Karnataka High Court
Anand @ Anand Rao S/O Jagannath Rao ... vs Jaganath Rao S/O Srinivas Rao Kulkarni ... on 29 October, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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RFA No. 200033 of 2016
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR FIRST APPEAL NO. 200033 OF 2016 (PA/DE/IN)
BETWEEN:
ANAND @ ANAND RAO
S/O JAGANNATH RAO KULKARNI,
AGE: 46 YEARS,
OCC: SERVICE & AGRICULTURE,
R/O. YADGIRI,
TQ. & DIST.YADGIRI-585202.
...APPELLANT
(BY SRI N. B. DIWANJI, ADVOCATE)
Digitally signed AND:
by SACHIN
Location: 1. JAGANNATH RAO
HIGH COURT
OF S/O SRINIVAS RAO KULKARNI,
KARNATAKA AGE : 85 YEARS, OCC: RETD. TEACHER,
R/O. H.NO.11-1400/23/8,
BIDDAPUR, KALABURAGI-585106
SINCE DECEASED HIS LRS ARE ALREADY
ON RECORD I.E. APPELLANT AND
RESPONDENT NO.2.
2. VIJAYKUMAR @ BHIMSHENRAO @ BHIMRAO,
S/O JAGANNATH RAO KULKARNI,
AGE: 52 YEARS, OCC: ASST. TEACHER,
GOVT. GIRLS & BOYS HIGH SCHOOL,
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RFA No. 200033 of 2016
GPS SCHOOL AND ROAD HOLITIPPI STREET,
SEDAM, DIST : KALABURAGI-585201.
3. SMT. SUNANDA W/O VIJAYKUMAR KULKARNI,
AGE: 46 YEARS, OCC: ASST. TEACHER
GOVT. HIGH SCHOOL KURKUNTA VILLAGE,
TQ. SEDAM, DIST. KALABURAGI-585201.
4. KARTIK S/O VIJAYKUMAR KULKARNI,
AGE: 14 YEARS, MINOR
5. KOUSTHUBH S/O VIJAYKUMAR KULKARNI,
AGE: 07 YEARS, MINOR
RESPONDENT NO.4 AND 5 ARE MINORS
REPRESENTED BY THEIR NATURAL GUARDIAN
RESPONDENT NO.2 AND 3,
THE REAL FATHER AND MOTHER
R/O KURKUNTA VILLAGE,
TQ. SEDAM, DIST. KALABURAGI-585201.
6. SRI. GEJALAPPA S/O BALAPPA,
AGE:31 YEARS, OCC: AGRICULTURE,
R/O. NASALWAI,
TQ. & DIST. YADGIR-585202.
7. SRI. TIMAYYA S/O BALAPPA,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O. NASALWAI,
TQ. & DIST. YADGIR-585202.
8. SRI. PAPALAYYA S/O BALAPPA BEGGAR,
AGE: 54 YEARS, OCC: AGRICULTURE,
SINCE DECEASED BY LRS
A. SMT. GANGAMMA W/O LATE PAPALAYYA,
AGE: 49 YEARS,
OCC: HOUSE HOLD AND AGRICULTURE
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RFA No. 200033 of 2016
B. SHIVARAJ S/O LATE PAPALAYYA,
AGE: 25 YEARS, OCC: AGRICULTURE,
C. BHARATI D/O LATE PAPALAYYA,
AGE: 23 YEARS, OCC: AGRICULTURE,
D. NAVANEETA D/O LATE PAPALAYYA,
AGE: 20 YEARS, OCC: AGRICULTURE,
E. VENUGOPAL S/O LATE PAPALAYYA,
AGE: 18 YEARS, OCC: AGRICULTURE,
F. KUMARI VIJAYALAXMI
D/O LATE PAPALAYYA,
AGE: 16 YEARS, OCC: STUDENT,
ALL ARE R/O NASALWAI,
TQ. AND DIST. YADGIR-585202.
9. SRI KASHAPPA S/O NINGAPPA AGASAR,
AGE : 51 YEARS, OCC: AGRICULTURE,
R/O. NASALWAI,
TQ. & DIST. YADGIR-585202.
10. SRI BHIMDAS
S/O RAMKRISHNAYYA DESARI,
AGE:33 YEARS, OCC: AGRICULTURE,
R/O. NASALWAI,
TQ. & DIST. YADGIR-585202.
11. SRI MADHUSUDHAN S/O YENKATAYYA DESARI,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O. NASALWAI, TQ. & DIST. YADGIR-585202.
12. SRI YENKATAPPA S/O BALAPPA BEGGAR,
AGE:26 YEARS, OCC: AGRICULTURE,
R/O. NASALWAI, TQ. & DIST. YADGIR-585202.
13. SRI KISHTAPPA S/O BALAPPA BEGGAR,
AGE: 49 YEARS, OCC: AGRICULTURE,
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RFA No. 200033 of 2016
R/O. NASALWAI, TQ. & DIST. YADGIR-585202.
14. SMT. SULOCHANABAI
W/O LATE JAMARDHANRAO,
AGE: 68 YEARS, OCC: HOUSEHOLD,
R/O. DEVANOOR VIA MUDHOL,
TQ. SEDAM, DIST. KALABURAGI-585201.
15. SMT. VANAMALA
D/O LATE JANARDHANRAO KULKARNI,
W/O NARASIMHACHARYA,
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O. DEVANOOR VIA MUDHOL,
TQ. SEDAM, DIST. KALABURAGI-585201.
16. SMT. PADMAVATHI
D/O LATE JANARDHAN RAO KULKARNI,
W/O ANANTH RAO,
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O. DEVANOOR VIA MUDHOL,
TQ. SEDAM, DIST. KALABURAGI-585201.
17. SRI. SEETARAMRAO
S/O LATE JANARDHANRAO KULKARNI,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O. DEVANOOR VIA MUDHOL,
TQ. SEDAM, DIST. KALABURAGI-585201.
18. SMT. KAMALABAI
D/O LATE JANARDHANRAO KULKARNI,
W/O CHINTAMANI,
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O. DEVANOOR VIA MUDHOL,
TQ. SEDAM, DIST. KALABURAGI-585201.
19. SRI. GURURAJ RAO
S/O LATE JANARDHANRAO KULKARNI,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O. DEVANOOR VIA MUDHOL,
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RFA No. 200033 of 2016
TQ. SEDAM, DIST. KALABURAGI-585201.
20. SMT. YASHODABAI W/O RAMESH BIRALKAR,
AGE: 61 YEARS, OCC: ANGANWADI TEACHER,
R/O. JADHAV LAYOUT, ANGANWADI KENDRA,
NEAR BIDDAPUR COLONY,
KALABURAGI-585105.
...RESPONDENTS
(BY SRI CHAITANYAKUMAR C. M., ADVOCATE FOR
R2 TO R3;
SRI A. M. NAGRAL, ADVOCATE FOR R8(A) TO R8(F);
R4 AND R5 ARE MINORS REPRESENTED BY R2 AND R3;
V/O DTD. 13.03.2020 APPELLANT AND R2 ARE
LRS OF DECEASED R1;
R6, R7 AND R9 TO R20 ARE SERVED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC,
PRAYING TO ALLOW THE APPEAL, AND SET ASIDE THE
IMPUGNED JUDGMENT AND DECREE PASSED BY THE
SENIOR CIVIL JUDGE, YADGIRI IN OS.NO.34/2011 DATED
16.02.2016 AND DECREE THE SUIT OF THE PLAINTIFF AS
PRAYED FOR.
THIS APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
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RFA No. 200033 of 2016
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL) Plaintiff is before this Court being aggrieved by the judgment and decree dated 16.02.2016 passed in O.S. No.34/2011 on the file of Senior Civil Judge at Yadgiri (hereinafter referred to as the 'Trial Court', for brevity). The above suit is filed by the plaintiff seeking for the following reliefs:
i) It be declared and decreed that the plaintiff is the absolute owner in possession of the suit properties more particularly described at plaint Schedule (A) to (M) in the plaint.
ii) It be declared and decreed that the sale deeds executed by defendant No.1 and deceased Janardhan Rao in favour of defendant No.6 to 13 and in respect of Sl. Sale deed In favour of In respect of No. document No. a. 1423/1992-93 Defendant No.6 4 acres, in Sy.No.88 (Suit property No.G) b. 1424/1992-93 Defendant No.7 4 acres in Sy.No.88 (suit property No.G) c. 1425/1992-93 Defendant No.8 5 acres in Sy.No.88 (suit property No.G) d. 1426/1992-93 Defendant No.9 2 acres 24 guntas in Sy.No.88 (suit property No.G) e. 765/1993-94 Defendant No.10 2 acres in Sy.No.87 (suit property No.F) f. 766/1993-94 Defendant No.11 3 acres in Sy.No.87 (suit property No.F) -7- NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 g. 381/1994-95 Defendant No.12 4 acres 19 guntas in Sy.No.87 (suit property No.F) h. 437/1994-95 Defendant No.8 25 guntas in and 13 Sy.No.10/1 and 2 acres 14 guntas in Sy.No.10/2 (suit property No.B, C) i. 1278/1995-96 Defendant No.8 2 acres 24 guntas in & 13 Sy.No.24 (suit property No.D) are bad in law and nullity and not binding on the plaintiff.
iii) It be also declared and decreed that the gift deed bearing Document No.1033/2011-12, dated 29.04.2011, executed by defendant No.1 in favour of defendant Nos.4 and 5 in respect of suit schedule property at (N) bearing House No.11-1400/23/8, situated at Biddapur Colony, Gulbarga is void and bad-
in-law and nullity and not binding on the plaintiff.
iv) A decree for partition and separate possession of 1/2 share of the plaintiff in suit property No.(N) i.e., House No.11-1400/23/8, Biddapur Colony, Gulbarga be granted and the plaintiff be put in possession of his share.
2. The case of the plaintiff is that defendant No.1 is the father of the plaintiff and defendant No.2. Defendant No.3 is the wife of defendant No.2. Defendant Nos.4 and 5 are the children of defendant Nos.2 and 3. Defendant Nos.14 and 19 are the wife and children respectively of -8- NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 brother of defendant No.1. Defendant Nos.6 to 13 are the purchasers of the suit schedule properties.
3. That the suit schedule properties were the absolute properties of one Smt.Kamalamma also known as Smt.Kamalabai W/o Sri.Seenappa also known as Sri.Srinivasrao. She having succeeded to the same from her sister namely Smt.Seetamma W/o Sri.Venkatrao. The said Smt.Kamalamma @ Kamalabai was the mother of defendant No.1. That by a registered deed of Will dated 10.10.1972 the said Smt.Kamalamma @ Kamalabai had bequeathed all the suit properties in favour of the plaintiff. The said Will also contained the provisions for providing the marriage expenses in favor of Smt.Nirmalabai and Smt.Yashodabai, who are the sisters of the plaintiff. Similarly, it also made provisions for providing maintenance to one Smt.Sharadabai who is daughter of Smt.Kamalamma @ Kamalabai during her lifetime. That the said Will was in custody and in possession of defendant No.1 as the plaintiff and his sisters were minors -9- NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 at the time of execution of the Will. That Smt.Sharadabai who was entitled for right of maintenance in terms of the said Will, passed away in the year 1991. Smt.Nirmalabai, sister of the plaintiff got married in the year 1974 and passed away in the year 1987 and Smt.Yashodabai the other sister of the plaintiff was married in the year 1983. That Smt.Kamalamma @ Kamalabai the executant of the Will passed away during the month of December, 1972. That after her demise, the plaintiff being the legatee succeeded to all the properties that are the subject matter of the suit.
4. Though defendant No.1 being the guardian of the plaintiff was in possession of the said Will, ought to have executed the said Will in accordance with law, upon the demise of said Smt.Kamalamma, however he concealed the execution of the said Will by Smt.Kamalamma, for his ulterior motives. In that, upon the demise of said Smt.Kamalamma, defendant No.1 managed to obtain mutation in respect of the suit schedule
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 properties in his name and in the name of his brother Sri.Janardhanrao claiming themselves to be the successors to the estate of Smt.Kamalamma. That neither defendant No.1 nor his brother have any share, right, title and interest in the suit schedule properties as the mutation entries made in their names were illegal and unsustainable could not confer any title in their favor. The suit item Nos.(E), (H) and (K) properties and an extent of 8 acres in suit item No.(L) were declared by defendant No.1 as surplus lands and surrendered the same in favour of the Government of Karnataka and retained remaining lands with himself which were mutated in the revenue records. That subsequently on 06.07.1990, defendant No.1 had executed a registered General Power of Attorney in favor of his brother Sri.Janardhanrao. That defendant No.1 along with his brother defendant No.2 executed several deeds of sale during the year 1992-93 in favor of prospective purchasers namely defendant Nos.6 to 13. That the said deeds of sale were illegal did not confer any share, right and interest upon defendant Nos.6 to 13
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 inasmuch as neither the defendant No.1 nor his brother Sri.Janardhanrao possess any right, title or interest enabling them to convey it in favour of different Nos.6 to
13.
5. The defendant No.1 never informed the plaintiff about the execution of the Will by Smt.Kamalamma. Defendant No.1 however misled the plaintiff stating that the suit properties are the family properties of the defendant No.1 and his family members. Plaintiff on completion of his education secured an employment and has been away from the home serving at different places. While defendant No.1 had taken the responsibility of looking after the properties, as such the plaintiff had no knowledge regarding the family affairs or with regard to execution the Will by Smt.Kamalamma. The mutation in the name of defendant No.1 in respect to suit schedule properties and alienation made by him thus illegal and not binding on the plaintiff.
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6. It is further contented that defendant No.1 purchased plot No.23 in Sy.No.8 of Biddapur Colony, NGO Layout, Gulbarga and constructed a house thereon over which defendant No.1 did not have absolute right, title or ownership. However, upon the instigation of defendant Nos.2 and 3, defendant No.1 has illegally executed a registered deed of gift on 29.04.2011 in favor of defendant Nos.4 and 5 making defendant No.3 as their guardian. The said deed of gift was illegal and not binding on the plaintiff.
7. That in the month of June 2011, the plaintiff came out to Gulbarga and heard rumors that the defendant Nos.1 and 2 denying plaintiff of his rights have stealthily executed illegal document of gift in favor of defendant Nos.4 and 5. Plaintiff thereafter made enquiries regarding the illegal actions undertaken by defendant Nos.1 to 5 in executing deeds of sale, obtaining illegal mutation etc., and delivering the possession. Plaintiff's confronted defendant Nos.1 and 2 with regard to the
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 transactions made by them to which defendant Nos.1 to 3 had responded that since the plaintiff did not have any child, there was a threat by the unwanted people laying hands on the properties of the plaintiff, constraining them to alienate the same.
8. It is further contended that the illegal actions of defendant Nos.1 and 2 have denied the title of the plaintiff over the suit properties and the request and the pleading of the plaintiff to undo the same have yielded no result. That the cause of action for the suit arose in the month of June, 2011. Immediately, thereafter plaintiff filed the present suit seeking for the relief as extracted hereinabove.
9. The written statements have been filed by defendant Nos.1, 2 and 6 to 13. The averments and allegations made in the plaint claiming plaintiff to be the owner of the properties based on the Will dated 10.10.1972 executed by Smt.Kamalamma has been vehemently denied by the defendants. It is contended that
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 Smt.Kamalamma passed away intestate. The defendant Nos.1 and 2 did not have knowledge of any Will executed by Smt.Kamalamma. The allegation of Smt.Yashodabai and Smt.Sharadabai being the legatees under the Will has been denied. The claim of the plaintiff being the owner of the suit properties is also denied. The allegation of defendant No.1 being in possession of the Will is specifically denied.
10. It is contended that upon the demise of Smt.Kamalamma, defendant No.1 and his brother Sri.Janardhanrao being her natural heirs succeeded to the suit schedule properties and accordingly, their names were entered into in the records of rights.
11. It is contended that in all the deeds of sale which were executed and registered by defendant Nos.1 and 2 in favor of other defendants, the plaintiff has joined as a consenting witness. As such the deeds of sale executed by defendant Nos.1 and 2 in favor of defendant Nos.6 to 13 are valid, effective and binding on the plaintiff.
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12. As regards the property at schedule (N) it is contended that the same is the self-acquired property of defendant No.1 and he was competent enough to execute deed of gift in favor of defendant Nos.3 and 4 and the plaintiff has no right to the said properties at schedule (N) and (E) and the suit in respect of the said properties was not maintainable.
13. The allegation of defendant No.1 being in possession of the Will with the duty and responsibility of looking after the properties are also denied. The recital in the Will of plaintiff being an adopted son of Smt.Kamalamma has been denied. On these grounds sought for dismissal of the suit.
14. The Trial court framed the following issues for its consideration :
1. Whether the plaintiff proves that, suit schedule (A) to (M) suit schedule properties are stri-dhana properties of Kamalamma @ Kamalabai W/o Seenappa @ Srinivas Rao ?
2. Whether the plaintiff proves that, Kamalamma @ Kamalabai was executed registered Will deed in
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 favour of him through document No.6/1972-73 dated 10.10.1972 ?
3. Whether the plaintiff proves that defendant No.1 in collusion of defendant No.2 have got created sale deed in favour of one Gejalappa S/o Balappa?
4. Whether the plaintiff proves that defendant No.1 has no title to execute registered sale deed?
5. Whether the plaintiff proves that, defendant No.1 was illegally executed registered gift deed in favour of defendants No.4 and 5?
6. Whether the plaintiff proves that, he has got half right in suit schedule (N) property?
7. Whether the defendants No.1 & 2 proves that, sale deeds were executed for family necessity?
8. Whether the defendant No.1 proves that, suit schedule (N) property is his self-acquired property?
9. Whether the defendants prove that, plaintiff has paid in-sufficient Court Fee ?
10. Whether the defendants prove that, suit is bad for non-joinder of necessary parties?
11. Whether the defendants No.6 to 8 and 12 prove that, they are bonafide purchasers for the value?
12. Whether the defendant No.9 to 11 and 13 prove that, the suit of the plaintiff is barred by the law of limitation?
13. Whether the plaintiff is entitled for relief of declaration, partition and declaration of sale deeds null and void?
14. What order or decree?
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15. The plaintiff examined himself as PW.1 and another witness by name Anuraj examined as PW.2 and exhibited 74 documents marked as Exhibit P.1 to P.74. On behalf of defendants, four witnesses have been examined as DW.1, DW.2, DW.3 and DW.4 and have exhibited 58 documents marked as Exhibit D.1 to D.58. On appreciation of evidence, the Trial Court answered Issue Nos.1, 8, 9, 11 and 12 in the affirmative and Issue Nos.2 to 7, 10 and 13 in the negative and consequently dismissed the suit of the plaintiff. Aggrieved with the same, the plaintiff is before this Court in the above appeal.
16. The learned counsel Sri N.B.Diwanji appearing for the plaintiff reiterating the grounds urged in the memorandum of appeal submits that the Trial Court was in error in holding that the plaintiff has not proved the Will without examining the attesting witnesses. He submits that two witnesses of the Will were the Advocates and both of them had passed away as such examining the said witnesses would not arise.
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17. He further submit that there is a reference of execution of Will by none other than said Smt.Kamalamma in a proceedings under the Land Reforms Act before the Land Tribunal as per Ex.P.1 to P.35 wherein said Smt.Kamalamma herself had admitted of she having executed the Will in favor of the plaintiff. Thus, he submits that the Trial Court has not adverted to this aspect of the matter while coming to the conclusion of plaintiff not proving the execution of the Will. He further submit that 'Will' being old document executed more than 30 years ago, a presumption of its genuineness as per Section 90 of the Indian Evidence Act ought to have been drawn by the Trial Court. That the Ex.P1 to P.35 being the Form No.11 filed by Smt.Kamalamma before the Land Tribunal are the public documents wherein Smt.Kamalamma had mentioned about she having executed the registered deed of Will, judicial notice of which ought to have been taken by the Trial Court. Thus, in the light of the aforesaid aspects of the matter, the finding of the Trial Court that the Will was not proved by the plaintiff was erroneous.
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18. As regards the finding of the Trial Court on the ground of limitation, he submits that the question of limitation would not arise inasmuch as the plaintiff learnt about the execution of Will the only in the year 2011, and soon thereafter filed the present suit without any lapse of time.
19. He further submits that the plaintiff affixed his signature as a witness to the deeds of sale on mere asking of his father the defendant No.1 in whom he had reposed confidence. It is only subsequently he learnt about the Will. Therefore execution of the sale deeds by defendant Nos.1 and 2 in favor of defendant Nos.6 to 13 making plaintiff as a witness cannot be held against the substantial interest of the plaintiff. Thus, he submits that Trial Court has lost sight of these material evidence placed on record and has proceeded to pass the impugned judgment and decree resulting in miscarriage of justice.
20. Sri A.M. Nagaral, learned counsel for respondent Nos.8(a) to 8(f) who are the purchasers
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 submits that respondent No.5 was a bonafide purchaser, who purchased 05 acres of land under deed of sale dated 20.12.1992 executed by defendant Nos.1 and 2 in his favor to which plaintiff himself was a consenting witness. Thus he submits that plaintiff being aware of the transactions has filed this false case claiming alleged rights based on a purported Will which has not been proved and rightly rejected by the Trial Court. He submits no illegality or irregularity can be found with the order passed by the Trial Court. Hence seeks for dismissal of the appeal.
21. Heard and perused the records.
22. The admitted facts of the matter are that the plaintiff is the son of defendant No.1 and Smt.Kamalamma was the mother of defendant No.1. There is also no dispute of the fact that the suit properties originally belonged to Smt.Kamalamma. Smt.Kamalamma had two sons, namely Jagannathrao, the defendant No.1 and Sri.Janardanrao, who since passed away is represented by his legal representatives namely defendant Nos.14 to 20.
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 There is also no dispute to the fact that in all the deeds of sale executed by defendant Nos. 1 and 2, declaration in respect of which is sought as noted above, plaintiff has joined execution and registration of the same as a consenting witness. These deeds of sale have been executed during the year 1991 to 1994. The present suit has been filed in the year 2011. The whole basis of the suit of the plaintiff is the purported execution of Will dated 10.10.1972 by his grandmother - Smt.Kamalamma bequeathing the property in his favour and others as claimed in the plaint.
23. In the light of the above, points that arises for consideration is as follows:
1) Whether the plaintiff proves execution of Will dated 10.10.1972 by his grand mother Smt.Kamalamma bequeathing the suit schedule properties, thereby he becoming absolute owner as claimed by him ?
2) Whether the plaintiff proves that the execution of sale deeds by defendant No.1 and his brother Sri Janardhan Rao in favour of defendant Nos.6 to 13 are illegal and not binding on him ?
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3) Whether the plaintiff proves that execution of deed of gift dated 29.04.2011 by defendant No.1 in favour of defendant Nos.4 and 5 is illegal and not binding on the plaintiff ?
4) Whether the plaintiff is entitled for the partition and separate possession of ½ share in item (N) of suit schedule properties ?
Regarding Point No.1 :
24. Plaintiff being the propounder of Will purportedly executed by Smt.Kamalamma as per Ex.P.1 is required to discharge his burden as contemplated under the provisions of law.
25. At the out set it is necessary to note the circumstances under which the plaintiff purportedly learnt about the existence of Will. At paragraph 21 of the plaint, the plaintiff has pleaded that in the month of June 2011, he came over to Gulbarga and heard rumors that defendant Nos.1 and 2 to deny the plaintiff of his rights have stealthily executed an illegal document of gift in favor of defendant Nos.4 and 5. This was the beginning of enquiry by the plaintiff of the shoddy acts of defendant
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 Nos.1 and 2 by keeping plaintiff uninformed and fact of Will-deed, illegal mutations, execution of General Power of Attorney and the alleged sales without any consideration and without any delivery of possession and misusing of the yields generated from the suit land came to light. Equipped with all the documents, the plaintiff confronted the defendant Nos.1 and 2 and sought to know the reasons for all these acts. The plaintiff was told by the defendants No.1 to 3 that they had to do all these as the plaintiff was without any issues and there was the threat of unwanted people laying hands on the properties of the plaintiff. The plaintiff called upon the defendant Nos.1 and 2 to undo all these wrongs, but they have flatly refused to heed to the request of the plaintiff. They have by their actions denied the title of the plaintiff over the suit schedule properties at (A) to (M). Even the request of the plaintiff for canceling of the gift deed and for partition of the suit property schedule-(N) was also turned down by the defendant Nos.1 to 3. That in the month of August 2011, the plaintiff along with family elders again
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 approached the defendants No.1 to 3 to settle the disputes but of no avail. Hence, the plaintiff left with no other alternative is constrained to file this suit.
26. Except the above, there is no other pleading in describing the facts and circumstances under which the plaintiff learnt about the execution of Will. That apart, there is no whisper in the plaint as to how the plaintiff obtained the copy of the Will except stating the Will is in possession of his father - defendant No.1, no attempt is made by the plaintiff to secure the said Will and to present before the Court. While defendant No.1 in the written statement has categorically denied the very execution of the Will and he being in possession of any such Will.
27. Perusal of certified copy of Ex.P.1 would indicate that the same has been obtained by the plaintiff during July 2011 and the suit has been filed during September 2011.
28. Since the plaintiff has vehemently contended that the original of the Will is in the possession of his
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 father defendant No.1, he ought to have complied with the requirement of Section 65(a) of the Evidence Act before producing the secondary evidence of the said Will. In other words, the plaintiff ought to have caused issuance of a notice as envisaged under Section 66 of the Evidence Act. No such effort is made by the plaintiff by issuing a notice to the defendant No.1.
29. The case of the plaintiff is that the said Will was executed by said Smt.Kamalamma in presence of two witnesses who were the practicing Lawyers and they were not available as they have passed away. Relevant to extract Section 63 of the Indian Succession Act and Sections 68 and 69 of the Evidence Act.
a) Section 63 of the Indian Succession Act provides as under:-
"63. Execution of unprivileged Wills.-- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
b) Section 68 of the Indian Evidence Act provides as under :
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:2
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]"
c) Section 69 of the Evidence Act provides as under :-
"69. Proof where no attesting witness found. - If no such attesting witness can be found, or if the
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 document purports to have been executed in the [United Kingdom], it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person."
30. Thus the initial burden of proving the execution of Will is on the plaintiff which requires to be discharged in terms of the provisions of the law extracted hereinabove. The aforesaid provision also provides that if in the event of non availability of the attesting witnesses, the plaintiff is required to prove by leading evidence of those persons who are familiar with the signature of the persons who have attested the Will. In the instant case no attempt has been made by the plaintiff except stating that the two attesting witnesses are no more.
31. Section 69 of the Evidence Act as noted above mandates that if no attesting witness can be found it must be proved that the attestation of one of the witness atleast is in the handwriting and the signature of a person executing the document in the handwriting of that person. This mode of proof is contemplated under Section 47 of
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 the Evidence Act. Plaintiff has not produced or examined any witness in this regard either. However, an application has been filed by the plaintiff under Section 71 of the Evidence Act in I.A.No.21 before the Trial Court specifically contending therein that the attesting witnesses are dead, the said application has been rejected by the Trial Court. Section 71 of the Evidence Act provides an exception to the general stringent rule of proof required under Section 68 of the Evidence Act only if the attesting witness denies or does not recollect the execution of the document. Thus, when the plaintiff has not discharged the burden of proof of execution of the Will as contemplated under the aforesaid provisions, he cannot plead any grouse regarding the same.
32. Yet another aspect of the matter requires to be noted is Yeshodabai - the sister of plaintiff was impleaded by the plaintiff as defendant No.8 by filing an application which was allowed on 21.06.2014. She has been examined as DW.2 and she has supported the case of the plaintiff. In
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 her affidavit evidence in para 2 she has deposed as under:-
"¸ÀzjÀ PÉù£À°è£À zÁªÁ d«ÄãÀÄUÀ¼ÀÄ £ÀªÀÄä CfÓAiÀiÁzÀ ¢ªÀAUÀvÀ PÀªÀįÁ¨Á¬Ä EªÀ¼À D¹ÛU½ À gÀÄvÀÛª.É CªÀ½UÉ ¸Àzj À D¹ÛU¼À ÀÄ CªÀ¼À CPÀ̼ÁzÀ ¹ÃvÀªÀÄä EªÀ¼À UÀAqÀ£À ªÀÄ£ÉAiÀÄ D¹ÛU¼ À ÀÄ, ¸Àzj À ¹ÃvÀªÀÄä½UÉ AiÀiÁgÀÄ ªÁgÀ¸ÀÄzÁgÀgÀÄ E®èzÀ PÁgÀt vÀ£Àß fëvÁªÀ¢A ü iÀÄ°è PÀªÀÄ®ªÀÄä£À ºÉ¸j À ¤AzÀ ªÀiÁr¹gÀÄvÁÛg.É ......
¸ÀzjÀ zÁªÁ zÁR®Ä ªÀiÁrzÀ £ÀAvÀgÀ £À£Àß ¸ÀtÚ vÀªÀÄä D£ÀAzÀ £À£U À É ¸Àzj À ¢ªÀAUÀvÀ PÀªÀÄ®ªÀÄä EªÀ¼ÀÄ §gÉz À ÀÄPÉÆlÖ ªÀÄÈvÀÄå ¥ÀvzÀæ À §UÉÎ «ªÀj¹zÁUÀ £À£U À É ªÀÄÈvÀÄå ¥Àvz Àæ À §UÉÎ UÉÆvÁÛVgÀÄvÀÛz.É vÀz£À A À vÀgÀ £Á£ÀÄ £ÀªÀÄä ¸ÉÆÃzÀgÀ ªÀiÁªÀ£ÁzÀ ºÁUÀÆ ¸Àzj À ªÀÄÈvÀÄå ¥Àvz Àæ À ¸ÁPÀëzÁgÀg° À è M§âgÁzÀ ¢ªÀAUÀvÀ ®QëöäÃPÁAvÀgÁªÀ C£À¥ÀÄgÀ, £ÁåAiÀĪÁ¢UÀ¼ÀÄ, EªÀgÀ §½ «ZÁgÀ ªÀiÁrzÁUÀ CªÀgÀÄ ¸Àzj À ªÀÄÈvÀÄå ¥Àvª Àæ £ À ÀÄß £À£Àß CfÓ PÀªÀįÁ¨Á¬Ä EªÀ¼ÀÄ §gÀzÀÄPÉÆnÖzÀÄÝ ¤d«gÀÄvÀÛzÉ ªÀÄvÀÄÛ ¸Àzj À PÀªÀįÁ¨Á¬ÄAiÀÄ£ÀÄß ¥Àw æ ªÁ¢ ¸ÀASÉå MAzÀ£A É iÀĪÀgÁzÀ £À£Àß vÀAzÉAiÀÄÄ PÀgz É ÀÄPÉÆAqÀÄ §AzÀÄ ¸Àzj À ªÀÄÈvÀÄå ¥Àvª Àæ £ À ÀÄß §gɬĹ, £ÉÆAzÀt ªÀiÁrzÀÄÝ EgÀÄvÀÛz.É £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß E£ÉÆߧ⠫ÄvÀæ ªÀQîgÀÄ ¸ÁQëAiÀiÁV ¸À» ªÀiÁrgÀÄvÉÛÃªÉ ªÀÄvÀÄÛ ¸Àzj À £À£Àß E£ÉÆߧ⠫ÄvÀæ wÃjPÉÆArgÀÄvÁÛ£É JAzÀÄ w½¹gÀÄvÁÛg.É "
33. The aforesaid deposition of DW.2 runs contrary to the case of the plaintiff. In that, DW.2 claimed to have met Laxmikanthrao, one of the attesting witnesses to the Will. Even there is no particular with regard to the date, time of meeting the said witness and his address is furnished.
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016
34. Two things emerge from the above. Firstly, if the case of the plaintiff is that no attesting witnesses of the Will are available as they are dead, he has not made any attempt to prove the Will as required under Section 69 of the Evidence Act. Secondly, if the deposition of DW.2 who claimed to have met and enquired with one of the witnesses to the Will is to be accepted, the claim of the plaintiff of both the witnesses having been dead becomes questionable. Thus, giving rise to serious suspicion and doubt about the very theory of plaintiff propounding the execution of the Will.
35. Though plaintiff has sought to examine PW.2 who claims to be the Registrar, at the time when the said Will was executed, the said witness in the cross- examination has categorically admitted the Will in question was never executed in his presence. Necessary also to be note that the Will is dated 10.10.1972 purported to have been registered before the Sub-Registrar of Yadgir. PW.2 when he is examined on 07.04.2014 was just about 29
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 years. Purpose of examining him to prove execution of Will of 10.10.1972 is of no consequences. There has been no compliance of any nature whatsoever let alone substantial compliance of requirement of law with regard to proof of Will as noted hereinabove.
36. In the light of aforesaid factual and legal aspects of the matter, the Trial Court is justified in holding that the plaintiff has failed to prove the execution of Will.
37. The reliance is placed on by the learned counsel for the appellant on Ex.P.31 and P.32 - Form No.11 purportedly filed by one Smt.Sharadabai daughter of Smt.Kamalamma to contend that at an undisputed point of time there was an admission of execution of Will bequeathing the properties in favour of the plaintiff, his sisters and Smt.Sharadabai herself and that it is sufficient enough to prove the existence of Will also cannot be countenanced. Ex.P.32 is Form No.11 in which there is an endorsement which read as under :-
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 "The lands specified in Annexure 'A' from Sl.No.1 to 12 belonged to owned by late Kammalamma W/o Seenappa, resident of Nasalwai, who is the natural mother of the declarant and the grandmother of other joint owners. The declarant and other three joint owners equally partitioned between themselves and enjoying separately individual area of each owner is within ceiling area and they intend to retain the same. They inherited the said property on basis of the registered Will after the death of Kamalamma."
38. The aforesaid endorsement found at Ex.P12 is not corroborated with any other documentary evidence. Going by the language employed in the said endorsement, it appears that based on certain Will, item Nos.1 to 12 of the properties have been equally divided between the declarant and the joint owners and they have been in possession of the said portions allotted to them. The said endorsement is as vague as it could be, in that there is neither any mention with regard to the particulars of the Will nor the names of the legatees. Even if the said document is to be considered the same runs contrary to the pleading of the plaintiff, in that while the plaintiff claims to be the absolute owner of all the properties by virtue of the purported Will dated 10.10.1972, the
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 endorsement on the other-hand, refers to properties having been equally distributed amongst the grandchildren of Kamalamma. Plaintiff in the pleading has specifically averred that a life interest was created in favor of Sharadabai and a provision was made for the maintenance of his two sisters. If that is the case of the plaintiff, the entire property would absolutely belong to the plaintiff and there is no question of partition having taken place, equally dividing the property, as mentioned in the above endorsement.
39. Another aspect of the matter to be seen is Exs.P31 and 32 are dated 31.12.1974. The Will is allegedly executed on 10.10.1972 and Kamalamma stated to have passed away on December-1972. Plaintiff admittedly was aged just about five years at the time when the Will was allegedly executed. The endorsement found at Ex.P.32 does not provide any indication as to who represented the interest of the plaintiff and his sisters, (though no names are given in the endorsement) at the time of partition as
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 referred to therein. Further, no other material evidence is produced to show that the said partition was given effect to by entering the names of the persons indicated in the endorsement in any of the revenue records. As such reliance placed by learned counsel for the appellant on the said documents as per Ex.P31 and Ex.P32 are also of no avail. For the aforesaid reasons and analysis Point No.1 is answered in the negative.
Regarding Point No.2 :
40. While answering point No.1 as above this court has come to the conclusion that the plaintiff has failed to prove the execution of Will dated 10.10.1972 by his grand mother - Smt.Kamalamma bequeathing the suit properties in his favour. As such, plaintiff cannot claim to have had exclusive right, title and ownership over the suit properties.
41. That apart, admittedly the plaintiff has joined execution of the deeds of sale as a consenting witness.
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 Plaintiff was thus completely aware of his rights and was consenting for execution and registration of deeds of sale conveying rights in favor of the prospective purchasers. Plaintiff claims himself to be a Government employee working as an officer in the Karnataka State Financial Corporation. It cannot be expected that the plaintiff was completely unaware as to his joining the execution of the deeds of sale as consenting witness and later to turn around after lapse of 18 years to contend that he was innocent and naïve, unaware of the worldly affairs to be misled by his father. As already noted above, in the absence of any specific pleading with regard to the source of information, the said contention of the plaintiff cannot be accepted. The Trial Court is justified in coming to the conclusion that the suit filed by the plaintiff after lapse of 17 to 18 years was hit by law of limitation. Particularly, in the absence of any reasons provided with the plaintiff in the plaint. For the aforesaid reasons and analysis Point No.2 is answered in the negative.
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 Regarding Point No.3 :
42. Plaintiff has contended that the defendant No.1 from the yield of suit lands described at schedule (A) to (M) and from the savings had purchased plot No.23 in Sy.No.8 of Biddapur Colony, NGO Layout, Gulbarga and constructed the house thereon which is described in the Schedule item No.(N). That on enquiry, he learnt that the defendant No.1 had executed the deed of gift dated 29.04.2011 in favour of defendant Nos.4 and 5 by making defendant No.3 as their guardian. That since the said property in item No.(N) was purchased from the proceeds of the suit property item Nos.(A) and (M), defendant No.1 had no exclusive right to gift the property. The Trial Court while answering issue No.5 has held that since the plaintiff had failed to prove his exclusive right over suit item No.(A) to (M), his contention that defendant No.1 had acquired item No.(N) of the suit schedule property from the proceeds of suit item No.(A) to (M) was not acceptable. This Court do not see any reason to differ with
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NC: 2024:KHC-K:7973 RFA No. 200033 of 2016 the said reasoning of the Trial Court. Further in view of the answers to the points No.1 and 2 given by this Court hereinabove, the point No.3 is answered in the negative. Regarding point No.4 :
43. In view of the aforesaid reasons and analysis by this Court while answering point Nos.1 to 3, the claim of the plaintiff of he being entitled to partition and separate possession of ½ share of the suit schedule properties is untenable. The point No.4 is answered accordingly.
44. Resultantly, the appeal is dismissed. The judgment and decree dated 16.02.2016 passed in O.S.No.34/2011 on the file of the Senior Civil Judge, Yadgir is confirmed.
Sd/-
(M.G.S.KAMAL) JUDGE SN/KBM List No.: 1 Sl No.: 1 CT:PK