Durgoji Rao he performed the marriage of Shankar Rao with the plaintiff Rathna Bai os and purchased 3 acres 18 guntas in Sy.No.80 of ', Doddabathi village and two house portions at door Nos.91/2 and 90/1 at Shivaji Nagar, so also another site no.1240 measuring 110' x 60' at Boodhal road, 1] Davangere was purchased. It is further contended that at the time of marriage he gave cash. and also 20 a tolas of gold to the daughter as cher share in. the properties. Therefore, according: to the. defendants, the plaintiff did not have aay share in the suit schedule properties.
It wo eng contended that defendant no.1 Yao} Rao "was working at Kirloskar company at Hari har from. tne year 1963 onwards and therefore, with his income he purchased schedule C, E & F properties. "Therefore, they are the self acquired . properties of Yalloji Rao.
-It.was further contended by the defendants i & 2 that during the life time of Durgoji Rao he was _ -yesiding with his son Yalloji Rao and Yalloji Rao being the only son was looking after the father and other family members. Therefore, out of love and affection 12 Mr. Durgoji Rao during his life time bequeatt thed "AY, *B' and *F' schedule properties in favour of. late Yalloji | = Rao and his son under the registered will da ied 26.12.1977. So far as "schedule . 'DY property Ss concerned, it was contended that 'out of. Jove and affection for the grand son late Durgesi Rao gifted the "Dp schedule iandec property in. favour of Raja Rao s/o Yalloji Rao. Ane r the said gift ceed, Mr. Raja Rao one of the LR. of Yailost Rao constructed R.C.C, building by investing more than Rs.10 lakhs. Regarding °G' schedule property, according to the defendants, there was nc such property in existence. Therefore, in none A of the: 'properties of the suit schedule, the plaintiff Ne would gat a share was the defence taken by the oO defendants 1 & 2. They also raised the question of
-jirnitation and sought for dismissal of the suit.13
Subsequent to the filing of the written statement genuineness or otherwise of the registered Will dated 26.12.1977. Till she came into the witness box to give evidence, nothing was said about this Will dated & 4. Based on the above pleadings, the trial Court framed the fotlcwing issues 10 in number and so also one additional issue regarding limitation:
oe Whether the plaintiff proves that the suit : ~ schedule properties are the joint family os properties of herself and defendant nos. 1 and 2?
2. Whether the defendant nos. 1 & 2 prove that the plaintiff has already taken her share as _ stated in para 7(B) of the W.S.?14
Whether defendants 1 and 2 prove that suit items A & B are the self acquired propeities of deceased Durgoji. Rao? -- | .
Whether defendant. nod proves: that suit item no. C, & & F are his seif acquired properties?
Whether cefendant. "no. 1 proves that suit itern No. A a B were. bequeathed in his _ favour by deceased "Durgoji rao as per , registered will dated 26-12-1977?
. 'Whether defendant nos. i and 2 prove that deceased Durgoji Rao gifted suit item No. D . property in favour of Raja Rao, the son of 1* defendant.
7 "Whether Suit item No.G does not exist at all'?
. Whether the plaintiff is entitled for the relief of partition and separate possession of her share in the suit schedule properties?
Whether the plaintiff is entitled for mesne profits?15
10. What decree or order?
Additional issue:
1. Whether the suit is barres by limitation? |
- "REASONS
5. On behalf of paint, "sme. Ratna Bai the plaintitt | exarnined herself as. PW. 1 apart from two witnesses PW.2 Laxmanrad Pawar and P.W.3 B. Shivashankara. : on behalf of defendants D.W.1 najere0 Chowan and D.W.2 Vitobarao were examined.
On behalf of plaintiff 11 documents came to be ~ marked and on behalf of defendants 44 documents . came to. tie marked. Most of the documents are tax paid receipts of either the house properties or the _ landed properties.16
6. Based on the above issues, the parties w were expected to lead evidence and in fact, as stated above evidence was let in. So far-as relationship 'between . : Rathna Bai and Yalloji Rao there is no dispute. During | the pendency of the suit, the and defendant who is the mother of the parties to. the suit, "also died. Apparently she has not 'dealt with her share of the properties | in "any 2 manner during her lifetime. Therefor re, ,olainti and the children and wife of Yalloji Rao would fall under clas 3S 1 heirs of wife of Durgoji Rao. . PW. i. as already stated above is the son of valley Rao. He shad to give evidence before Court as | Mr. Yalloj Rao was no more by the time the matter _ came up for evidence.
7. P.W.1 is the plaintiff - Rathna Bai, P.W.2 is Cope Laxmanrao Pawar. He was examined to show how Durgoji Rao acquired the properties and he knows both the daughter and son of Durgoji Rao.17
According to him, there was a panchayath as late Durgoji Rao did not give share in the properties but he does not know the outcome of the panchayath. AS Sa . matter of fact, this person does. not even say 'that. he | was one of the participants in the panchayath in which plaintiff's daughter sought a share from the properties of the father.
8. PW.3 8. Shivashankara another acquaintance of the fainity was examined who also speaks about the hard work of late Durga} Rao and how he acquired me house properties and the landed properties. He also speaks about the occupation of 1% defendant : ~ Yallogi Rao, etc. This witness was examined probably Sin orcer to establish that with the meager income of _Rs.100/- to Rs.150/- as salary, Mr. Yalloji Rao was not 7 capable of acquiring any properties of his own and therefore, "C' & "E' properties would not have been purchased from the salary of Mr. Yalioji Rao. In other 18 words, plaintiff examined this witness to establish that 7 C & E properties must have been purchased from the: _ income derived from the properties of tate Durgoji Rao in the hands of Mr. Yelloji Rao. This Shankar Rao as a | matter of fact is the neighbour of plain and he also speaks about the details of the family of the plaintiff Ratna Bai. He- 'has gone t to the extent 'of saying that Durgoji Rac might have given 3 acres 8 guntas of land to the plaintiff but when piaintit was unmarried said land in sy. no, 80 was 5 cultivated by Durgoji Rao. He denies the suggestion that the house property where a the € lai ntiff and hier family lives was purchased in the . name oF the 2 pleintif and her husband by late Durgoji.
9. Then coming to the evidence of D.W.1 by name ° : Raja Rao Chowan who is none other than the son of 7 : Yalloji Rao and grand-son of Durgoji Rao. D.W.2 is Vittoba Rao who is a close relative of the parties that 19 is uncle of both Rathna Bai and Yalloji Rac. | He is examined in order to show that 'the "health of - Mr.Durgoji Rao was good and he vias aware of F the | family affairs. He also speaks about the sale deed at Ex.D-39 regarding the purchase of landed property in the name of Yallaj Rao and speaks about the actual details of the. transaction. "However, "this gentleman does not speak about the execution 'of the Will by the deceased and he is "nothing 'to do with the said transaction | in ariy way. "On the basis of this evidence, the learned trial Judge ultimately held that the Will . - being a registered document and having regard to the contents of the registered Will, excluding the plaintiff from inheriting any property and the reason why all | - . 'the properties mentioned in the Will should go to his
-- "gon Yalloji Rao and also held that it was not strange os, | for the father who was living along with his wife under the care of his son to bequeath the properties in his 20 favour. He also referred to KUNHAMINA uraMa AND OTHERS v. SPECIAL TAHSILDAR AN D- OTHERS - . reported in AIR 1977 KERALA PAGE 44 4 regarding Section 68 of the Eviderice Act. regarding proof of a registered document so also. in the case of ALI HASAN (DECEASED BY LR) Vv. "-MATIULIAH (DECEASED BY LRs} AND OTHERS) reported in AiR 1988 Allahabad page 57. regar -ding Section 60 of the Registration Act in respect Of. 'presumptions regarding the due execution and. correctness of document if it has been duly registered.
10. "According to the trial Judge as Ex.D-1 was acted upon subsequent to the death of late Durgoji Rao 'and even mutation has been effected in the revenue records, therefore, under the Will whatever "was bequeathed to the son Yalloji Rao was acted upon and the beneficiary under the Will has taken the 2] properties as per the wish of the testator. 7 "He proceeded to hold that having acquired the properties a by virtue of a registered Will it has become the self acquired properties of Yailoji Rao.
11. Then coming tc piaint schedule 'C' & *E' properties | he holds that they. are the self acquired properties oF Gefendant Nout. and coming to plaint schedule 'D: property, in the 'Absence of any document conveying the propery in favour of D.W.1 Raja Rao unger a git deed, has held that there was no gift of
-- 'D' "schedule property in favour of Raja Rao. Therefore ' the: cenveyance of *D' schedule property coming to the hands. of son of Yalloji was rejected. The theory of gift " : was rejected and held that 'D' schedule property consists of R.C.C. building being self acquired property of deceased Durgoji Rao. Even plaintiff's daughter would get a share in the said property. So far as 'D' 22 schedule property it is about 20 guntes of land in Sy.Noi20/2C. This 20 guntas of iand is referred to} in :
a partition deed at Ex. P- 10. This property came > to the share of Mr.Durgoji Rao and later it was. alienated | for non-agricu tural 'purpose by. the said Mr. Durgoji Rao. By mere change. of nature of property the defendants cannot contend that the very property is not in existence. This argument of the defendants was alse rajectad by the trial Court and it was held that the plaintiff aiso-has got equal share in the 'G' schedule property. 3y virtue of the Judgment and the : 'order of the trial Court the properties mentioned at | plat aint schedule A,B & F were held to be the properties a bequeathed in favour of Yalioji Rao, suit 'C' & *E' | SS 'properties were held to be the self acquired properties oo 7 "of Yalloji Rao and 'D' & 'G' schedule properties alone were ordered to be partitioned equally between the plaintiff Rathnabai and the LRs of Yalloji Rao.23
12. Aggrieved by this Judgment & order, REA, No.752/2003 is filed by ~t ne plaini-appetiant i questioning the Judgment of the trial Court, with | regard to the schedule properties A, B, F, Cc & E as weil. R.F.A.No.805/ (2003 is flied by the LRs of Yailoji Rao questioning the dedgment of -the trial Court regarding D aG S plaint schedule properties which had to be shared between the plaintf and the defendants in equal portions.
43. According to the learned counsel appearing for the appeliant, Section 63 of the Indian Succession Act read with Section 68 including the proviso to Section 69 of the Evidence Act makes it crystal clear Os that the propounder of a Will alone has to establish and prove the due execution of the Will by late Durgoji Rao. To substantiate this proposition he refers to the evidence of Raja Rao D.W.1 contending that D.W.1 24 who was hardly about 12 or 13 years old as on the, date of the execution of the...Will on 26 12 1977 7 . would not be a proper person to speak about the due | execution of the Will under which his father Yaliji Rao | said to have acquired right, title and interest over A,B & F schedule properties. He also brought to our notice the decision of the Supreme Court in the case of BHAGAT RAM AND ANOTEHR v. ~ SURESH AND OTHERS reported in : 2004 sc 436. 'The relative paragraphs 23 &R 24 reads as. "under: . ° . : *23. Registration of a document does
-- not dispense with the need of proving the execution and attestation of a document which is required by law to be proved in the . manner as provided in S.68 of the Evidence Act. Under $.58 of the Registration Act the Registrar shall endorse the following particulars on every document admitted to registration:25
(1) the date, hour and place of mo presentation of the document for -- .
registration;
(2) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the 'representative, assign or agent of. any : person, the signature and addition. of such. representative, assign or
-- (3} the signature and addition of every person examined: in reference to such | document under any of the provisions of this Ret, and | os (A) any payment of money or delivery os of acods made in the presence of the registering officer in reference to the "execution of the document, and = any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.
2624. Such particulars as are referred te Bs required to be endorsed by Registrar - along - ; with his signature and date on decument -- under S.59 and then cert tified under S. 60. A presumption by reference to S.114 (Illustration (e)) of the Evidence Act shall arise to the effect that the 'events contained in the. endorsement of reqistration, were reguiariy.. "and "duly 'Performed and are correctly -recorded. _- None of _ the endorsernents, require to be made by the Registrar of Deeds "under the Registration _ Act, contemplates the factum of attestation within the meaning of S.63(c) of the * Succession Act or S.68 of the Evidence Act "being endorsed or certified by the Registrar ~ of Deeds. The endorsements made at the timie of registration are relevant to the "matters of the registration only (See Kunwar | Surendra Bahadur Singh and others v. Thakur Behari Singh and others, AIR 1939 PC
117). On account of registration of a document, including a Will or codicil, a 27 presumption as to correctness or reguiarity. of = attestation cannot be drawn. Where ir. the | facts and circumstances of a given: ease the: o Registrar of Deeds satisfies the requirernent _ of an attesting witness,-he must be calied in the witness-box to depoze to the attestation. His evidence . would. ba liable to. be appreciated and evaluated ike. the testimony of any other al att resting witness."
He further contends that in the absence of establishing the source for purchasing C & E schedule properties of Yalioji Rao, the trial Court ought to have
-- held that these two properties are also the properties OS acquired i irom the income of A,B, F & G properties and ought to have been shared equally between the os - children of Durgoji Rao. According to him, so far as the opinion of the trial Court regarding D & G schedule properties deserves to be sustained.
' ' rt
14. As against this the learned counset for the appeliants-defendants submits. that | the very cross- . examination of D.W.1 by the plant with reference to | the registered Will would only go. to show that the plaintiff has not seriously. challenged the due execution of the Will and they have not speit out any suspicious. circumstances under which the said Will has come into existence.
15. So. far : as Cc & & 'E' properties are concerned, neith er the plaintif nor the defendants have produced
- "before the Court any document showing the actual : salary 'that was drawn by Yalloji Rao from Kirlokar Company at Harihar. It is the case of the plaintiff-
appellant that he was earning only Rs.100/- per : month and by the time he retired Yalloji was earning Rs.2,000/- per month as salary, therefore, with the said income he could not have purchased 'C' & '2' schedule properties.
16. The evidence of D, Ww. 2 Vittoba Rao discloses | the fact that he was very much: present wtien these properties were purchased. 'He also speaks about the work of late Yallo at Kirloskar Company. It is not the case of the plaintitt that other than the income from the properties « of Durgoji Rao her brother Yalloji Rao did not nave any source 'of income. According to her, though: he: was working at Kirloskar Company, as his
- income was not more than Rs.100/- per month he : would not have purchased these properties. A person . who 'proposes or makes a specific contention or "statement is required to establish the said fact. In the absence of plaintiff establishing before the Court that the income from Kirloskar Company at Harihar and the deceased Yailloji could not afford to purchase these 3 Durgoji to give away the properties in favour of his daughter we do not find any eviclence of those persons and there is nothing cn record to show that actually such panchayat was held during the lifetime --
of Mr.Durgoji Rao.
18. Ther coming | to 7D" 8 'Gt schedule properties it is well settled that there: cannot 'be an oral gift of immoveable property f it is 'vaiued even Rs.100/-. It is not. admissibie under Hindu law. An oral gift is permissibie only for Mustims under Mohammedan law.
oe Even if the khatha or mutation gets transferred from 9 one person to another person without any document of conveyance in the absence of any evidence that . such transfer of khatha or mutation was in pursuance ; ofa legal document the presumption under the Land Revenue Act under Section 132 gets rebutted. In other words, so called oral gift of this 'D' schedule property in favour of D.W.1 Raja Rao remains an oral a 32 statement and the said oral gift cannot be accepted and the same deserves to be rejected as S opined oy the trial court.
19. Then coming to 'G' scheaule property as well there is nothing on record: to show that this property after changing. its nature to non-agricultural has left the hands of f Durgoit Rao during his lifetime in the absence of this property being with the family. Inspite of the change of nature of property, the property stil remains the property of Mr.Durgoji Rao.
The trial Court was justified in saying that the plaintiff | gets halt share in the 'G' schedule property as well.
"Therefore, the opinion of the Court regarding *D' & 'G' schedule properties is also justified. Then coming to A,
- Ba F schedule properties but for the registered Wiil at 'Ex.D-1, in the natural course of succession even the plaintiff would have got half share in the properties as 33 these properties admittedly are the self acquired properties of Durgoji Rao. As a. matter of fact , though 7 the plaintiff tried to bring: on record: some evi idence to show that some business "was com menced by her father along with her uncle. there was not 'much of evidence on record to show that 'these AB & F properties betong to seine famiiy properties of Durgoji Rao. Therefore, 'the entire clair with regard to A,B & F schedule properties is based on Ex.D-1 the registered will. "Section 63 of the Indian succession Act reads as under: -
| -- S,63- Will-Non-registration of ~Effect-
- there. is nothing in law which requires the registration of a Will and Wills are in a
- majority of cases not registered at all. To draw any inference against the genuineness of the Will on the ground of its non-registration appears to be wholly unwarranted. Ishwardeo Narain Singh v.Kamta Devi, AIR 1954 SC ac au Os,
691. to the signature of the- deceased or his . .
acknowledgement that he has signed the | Will, he will be presumed to have known the provisions of the instrument he has signed; but the said presumption 4S. liable to be rebutted by proof of suspicious circurnstances. i, Venkatachala Iyengar v. BLN. Thiramajamma, AIR: 1959 SC 443:1959 : Supp a )s SCR 426: 1959 Mys. LJ 424, Vlei of courts action-It is the bounden _ duty of the court, particularly when the 'appellants are illiterate ladies to take good _-_@ea! of care in the matter and not to the whole case casually by disposing it of by merely making a comparison of the signatures.
In the instant case advocate filing caveat on behalf of testator's widow whereunder execution and genuineness of Will was seriously challenged, admitting due 35 execution of Will and refraining from :
examining sole attesting witness. Thee grant = of probate after comparing" disputed = ; signatures with admitted - "signature: of _ testator but without ascertaining the circumstances which ied to the admission of the advocate - and | wi ithout affording: full opportunity to contest grant of probate and to cross-examine the . attesting witness, held, hac resulted in miscarriage of justice. Moonga Devi ve » Radha Baiab(t 973) 2 SCC
112." :
The above Section enuncates how the Will has to be executed and what are the requirements of the Will to call a document as a Will. Section 68 of the Indian os Evidence Act reads as under:-
; "68. "proof of execution of document required by law to be aittested- 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. ae (Provided that it shail not be necessary tO : call an attesting witness jn 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 OXECL ition by: 'the person by whom it purports -- toe ne ave. "been executed is o specifi ically denied. } yp So also Section 69 reads as under:-
| 69, 'Proof where no attesting witness oe found-If na such attesting witness can be es found, or if the document purports to have | been. executed in the United Kingdom, it i must be proved that the attestation of one
- aitesting witness at feast is in his * handwriting, and that the signature of the person executing the document is in the handwriting of that person."37
The averments in the plaint indicate that as on the date of filing of the suit by the plaistitt ' ff she was net " even aware of the registered will in favour of her" brother Yalloji Rao. if there was to be panchayt during the lifetime of Durgoj Rao a year prior to his death the deceased Durgoyi Rao 1 must have disclosed this fact to her. Any way. the averments of the plaint and her evidence t before the Court is totally silent on this: aspect. Therefore, we cannet opine that she was not. aware of the registered Will as on the date of filing of the 'Suit. - However after filing of the written hs _statement by defendants 1 & 2 brother & mother of \ : Sm. Kathna 'Bai she must have learnt about the so | called ragistered Will said to have been executed by _ late Durgoji Rao in favour of his son late Yalloji Rao. | 7 No doubt, normally the propounder of a Will has to establish the due execution upon which he places reliance. Having regard to the Registration Act and the Evidence Act one of the reason to hold the Will as genuine would be registration of a docuniant and ene.
of the fact to hold the Will or 2 document 'as a genuine | . : document, its registration would play an important role. In the present case. ti the plaintirt entered the witness box, she kept. on "saying that her father intended to give share in al the properties to her, she would not: speak, about the Will 'in question being executed "under 'any. _ suspicious circumstances. However. her, er evioence if gone through in its entirety would 'indicate that. she was refering to the Will impliedly that the said Will has come into existence : "under undue influence or persuasion. Even the cross- * examination of D.W.1 as stated above that the will in question was at the instance of Yalloji Rao, the father o : of D.W.1 in order to avoid any share to the plaintiff ' would also indicate that at the instance of him the said Will has come into existence. If this were to be the defence or the stand of the plaintiff as per Order 8 she ought to have specifically denied the due execution n of undue influence or persuasion by the brother of F Yalio Rao on her father. The. burden of establishing the genuine execution oft the wit i depends upon the nature of the contentions raised in a particular case. In the absence of Bp wt 1 "directy 2 attack ng the due execution and the vaticity ef the will i in 'question. Even otherwise in order to establish the Will | they primarily relied upon the evidence of ©. W.t who was hardly aged 12 or 13 | years at the time of execution of the Will. The : ae onstitution Bench of the Apex Court while dealing ' with" the. : genuineness of the Will on account registration of such Will in the case of RANI PURNIMA / DEBI AND ANOTHER v. KUMAR KHAGENDRA NARAYAN ; DEB AND ANOTHER had an occasion to deal with the fact of registration of a Will which reads as under:-
"(23) There is no doubt that if a Will has. -
been registered, that is a circumstance which Ms may, having regard to the circumstances, prove its genuineness. But ine mere fact | that a Will is registered Wili not by itself be sufficient to dispel all suspicion: regarding it where suspicion. exists, without submitting the evidence of registration io a= close examination. -- df _ the. evidence as to registration on a 'close examination reveals that the registration was 'made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its 7 | execution and signed it in token thereof, the _ registration will dispel the doubt as to the "genuineness of the Will. But if the evidence
- as. to registration shows that it was done in a perfunctory manner, that the officer é registering the Will did not read it over to the testator or did not bring home to him that he was admitting the execution of a Will or did 4] not satisfy himself in some other way (3s, for . --
example, by seeing the testator reading the Will)that the testator knew that it was a will oO the execution of which he was admitting, the Oe fact that the Will was registered would not be of much value. It is. net unknown that registration may take place without the executant really knowing - what he was registering. Law reports' are full of cases in which registered Wills have not been acted upon. (see. for example, vallaswamy Servai v.Sivara: man Servai, ILR § Rang 179:(AIR 1930 PC 24}, Surendra Nath v.Jnanendra Nath, AIR 1982 Cal 574 and Girija Datt Singh __.v.Gangotri Patt Singh (S) AIR 1955 SC 846. a : Therefore, the mere fact of registration may : : not hy itself be enough to dispel all suspicion : _ that may attach to the execution and attestation of a Will: though the fact that | there has been registration would be an important circumstance in favour of the Will being genuine if the evidence as to registration establishes that the testator t 43 before the trial Court. In that view of the matter, the plaintiff not being a party to the said execution of wit - time of execution of the will ite is just and proper to remand the matter back te the triat Court by giving an opportunity to both the ; parties to 'lead further evidence so far as Ex. DL 's concerned under which 4,B& F propeties are said to ha we been bequeathed in favour of Yall. | 'So far as the findings of the trial Court regarding © =r £, & G schedule properties we find no good reason. to interfere with the said findings. Ac cordingly R. FA: No.752/2003 is allowed in-part. . "the maiter iS remitted back to the trial Court for fresh | - aisposa! only with regard to A,B & F plaint schedule properties after giving an opportunity to both the "parties to plead further pleadings and lead further evidence. The trial Court shall dispose of the same as stated above within 6 months from the date of receipt of the order. R.F.A.No.806/2003 is dismissed.
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