Karnataka High Court
Sri H D Thimmappa vs Smt D Venkatamma on 22 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:3019
RSA No. 2505 of 2006
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.2505 OF 2006 (DEC)
BETWEEN:
SRI H D THIMMAPPA
SINCE DEAD BY HIS LRS
1. SRI H.T. MANJUNATH
SINCE DEAD, REP. BY HIS LRS
1(A) SMT. LALITHAMMA
W/O LATE H T MANJUNATH
AGED ABOUT 65 YEARS
Digitally signed
by SHARANYA T 1(B) SMT. KAVITHA H M
Location: HIGH D/O LATE H T MANJUNATH
COURT OF W/O LOKESH H G
KARNATAKA
AGED ABOUT 36 YEARS
1(C) SMT. DEEPA H M
D/O LATE H T MANJUNATH
W/O THIMMARAJU B N
AGED ABOUT 34 YEARS
APPELLANT NO.1(A) TO (C) ARE
R/AT D.NO.4425, 2ND CROSS
VALLABHAI ROAD
HASSAN TALUK & DISTRICT-573201
2. SRI H T BALAKRISHNA
SINCE DEAD REP. BY HIS LRS
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NC: 2024:KHC:3019
RSA No. 2505 of 2006
2(A) SMT. GAYATHRI M R
W/O LATE H T BALAKRISHNA
AGED ABOUT 44 YEARS
2(B) SRI SAGAR H B
S/O LATE H T BALAKRISHNA
AGED ABOUT 22 YEARS
2(C) SRI SUHAS H B
S/O LATE H T BALAKRISHNA
AGED ABOUT 19 YEARS
APPELLANT NO.2(A) TO (C) ARE
R/AT D.NO.4425, 2ND CROSS, VALLABHAI ROAD
HASSAN TALUK & DISTRICT - 573 201
SRI H D LANKI SETTY
SINCE DEAD BY HIS LRS
3. SRI NAGARAJA
AGED ABOUT 45 YEARS
4. SRI LAKSHMIKANTHA
AGED ABOUT 40 YEARS
BOTH (3) AND (4) ARE S/O
LATE LANKI SHETTY
R/O II CROSS, VALLABHAI ROAD
HASSAN-573 201
SRI H D PUTTASWAMY
SINCE DEAD BY HIS LRS
5. SRI H.P CHANDRASHEKAR
AGED ABOUT 40 YEARS
6. SRI H P KUMAR
AGED ABOUT 40 YEARS
BOTH (5) AND (6) ARE
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NC: 2024:KHC:3019
RSA No. 2505 of 2006
S/O LATE PUTTASWAMY
R/O II CROSS,VALLABHAI ROAD
HASSAN-573 201
...APPELLANTS
(BY SRI B ROOPESHA, ADVOCATE)
AND:
1. SMT D VENKATAMMA
W/O SRI VYRAMUDI
SINCE DEAD BY LRS.
1(A) SRI SHAMANNA
S/O LAE VYRAMUDI
AGED ABOUT 53 YEARS
1(B) SRI NAGARAJ
S/O LATE VYRAMUDI
AGED ABOUT 51 YEARS
1(C) SMT. ANASUYA
D/O LATE VYRAMUDI
AGED ABOUT 50 YEARS
1(D) SMT. SARASWATHI
D/O LATE VYRAMUDI
AGED ABOUT 48 YEARS
1(E) SMT. GOWRI
S/O LATE VYRAMUDI
AGED ABOUT 45 YEARS
ALL ARE R/AT MOKALIGRAMA
ARAKALAGUD TALUK
HASSAN DISTRICT - 573 142
SRI GOVINDAPPA
SINCE DEAD BY HIS LRS
2. SMT. LAKSHMAMMA
W/O LATE SRI GOVINDAPPA
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NC: 2024:KHC:3019
RSA No. 2505 of 2006
AGED ABOUT 45 YEARS
II CROSS, VALLABHAI ROAD
HASSAN 573 201
SRI VEERABHADRA
SINCE DEAD BY LRS
3. SMT. MEENKASHI
AGED ABOUT 35 YEARS
W/O LATE VEERABHADRA
R/O GUNDANABELLUR VILLAGE
PALYA POST,ALUR TALUK
HASSAN DISTRICT
...RESPONDENTS
(BY SMT. NALINA K, AMICUS CURIAE)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 18.04.2006PASSED IN
R.A.NO.235/2004 (OLD NO. 76/2001) ON THE FILE OF THE
PRESIDING OFFICER & ADDL.DISTRICT JUDGE, FAST TRACK
COURT-I, HASSAN AND ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the respective parties.
2. The factual matrix of the case of the plaintiffs before the Trial Court that the suit was filed for the relief of partition and separate position in respect of the suit schedule property. It is contended that one Venkatappa is -5- NC: 2024:KHC:3019 RSA No. 2505 of 2006 the propositus of the family and he is having three sons namely, Dasappa, Hanumathappa and Venkatappa @ Sannappa. The Venkatappa @ Sannappa who is the third son of said Venkatappa married one Giddamma and she passed away on 06.06.1989 and subsequently, the said Venkatappa @ Sannappa passed away on 26.03.1990. It is the case of the plaintiffs that there was a partition among the children of Venkatappa. When the third son Venkatappa @ Sannappa was not having any children, he died instate and not executed any document, the plaintiffs who are the children of Dasappa are entitled for a share in the property of Venkatappa @ Sannappa. Defendant No.2 is the son of Hanumathappa and defendant No.1 is the daughter of one of the brother of Giddamma i.e., the wife of said Venkatappa @ Sannappa. Defendant No.1 claims that a Will was executed by Venkatappa @ Sannappa on 13.09.1989 in her favour since she was taking care of Venkatappa @ Sannappa.
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3. The Trial Court having considered the pleadings of the parties, framed the Issues and allowed the parties to lead their evidence. In order to prove the case of the plaintiffs, 2nd plaintiff examined himself as PW1 and also examined one witness as PW2 and got marked the documents at Ex.P1 to P3. On the other hand, defendant No.1 examined herself as DW1 and also examined two witnesses as DW2 and DW3 and got marked the document at Ex.D1. The Trial Court having considered the oral and documentary evidence available on record, not accepted the case of the defendants and disbelieved the document of Will and comes to the conclusion that the plaintiffs are entitled for the relief of partition as claimed in the plaint.
4. Being aggrieved by the judgment and decree of the Trial Court, an appeal was preferred by the first defendant before the First Appellate Court. The First Appellate Court on re-appreciation of pleadings of the parties, formulated the points and on re-appreciation of both oral and documentary evidence placed on record -7- NC: 2024:KHC:3019 RSA No. 2505 of 2006 comes to the conclusion that the Trial Court committed an error in not accepting the Will dated 13.09.1989 and answered point No.2 as partly affirmative and reversed the finding of the Trial Court accepting the case of the appellant and set aside the judgment and decree of the Trial Court. Hence, the present appeal is filed before this Court.
5. This Court considered the grounds urged in the appeal at the time of admission and formulated the substantial questions of law which reads as follows:
1. Whether the Lower Appellate Court was justified in reversing the judgment and decree of the Trial Court by holding that the Will dated 13.09.1989 at Ex.D1 is proved and in this regard whether the Lower Appellate Court has committed any perversity in the manner of appreciation of evidence with regard to the contention of the defendant regarding non-availability of the original document?-8-
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2. Whether examination of scribe amounts to examination of attestor?
6. The counsel for the appellants in his argument would vehemently contend that there is no dispute with regard to the relationship between the parties and also no dispute that there was a partition among the sons of the propositus Venkatappa. The counsel would vehemently contend that the Venkatappa's third son Venkatappa @ Sannappa married one Giddamma and Giddamma pre- deceased and the Venkatappa @ Sannappa died on 26.03.1990. It is also the contention that he has not executed any testamentary document and the document of Will at Ex.D1 is created. The counsel also submits that only certified copy of the Will is produced before the Trial Court and not pleaded anything in the written statement that he has lost the original Will. The counsel also brought to notice of this Court that in the written statement, it is pleaded that Venkatappa @ Sannappa was not keeping well. But in the evidence, DW1 admits that he was well. -9-
NC: 2024:KHC:3019 RSA No. 2505 of 2006 The Trial Court having considered both oral and documentary evidence placed on record rightly comes to the conclusion that Will has not been proved and also the loss of Will also not been explained properly. But the First Appellate Court committed an error in coming to the conclusion that Will has been proved.
7. The counsel having read the evidence of the witnesses would contend that defendant No.2 was living with Venkatappa @ Sannappa in a portion of the house belongs to Venkatappa @ Sannappa and the same was collapsed but at no point of time, the portion of the house of Venkatappa @ Sannappa in which he was in possession was collapsed and the reason assigned that they lost the original Will when the building was collapsed cannot be accepted.
8. The counsel for the appellants in support of his arguments relied upon the judgment reported in AIR 1976 PUNJAB AND HARYANA 235 in the case of PARSA SINGH vs SMT. PARKASH KAUR AND OTHERS.
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NC: 2024:KHC:3019 RSA No. 2505 of 2006 The counsel brought to notice of this Court paragraph 5 of the said judgment wherein discussion was made with regard to Section 57(5) of Registration Act and also Section 65 and 74 of the Evidence Act and an observation made that the aforesaid sections do not warrant conclusion that an original will becomes a public document after its registration. Such a document even after registration, Will remain a private document. The counsel also relied upon the judgment reported in AIR 2010 (NOC) 701 (P. & H.) in the case of SAMPAT SINGH vs BHAGWANTI AND OTHERS wherein it is held that in secondary evidence, certified copy of the Will is not a public document within meaning of Section 74, not admissible per se in evidence. Consequently certified copy of Will produced on record of case cannot be presumed to be primary document which could be adduced in evidence and same could be proved only by leading secondary evidence after taking permission of Court and proving loss, destruction etc., of document.
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9. The counsel relying upon the aforesaid judgments would vehemently contend that there is pleading in the written statement with regard to loss of Will and loss of Will has not been proved and even the very execution of the Will has not been proved. The counsel submits that defendant No.2 is the father of defendant No.1 and both of them have participated in the execution of the Will and DW3 who is the scribe has not spoken with regard to the contents of the document and also the recitals and also attestation of document hence, the First Appellate Court ought not to have relied upon the evidence of DW3 in accepting the Will.
10. Per contra, the learned counsel appearing for respondents would vehemently contend that when DW3- scribe has been examined, he deposed that DW2 who is the father of DW1 was also present at the time of execution of Will and his evidence is credible and evidence of the witnesses has not been discredited in the cross- examination. The First Appellate Court has given finding
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NC: 2024:KHC:3019 RSA No. 2505 of 2006 with regard to the very execution of the Will and said finding is correct. DW1 also contested the case filed by defendant No.2 against Venkatappa. Hence, it is clear that the beneficiary of the Will i.e., DW1 was taking care of said Venkatappa @ Sannappa. The counsel also submits that the relationship between the beneficiary and the Venkatappa @ Sannappa and his wife Giddamma is clear that the daughter of one of the brother of said Giddamma who has taken care of Venkatappa @ Sannappa.
11. Having considered the arguments of the respective counsel and also in keeping the substantial questions of law framed by this Court with regard to Ex.D1 and any perverse finding by the First Appellate Court, this Court has to re-analyse the material available on record. The counsel for the appellant brought to notice of this Court with regard to the evidence of PW1. No dispute with regard to the relationship between the parties. It is the case of PW1 that no document of Will was executed. In
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NC: 2024:KHC:3019 RSA No. 2505 of 2006 the cross-examination, PW1 admits with regard to the earlier partition between his father and also the said Venkatappa and his other uncle and all of them are residing separately. It is admitted that the said building was not collapsed during the pendency of the suit. Defendant No.2 had filed the suit against the Venkatappa @ Sannappa and at that time, Venkatappa @ Sannappa was alive. It is suggested that the Venkatappa @ Sannappa had executed the Will on 13.09.1989 in favour of defendant No.1 and the same was denied. The plaintiff also examined one witness as PW2. PW2 also speaks with regard to the earlier partition and with regard to that when the wife of Venkatappa @ Sannappa i.e., Giddamma passed away, defendant No.1 came to the house of Venkatappa @ Sannappa and she was living with him for sometime to take care of Venkatappa @ Sannappa.
12. Defendant No.1 also examined herself as DW1 and she claims that she came in adoption and in the suit schedule property, the adopted father also living and even
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NC: 2024:KHC:3019 RSA No. 2505 of 2006 at the time of his death also, he was keeping his good health and admitted that DW2 is her father and also deposed that she has acquaintance with defendant Nos.2 and 3. It is also her evidence that portion of the house was given to DW2 and the said portion was collapsed and no one is residing in the said house. It is her evidence that when the house was collapsed, she lost the original Will and the copy of the Will was marked as Ex.D1 subject to objection of plaintiffs' counsel. In the cross- examination, she admits that her husband is residing in Gowrikoppal but she claims that he is separately residing. In order to prove the factum of adoption, she has got document and she cannot tell when the said document came into existence. She also admits that the said adoption document also lost when the house was collapsed and also she does not know why she was taken in adoption. DW1 though admits that she is not aware of the contents of Ex.D1, she was very much present in the registration office at the time of registration of the Will and she claims that she has signed. But no such signature is
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NC: 2024:KHC:3019 RSA No. 2505 of 2006 found in the document. The said Will is also signed by her father and another person but no other person has signed.
13. In the cross-examination, she admits that at the time of death, Venkatappa @ Sannappa was not in a walking condition and again volunteers that he was having good health. The Will was prepared near the Taluk office and she cannot tell the date of the Will and she admits that the Will was prepared at 10˚ clock and the same was registered in the evening. It is also admitted that her father given instructions and the scribe written the same. It is suggested that now she is residing at Gowrikoppal.
14. The other witness is DW2 who is the father of DW1 and in his evidence he speaks with regard to the execution of the Will. He deposed that the same was prepared by one Rajanna and the Venkatappa @ Sannappa executed the Will in favour of defendant No.1 and the same was written in the Taluk office and got registered. In the cross-examination, he admits that he does not know on what date, defendant No.1 was given in
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NC: 2024:KHC:3019 RSA No. 2505 of 2006 adoption. In the cross-examination, he admits that one Ramaswamy has written the Will and Venkatappa @ Sannappa has given instructions and Will was prepared near the old Taluk office and it was at around 12˚ clock. And his son-in-law, his daughter and executant Venkatappa @ Sannappa were there. The other witness DW3 who is the scribe says that he only prepared the Will.
15. The other witness is D.W.3, who is the scribe and he says that he himself prepared the Will and the said Venkatappa @ Sannappa gave instructions and Venkatappa @ Sannappa was having sound state of mind and the said Will was registered in the office of the Sub- registrar. In the cross-examination, he says that Will was written in between 2.00 to 3.00 p.m. and all of them came to him at around 1.00 to 1.30 p.m. and he cannot tell in whose favour the Will was written and the said Will is in respect of a house. It is suggested that the executant Venkatappa @ Sannappa was not having good health and
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NC: 2024:KHC:3019 RSA No. 2505 of 2006 the same was denied and says that he cannot state as to who are all the witnesses to the said Will.
16. Having considered both oral and documentary evidence placed on record, particularly the Will, since the First Appellate Court had come to the conclusion that Will has been proved. The Court has to look into the document of Will. Admittedly, the original Will is not produced before the Court. It is pointed out by the learned counsel for the appellants that in the written statement, the defendants have not stated that the Will was lost. But, the claim of the defendant No.1 is that Will was lost, when the building was collapsed. Learned counsel appearing for the appellants would vehemently contend that the material available on record shows that only portion of the building in which defendant No.2 Govindappa was residing which belongs to Venkatappa @ Sannappa collapsed and no dispute with regard to the said fact.
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17. It is the evidence of D.W.1 that the defendant No.1 came to the house of Venkatappa @ Sannappa when Giddamma passed away and she was staying in the house of Venkatappa @ Sannappa for some time. When the certified copy of the Will is produced and the same is marked subject to the objection by the plaintiffs, it has to be noted that first of all, the Will has to be proved as per the provisions of Sections 63 and 68 of the Evidence Act and also Indian Succession Act and the Court has to take note of the evidence on record, particularly the evidence of D.W.1, who claims that Will was prepared at 10 o' clock in the morning, but registered at 12.00 noon. The D.W.2 says that Will was written at 12.00 p.m. and the scribe says that all of them came at around 1.00 to 1.30 p.m. and thereafter, the Will was prepared and there are contradictions in the evidence of witnesses D.Ws.1 to 3 with regard to very preparation and timings of registration.
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18. It is also important to note that D.Ws.2 and 3 categorically admitted that when Will was prepared, all of them were there and in their presence only, Will was executed. It is also important to note that D.W.1 in her evidence in the cross-examination admits that her father Arasappa, who is D.W.2 gave instructions to prepare Will and not Venkatappa @ Sannappa. It is also important to note that there are only two witnesses i.e., the father of D.W.1 and other witness and the beneficiary under the Will i.e., D.W.1 and the father of D.W.1 has played a role in getting the document registered, since D.W.1 says that on the instructions of Arasappa only the Will was prepared. It is also important to note that to prove the document of Will, the execution as well as the contents of the document has to be spoken to by the witnesses and all of them should have signed the same and in their presence, none of the witnesses speak the same
19. In the case on hand, the scribe is examined and he only says that upon instructions given by Venkatappa
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NC: 2024:KHC:3019 RSA No. 2505 of 2006 @ Sannappa, he prepared the Will and the same was registered and with regard to the attestation of the document also, nothing is spoken by D.W.3, who is the scribe. With regard to proving the document of Will, the witnesses should speak that parties have attested the document and in one breath, the D.W.1 says that she was very well present at the time of cross-examination, but the pleading is that he was not keeping good health. It is also important to note that it is the contention of the learned counsel for the appellants that power of attorney was given in favour of the beneficiary of the Will i.e., D.W.1 to contest the case and the document of power of attorney is also not placed before the Court.
20. It is also important to note that the judgment of the Punjab and Hariyana High Court in PARSA SINGH VS. SMT. PARKASH KAUR AND OTHERS reported in AIR 1976 PUNJAB AND HARYANA 235 which has been referred by the learned counsel for the appellants, wherein it is observed that the original document in the present
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NC: 2024:KHC:3019 RSA No. 2505 of 2006 case is the registered will and not the books maintained in the office of the Registrar. If the original document of Will is lost, the same has to be proved by leading secondary evidence. In the case on hand, the certified copy of the Will is produced and the Punjab and Hariyana High Court has held that the certified copy of the Will is not admissible in evidence and cannot be presumed to be primary document and the same should be proved by leading secondary evidence if the original document of Will is lost.
21. In the present case, D.W.1 says that the original Will is lost when the building was collapsed in which the same was kept. It is also important to note that defendant No.1 claims that she is an adopted daughter but, though she claims that adoption was made, no such document of adoption is placed before the Court. But, during the course of evidence, she claims that the same was lost when the building was collapsed and these evidence are nothing but an improvement.
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22. Having considered the material on record, the defendant No.1 has not proved the Will in terms of Sections 63 and 68 of the Evidence Act and also Indian Succession Act and the evidence of D.Ws.1 to 3 with regard to preparing the document of Will is contrary to each other and there are material contradictions with regard to the timings of preparation of Will and the witnesses D.Ws.1 to 3, who have been examined before the Court have given contrary evidence with regard to the preparation of document of Will. Apart from that, when there is a suspicious circumstance with regard to the very execution of document of Will, since the very beneficiary, who has been examined as D.W.1 was present at the time of execution of the Will, no credence can be given to the evidence of D.Ws.1 and 2 and the material available on record clearly discloses that there is a suspicious circumstances with regard to the creation of document, since the witnesses D.Ws.1 and 2 have participated in execution of document of Ex.D1 and failed to remove the suspicious circumstances around the document is
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NC: 2024:KHC:3019 RSA No. 2505 of 2006 concerned. The First Appellate Court failed to take note of these aspects into consideration and committed error in relying upon the certified copy of the Will in coming to the conclusion that the same is proved but, failed to take note of said fact which has been discussed by this Court when the propounder of Will pleads with regard to execution of the document and the same should be proved without any suspicious circumstances. The First Appellate Court committed an error in coming to the conclusion with regard to proving of Will is concerned in Para No.39, though subsequently it is stated that the original Will is lost and the fact that Will is lost is very suspicious, since the building of D.W.1 was not collapsed.
23. I have already pointed out that it is the evidence of D.W.1 that though they lost both the Will and the adoption deed, no material is placed before the Court, except self-testimony of D.W.1. The First Appellate Court made an observation that, during the course of evidence D.W.1 deposed that when the wall was collapsed, she lost
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NC: 2024:KHC:3019 RSA No. 2505 of 2006 the original document of Will and in this background, the certified copy was sought to be marked but, the same was objected by the Advocate and the Trial Court marked the Will subject to the objection. The certified copy of the Will is marked as Ex.D1. The First Appellate Court relied upon the evidence of chief-examination of D.W.1 in Para No.4 with regard to the document of Will lost, but failed to take note of the material contradiction in the evidence of D.Ws.1 to 3, while appreciating the material on record regarding very execution of the document and erroneously made an observation that wall of the house fell, has remained unchallenged and the very approach is erroneous.
24. Learned counsel appearing for the appellants also brought to notice of this Court that material available on record is with regard to only portion of the building being collapsed in which the defendant No.2 was residing i.e., the house of Venkatappa @ Sannappa and not in respect of the house of D.W.1 and the same is not taken
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NC: 2024:KHC:3019 RSA No. 2505 of 2006 note by the First Appellate Court and the First Appellate Court committed an error in reversing the findings of the Trial Court and the Trial Court has taken note of the evidence available on record, particularly the document of Will dated 13.09.1989. The Trial Court also taken note of the fact of validity of the Will executed by the deceased Venkatappa @ Sannappa and also taken note of the evidence of D.W.1 regarding adoption of defendant No.1 and she failed to prove both adoption and execution of Will and not produced both the document of original Will as well as the adoption deed.
25. The Trial Court has taken note of the fact that in the written statement which was filed by the D.W.1 in the year 1990 itself, the defendant No.1 not taken such a defence that she lost the Will. The Trial Court also observed that she has not produced the Will on that day or much earlier and she produced only certified copy of the Will on 26.09.2000. If she had the original document in her custody, she would have produced the same at the
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NC: 2024:KHC:3019 RSA No. 2505 of 2006 earlier stage while filing the written statement and no attempt was made by the defendant Nos.1 to 4 to produce the original Will and not pleaded about lost the Will. The fact that building was collapsed is also during the pendency of the suit is also not in dispute and the Trial Court has taken note of the evidence of P.Ws.1 to 3 and in detail discussed the same and the Trial Court came to the conclusion that validity of the Will has not been proved and in detail discussed in Para No.15 and taken note of the fact that Court should see the circumstances surrounding under which the document came into existence. The Court shall also look into the intention of the testator and condition of the testator and there is a discrepancy in the evidence of D.W.1 with regard to the health condition of the executant Venkatappa @ Sannappa.
26. The Trial Court also considered the evidence of the witnesses and also the condition of the testator and it is stated that condition of the testator according to the plaintiffs during the last days of testator was not good and
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NC: 2024:KHC:3019 RSA No. 2505 of 2006 he could not be in a position to execute any document and he was hard of hearing and also had eye difficulty and could not see properly. Bearing this in mind, if we go through the evidence of D.W.1, she has stated that deceased had no eye difficulty and not hard of hearing and his health was in good condition and all these aspects have been considered by the Trial Court with regard to the very execution of the document of Will and in detail discussed in Para Nos.14 and 15 and the same has been reversed by the First Appellate Court not applying its judicious mind with regard to the validity of the document of the Will which has not been properly proved. Hence, the First Appellate Court committed an error in reversing the findings of the Trial Court. Therefore, there is a perversity in the findings of the First Appellate Court in accepting the Will, in coming to the conclusion that Will has been proved and committed an error in accepting the evidence of D.W.3-scribe and except with regard to preparing the document of Will, he has not spoken anything about the execution of the Will and attestation of
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NC: 2024:KHC:3019 RSA No. 2505 of 2006 witnesses. The examination of scribe is not the examination of attester and his evidence is also not with regard to proving of execution of Will. Hence, I answer substantial question of law No.(1) as 'affirmative', in coming to the conclusion that the First Appellate Court committed an error in accepting the Will and the said finding is perverse and the same is against the material on record.
27.In view of the discussion made above, I pass the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree of
the First Appellate Court in
R.A.No.235/2004 dated 18.04.2006 is
hereby set aside and the judgment and
decree of the Trial Court passed in
O.S.No.468/1990 dated 15.02.2001 is
hereby restored.
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RSA No. 2505 of 2006
(iii) The Registry is directed to pay the fee of Rs.5,000/- to the Amicus Curie appointed by this Court.
Sd/-
JUDGE SN/ST