Karnataka High Court
Jyothi vs Smt. Parvathamma on 15 April, 2024
-1-
NC: 2024:KHC:10024
RSA No. 250 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 250 OF 2013 (DEC)
BETWEEN:
JYOTHI
AGED ABOUT 18 YEARS
D/O NAGARAJAPPA MAVALERA
R/O ANDIGE VILLAGE
KASABA HOBLI, SORAB TALUK
SHIMOGA DISTRICT - 577 021.
...APPELLANT
(BY SRI. H.S. SURESHAPPA GOWDA, ADVOCATE)
AND:
1. SMT. PARVATHAMMA
AGED ABOUT 56 YEARS
W/O HANUMANTHAPPA DATTI
OCC: HOUSE HOLD WORK
Digitally signed by KORLAHALLI
BHARATHIDEVIKRISHNACHARYA R/O GUDAVI VILLAGE
Location: HIGH COURT OF
KARNATAKA SORAB TALUK
SHIMOGA DISTRICT - 577 021
NOW RESIDING AT
KADARAMANDALAGI VILLAGE
BYADAGI TALUK
HAVERI DISTRICT - 581 019
2. MANJAPPA
AGED ABOUT 41 YEARS
S/O BISTAPPA DATTI
OCC: AGRICULTURE
R/O GUDAVI VILLAGE
-2-
NC: 2024:KHC:10024
RSA No. 250 of 2013
SORAB TALUK
SHIMOGA DIST
...RESPONDENTS
(BY SRI. H.S. LINGARAJ, ADVOCATE FOR R1
SRI. H.S. KALYAN KUMAR, ADVOCATE FOR R2)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 17.10.2012 PASSED IN
R.A.NO.14/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE &
JMFC., SORABA, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DTD 11.1.2012 PASSED IN
OS.NO.12/2008 ON THE FILE OF THE CIVIL JUDGE & JMFC.,
SORABA.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular second appeal is filed by the appellant challenging the judgment and decree dated 17.10.2012 passed in R.A.No.14/2012 by the Civil Judge, (Sr.Dn.) and JMFC, Soraba, confirming the judgment and decree dated 11.01.2012 passed in O.S.No.12/2008 by the Civil Judge, (Jr.Dn.) and JMFC, Soraba.
2. For the sake of convenience, parties are referred to as per their ranking before the trial court. The appellant is defendant No.2, respondent No.1 is the plaintiff, respondent No.2 is defendant No.1. -3-
NC: 2024:KHC:10024 RSA No. 250 of 2013
3. The brief facts leading rise to filing of this appeal are as under:
The plaintiff filed a suit against the defendants for the relief of declaration, declaring the plaintiff as the sole class-I legal heir of the deceased Hanumanthappa S/o Bishtappa Datti. It is the case of the plaintiff that, she is the legally wedded wife of deceased Hanumanthappa, who died on 29.01.2006. There were no issues to them. Hence, she became a class-I legal heir to her husband as there were no other legal heirs for claiming under class-I heir. Further, the plaintiff putforth the case that the said Hanumanthappa had one brother who is the defendant No.1 in the suit and two sisters by name Seethamma and Nagamma who were married and residing in their respective husband's house. It is contended that defendant No.2 is noway concerned to the deceased Hanumanthappa's family, with an ulterior motive of knocking the property of the said Hanumanthappa is asserting to be the legal successor to the estate of the -4- NC: 2024:KHC:10024 RSA No. 250 of 2013 deceased Hanumanthappa. The defendant Nos.1 and 2 were in no way will become the class-I legal heirs and hence plaintiff filed a suit for declaration that she is the class-I heir of the deceased Hanumanthappa.
4. Defendant No.1 filed the written statement denying the relationship of the plaintiff with the deceased Hanumanthappa. Further, it is contended that the plaintiff is not the class-I legal heir as she was not married to said Hanumanthappa. It is contended that defendant No.1 and the deceased Hanumanthappa are the sons of Bishtappa and Devamma. The suit schedule properties are the self- acquired properties and there was a partition between Hanumanthappa and defendant No.1. Some 5 items of landed properties were allotted to the share of the deceased Hanumanthappa. Further, defendant No.2 asserted that the deceased Hanumanthappa was in possession and enjoyment of the properties which were fallen to his share. Hanumanthappa and his wife by name Karibasamma had no issues and they have fostered the -5- NC: 2024:KHC:10024 RSA No. 250 of 2013 defendant No.2 and taken her as their daughter. Hanumanthappa and his wife Karibasamma nourished and developed the defendant No.2 as their own daughter. It is submitted that in the school record, the father name of defendant No.2 is shown as Hanumanthappa. It is contended that Hanumanthappa had executed the Will dated 28.12.2005 bequeathing his self-acquired properties in favour of defendant No.2. Hence, defendant No.2 being the legal heir succeeded to the properties of the deceased Hanumanthappa. It is contended that plaintiff has moved before the Tahsildar for getting her name entered in the revenue records by claiming as a legal heir of deceased Hanumanthappa. It is contended that the plaintiff is not the wife of deceased Hanumanthappa and not his legal heir. Hence on these grounds, prayed to dismiss the suit.
5. The Trial Court, on the basis of the above said pleadings, framed the following issues:
1. Whether the plaintiff proves to be the exclusive and only class-I legal heir and nearest relative of the deceased Hanumanthappa S/o Bisthappa Datti?-6-
NC: 2024:KHC:10024 RSA No. 250 of 2013
2. If so, whether the plaintiff is entitled to the relief of declaration to that effect?
3. Whether the defendants prove the suit is bad for non-joinder of the necessary parties as contended in the written statement?
4. What decree or order?
Additional Issue:
"Whether defendant No.2 proves that, the late Hanumanthappa Datti S/o Bistappa executed the registered Will dated 28.12.2005 in favour of the 2nd defendant when he was in sound disposing state of mind?"
6. The plaintiff in order to prove her case examined herself as PW.1 and examined one witness as PW.2 and got marked 14 documents as Exs.P1 to 14. In rebuttal, the defendant examined 6 witnesses as DWs.1 to 6 and got marked 3 documents as Exs.D1 to 3. The trial court after recording the evidence, on hearing the arguments of the learned counsel for the parties, and on the assessment of oral and documentary evidence and decreed the suit of the plaintiff and held that the plaintiff is the legally wedded wife of deceased Hanumanthappa Datti and also held that she is the class-I heir of the deceased -7- NC: 2024:KHC:10024 RSA No. 250 of 2013 Hanumanthappa and held that the Will alleged to have been executed by Hanumanthappa in favour of defendant No.2 is under the influence of intoxication of liquor and without the sound dispossessing state of mind of the Hanumanthappa in favour of defendant No.2, consequently, decreed the suit.
7. Defendant No.2, aggrieved by the judgment and decree passed in the aforesaid suit preferred an appeal in R.A.No.14/12 on the file of Civil Judge, (Sr. Dn.), Soraba.
8. The First Appellate Court, after hearing the parties, has framed the following points for consideration:
1. ªÁ¢AiÀÄÄ DPÉ ªÀÄÈvÀ ºÀ£ÀĪÀÄAvÀ¥Àà zÀnÖ gÀªÀgÀÄ PÁ£ÀÆ£ÀÄ ¸ÀªÀÄävÀ ºÉAqÀw DVzÀݼÀÄ ªÀÄvÀÄÛ D ªÀÄÆ®PÀ CªÀ£À KPÉÊPÀ ªÉÆzÀ®£É zÀeÉðAiÀÄ ªÁgÀ¸ÀÄzÁgÀ¼ÀÄ JAzÀÄ ¸Á©ÃvÀÄ ªÀiÁrzÁÝ£ÉAiÉÄÃ?
2. 2£Éà ¥ÀæwªÁ¢/ªÉÄîä£À«zÁgÀ¼ÀÄ ªÀÄÈvÀ ºÀ£ÀĪÀÄAvÀ¥Àà zÀnÖ ¢- 28.12.2005 gÀAzÀÄ ¸Àé EZÉѬÄAzÀ ¥ÀæeÁÕ ¥ÀƪÀðPÀªÁV ¸ÀévÀÛ£ÀÄß «¯Éà ªÀiÁqÀĪÀ zÉÊ»PÀ ªÀÄvÀÄÛ ªÀiÁ£À¹PÀ ¸ÁªÀÄxÀåð ºÉÆA¢ £ÉÆÃAzÁ¬ÄvÀ ªÀÄgÀt ±Á¸À£ÀªÀ£ÀÄß DPÉ ºÉ¸ÀjUÉ §gÉ¢zÁÝ£É JAzÀÄ ¸ÁFvÀÄ ªÀiÁrzÁݼÉAiÉÄÃ?.
3. CªÀ±ÀåPÀ ¥ÀPÀëPÁgÀgÀ£ÀÄß zÁªÉAiÀÄ°è ¸ÉÃj¹®èzÉà EgÀĪÀ PÁgÀt zÁªÉ HfðvÀªÁUÀĪÀÅ¢®èªÉÃ?-8-
NC: 2024:KHC:10024 RSA No. 250 of 2013
4. zÁªÉAiÀÄ°è PÉÆÃjgÀĪÀ ¥ÀjºÁgÀUÀ¼À£ÀÄß ¥ÀqÉAiÀÄ®Ä ªÁ¢ CºÀð¼É?
5. C¢ü «ZÁgÀuÉ £ÁåAiÀiÁ®AiÀÄzÀ wÃ¥ÀÄð ªÀÄvÀÄÛ DeÁÕ¦ÛAiÀÄ£ÀÄß gÀzÀÄÝ ¥Àr¸ÀĪÀ CxÀªÁ ªÀiÁ¥Àðr¸ÀĪÀ CªÀ±ÀåPÀvÉ EzÉAiÉÄÃ?
6. AiÀiÁªÀ DzÉñÀ?.
9. The First appellate court on the re-assessment of oral and documentary evidence answered point No.1 and 4 in the affirmative, point Nos.2, 3 and 5 in the negative. Point No.6 as per the final order. The First Appellate court dismissed the appeal confirming the judgment and decree passed by the trial court.
10. The defendant No.2, aggrieved by the judgments and decree passed by the courts below, has filed this Regular second appeal.
11. Heard the learned counsel for defendant No.2 and learned counsel for the plaintiff.
12. Learned counsel for the defendant No.2 submits that defendant No.2 is the class -I heir of the deceased -9- NC: 2024:KHC:10024 RSA No. 250 of 2013 Hanumanthappa. He submits that the deceased Hanumanthappa bequeathed the suit schedule properties in favour of defendant No.2 by executing a Will. He submits that in order to prove the execution of a Will the defendant No.2 had examined the attesting witness as required under Section 68 of Indian Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925. He submits that the said Will deed is a registered and there is a presumption in regard to the registration. Courts below have not drawn presumption in regard to the execution of the Will. Hence on these grounds, he prays to allow the appeal.
13. Per contra, learned counsel for the plaintiff submits that the plaintiff is the legally wedded wife of the deceased Hanumanthappa. Hanumanthappa had no right to execute the alleged Will in favour of defendant No.2 bequeathing the suit schedule properties. He also submits that the said Will is surrounded by suspicious circumstances. He submits that defendant No.2 has not
- 10 -
NC: 2024:KHC:10024 RSA No. 250 of 2013 removed the suspicious circumstances. The courts below were justified in passing the impugned judgments. Hence, on these grounds he prays to dismiss the appeal.
14. Perused the records and considered the submissions of the learned counsel for the parties.
15. This court vide order dated 03.09.2014, has admitted the appeal on the following substantial question of law :
1. Whether the courts below are justified in coming to the conclusion that the registered Will Ex.D2 dated 28.12.2005 came to be executed under the influence of alcohol and not with free and sound disposing state of mind of the executor Hanumanthappa Datti?
2. Whether the courts below are justified in disbelieving the evidence of the attesters of the will only on the ground that the deceased Hanumanthappa Datti (executor of the Will) was allegedly consuming a liquor (particularly, when no other material is found to show that the will was executed in not a fit and sound disposing statement of mind)?
16. Substantial questions of Law Nos.1 and 2:
As these questions are interlinked, they are taken together for common discussion in order to avoid repetition of facts.
- 11 -
NC: 2024:KHC:10024 RSA No. 250 of 2013 The plaintiff in order to substantiate her case examined herself as PW.1 and she has reiterated the plaint averments in the examination-in-chief and produced the documents to show that said properties were owned and possessed by deceased Hanumanthappa and in order to prove her relationship, she also examined one witness as PW.2. Though the defendant No.2, has denied the relationship of plaintiff with deceased Hanumanthappa, the plaintiff examined PW.2 in order to establish her relationship with deceased Hanumanthappa. Further, nothing has been elicited from the mouth of these witnesses i.e., PWs.1 and 2. Further, the defence of the defendant No.2 that she being the foster daughter of deceased Hanumanthappa, the deceased Hanumanthappa out of love and affection has bequeathed the suit schedule properties in her favour by executing the registered Will dated 28.12.2005. In order to prove the Will, the defendant No.2 examined attesting witnesses DWs.4 to 6. From the perusal of the evidence of DWs.4 to 6, it discloses that deceased Hanumanthappa had a habit of
- 12 -
NC: 2024:KHC:10024 RSA No. 250 of 2013 having alcohol and the said Will was executed when he was in intoxication mind. The burden of proving the execution of Will is on the defendant No.2 and the defendant No.2 has failed to establish the execution of a Will deed. Though the said Will deed is registered, the burden is on the defendant to prove the execution of Will. In order to consider the case in hand, it is necessary to know the essential requirements in all to prove the Will under Section 68 of the Indian Evidence act, 1872, which reads 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.
And Section 63 of the Indian succession Act, 1925 prescribes the mode and method of proving the Will, which reads as under:
- 13 -
NC: 2024:KHC:10024 RSA No. 250 of 2013
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.(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.
- 14 -
NC: 2024:KHC:10024 RSA No. 250 of 2013 It would be also necessary to take a note of Section 71 of the Indian Evidence Act, 1872, which reads as under:
71. Proof when attesting witness denies the execution.
If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
17. It is well settled that mere registration would not sanctify a document by attaching to it an irrebuttable presumption of genuineness. The Hon'ble Apex Court in the case of DHANI RAM (D) THR. LRS. VS SHIV SINGH IN CIVIL APPEAL NO.8172/2009 disposed of on 06.10.2023 held that mere registration would not sanctify a document by attaching to it an irrebuttable presumption of the genuineness. The plaintiff has denied the execution of Will by Hanumanthappa in favour of defendant No.2. Further, defendant No.2 has failed to establish that the Will was read over and explained to Hanumanthappa and Hanumanthappa after having understood the contents of
- 15 -
NC: 2024:KHC:10024 RSA No. 250 of 2013 the Will, has affixed his signature. In order to prove the validity and execution of a Will, the court has to consider the two aspects. Firstly, Will is executed by the testator and secondly it was a last Will executed by him and further it is not required to prove with mathematical accuracy, however the test of satisfaction of the prudent mind has to be applied.
18. A will is required to fulfill all the formalities required under Section 63 of the Indian Succession Act i.e., (a) the testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a will. (2) It is mandatory to get attested by two or more witnesses, no particular form of attestation is necessary (3) Each of the attesting witness must have seen the testator signed or affix his mark to the will or some other person signing the Will in the presence and by the direction of the testator or is received by the testator
- 16 -
NC: 2024:KHC:10024 RSA No. 250 of 2013 as a personal acknowledgment of such signatures. (4) each of the attesting witnesses shall sign the will in the presence of the testator. However, the presence of all the witnesses at the same time is not required. For the purpose of proving the execution of a Will atleast one of the attesting witness who is alive, subject to the process of the court and capable of giving evidence shall be examined. Attesting witness should speak not only about the testator signature, but also that each of the attesting witness had signed the Will in the presence of the testator. If one of the attesting witness can prove the execution of Will and the examination of other attesting witness can be dispensed with.
19. When one attesting witness examined to prove the Will, fails to prove due execution then the other available witness has to be found to supplement his evidence. Whenever there exists a suspicion to the execution of Will, it is the responsibility of the propounder to rectify all legitimate suspicion before it can be accepted
- 17 -
NC: 2024:KHC:10024 RSA No. 250 of 2013 as the testator's last will. In such cases, the initial owner of the propounder becomes heavier. The test of judicial consign has been devolved for dealing cases where the execution of cases is surrounded by suspicious circumstances. It requires to consider the factor such as awareness of the testator as to the content as well as consequences, nature and effect of dispossessions in the Will, sound and certain and dispossessing state of mind and memory of the testator at the time of execution, testator executed the Will while acting on his own free will.
20. One who alleges fraud, coercion, undue influence etc., has to prove the same. However, even in the absence of such allegation if there are circumstances giving raise to the doubt then it becomes the duty of the propounder to dispense such suspicious circumstances by giving cogent and convincing explanation.
21. Suspicious circumstances not merely fantasy of doubting mind. Whether particular features would qualify as a suspicious would depend on the fact and
- 18 -
NC: 2024:KHC:10024 RSA No. 250 of 2013 circumstances of each case. Any circumstances raising suspicious, legitimate doubt in the nature would qualify as the suspicious circumstances for example shaky signature, a feeble mind, unfair and unjust dispossession of the property , the propounder himself taking a leading part with the making of will under which he receives the substantial benefits. As pointed out that the defendant No.2 has failed to prove the execution of a Will alleged to have been executed by Hanumanthappa (testator) in favour of defendant No.2 (propounder) bequeathing the suit schedule property. Further, the Will is surrounded by suspicious circumstances. From the perusal of the record, deceased Hanumanthappa has not bequeathed any properties in favour of a plaintiff as she being a legally wedded wife and further plaintiff also led the evidence that the deceased Hanumantappa had a habit of consuming liquor and defendant No.2 taking advantage of intoxication of the Hanumanthappa, as he was under the influence of alcohol has taken the signatures on the papers and got the alleged Will created. In view of the above
- 19 -
NC: 2024:KHC:10024 RSA No. 250 of 2013 discussion, I do not find any error in the impugned judgments and hence I answer both the substantial questions of law in the affirmative.
22. In view of the above discussion, I proceed to pass the following:
ORDER The appeal is dismissed.
The judgments and decree passed by the courts below are hereby confirmed.
No order as to the costs.
Sd/-
JUDGE sks