Karnataka High Court
Smt Munirathnamma vs Smt Manjula on 24 July, 2023
Author: H. T. Narendra Prasad
Bench: H. T. Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24th DAY OF JULY 2023
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
RFA No.966 OF 2010
BETWEEN:
SMT. MUNIRATHNAMMA
AGED ABOUT 52 YEARS
W/O MR. S.M.THIMMAIAH
R/AT LAKSHMI NARAYANA NILAYA
No.553, KUVEMPU ROAD
B NARAYANAPURA, UDAYANAGAR
BANGALORE-560 016.
... APPELLANT
(BY SRI.M.A.SEBASTIAN, ADVOCATE )
AND
1. SMT. MANJULA
AGED 33 YEARS
W/O LATE VEERENDRA KUMAR
2. MASTER M.V. GAUTHAM
AGED ABOUT 12 YEARS
S/O LATE VEERENDRA KUMAR
(SINCE MINOR REP. BY HIS
MOTHER SMT. MANJULA)
BOTH ARE R/AT B. NAGASANDRA
YAMALUR POST, BANGALORE-560 037.
... RESPONDENTS
(BY SRI. D.L.JAGADEESH, SENIOR COUNSEL FOR
SMT. RAKSHITHA D.J., ADVOCATE)
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THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED:
20.03.2010 PASSED IN OS.NO.3117/2006 ON THE FILE OF
THE XII ADDL. CITY CIVIL AND SESSIONS JUDGE,
BANGALORE CITY, DISMISSING THE SUIT FOR
DECLARATION AND POSSESSION.
THIS RFA, HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 17.07.20203, COMING ON FOR
PRONOUNCEMENT, THIS DAY, THE COURT, MADE THE
FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiff under Section 96 of Civil Procedure Code challenging the judgment and decree dated 20.03.2010 passed by the XII Additional City Civil Judge, Bangalore, in O.S.No.3117/2006, whereby the suit filed by the plaintiff has been dismissed.
2. For the sake of convenience, the parties are referred to as per their rankings before the trial court.
3. The case of the plaintiff is that the suit schedule property bearing old khata No.79/79, New No.97/124/83 situated at Belut Nagasandra Village, 3 Varthur Hobli, Bangalore South Taluk, originally belongs to one Kempaiah. He died on 09.12.2005, leaving behind a registered Will dated 23.10.2003. The plaintiff is the daughter of Kempaiah. The son of Kempaiah by name K.Veerendra Kumar died on 07.05.1996, the first defendant is the wife and the second defendant is the son of K.Veerendra Kumar.
4. It is the further case of the plaintiff that, during the lifetime of Kempaiah, after the death of his son K.Veerendra Kumar, the relationship between Kempaiah and defendant No.1 got strained and defendant No.1, as a minor guardian of defendant No.2, filed a suit for partition in O.S.No.8796/2003. Subsequently, Kempaiah voluntarily executed a Will on 23.10.2003 bequeathing the suit schedule property in favour of the plaintiff and got it registered. Hence, she claims that she has acquired the interest over the suit schedule property on the basis of the registered 4 Will. After the death of Kempaiah, plaintiff has approached the Commissioner, City Municipal Council for change of khata into her name and the same has been objected to by the defendant No.1. The Commissioner, City Municipal Council issued an endorsement directing the parties to get an order from the civil court. Hence, plaintiff filed a suit for declaration to declare that she is the absolute owner of the suit schedule property.
5. After service of summons, the defendants appeared through counsel and filed the written statement denying the allegations and assertions made in the plaint. It is contended that the plaintiff has not approached the court with a clean hand, she has suppressed the material facts. The defendants have admitted the relationship between the parties but denied that the deceased Kempaiah left behind him a registered Will dated 23.10.2003. It is 5 contended that the said Will is a got up, fabricated document behind the back of Kempaiah and obtained by practicing fraud by the plaintiff in collusion with her husband one Thimmaiah. It is further alleged that the Will has come into existence under suspicious circumstances and Kempaiah had no intention, whatsoever, to execute the Will in favour of the plaintiff. It is further contended that Kempaiah has no right, title or interest over the suit schedule property to execute the Will, it is not self-acquired property of Kempaiah. Hence, sought for dismissal of the suit.
6. On the basis of the pleadings of the parties, the trial court has framed the following issues:
"1) Whether the plaintiff proves due execution of the Will dated 23.10.2003 and that late Sri Kempaiah was in a sound and disposal state of mind as on 23.10.2003 at the time of execution of the Will?6
2) Whether the plaintiff proves that the suit schedule property was the self-acquired property of late Sri Kempaiah?
3) Whether the plaintiff is entitled for the relief of possession and injunction as prayed for?
4) What order or decree?"
7. To prove the case, the plaintiff examined herself as PW1 and other two witnesses, one Shankar as PW2 and one S.M.Thimmaiah as PW3 and got marked documents as Exs. P1 to P29. On behalf of the defendants, defendant No.1 examined herself as DW1 and got marked documents as Exs.D1 to D38. On appreciation of the oral and documentary evidence, the trial court answered issue Nos. 1 and 3 in the negative and issue No.2 in the affirmative and dismissed the suit. Being aggrieved by the same, plaintiff has filed this appeal.
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8. Sri Sebastian, learned counsel appearing for the appellant/plaintiff has contended that the suit schedule property is a self-acquired property of Kempaiah, after the death of K.Veerendra Kumar, who is the son of Kempaiah, the relationship between Kempaiah and defendant No.1 got strained and defendant No.1 filed a partition suit on behalf of her minor son - defendant No.2. In view of the same, Kempaiah voluntarily executed a Will on 23.10.2003 in respect of the suit schedule property in favour of the plaintiff. The trial court, without considering this aspect of the matter, erred in dismissing the suit.
9. He further contended that under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, it is for the propounder of the Will to prove the same by examining the attesting witnesses. Accordingly, plaintiff has examined two attesting witnesses as PWs. 2 and 3. 8 The trial court erred in holding that PW2 is not an attesting witness, but he is an identifying witness. He further contended that the Apex Court in the case PENTAKOTA SATYANARAYANA AND OTHERS vs. PENTAKOTA SEETHARATNAM AND OTHERS reported in 2005 AIR SCW 5085 has held that even the identifying witness witnesses the execution of the Will by the testator, it will comply with Section 68 of the Indian Succession Act.
10. He further contended that definition of the 'attesting witness' means each of the two witnesses who have seen the executor signing or affixing his mark to the instrument or have seen some other person signing the instrument in the presence and by the direction of the executor. Just because PW2 is an identifying witness, the trial court has erred in holding that he has not seen the execution of the document by the executant, he cannot be considered as an 9 attesting witness. This finding of the trial court is contrary to the law laid down by the Apex Court in the case of PENTAKOTA SATYANARAYANA (supra) and SETH BENI CHAND (SINCE DEAD) NOW BY LRs. vs. SMT.KAMLA KUNWAR AND OTHERS reported in (1976) 4 SCC 554.
11. He further contended that the trial court has failed to appreciate the evidence of PW3 on the ground that he is the husband of the plaintiff and he has actively participated in the execution of the Will. Just because PW3 was taking active part in execution of the Will, the genuineness of the Will cannot be doubted. This finding of the trial court is contrary to the materials available on record. In support of his contention, he has relied on the judgment of the Apex Court in the case of MALKANI vs. JAMADAR AND OTHERS reported in AIR 1987 SC 767.
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12. He further submitted that the court below has erred in holding that the Will dated 23.10.2003 executed by Kempaiah in favour of the plaintiff is surrounded by suspicious circumstances only on the ground that Kempaiah has disinherited defendant No.2. In fact, the other properties which are purchased in the name of Veerendra Kumar stands in the name of the defendants. This aspect has not been considered by the trial court.
13. Nextly, he contended that after the death of Veerendra Kumar, S/o.Kempaiah, the relationship between Kempaiah and defendant No.1 got strained and she filed a partition suit on behalf of her minor son - defendant No.2. Thereafter, Kempaiah voluntarily executed the Will on 23.10.2003 in favour of the plaintiff. Therefore, the Will is not surrounded by any suspicious circumstances.
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14. He further contended that even though the defendant has taken a specific contention in the written statement that the alleged registered Will is a got up, fabricated document behind the back of Kempaiah, by playing fraud, the plaintiff got the Will executed in her favour, but that plea is not supported by any evidence and the same is contrary to Order 6 Rule 4 of CPC.
15. He further contended that the statement made by defendant No.1 in her evidence is contradictory to her own admission pleaded in the suit filed by her. Even though in the written statement she has taken a contention that the suit schedule property is a joint family property, at para 3 of the cross-examination, she admitted that the same is the absolute property of the deceased Kempaiah. 12
16. It is further contended that even though at para 6 of the affidavit evidence the defendant No.1 has stated that her father-in-law Kempaiah was mentally sick and was unable to take any decision on his own, at the time of execution of the Will, at para No.6 of the cross-examination has admitted that she has not produced any document to show that her father-in-law Kempaiah was mentally sick. She has clearly admitted that Kempaiah was admitted to hospital on 14.06.2005 on the ground of loose motion and dehydration.
17. It is further contended that it is evident from Ex.D35, an endorsement issued by the CMC, Mahadevapura that after the death of Kempaiah, the defendant No.1, with an intention to snatch away the property, has fraudulently created a Will dated 20.12.2005 and sought for registration of the khata in favour of defendant No.2. But in the cross- 13 examination of defendant No.1, at para 7, she refused the said facts which clearly goes to show that defendant No.1 is suppressing the true facts. Hence, he sought for allowing of the appeal.
18. Per contra, Sri D.L.Jagadish, learned Senior Counsel appearing for the respondents/defendants submits that in the written statement, the defendants have specifically denied the execution of the Will and regarding disinheritance of the defendants, the Will is surrounded by suspicious circumstances. The onus is on the propounder to remove all suspicions with regard to the execution of the Will. In support of his contention, he relied on the judgment of this Court in RFA No.1319/2005 disposed of on 13.07.2017.
19. He further contended that PW2 is not an attesting witness, he has only identified the executant 14 before the Sub-Registrar. PW-3 is the husband of the plaintiff, as such he is an interested witness.
20. He further contended that as per Section 68 of the Evidence Act, the burden lies on the propounder of the Will to prove the same by examination of attesting witness. Since the plaintiff has failed to comply with Section 68 of the Indian Evidence Act, the trial court has rightly dismissed the suit. In support of his contention, he relied on the judgments of the Apex Court in the cases of APOLINE D'SOUZA vs. JOHND'SOUZA reported in (2007) 7 SCC 225 and JARNAIL SINGH AND ANOTHER vs. BHAGWANTI (D) THROUGH LRs. & OTHERS reported in 2019 (1) Kar.L.R.81 (SC).
21. He further contended that the execution of the Will as required under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence 15 Act has to be proved by examining an attesting witness. In support of his contention, he has relied on the judgment of the Apex Court in the case of LALITABEN JAYANTILAL PORAT vs. PRAGNABEN JAMNADAS KATARIA AND OTHERS reported in (2008) 15 SCC 365.
22. He further submitted that PW3 is instrumental to this Will as his wife is the beneficiary and his evidence cannot be believed.
23. He further contended that there is no conclusive proof regarding due execution of the Will and the mental condition of Kempaiah was very feeble and debilitated at the relevant time. The same is evident from the medical records.
24. Lastly, he contended that the trial court, after considering the evidence of the parties and the 16 materials available on record, rightly dismissed the suit. Hence, he sought for dismissal of the appeal.
25. Heard learned counsel for the parties. Perused the impugned order and the original records.
26. The points that would arise for consideration in this appeal are,
(i) Whether the plaintiff proves due execution of the Will dated 23.10.2003 and that late Kempaiah was in sound and disposed state of mind at the time of the execution of the Will?
(ii) Whether the judgment and decree passed by the trial court is perverse, erroneous, arbitrary and capricious and calls for interference by this Court?
27. It is not in dispute that Kempaiah is a Hindu. Under Section 30 of the Indian Succession Act, he had a power to dispose of his property. It is also not in 17 dispute that the plaintiff is the daughter of Kempaiah, defendant No.1 is the daughter-in-law and defendant No.2 is the grand-son. It is also not in dispute that Kempaiah died on 09.12.2005.
28. It is the specific case of the plaintiff that K.Veerendnra Kumar, who is the son of Kempaiah died on 07.05.1996. After his death, the relationship between Kempaiah and defendant No.1, who is the wife of K.Veerendra Kumar, got strained and she filed a partition suit on behalf of her minor son - defendant No.2. Thereafter, Kempaiah voluntarily executed the Will on 23.10.2003 bequeathing the suit schedule property in favour of the plaintiff and got it registered. Hence, she claims that she has acquired the interest over the suit schedule property on the basis of the registered Will. Defendant has denied the Will executed by Kempaiah and also contended that the Will is surrounded by suspicious circumstances and 18 further the alleged registered Will is got up, fabricated document behind the back of Kempaiah. Under these circumstances, it is the onus on the propounder of the Will to prove the same. It is relevant to extract Section 63 of the Indian Succession Act as below:
"63. Execution of unprivileged wills.--Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1[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.19
(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 acknowledgment of his signature or mark, or of 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."
29. It is clear from the above provision that 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 seen some other person signing the instrument in the presence and by the direction of the testator.
30. Section 68 of the Indian Evidence Act reads as follows:
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"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:
3[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."
31. As per the above provision, it is very clear that if the attesting witnesses are alive, atleast one of the attesting witnesses has to be examined for proving its execution. The Hon'ble Apex Court in the case of H.VENKATACHALA IYENGAR vs. THIMMAJAMMA AND OTHERS reported in AIR 21 1959 SC 443, had clearly distinguished the nature and kind of proof required for a testament as opposed to any other document. The relevant portion is extracted hereinbelow:
"18. What is the true legal position in the matter of proof of wills? It is well known that the proof of wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under S.67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss.45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the 22 document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression " a person of sound mind" in the context. Section 63 requires that 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 that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these 23 provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S.63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of will it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
32. To prove her case, the plaintiff has examined PWs. 2 and 3 as attesting witnesses. In fact, PW2 is a witness to the Will. On perusal of Ex.P2, i.e., the original Will it is evident that this witness has not signed as an attesting witness in respect of the execution of the Will, but he has 24 identified the executant before the Sub-Registrar. In his cross-examination, PW2 has specifically admitted that he has signed the Will as identifying witness after it is being registered. He has also specifically stated that he has seen the Will for the first time before the Sub-Registrar, identified Kempaiah and signed the Will. Therefore, it is very clear that PW2 is not an attesting witness.
33. PW3 is the son-in-law of the deceased Kempaiah and husband of the plaintiff, plaintiff is the beneficiary under the Will. He has deposed that he was summoned by Kempaiah to K.R.Puram Sub- Registrar office and Kempaiah has executed the Will. He further deposed that he has not seen PW2 earlier before meeting him in the said Sub-Registrar office. He further admitted that he did not know that plaintiff got the knowledge regarding execution of the Will and he did not know when she has received the same. 25 But a contrary statement is given by PW1 stating that after receipt of the Will by post she has disclosed this aspect to PW3. But PW3 has given a different version in this regard. Hence, by careful examination of the evidence of PW3 it is seen that he is an interested witness as his wife is the beneficiary under the Will.
34. In the judgment relied upon by the appellant's counsel in the case of PENTAKOTA SATYANARAYANA (supra), it is held that if the identifying witnesses affix their signature in the presence of the executor, their evidence can be treated as an attesting witness. In fact, in the above judgment, the testator himself has filed the written statement and admitted that he has executed the Will. Taking into consideration of the same, the Apex Court has held that the Will is proved. Therefore, the said judgment is not applicable to the facts of this case. 26
35. In the judgment relied upon by the appellant's counsel in the case of SETH BENI CHAND (SINCE DEAD) (supra) it is held that the labelling of the signatory to the Will as an attesting witness not obligatory. In that case, the attesting witness is the witness to the execution of the Will. In the case on hand, PW2 has not seen the execution of the Will, he has only identified Kempaiah before the Sub- Registrar. Hence, he cannot be termed as an attesting witness to prove due execution of the contents of the document. His evidence is only relevant regarding registration only.
36. In the judgment relied upon by the appellant's counsel in the case of MATHEW OOMMEN vs. SUSEELA MATHEW reported in AIR 2006 SC 786, wherein it is held that there is no dispute regarding the principles enumerated in the above said decision that there was no requirement that scribe 27 cannot be an attesting witness. But, in the instant case, admittedly, scribe is not examined and PW2 is not a scribe and he has not seen the execution of the Will by Kempaiah. Hence, that judgment is not applicable to the facts of this case.
37. The defendant filed written statement specifically contending that the Will is got up, fabricated document and the same came into existence under suspicious circumstances. The same cannot be relied upon. The said Will is the master mind of the plaintiff and her husband who was the witness to the Will. Under those circumstances, the onus is always on the plaintiff to remove the suspicious circumstances surrounding the Will. It is not that the defendant has to plead and prove.
38. The plaintiff has been examined as PW1. In her examination-in-chief she has deposed that she was not present at the time of execution of the Will, 28 she received the Will - Ex.P2 during the lifetime of her father Kempaiah by post. In the cross-examination, she has admitted that she was not present at the time of execution of the Will - Ex.P2 and she also stated that her husband also does not know regarding execution of the Will. But interestingly, her husband PW3 claims to be an attesting witness. Hence, the evidence of PW1 is inconsistent in this regard.
39. The defendant No.1 was examined as DW1. She denied the execution of the Will but admitted that Kempaiah is the absolute owner of the suit property. The defendant has produced Ex.D37 which is the caste certificate of Kempaiah, wherein the name of Kempaiah is shown as Kempaiah, S/o.Late Byrappa. This fact is not disputed by the parties. Exs. P3 to P8 documents also discloses the name of Kempaiah as Kempaiah, S/o.Byrappa but in the death certificate, it is referred as Kempaiah, S/o.Chikkanna. In Ex.P2 - 29 Will the father's name is mentioned as Chikkanna. There is a material contradiction regarding the execution of the Will as to who really drafted the Will.
40. Learned counsel for the appellant also relied on the decision of the Apex Court in the case of S.SANKARAN vs. D.KAUSALYA reported in 2007 AIR SCW 4181 and contended that Kempaiah himself has presented the Will for registration. Therefore, it is proved that there is no suspicious circumstances. No doubt, as per Ex.P2 deceased Kempaiah himself has presented the Will for registration, but on going through evidence on record, it is seen that in some of the records, Kempaiah was described as Kempaiah, S/o.Byrappa. In the Will, it has been mentioned as Kempaiah, S/o.Chikkanna. No explanation is forthcoming from the plaintiff in this regard to explain these material discrepancies in the documents. In the evidence of PW1 she has deposed that Kempaiah was 30 suffering from Asthma for last more than 20 years and admittedly, he is aged more than 75 years. The defendant No.1 has also produced Exs.D1 to D32 relating to the medical records of Kempaiah who was admitted in Manipal Hospital from 14.06.2005 to 18.06.2005. All these aspects will definitely create a doubt in the mind of the court that the Will is surrounded by suspicious circumstances. Even though plaintiff has examined PW2 as explained above, he is not an attesting witness. PW3, whose wife is the beneficiary under the Will, has played an active role in execution of the Will. In view of the above facts and circumstances, the judgment relied upon by the appellant's counsel is not applicable to the facts of the case.
41. Defendant No.1 is the daughter-in-law and defendant No.2 is the grand son of Kempaiah. In the Will - Ex.P2, no reason has been given as to why 31 Kempaiah has disinherited defendant Nos. 1 and 2. It is not mentioned in the Will that because of the suit filed by defendant No.1 on behalf of defendant No.2 against Kempaiah, he disinherited defendant Nos. 1 and 2. The plaintiff has not examined the other attesting witness - Kumar and no explanation has been forthcoming for the same.
42. Considering the evidence of the parties and the materials available on record the trial court has rightly held that the plaintiff has failed to prove the due execution of the Will dated 23.10.2003 by late Kempaiah in his sound and disposed state of mind. There is no error or illegality in the judgment and decree passed by the trial court. The points framed by this Court are answered accordingly. Hence, I decline to interfere with the judgment and award passed by the trial court. Accordingly, I pass the following order:
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(i) Appeal is dismissed.
(ii) The judgment and decree dated 20.03.2010 passed by the XII Additional City Civil Judge, Bangalore, in O.S.No.3117/2006 is hereby confirmed.
Sd/-
JUDGE Cm/-