Karnataka High Court
Pramod S/O Ishwar Naik vs Nagarathna W/O Manjunath Rao on 22 September, 2022
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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RSA No. 100484 of 2020
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 22ND DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
REGULAR SECOND APPEAL NO. 100484 OF 2020 (DEC-)
BETWEEN:
SRI PRAMOD S/O ISHWAR NAIK,
AGED ABOUT 31 YEARS,
R/O: BASTI KAIKINI VILLAGE
TQ BHATKAL, DIST: U.K.-581320.
...APPELLANT
(BY SRI S.G.KADADAKATTI AND SRI LINGESH V.KATTEMANE,
ADVOCATES)
AND:
1. NAGARATHNA W/O. MANJUNATH RAO,
AGED ABOUT 61 YEARS,
R/O: SHIRALI, GUDIHITLU,
TQ: BHATKAL, DIST: U.K-581320.
2. SRI. GAJANAN S/O RAMAKRISHNA SHET,
AGED ABOUT 65 YEARS,
R/O: MAHALASA JEWELERS
JAIPURA, TQ: KOPPA,
DIST: CHIKKAMAGALUR-577401.
SRI UDAY S/O RAMAKRISHNA SHET,
SINCE DECEASED BY HIS LRS.
3. JAYA W/O. UDAY SHET,
AGED ABOUT 50 YEARS
R/O: KELAGINURU, KASARAGODU
TQ: HONAVAR, DIST: UK-581334.
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RSA No. 100484 of 2020
4. GANESH S/O VITHAL SHET
AGED ABOUT 44 YEARS
R/O: JALINAGAR, 2ND MAIN
1ST CROSS, DAVANAGERE-577002.
5. RAJESH S/O. VITHAL SHET,
AGED ABOUT 41 YEARS
R/O: JALINAGAR, 2ND MAIN,
1ST CROSS, DAVANAGERE-577002.
6. ARCHANA D/O. BITHAL SHET,
AGED ABOUT 39 YEARS,
R/O: JALINAGAR, 2ND MAIN,
1ST CROSS, DAVANAGERE-577002.
...RESPONDENTS
THIS R.S.A. IS FILED U/SEC.100 OF C.P.C. PRAYING TO
SET ASIDE JUDGMENT AND DECREE DATED 13.02.2020
PASSED IN R.A.NO.9/2019 BY SENIOR CIVIL JUDGE, BHATKAL
BY REVERSING JUDGMENT AND DECREE DATED 18.01.2019
PASSED IN O.S. NO.15/2015 BY PRINCIPAL CIVIL JUDGE,
BHATKAL, DECREEING THE SUIT FILED FOR DECLARATION
AND PARTITION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING :
JUDGMENT
Though, this appeal is listed for admission, with consent of learned counsel for parties, it is taken up for final disposal.
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2. Challenging judgment and decree dated 13.02.2020 passed by Senior Civil Judge, Bhatkal (for short, "first appellate Court") in R.A.no.09/2019 and judgment and decree dated 18.01.2019 passed by Principal Civil Judge, Bhatkal (for short, "trial Court") in O.S. no.15/2015, this appeal is filed.
3. Appellant herein was plaintiff, while respondents herein were defendants in suit. For sake of convenience, they shall hereinafter be referred to by their ranks in original suit.
4. O.S.no.15/2015 was filed seeking for declaration of title in respect of suit properties by virtue of registered Will dated 30.04.2013. In plaint, it was stated that land bearing Sy.no.670/1A2 measuring 38 guntas and 670/1A6 measuring 06 guntas and 08 annas situated at Kaikini village, Bhatkal taluka (hereinafter referred to as suit properties) originally belonged to one Sri -4- RSA No. 100484 of 2020 Jayaprakash Ramkrishna Shet. It was stated that Jayaprakash acquired right over suit properties under registered partition deed dated 14.02.2011 and as such he was in possession of same. The said Jayaprakash was unmarried and issueless. He was having close relationship with father of plaintiff and used to visit their house and seek financial help. It was further stated that plaintiff's father provided him with food, clothes and shelter, due to which he was having love and affection towards plaintiff's family. Out of same, Jayaprakash executed a registered Will dated 30.04.2013 bequeathing suit properties in favour of plaintiff. Thereafter, Jayaprakash died on 13.06.2013. In terms of Will, plaintiff filed application before Tahsildar, Bhatkal to enter his name in respect of suit properties. But after defendants filed objections it was converted into suit.
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5. Despite service of suit summons, defendants no.2, 4(A), 6 and 8 did not enter appearance, they were placed exparte. Defendants no.1 and 5 were reported dead. Only defendant no.3 filed written statement denying plaint averments and execution of Will by Jayaprakash. It was stated that testator was suffering from chronic illness and was an alcoholic, due to which, he had lost mental balance and was not having physical control. He used to reside with defendant no.2 at Chikkamagalur and therefore there was no possibility of his acquaintance with plaintiff. It was further asserted that plaintiff was real estate mafia and with intention to grab properties of deceased had created Will. It was stated that defendants were children and brother of deceased and hence interested in suit properties.
6. Based on pleadings, trial Court framed following issues:
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(1) Whether plaintiff proves that he is absolute owner of suit schedule properties?
(2) Whether plaintiff further proves that registered Will dated 30.04.2013 bearing document No.III-03/2013-14 registered at Sub-Registrar, Bhatkal executed by deceased Jayaprakash Ramakrishna Shet in favour of plaintiff is valid and genuine?
(3) Whether plaintiff is entitled to relief sought for?
(4) To what order or decree?
7. Thereafter, on behalf of plaintiff his
general power of attorney holder and three other witnesses were examined as P.W.1 to 4. Ex.P.1 to
7 were marked. On behalf of defendants, defendant no.3 examined herself as D.W.1 and got marked D.W.1 to 4.
8. On consideration, trial Court answered issues no.1 to 3 in affirmative and issue no.4 by -7- RSA No. 100484 of 2020 decreeing suit and declaring plaintiff as absolute owner of suit properties under Ex.P.6-Will.
9. Aggrieved by said decree, defendant no.3 filed R.A.no.9/2019 on several grounds.
10. Based on contentions urged, first appellate Court framed following points for its consideration:-
(1) Whether suit filed seeking declaration simplicitor without any ancillary or consequential relief and suit filed in Civil Court seeking declaration of genuineness of Will without probate of Will is maintainable in view of Section 34 of Specific Relief Act and Section 213(1) of Indian Succession Act?
(2) What suit of plaintiff is bad for non joinder of necessary parties?
(3) Whether plaintiff has proved that
deceased Jayaprakash S/o.
Ramkrishna Shet has executed Will -8- RSA No. 100484 of 2020 dated 13.06.2013 bequeathing suit schedule properties in his favour and thereby he becomes owner of suit schedule properties?
(4) Whether impugned judgment and decree of trial Court does call for interference?
(5) What order or decree?
11. On re-examination, it answered points no.1 and 4 in affirmative, point no.2 and 3 in negative and point no.5 by allowing appeal and setting aside judgment and decree passed by trial Court and consequently dismissing suit.
12. Aggrieved thereby plaintiff is in appeal.
13. Sri S.G.Kadadakatti, learned counsel for appellant submitted that impugned judgment and decree passed by first appellate Court was contrary to facts of case and evidence on record. There was no proper consideration and conclusions drawn were perverse. It was specifically contended -9- RSA No. 100484 of 2020 that on proper evaluation of material on record trial Court had concluded that plaintiff duly proved Will and suspicious circumstances propounded by defendants were untenable. However, first appellate Court proceeded to allow appeal. Though, plaintiff examined one of attestors and scribe and complied with requirements of law, first appellate Court erred in dismissing suit. In light of submissions, he proposed following substantial questions of law would arise for consideration.
"Whether judgment and decree
passed by first appellate Court is
sustainable in law when plaintiff has
proved due execution of Will?"
14. Heard learned counsel for appellant,
perused impugned judgment and decree and
records.
15. Admittedly, plaintiff's suit is for
declaration of title on basis of Will. As per
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RSA No. 100484 of 2020
judgment of Hon'ble Supreme Court in case of H.Venkatechala Iyengar v. B.N.Thimmajamma , reported in AIR 1959 SC 443 has held that propounder is required to establish due execution and attestation of Will as required under Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act.
16. In instant case, though plaintiff examined attestor and scribe as P.W.2 and 4, they failed to identify signature of testator on Ex.P.6- Will. P.W.2 and 4 merely identified their signatures on it. On perusal of Ex.P.6 a copy of which available made by learned counsel for appellant, it is seen that signature of testator is not got marked. This would be a fatal flaw. Without proper proof of execution of Will merely on ground that attestor and scribe identified their signatures on Will, it cannot be held proved. While passing impugned judgment and decree, trial Court
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RSA No. 100484 of 2020 recorded finding that mandatory requirements of Section 63 of Indian Evidence Act and Section 66 of Indian Evidence Act were met in following manner:
"In the case on hand the Will is registered and attested by two witnesses and same is sig ned by the testator. The Will is produced at Ex.P.6, attesting witnesses are examined as P.W.2 and P.W.3. Scribe is examined as P.W.4. Since Jayaprakash Ramakrishna Shet is died unmarried and issueless, there is no legal heirs to inherit his properties. Under such circumstances disinheriting the legal heirs does not arises and there is proper explanation for execution of the Will in favour of the stranger. The defendant contended that Jayaprakash Ramkrishna Shet was not in sound state of mind at the time of execution of the Will. The susp icious circumstances point out by the learned counsel for the defendant is already discussed above, all points are answered in favour of the plaintiff. The plaintiff has examined the attesting witnesses and scribe. Therefore the plaintiff is complied the mandatory requirements of Sections 63 of
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RSA No. 100484 of 2020 Indian Succession Act and Section 68 of Indian Evidence Act. Therefore, the above 5 steps have been duly followed and all 5 steps shows due execution of the Will."
17. As can be clearly seen, there is no specific finding that attestors had identified signatures of testator/scribe. Apart from same, it is seen that plaintiff is a stranger to family of testator. Defendants were admittedly Class II heirs of testator. There is no reason mentioned in Will as to why natural heirs were excluded. Indeed though contended that testator was suffering from ill-health defendant but failed to establish same. But fact of the matter will be that due execution of Ex.P.6-Will is not established merely by identifying signatures of attestors without signature of testator being identified. This would clinch case against appellant. Hence, no substantial question of law would arise for consideration.
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RSA No. 100484 of 2020
18. In the result, there is no merit in appeal. Appeal is dismissed.
SD JUDGE CKK