Bangalore District Court
Smt. Dhanalakshmi vs Smt.Munithayamma on 17 February, 2022
KABC010125622003
IN THE COURT OF THE XXII ADDL.CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY: (CCH.7)
Dated this the 17th day of February, 2022.
PRESENT
SRI.DINESH HEGDE, B.A.,LL.B.,
C/C-XXII ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
O.S.NO.4522/2003
PLAINTIFF : Smt. Dhanalakshmi
D/o Late Sri. P.Muninarayanappa
W/o. Sri.M.Chandrashekar
Aged about 29 years,
Residing at No.78/28, 8th cross right side,
Shankarappa Garden
Magadi Road, Bengaluru - 560 027.
( By Sri. L.S.Shekar /
M.S.Varadarajan., Advocates)
-VS-
DEFENDANTS : 1. Smt.Munithayamma, major, W/o. Late
Muninarayanappa.
2. Smt. Bharathi, major w/o late
Ramanjaneya.
3. Kushal Kumar,
aged about 28 years.
2 O.S.No.4522/2003
4. Karthik, aged 26 years.
5. Kavya aged about 24 years.
Defendants 1 to 5 are residing at
Mahadevapura, K.R.Puram Hobli,
Bangalore South Taluk,
Bangalore-560048.
6. N.Reddappa Reddy, Aged about 45
years, S/o. N. Munirathnam Reddy,
Residing at Flat No.401, Sai Krupa
House, 1st main, Bhuvaneshwarinagar,
Bangalore 560093.
(D.1 - By Sri.M.R.Muniraju, Advocate)
(D.2 - By Sri. P.Krishnappa, Advocate)
(D.3 to 5 - By Sri. Vijay Krishna Bhat.M, Adv.)
(D.6 - By Sri. K.Sri Hari, Advocate)
Date of Institution of the suit : 30.06.2003
Nature of the Suit : Partition
Date of commencement of recording
of evidence : 07.07.2008
Date on which the Judgment was
pronounced : 17/02/2022
Year/s Month/s Day/s
Total Duration : 18 07 17
(DINESH HEGDE)
C/C-XXII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
3 O.S.No.4522/2003
JUDGMENT
This suit is filed by the plaintiff against the defendants for partition and separate possession of her 1/3rd share in the suit schedule properties and to declare the Will dated 17.05.1999 being the result of impersonation and forgery is null and void and also for mesne profits.
2. The Case of the plaintiffazz :-
The plaintiff is the daughter of one late Muninarayanappa.
The defendant No.1 is the mother of the plaintiff and wife of late Muninarayanappa. Defendant No.2 is the wife and defendants 3 to 5 are the children of one Ramanjaneya who is none other than the son of late Muninarayanappa and brother of plaintiff. The joint family properties of the family of the plaintiff and the defendants had land measuring 3 acres 30.23 guntas bearing Sy.No.159, situated in Mahadevapura village, K.R.Puram Hobli, measuring 55 x 25ft situated therein, a residential house property bearing K.S.No.64 measuring 20 x 22feet and another landed property 4 O.S.No.4522/2003 measuring 5 acres 3 guntas situated in Mahadevapura village, K.R.Puram Hobli, bearing V.P.No.85 and Khatha No.138.
3. During the year 1998, the plaintiff along with her brother late Ramanjaneya filed O.S.No.7150/1998 against their father late Muninarayanappa for partition and separate possession of their share of the ancestral property. The said suit ended in a compromise petition wherein the plaintiff and her late brother were jointly allotted and put in separate possession and enjoyment of a portion of land bearing Sy.No.159 situated in Mahadevapura village, K.R.Puram Hobli, Bangalore South Taluk to an extent of 1 acre. Further late Muninarayanappa was allotted and put in separate possession and enjoyment of the remaining portion in Sy.No.159 of Mahadevapura Village, K.R.Puram Hobli, Bangalore South Taluk, measuring 2 acres 30.23 guntas together with the house property situated therein. The said property is more fully described the item No.1 of the plaint. After the death of the father of the plaintiff, the plaintiff is also 5 O.S.No.4522/2003 entitled for 1/3rd share in the item No.1 of the suit schedule property.
4. In the same suit, the father of the plaintiff was also given the house property which is more fully described as item No.2 of the plaint schedule. It is submitted that the father of the plaintiff died on 21.12.2001. The plaintiff is entitled to an 1/3rd share in the said house property. Subsequent to the passing of the decree in O.S.NO.7150/1998 both the father of the plaintiff and her brother Ramanjaneya expired. As such the properties are all still standing in the name of father of the plaintiff. An extent of land measuring 05 acres 39 guntas of land situated in Mahadevapura village bearing V.P.No.85 Khatha No.138 was acquired by the Government and a compensation of Rs.23,11,928/- was granted in LAC No.60/1989-90 on the files of the Special Land Acquisition Officer. The said amount lying in a fixed deposit of which the defendant No.2 is one of the joint account holder. As such is currently forming the Corpus fund of the family of the plaintiff and 6 O.S.No.4522/2003 defendants. As such the plaintiff is also entitled for 1/3rd share in the said corpus fund of the family.
5. After the death of the father of the plaintiff, late Muninarayanappa and her brother Ramanjaneya, the plaintiff orally demanded the defendants to give her 1/3rd share in the ancestral property of the family. The plaintiff again demanded the defendants orally for her lawful share in the suit schedule properties when the defendants rejected the claim of the plaintiff, the present suit came to be filed. The above suit came to be decreed in favour of the plaintiff vide judgment dated 20.12.2008 and the appeal filed by the defendants 2 to 5 challenging the said judgment and decree in RFA.NO.2010/2009 before the Hon'ble High Court also came to be dismissed on 13.09.2011. The SLP filed by the defendants 2 to 5 challenging the same was also dismissed by the Hon'ble Supreme Court.
6. Thereafter defendants 3 to 5 filed a review petition before the Hon'ble High Court of Karnataka in RP NO.51/2018 seeking recall and review of the judgment dated 7 O.S.No.4522/2003 13.09.2011 passed in RFA 210/2009. The basis for defendants 3 to 5 to file the review petition is stated to be an alleged Will of Muninarayanappa dated 17.05.1999. According to defendants 3 to 5, Muninarayanappa under the said Will has bequeathed the suit schedule item No.1 in favour of defendants 3 to 5. The review petition i.e., RP 51/2018 is allowed by the Hon'ble High Court by an order dated 17.01.2020 in so far as suit schedule item No.1 is concerned and the matter is remitted back to this Hon'ble Court for an adjudication on the Will. Thereafter defendants 3 to 5 have filed additional written statement referring to the alleged Will of Muninarayanappa. Defendants 3 to 5 allegedly acquiring the knowledge of the same from an advocate are praying for dismissal of the suit. This has necessitated the plaintiff to amend the plaint for meeting the case of defendants 3 to 5 founded upon the alleged Will.
7. The Will set up by defendants 3 to 5 is not a genuine Will of Muninarayanappa at all. Muninarayanappa has not executed the said Will. Nor has he presented the 8 O.S.No.4522/2003 same for registration. Muninarayanappa is impersonated before the Sub Registrar by his son Ramanjaneya or someone else set up by Ramanjaneya. It is a conspiracy hatched by Ramanjaneya and the 2nd defendant who are the parents of defendants 3 to 5. The signature and the LTM found in the alleged Will is not that of Muninarayanappa, but they are forged ones. The signature and LTM in the Will is put by the person who has impersonated Muninarayanappa while getting the Will clandestinely registered. There was no reason for Muninarayanappa to execute the alleged Will in favour of defendants 3 to 5 and their deceased father Ramanjaneya more so when the plaintiff and the 1 st defendant who are his daughter and wife were also there. The Will is shrouded in several suspicious circumstances mentioned below. In the compromise decree passed in O.S.7150/98 1A in Sy.No.159 of Mahadevapura village is jointly allotted to plaintiff and Ramanjaneya while in the alleged Will it is stated that 0.20 Gs each in the said Survey Number is allotted to the plaintiff and Ramanjaneya which is 9 O.S.No.4522/2003 factually incorrect. Muninarayanappa being party in O.S.7150/98 could not have committed such a factual mistake, if he had actually executed the Will in question.
8. Plaintiff further stated that, on the date of the alleged Will plaintiffs daughter Bhumika was born and she is the grand daughter of Muninarayanappa, even as defendants 3 to 5 are grand children of Muninarayanappa. Had Muninarayanappa really executed the Will in question, he would have definitely mentioned about Bhumika also. Absence of reference to her makes it manifestly clear that the Will in question is not the genuine Will of Muninarayanappa. There is no reference to the 1 st defendant who is the wife of Muninarayanappa, nor is there any provision made for her maintenance which is both unusual and unnatural, thus rendering the Will in question wholly suspicious.
9. O.S.NO.7150/1998 is filed jointly by plaintiff and Ramanjaneya against Muninarayanappa. Therefore, there was no reason for Muninarayanappa to confer any bounty on 10 O.S.No.4522/2003 defendants 3 to 5 who are the children of Ramanjaneya. In the Will there is a confusion regarding age of Ramanjaneya. Muninarayanappa, being father of Ramanjaneya could not have led himself into any confusion about the age of Ramanjaneya. This is other suspicious circumstance in the Will. Muninarayanappa was not an educated person and therefore the language employed in the alleged Will is not that of Muninarayanappa. Hence, it is apparently clear that the contents of the Will are the handy work of some 3 rd person and this fact also renders the Will wholly suspicious. In the alleged Will it is stated that Ramanjaneya was helping Muninarayanappa which is wholly wrong, false and incorrect recital. Ramanjaneya had no work at all and therefore had no own earnings. In fact he often indulged in stealing Muninarayanappa's money for his vices. Because of this Muninarayanappa had developed a kind of dislike and hatred towards Ramanjaneya. Therefore, Muninarayanappa would not have chosen Ramanjaneya's children i.e., defendants 3, 4 and 5 singularly for conferring any bounty. 11 O.S.No.4522/2003 This glaring fact will also render the Will in question suspicious.
10. Plaintiff further stated that the circumstances mentioned by defendants 3 to 5 in their additional written statement as to how they learnt about the alleged Will, the alleged custody of the Will being with an advocate, are all quite unnatural thus rendering the Will a suspicious document. Plaintiff respectfully submits that for the reasons stated in the preceding paragraph, the Will set up by defendants 3 to 5 is not a genuine document and it is liable to be struck down as such. Plaintiff also denies the averments made in the additional written statement of defendants 3 to 5 regarding the custody of Will being with Advocate Halappa and its subsequent disclosure by his junior colleague Lakshmanaraj. Plaintiff's enquiries have revealed that lakshmanaraj was never the junior colleague of Advocate Halappa. Muninarayanappa died in the year 2001 and if really he had executed the Will in question and left it with the custody of Advocate Halappa, then the advocate in 12 O.S.No.4522/2003 the natural course of things, would have handed it over to 1 st defendant who is the wife of Muninarayanappa, immediately after Muninarayanappa's death. Therefore, plaintiff respectfully submits that the Will in question is shrouded in several mysterious and suspicious circumstances rendering it a suspicious document.
11. The above suit came to be decreed in favour of the plaintiff vide judgment dated 20.12.2008 and the appeal filed by defendants 2 to 5 challenging the said judgment and decree in RFA.NO.2010/2009 before the Hon'ble High Court also came to be dismissed on 13.09.2011. The SLP filed by the defendants 2 to 5 challenging the same was also dismissed by the Hon'ble Supreme Court. Thereafter defendants 3 to 5 filed a review petition before the Hon'ble High Court of Karnataka in RP NO.51/2018 seeking recall and review of the judgment dated 13.09.2011 passed in RFA.210/2009. The basis for defendants 3 to 5 to file the review petition is stated to be an alleged Will of Muninarayanappa dated 17.05.1999. According to 13 O.S.No.4522/2003 defendants 3 to 5, Muninarayanappa under the said Will, has bequeathed suit schedule item No.1 in favour of defendants 3 to 5.
12. The cause of action for the present suit first arose on 21.12.2001, when the father of the plaintiff died and subsequently on various dates when the plaintiff was pressing for her demands for a partition and separate possession of the plaint schedule properties and finally on 01.05.2003 when the plaintiff made her demand for partition and separate possession of her 1/3rd share and when the claim of the plaintiff was rejected by the defendants. Wherefore, it is prayed to declare that the plaintiff is entitled to 1/3rd share in the suit schedule properties, to direct the defendants to put the plaintiff in separate possession of her 1/3rd share in the suit schedule properties, declare that the Will dated 17.05.1999 being the result of impersonation and forgery, is null & void and non est in law, direct an enquiry into the mesne profits from the date of death of the father of the plaintiff. Hence, the suit.
14 O.S.No.4522/2003
13. After service of the suit summons, the defendants appeared through their respective counsels and filed their written statements.
14. The case of the defendant No.1:
The plaintiff is the daughter of this defendant. Second defendant is the widow daughter-in-law of this defendant.
i.e.,the 2nd defendant, the wife of Ramanjaneya, the son of this defendant. Defendants 3 to 5 are the children of defendant No.2 and late husband Ramanjaneya. The suit properties are the absolute properties of Muninarayanappa, it was allotted to him in a compromise decree passed in O.S.7150/1998. That suit was filed jointly by the plaintiff and her brother i.e., this defendant's deceased son Ramanjaneya against their father Muninarayanappa. In the compromise petition filed in that suit, suit properties were allotted to Muninarayanappa and so they were his absolute properties. The Plaintiff, this defendant and defendants 2 to 5 representing the branch of this defendants deceased son Ramanjaneya are therefore entitled to 1/3rd share each in 15 O.S.No.4522/2003 the suit schedule properties. This suit decreed earlier by this Court had been affirmed by the higher courts. Thereafter, defendants 3 to 5 have produced an alleged Will stated to have been executed by this defendant's late husband Muninarayanappa in which suit item No.1 is alleged to have been bequeathed in favour of defendants 3 to 5. The matter is now remanded for an adjudication on the Will. Plaintiff has rightly filed the above suit for partition. The defendant is also entitled to 1/3rd share in the suit properties and therefore, she had not filed any written statement earlier. However, in view of the subsequent development and more particularly the Will that defendants 3 to 5 have produced, necessity has arisen for this defendant to now file the written statement.
15. The Will produced by defendants 3 to 5 is not a genuine Will of Muninarayanappa. Muninarayanappa lived with this defendant till his death and they lived cordially with mutual love, affection and respect. Muninarayanappa would disclose to this defendant and even discuss with this defendant even trivial matters concerning the family. 16 O.S.No.4522/2003 Therefore, if Muninarayanappa had actually executed the Will in question, he would have discussed the matter with this defendant before executing any Will. Muninarayanappa has also not disclosed to this defendant about any Will being executed by him. Therefore, this defendant respectfully states that the Will in question is not the genuine Will of Muninarayanappa.
16. Defendants 3 to 5 are not only the grand children of Muninarayanappa. Plaintiffs daughter who was born as on the date of alleged Will was equally the grand child of Muninarayanappa. Hence, Muninarayanappa could not have made any Will in favour of defendants 3 to 5 alone, omitting even to make a reference to plaintiff's daughter. Muninarayanappa had great love and affection towards his daughter i.e., the plaintiff. In so far as his son Ramanjaneya is concerned, Muninarayanappa was disliking him. This is firstly because Ramanjaneya was not doing work or earning any money and secondly, because Ramanjaneya had addicted to bad habits and he was a chronic alcoholic. 17 O.S.No.4522/2003 Ramanjaneya needed money for his bad habits and therefore, he often used to indulge in stealing Muninarayanappa's money. Muninarayanappa used to regularly vent his anger against Ramanjaneya and has practically developed hate towards Ramanjaneya. Therefore, Muninarayanappa could not have executed any Will bequeathing the properties only in favour of defendants 3 to 5. Hence, this defendant respectfully states that the Will in question is not the genuine Will of Muninarayanappa.
17. Defendant No.1 further contended that, there is no mention in the alleged Will about this defendant at all. Muninarayanappa had all the love, affection and respect towards this defendant and non mentioning of this defendant leave alone making any provision for her maintenance is both unusual and unnatural. The same makes the Will an entirely suspicious document. Muninarayanappa had not informed this defendant about entrusting the matter to any advocate for preparing the Will or leaving the Will with the advocate. As stated in the previous paras, Muninarayanappa 18 O.S.No.4522/2003 would always disclosed or reveal any matter pertaining to the family to this defendant. If he had really executed any Will, he would have certainly told this defendant about the same. Therefore, the Will in question is not a genuine Will of Muninaryanappa.
18. She has contended that the Will is a concocted document. This defendant's son Ramanjaneya had taken to bad habits like drinking, etc. He was often stealing money from the house. He had developed a dishonest intention to knock of the family properties. To achieve his illegal object, Ramanjaneya has concocted the Will in question. Either he himself has impersonated Muninarayanappa while presenting the Will in question for registration or he has set up someone to impersonate Muninarayanappa for getting the Will registered. The defendant is married to Muninarayanappa and they lived together for several decades. She knows Muninarayanappa's nature by heart and therefore this defendant is more than certain that Muninarayanappa has not executed the Will in question. 19 O.S.No.4522/2003 The Will is concocted and fabricated by Ramanjaneya. The Will therefore ,is liable to be struck down. Plaintiff is entitled to 1/3 share in the suit properties and so also this defendant. Hence, this defendant prays for a decree accordingly. This defendant undertakes to pay the court fee for the relief that she is claiming as above.
19. The case of the defendant Nos.3 to 5:
The suit schedule properties of P.Muninarayanappa having acquired the same under the family partition effected through a compromise decree in O.S.NO.7150/1998. These defendants are the grand children of late P.Muninarayanappa and children of his son late Ramanjaneya. The 2nd defendant is the mother of these defendants. The father of the above defendants namely Ramanjaneya died on 08.04.2002. P.Muninarayanappa died on 21.12.2001 and thereafter the plaintiff herein filed the above suit claiming 1/3rd share in the land belonging to late P.Muninarayanappa. At the initial stage of the suit, these defendants were minors and were represented by their 20 O.S.No.4522/2003 mother 2nd defendant. It is submitted that initially the suit came to be decreed on 20.12.2008. As against this judgment, the above defendants along with their mother as guardian filed an appeal before this Hon'ble Court in RFA NO.210/2009. Initially, after contest, the said First Appeal was dismissed on 13.09.2011. Even the SLP filed against the said Judgment was dismissed in limine.
20. They contended that subsequently during the last week of December 2016, they received a letter dated 19.12.2016 from an advocate by name R.Lakshman Raj stating that Sri. Muninarayanappa had executed a registered WILL dated 17.05.1999 with the advice and assistance of his senior namely U.Halappa and the Will has been kept with the senior advocate in the safe custody. The letter further stated that on the death of Advocate Halappa when his office was being vacated the advocate came across the Registered Will kept in the safe custody. Hence, it was requested in the letter that the legatees in the Will should contact him along with proper identity and collect the Will. 21 O.S.No.4522/2003 Accordingly, the above named defendants collected the Will from advocate R.Lakshman Raj. On going through the Will they were surprised to know that during lifetime of Muninarayanappa, he had executed a registered Will bequeathing the suit schedule item of property in favour of the above named defendants and the house property in favour of the father of these defendants. This fact was not known to the above named defendants or their mother during the course of the proceedings and at that point of time these defendants were also minors. Even mother of the defendants 3 to 5 was not aware of the execution of the Will.
21. They contended that after securing the original Will these defendants were not aware as to how to take further steps in the matter to obtain their legitimate right in the property. These defendants wrongly were advised by some of the local elders that they can transfer the property a there is a registered Will and the plaintiff has no right on the same. Believing these petitioners executed a Deed of Exchange dated 19.01.2017 with one N.Reddappa Reddy. 22 O.S.No.4522/2003 However, the same has no legal consequence as their right to property was yet to be established before the court of law. Thereafter, the defendants herein were advised to seek review of the judgment passed in RFA.NO.210/2009 on the ground of discovery of new and important documentary evidence which was not within their knowledge and could not be produced earlier. Further, the petitioners' right to property during the time of their minority was not properly protected. Hence, the review petition in RP no.51/2018 was filed before the Hon'ble High Court. The said Review Petition, after contest, were allowed as per the order dated 17.01.2020 and the Judgment and Decree in RFA No.210/2009 dated 13.09.2011 has been recalled and Judgement and decree dated 20.12.2008 in O.S.NO.4523/2003 has been set aside and the matter is remanded to this Hon'ble Court with the direction to adjudicate the matter regarding the registered Will dated 17.05.1999.
22. They further contended that P.Muninarayanappa has executed the aforesaid registered WILL dated 23 O.S.No.4522/2003 17.05.1999 out of his free Will and while in sound disposing state of mind. During the period of execution of the Will the late Muninarayanappa was hale and healthy and was looking after his own affairs. The suit schedule property is the absolute property of late Muninarayanappa and he had the legal right and capacity to dispose of the same during his life time. The aforesaid registered Will has come into effect on the date of death of Muninarayanappa on 21.12.2001 and as per the same the abve named defendants have succeeded to the suit schedule properties and therefore, the plaintiff is not entitled for any share in the same. Hence, the suit is liable to be dismissed. Wherefore, it is prayed to dismiss the above suit by upholding the rights of the above named defendants under the registered Will dated 17.05.1999.
23. The land bearing Sy.No.159 measuring 3 acres 30.23 guntas together with the residential house bearing K.S.No.4 thereon, situate at Mahadevapura village, K.R.Puram Hobli, Bengaluru south taluk which is described 24 O.S.No.4522/2003 as suit schedule item No.1 was the joint family property comprising of the coparceners of the joint family namely, P.Muninarayanappa, the father of the plaintiff & his son Ramanjaneya. The residential House property bearing No.74 -K.S.No.4 measuring 20 x 22Ft, which lies in Gramatana of Mahadevapura village, K.R.Puram Hobli, Bangalore South Taluk is also the joint famly residential house property, which is described as suit schedule item No.2.
24. They further contended that the property bearing V.P.No.85 - Katha No.135 measuring 5 acres 3 guntas is a Gramatana Property lying in Mahadevapura village, K.R.Puram Hobli, Bangalore South Taluk and the said property was acquired under the Land Acquisition Act and in respect of which there arose a dispute with regard to the claim for compensation amount is concerned between P.Muninarayanappa, the father of the plaintiff on one hand and that of one M.Veerappa on the other hand and consequently, the concerned Land Acquisition Officer made 25 O.S.No.4522/2003 a Reference under Section 30 of the Land Acquisition Act to the Civil court having jurisdiction, which was numbered as LAC.NO.109/92 on the file of the II Addl. City Civil Judge at Bangalore City and the said court disposed off the said LAC.NO.109/92 by the Judgment dated 04.01.1999 and thereby the claim of P.Muninarayanappa for compensation amount was disallowed and as against the said Judgment made by the Reference court, said P.Muninarayanappa took up the matter before the High Court in MFA.NO.1248/99 and in the said MFA the compromise was effected between said P.Muninarayanappa and M.Veerappa and as per the compromise effected said P.Muninarayanappa and M.Veerappa, being the claimants therein became entitled to for certain shares in the compensation amount out of the compensation amount as awarded by the LAO, which was deposited in the Court of reference. The amount mentioned as Item No.3 in the plaint schedule is the compensation amount as per the compromise, which is lying in deposit in Vysya Bank, K.G.Road, Bangalore.
26 O.S.No.4522/2003
25. The plaintiff along with his brother Ramanjaneyappa have filed a suit in O.S.NO.7150/98 as against their father said P.Muninarayanappa and the said suit for partition is stated to have been disposed off on 02.11.1998 and as per the decree made therein an extent of one acre of land out of Sy.No.159 is stated to have been allotted to the plaintiff and Ramanjaneya jointly & according to the said Judgment, the plaintiff became entitled to 20 guntas of land out of one acre of land and in respect of the remaining 20 guntas of land out of one acre of which Ramanjaneya became entitled to and consequent upon the death of Ramanjaneya, his share has been succeeded by his Lrs, who are the defendants 2 to 5 herein. In view of the said partition as per the decree made in O.S.NO.7150/98, the present suit as brought about for partition of the suit schedule properties is not maintainable in law and the same is liable to be dismissed.
26. They further contended that as per the partition effected in O.S.No.7150/98 an extent of land measuring 2 27 O.S.No.4522/2003 acres 30.23 guntas of land out of Sy.No.159 together with residential house bearing K.S.No.4 thereon had fallen to the share of P.Muninarayanappa and also the residential house property bearing No.74 - K.S.No.64 has also fallen to the share of P.Muninarayanappa. P.Muninarayanappa died on 21.12.2001 and his son, who is the husband of the 2 nd defendant also died on 08.04.2002 leaving behind his Lrs namely, the defendants 2 to 5 herein. During the lifetime of P.Muninarayanappa, the joint family consisted of said P.Muninarayanappa, his son Ramanjaneya and the defendants 2 to 5 herein & consequent upon the death of said P.Muninarayanappa and his son Ramanjaneya, the defendants 2 to 5 have inherited-succeeded to the properties of P.Muninarayanappa. Since the plaintiff claimed his share in O.S.No.7150/98 and got her share in the properties, she cannot maintain the present suit for partition and separate possession in respect of the suit schedule properties and on this count also, the suit is liable to be dismissed. 28 O.S.No.4522/2003
27. The plaintiff is a married daughter of late P.Muninarayanappa and under the amended provisions of the Hindu Succession Act of 1956 vide Karnataka (Amendment) Act 23 of 1994, the married daughter is not entitled to any share in the properties owned and possessed by P.Muninarayanappa. Under the Hindu Succession Act of 1956, the plaintiff being a married daughter is also not entitled to any share in the dwelling houses i.e., the dwelling house bearing K.S.No.4 situate in item No.1 of the suit schedule properties and also the dwelling house property being Suit Schedule Item No.2. So far as suit schedule item No.3 is concerned, which is the compensation amount lying in deposit in Vysya Bank, K.G.Road, Bangalore and that compensation amount relates to Gramatana Property acquired by the Authorities concerned and the plaintiff being not entitled to any share in the Gramathana property, she is not entitled to the compensation amount awarded in respect of Gramatana property and hence, the plaintiff is not entitled to any share in the suit schedule item No.3 being the amount 29 O.S.No.4522/2003 of compensation in deposit relating to the said Gramathana property.
28. The defendants contended that after the death of P.Muninarayanappa, the father of the plaintiff and also after the death of Ramanjaneya, the son of P.Muninarayanappa, the plaintiff demanded the defendants to give her 1/3rd share in the suit schedule properties and that the defendants were postponing to effect a partition and finally on 01.05.2003, the plaintiff once again demanded the defendants to effect a partition of the suit schedule properties are all false and such allegations are nothing but concoctions are made only for the purpose of filing the present suit. The plaintiff having taken her share as per the decree made in O.S.No.7150/98 dated 02/11/98 the plaintiff is not entitled to maintain the present suit and for the very reason, the plaintiff is not entitled to for any reliefs as claimed in the suit and on this count also the suit is liable to be dismissed. The plaintiff who is not in possession of the properties admittedly, the suit as valued is also incorrect and 30 O.S.No.4522/2003 the court fee paid is insufficient and on this count also the suit is liable to be dismissed. The plaintiff who is not in possession of the properties admittedly, the suit as valued is also incorrect and the court fee paid is insufficient and on this count also the suit is liable to be dismissed.
29. The 6th defendant has filed written statement and contended that, the contention of the plaintiff that the registered Will produced by defendants 3 to 5 is not a genuine Will and that P.Muninarayanappa was impersonated before the Sub-Registrar by his son Ramanjaneya or someone else is totally false and incorrect statement. The plaintiff is making bald allegations without any substance. It is false to contend that Ramanjaneya and 2nd defendant have conspired together and created the Will and that the LTM found in the Will is not that of P.Muninarayanappa. The Will is genuine and registered properly in accordance with law. The will is not shrouded by any suspicious circumstances. The non bequeathing of property to plaintiff or the 1st defendant is not a suspicious circumstance as the 31 O.S.No.4522/2003 Will is executed with the intention of deviating from the natural course of succession.
30. The further contention in para 8(F) to the effect that Lakshman Raj Advocate was never the Junior Colleague of Advocate Halappa. The plaintiff is making reckless statements just to get rid of the Will. Question of Advocate Halappa handing over of the Will to the 1st defendant does not arise as she is not the legatee and the plaintiff cannot assume things and dictate terms as to how the Will has to be handled by an advocate. Hence, there is no merit in the contention of the plaintiff. The plaintiff has got her due share in the family properties and late P.Muninarayanappa is free to deal with his share of the property. In the natural course of things and practice in the society the property will be retained with the children and grandchildren residing with the father and there is no suspicion about the same. The plaintiff has filed the suit with the intention of making unlawful gain and she has no share 32 O.S.No.4522/2003 in the suit schedule properties. Wherefore, it is prayed to dismiss the suit with costs.
31. From the above pleadings, the following issues were framed:-
ISSUES
1) Whether the plaintiff proves that the suit schedule properties are joint family properties of plaintiff and defendants?
2) Whether the plaintiff proves that she is entitled for partition and separate possession of her 1/3rd share in the joint family properties of plaintiff and defendants?
3) Whether the 1st defendant proves that she is entitled for 1/3rd share in the suit schedule properties as stated in her written statement?
4) Whether the 2nd defendant proves that the plaintiff is not entitled for any share in the suit property a stated in her written statement ?33 O.S.No.4522/2003
5) Whether the present suit for partition is not maintainable in view of the partition effected in O.S.NO.7150/98 as claimed by the defendants 2 to 5 ?
6) What order or decree?
ADDITIONAL ISSUES 1. Whether the Defendants No.3 to 5 prove that deceased P. Muninarayanappa had executed a Will dated 17.05.1999 out of his free will and while he was in sound disposing state of mind?
32. On behalf of the plaintiffs, PW's.1 & 2 are examined and marked Ex.P.1 to Ex.P.18. On behalf of defendant's, DW's 1 to 3 are examined and Ex.D1 to Ex.D9 are marked.
33. Heard the arguments, perused the records and written arguments.
34. My findings on the above issues are as follows :-
Issue No.1 : Partly in the Affirmative; Issue No.2 : Partly in the Affirmative; Issue No.3 : Partly in the Affirmative;34 O.S.No.4522/2003
Issue No.4 : In the Negative;
Issue No.5 : In the Negative;
Addl.Is.No.1 : In the Affirmative;
Issue No.6 : As per final order.
REASONS
35. ISSUE No.1, 4 and 5 :-
These issues are taken up together for consideration to avoid repetition of facts.
It is specific case of the plaintiff that she is the member of the undivided Hindu Joint Family and item No.1 to 3 of the plaint schedule properties are the joint family properties in which she is entitled for 1/3rd share. The admitted facts of the case are late Muninarayanappa is the husband of first defendant. The plaintiff and late Ramanjaneya are their daughter and son respectively. The defendant No.2 is the wife of deceased Ramanjaneya. Defendant No.3 to 5 are the children of deceased Ramanjaneya and defendant No.2.
36. Muninarayanappa had immovable property measuring 3 acres 30.23 guntas in Sy.No.139 of Mahadevapura village and house property No.64 measuring 35 O.S.No.4522/2003 20 x 22 sqft. He had also a land VP No.85, Katha No.185 measuring 5 acres 3 guntas situated in Mahadevapura village. It is also not in dispute that the plaintiff and her brother Ramanjaneya have filed a suit for partition in O.S.NO.7150/1998 against their father Muninarayanappa.
The said suit came to be compromised. In the said compromise decree the plaintiff herein and late Ramanjaneya have together taken 1 acre property in the land bearing Sy.No.159. Under the same compromise decree the land measuring 2 acre 30.23 guntas and a house No.64 i.e., the item No.1 and 2 of the plaint schedule property were allotted to the share of Muninarayanappa and he was put in possession.
37. It is also the case of the plaintiff that item No.3 is the compensation amount allotted to Muninarayanappa for acquisition of the land to an extent of 5 acres 3 guntas in VP.No.85 and Katha No.138 of Mahadevapura village which is in joint deposit account of Munithayamma and others in ING Vysya bank mentioned in the item No.3. 36 O.S.No.4522/2003
38. Muninarayanappa died on 21.12.2001. Death of his son Ramanjaneya is also not in dispute. The defendant No.2 to 5 are the wife and children of deceased Ramanjaneya. Defendant No.6 is a person who is said to have been entered into an exchange deed of the item No.1 with defendant No.3 to 5. Upon the death of Muninarayanappa, the plaintiff being his daughter filed the suit for partition with respect of the properties fallen to the share of Muninarayanappa.
39. To prove the contention of the plaintiff, initially she has been examined as PW.1. defendant No.2 was examined as DW.1. Ex.P1 to 5 were marked. On appreciation of the evidence, this court by a considered judgment dated 20.12.2008 partly decreed the suit holding that the plaintiff is entitled for 1/3rd share in the item No.1 and 2 of the plaint schedule and the suit in respect of item No.3 was dismissed.
40. Against the judgment and decree of this court the defendant No.2 to 5 preferred RFA.NO.2010/2009 before 37 O.S.No.4522/2003 the Hon'ble High Court which was dismissed on 13.09.2011. The defendant No.2 to 5 have filed Special Leave Petition before the Hon'ble Supreme Court challenging the dismissal of the RFA that was also dismissed.
41. Subsequently, the defendant No.3 to 5 filed a review petition before the Hon'ble High Court of Karnataka in RFA.No.51/2018 seeking recall and review of the judgment dated 13.10.2011 passed in RFA.No.2010/2009 with a contention that Muninarayanappa during his life time had executed a registered Will dated 17.05.1999 bequeathing the item No. 1 in favour of defendant No.3 to 5.
42. After considering the registered Will dated 17.05.1999, the Hon'ble High Court allowed the review petition. The observations made by the Hon'ble High Court in the review petition is as follows:
"40. The ground urged is that the petitioners could not produce the document as it was not within their knowledge and could not be produced by them despite of its existence in the year 1999. Thus, it is a discovery of evidence 38 O.S.No.4522/2003 that was present at the time of disposal of RFA No.210/2009 but was beyond the knowledge of petitioners.
41. In so far as effect of the document would be that in the plaint schedule there were two items. Item No.1 is the landed property of Sy.No.159 Mahadevapura to the extent of 2 acres 30 guntas. Item No.2 is house property.
42. In so far as the one covered under the Will is stated to be land to the extent of 2 acres 30 guntas in Sy.No.159 which is item No.1. Thus under the Will petitioners are not claiming both the properties but the land which is item No.1.
43. With all the above, the final aspect to be considered is whether discovery of evidence in the form of Will would automatically change the final verdict regarding the schedule property or whether it is to be tested regarding its veracity or credibility. As such dismissal of RFA No.210/2009 on 13.09.2011 is almost 12 years subsequent to the execution of the Will. As the said bequeath directly pertains to subject matter which is substantial in issue, the disposal has to undergo the impact of the Will. The total 39 O.S.No.4522/2003 dismissal of the same may have to be reviewed and in the ends of justice it is absolutely necessary that the trial court has to give a re look and dispose of the matter after consideration of the Will stated to have been executed by Muninarayanappa father of Ramanjaneya and Dhanalakshmi. As such the registered Will has to get its due consideration in the process of adjudication as well the Judgment and decree passed by the trial court in O.S.No.4522/2003 dated 20.12.2008 which is also subsequent to the execution of the Will. Thus, Judgment and decree passed by this court in RFA No.210/2009 is short of consideration of the said Will and it is liable to be recalled. However the same has to be rectified now. Hence, matter deserves to be remanded to the trial court. Hence, the following:
ORDER Review Petition is allowed.
Judgment and decree of this court dated 13.09.2011 passed in RFA No.210/2009 is recalled. Consequently Judgment and decree passed in 40 O.S.No.4522/2003 O.S.No.4522/2003 is set aside in respect of item No.1. Matter is remanded to the trial court with a direction that the matter shall be adjudicated regarding the Will dated 17.5.1999 after giving full opportunity to the parties. In this connection, rights of the parties to file further pleadings, submissions and application for examination of witnesses are kept open.
Further by considering the age and stage of the case and to prevent wastage of judicial time parties shall not wait for further notice to appear before the trial court and shall place their appearance on 22.02.2020. Learned trial Judge shall dispose of the case expeditiously within an outer limit of six months from the date of first appearance. Since the review petition is allowed and RFA.No.210/2009 is remanded to the trial court for 41 O.S.No.4522/2003 consideration place this order in RFA.NO.210/2009."
43. After remand, parties to the suit filed further pleadings and adduced further evidence and to prove the Will the Dws.2 & 3 are also examined, Ex.D1 to 9 are marked. The plaintiff adduced rebuttal evidence and marked Ex.P6 to 18. PW.2 Handwriting expert was also examined.
44. Ex.D1 is the Registered Will dated 17.05.1999 said to have been executed by P.Muninarayanappa in favour of the defendant No.3 to 5. The contents of the Will reads as follows:
"ಬಬಬಗಳಳರರ ದಕಕಣ ತತಲಳಲಕರ ಕಬ.ಆರರ ಪಪರಬ ಹಬಳಹಬಳ ಮಹದಬಹವಪಪರ ಗತಗಮದ ಸರಬರ ನಬನ159 (ಖತತಬ ನರಬನ30 ) ರಲಲ ವಸಸಹಣರ 3-37 (ಮಳರರ ಎಕರಬ ಮಳವತಬಸಹಳರ) ಗರಬಟಬ ಜಮಹನರ ಇನತಬ ರದದಯತತ ವಶಬಹಷ ಜಲತಲಧಕತರಗಳ ನತರಯಯತಲತಯದ ಪಗಕರಣ ಸಬಖಬಖ 24ನ1956-57 ದನತಬಕನ26-10-1974 ರ ಆದಬಹಶದ ಮಳಲಕ ಆಗ ಬಬದಬತಹ ಸಸತರಸ ನನನ ಸಸಯತಜರತರತಗರರತಸದಬ. ಇದರಲಲ ಎರಡರ ಗರಬಟಬ ಪಪಟ ಖರತಬ ಉಳಕಬ 3 ಚ35 9 ಮಳರರ ಎಕರಬ ಮಳವತಬಸತದರ) ಗರಬಟಬ ಜಮಹನರ ಇದರದ, ಈ ಪಬಖಕ ಒ.ಎಸರ.ನಬನ7150ನ1998 ದನ12.01.1999 ರ ನತಖಯತಲಯದ ಆದಬಹಶದಬತಬ ನನನ 42 O.S.No.4522/2003 ಹರಯ ಮಗ ರಮತಬಜನಬಹಯರವರಗಬ 20 ಗರಬಟಬ ಜಮಹನರ, ನನನ ಕರಯ ಮಗಳರ ಧನಲಕಕಕಯವರಗಬ 20 ಗರಬಟಬ ಜಮಹನರ ವಭತಗ ಪಗಕರಣದಬತಬ ಒಟರಟ 1 ಎಕರಬಯನರನ ನಹಡರರತಬಸಹನಬ ಹತಗಳ ನಬಜರಬಡ ರಬಡಡಯವರಗಬ 0.6.76 ಗರಬಟಬ ಜಮಹನರ ವಹರತಟರ ಆಗರರತಸದಬ. ಉಳದ 2-30 (ಎರಡರ ಎಕರಬ ಮಳವತರಸ) ಗರಬಟಬ ಜಮಹನನರನ ನನನ ಮಮಮಕಕಳಗಬ ಈ ಮರಣ ಶತಸನ ಅಥರತ ಇಚತಚಪತಗದ ಮಳಲಕ ನಹಡರತಸದಬದಹನಬ ಹತಗಳ ನನನ ರತಸದ ಮನಬಯನರನ ನನನ ಹರಯ ಮಗ ರತಮತಬಜನಬಹಯರವರಗಬ ನಹಡರತಸದಬದಹನಬ.
ನನನ ಹರಯ ಮಗನತದ ರತಮತಬಜನಯಖ (31) ವಪರ, ಸಬಳಸಬ ಭತರತ (25) ವಷರ ಇವರ ಮಳವರರ ಮಕಕಳತದ ಕರಶಲರಕಮತರರ (7) ವಷರ ಕತತರಕರ(5) ವಷರ , ಕತವಖ (2) ವಷರ ಈ ಮಳರರ ಮಕಕಳಗಬ 18 ವಷರದ ನಬತರ ಕತನಳನನ ಪಗಕತರ ಸಬಪಪಣರಮತಲಹಕತಸ ಹಕರಕದತರರತಗ ಅವರ ಇಚತಚನರಸತರ ಸದರ ಸಸತಸನರನ ಉಪಯಹಗಸಕಬಳಳಳ ಬಹರದತಗರರತಸದಬ.
ನನಗಬ ಕತಲಕಬಕ ತಕಕಬತಬ ನನನ ಆರರಕ ಮರಗಗಟಟ ನಲಲ ಸಹತಯ ಮತಡದ, ನನನ ಆರಬಳಹಗಖದ ಬಗಬಗ ಗಮನ ಹರಸ, ನನನ ಎಲತಲ ಕಷಟ ಸರಖದಲಲ ಭತಗಯತದ ನನನ ಆರಬಳಹಗಖದ ಬಗಬಗ ಗಮನ ಹರಸ, ನನನ ಎಲತಲ ಕಷಟ ಸರಖದಲಲ ಭತಗಯತದ ನನನ ಹರಯ ಮಗನತದ ರತಮತಬಜನಬಹಯ ಸರಮತರರ 35 ವಷರ ವಯಸರಸ, ಸದರಯವರರ ನನಗಬ ಮತಡದ ಸಹತಯದ ಖರಣ ತಹರಸರವಪದಕತಕಗ ಮಹಲನ ಸಸತಸನರನ ಈ ಮರಣ ಶತಸನದ ಮರಖತಬತರ ರತಮತಬಜನಯಖನ ಮಕಕಳತದ ಅಬದರಬ ನನನ ಮಮಮಕಕಳಗಬ ನಹಡರತಸದಬದಹನಬ."43 O.S.No.4522/2003
45. Coming to the cross-examination of PW.1, she has stated that, "My marriage was solemnized in the year 1996. Till the death of my father he was residing with his deceased son Ramanjaneya.
Ramanjaneya was not working.
Muninarayanappa was looking and dealing with the properties during that period. It is false to suggest that after the death of Ramanjaneya and Muninarayanappa the defendant no.2 to 5 were looking after the 1st defendant. Muninarayanappa was able to look after himself. It is false to suggest that till the death of Muninarayanappa was able to move and do his work. He was suffering from paralysis. My husband gave instructions to my advocate. Muninarayanappa might have suffering from paralysis in the year 2000. He was undergone hospital treatment. I do not have the document to show that he was undergone hospital treatment. It is false to suggest that he was not suffering from any ill health. It is false to suggest that till his death he hale and healthy. It is false to suggest that he died due to old age and natural death. In 44 O.S.No.4522/2003 the earlier suit in O.S.no.7150/1998 half acre each land divided between my self and my brother Ramanjaneya.
19) The office of the person who issued expert opinion is situated Infantry road, Bengaluru. On the advice of our advocate my husband approached expert opinion. I do not know whom my husband approached and what discussion happened. I do not know the expert fee has been paid or not. It is false to suggest that we approached the expert with demand that the report should be in the manner what we suggested. It is false to suggest that I produced a bogus expert opinion to the court. The property mentioned in Ex.P.14 is now in the possession of my mother. It is false to suggest that the defendant no.2 to 5 are in possession of property mentioned in Ex.P.14. I have obtained Ex.P.14 from my mother recently. According to me my father has not gone to the sub-register office because he has not disclosed the same to me.
20) It is false to suggest that Muninarayanappa went to the sub-register 45 O.S.No.4522/2003 office, executed and registered the Will. It is false to suggest that Will Ex.D.1 bears the signature and thumb impression of the Muninarayanappa. I do not know the procedure of Registration of advocate in State Bar Council. I do not know unless the change of address is intimated to the Bar Council they may not know the change of address. It is false to suggest that advocate by name Laxmana Raj was practicing advocate in Bengaluru."
46. By assailing the genuineness of the Will, the learned advocate has argued that, the moment the Will was introduced by the defendants No.3 to 5, the pleadings were amended and explained. He has raised the following contentions by assailing the Will.
1. No reference or provisions for maintenance are made to the wife of testator in the Will?
2. Why the testator has left the Will in the custody of Advocate Halappa?
3. Would he not told his wife that he executed Will and it is in the custody of Advocate Halappa?
46 O.S.No.4522/2003
4. Would he not told his daughter-in-
law about the execution of the Will?
5. Why the Will is not seen the light of the day for 15 years?
6. Why Mr.Halappa did not handed over the Will to the executant?
7. Mere fact that the Will is registered does it changes the requirement of proof?
8. The attester who is DW.3 is having criminal background and hence, can the court believe his evidence?
9. How the DW.2 who is the propounder of the Will knew the testator was in sound disposing state of mind?
10. What was the necessity to Muninarayanappa to bring the attester from Kolar?
47. For the above contentions of the learned Advocate appearing for the plaintiff, Advocate for the defendant Nos.3 to 5 has submitted the following replies.
1. The very purpose of executing the Will is deviation of natural succession.
47 O.S.No.4522/2003
2. Muninarayanappa gave 20 guntas of land to the plaintiff and another 20 guntas of land to his son in compromise decree.
3. Bequeathing of the property is not unnatural. It is not the case that the testator and his wife were residing separately but they were residing with children, hence the testator has not made separate provision for maintenance of his wife.
4. When the factum of registration is proved that the court can at least presume that the testator went to the Sub-Registrar office for the purpose of registration of a document.
5. Admittedly, the Will was drafted by an advocate and therefore, it is not unnatural that some legal terms were used in the Will.
6. The sale deed provided to the handwriting expert is the sale deed in which P.Muninarayanappa purchased an immovable property and there is no dispute. But the sale deed said to have been containing the admitted signature of P.Muninarayanappa is of the year 1954 and 48 O.S.No.4522/2003 the variation in the signature of P.Muninarayanappa after 45 years i.e., the date of execution of the Will is bound to occur. Hence, the admitted signature of P.Muninarayanappa of the year 1954 compared with the Will of the year 1999 by the handwriting expert is not proper.
7. When the plaintiff has alleged that execution of the Will by fraud, the onus shifts upon the plaintiff. If Ramanjaneya had addicted to bad habits P.Muninarayanappa never resided with him.
8. Though the attester was from Kolar he is a chance witness and there is no hard and fast rule that attester must have educational qualification.
9. Minor discrepancies in the evidence of the attester in the evidence examined after two decades is not fatal and the plaintiff cannot pick up a single sentence from the deposition of DW.3 but to read the entire evidence.
10. The Criminal case against the DW.3 is concerned, there is no proximity as on the 49 O.S.No.4522/2003 date of the attestation of Will. The bank loan transactions of DW.3 is not for the relevant period of the date on which the Will was attested by him.
11. If at all Ramajaneya who is the father of defendant No.3 to 5 was the mastermind of the Will, he would have made effort to change the Katha in his name immediately after the death of P.Muninarayanappa and he should have enjoyed the property.
12. Normally, the testator may not publish the Will for various reasons and hence, keeping the Will with his advocate may not be a strange action.
13. If at all the defendant No.3 to 5 knew the Will, definitely they should have produced before the Court at the earliest point of time. But, it was discovered later.
14. Evidence of handwriting expert reveal that husband of the plaintiff takes the documents to an expert and gets an opinion but original Will was not at all examined by 50 O.S.No.4522/2003 the handwriting expert and he has compared with xerox Will.
48. Admittedly, the defendant No.3 to 5 are the grand children of Late P.Muninarayanappa. In the normal course of succession under Section 8 of the Hindu Succession Act, 1956, the property of P.Muninarayanappa should have been devolved upon the plaintiff and the defendant Nos.1 to 5. But here the defendant Nos.3 to 5 have produced a registered original Will dated 17.05.1999 said to have been executed by P.Muninarayanappa by deviation of the natural course of succession by bequeathing the item No.1 of the suit schedule property in favour of defendant Nos.3 to 5 only.
49. Registration of a Will is not compulsory under Section 17 of the Indian Registration Act. Under Section 68 of the Indian Evidence Act, 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 51 O.S.No.4522/2003 and subject to the process of the court and capable of giving evidence. Provided that; it shall not 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 unless its execution by the person by whom is purports to have been executed is specifically denied.
50. Under Section 59 of the Indian Succession Act, 1925 every person of sound mind not being a minor may dispose of his property by Will. Under Sec.63 of the Indian Succession Act, 1925
(a) The testator shall sign or shall affix his mark to the Sill, 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 given 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 52 O.S.No.4522/2003 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 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.
51. Under Section 74 of the Indian Succession Act, 1925 it is not necessary that any technical words or terms of art be used in a Will, but only that the wording be such that the intention of the testator can be known there from.
52. Defendant No.3 to 5 are the propounders of the Will. To prove the Will the defendant No.3 has stepped into the witness box and examined as DW.2. In his examination in chief he has stated that, "My grandfather P.Muninarayanappa died on 21.12.2001. Thereafter, the plaintiff herein, who is the daughter of late P.Muninarayanappa, filed the above suit claiming 1/3rd share in the 53 O.S.No.4522/2003 properties left behind by my grand father. During the 1st round of litigation myself and defendants 4 and 5 were minors and wer were represented by our mother, the 2nd defendant. I state that initially, the suit was decree on 20.12.2008. As against this, our mother, the 2nd defendant, representing her minor children, filed an appeal in RFA.NO.210/2009. The said appeal was also dismissed on 13.09.2011. Even the SLP filed against said judgment also came to be dismissed at the threshold itself.
During last week of December 2016, myself and defendants 4 and 5 received a letter dated 19.12.2016 from an Advocate by name R.Lakshman Raj stating that late P.Muninarayanappa had executed a registered Will dated 17.05.1999 with the advise and assistance of his senior advocate namely U.Halappa and the Will has been kept with the Senior Advocate in the safe custody. The letter further stated that on the death of the advocate Halappa, when his office was being vacated, the aforesaid junior advocate came across the registered Will kept in the safe custody. In the said letter it was stated by the advocate that the 54 O.S.No.4522/2003 legatees shall contact him along with proper identity and collect the Will. Accordingly, myself along with defendants 2, 4 and 5 contacted the said advocate and collected the original registered Will. Only after looking into the same, we came to know about the Will.
In the said Will late P.Muninarayanappa had bequeathed the suit 1st item of the property in favour of myself and defendants 4 and 5 jointly. The house property was bequeathed in favour of our father late Sri.Ramanjaneya. Till then we did not know about the Will and could not produce the same in the previous round of the suit.
Thereafter, we filed a review petition before the Hon'ble High Court in R.P.NO.51/2018 seeking review of the judgment in RFA.NO.210/2009. The said review petition was allowed and the previous judgments in the suit and RFA have been set aside and the matter is remanded to this Hon'ble Court for fresh consideration.
P.Muninarayanappa has executed the registered Will dated 17.05.1999 out of his free Will and while in sound disposing state of mind. During the period of execution of the Will, P.Muninarayanappa was hale and healthy and 55 O.S.No.4522/2003 was looking after his own affairs. The suit schedule properties are the absolute properties of P.Muninarayanappa and he had all the authority and capacity to bequeath the suit schedule item No.1 and 2. The said P.Muninarayanappa passed away on 21.12.2001 and the Will in question has come into force. Therefore, myself and defendants 4 and 5 have succeeded to the suit item No.1 property. Hence, the plaintiff is not entitled for any share and the suit is liable to be dismissed."
53. In his cross examination DW.2 has stated as follows:
"I have not seen P.Muninarayanappa signed Ex.D.1 and I have not visited the Sub registrar office as on that. I do not know who are all went to sub registrar office. I am in good terms with my mother. I do not know as to whether Muninarayanappa was discussing family affairs with his wife. I do not have other documents having the thumb impression of Muninarayanappa.
9) I have not enquired at how
Muninarayanappa had acquired the property. I
do not know Mr. R Laxmana raj, advocate. My 56 O.S.No.4522/2003 mother and grand mother were also not aware of Mr. R Laxmana raj, advocate. As on the date of Ex.D.1 we were residing at Mahadevapura. I received Ex.D.2 through ordinary post in a cover addressed to me, my younger brother and my sister. I have retained the postal envelope. It was kept in the house but I do not know what happened that cover. On the basis of his letter we approach on Mr. R. Laxman raj, advocate. His office is situated at Rammurthinagar. When I visited his office he asked my Aadhar card and Birth certificate. After satisfying my address he told me that his senior advocate Halappa died and at the time of vacating the office he came to know the will.
10) In the month of December, 2016 I visited the office of Laxman raj. Laxman Raj
informed me that advocate Halappa died around 6 months back. He explained the execution of will and he handed over the will to my custody. We have issued acknowledgement to the effect that we received the original will and that acknowledgement was written by Laxman Raj. Their is no impediment to me to summon Laxman Raj. It is false to suggest that Muninarayanappa 57 O.S.No.4522/2003 did not sign the Ex.D.1. It is false to suggest that it is not the thumb impression of Muninarayanappa in Ex.D.1. It is false to suggest that Muninarayanappa never went to Sub- registrar office. I do not know the attestors of Ex.D.1. After coming into the custody of the will I tried know who are those attestors but I did not succeeded. One of the address of the attestors is Hoskote and another is from Kolar."
54. On perusal of Ex.D1 Will, there are two persons who are mentioned as attesting witnesses. Their names are mentioned as S.Ramesh and M.Shankarappa. One of the attesting witness M.Shankarappa has been examined as DW.3.
55. In his examination-in-chief he has stated as follows:
"My original name was M.Shankarappa. Subsequently, I changed my name as Sahukar Shankrappa vide an affidavit dated 25.11.2010 and also by taking a paper publication.I state that since from about 1990 I have been working as a small time land broker and I used to assist people in getting their work doen before the Sub-registrar or Taluk Office etc., in Hoskote. I 58 O.S.No.4522/2003 also used to run taxi for my augmentation of income. I state that since Hoskote has been a fast developing city and closed to Bengaluru, there was a lot of scope for my work and my close relatives also do stay in Hoskote. Hence, I used to come to Hoskote daily for my work. The distance between Hoskote and my house at Kolar is about 35 kilometers.
P.Muninarayanappa as he was always used to call me for his personal works and official works. As I was also having a tax it was convenient for him to travel also. I knew late P.Muninarayanappa for about 6 to 7 years prior to his death. We had close contact and acquaintance with each other.
During first week of May 1999 late P.Muninarayanappa informed me that he is intending to execute a Will and that I have to be there as a witness. I agreed for the same. Thereafter, about 2 days prior to the execution of the Will, late P.Muninarayanappa informed me that I should be present on the date of the execution of the Will i.e., 17.05.1999 and also informed me to come to the Sub-Registrar Office Hoskote. Accordingly, on the said date I 59 O.S.No.4522/2003 went to the Hoskote Sub-registrar's office at about 12.30-1.00 PM. When I went there, P.Muninarayanappa was present with his advocate. After some time, another person called Ramesh, who is closely known to P.Muninarayanappa, also came. Thereafter, the Advocate had brought the Will prepared and it was read over to P.Muninarayanappa. Thereafter, P.Muninarayanappa being satisfied with the contents of the Will, signed the Will on each page in my presence and also in the presence of another witness Ramesh. Subsequently, Ramesh signed as the first witness and I have signed the Will as a second witness. I also remember the advocate who prepared the Will also signed the Will. Subsequently, the Will was presented for Registration. After the process of registration was complete, I left the place.
As on the day of execution of the Will late P.Muninarayanappa was hale and healthy. He was also having sound disposing state of mind and was capable of understanding the things and implications of his deeds and actions. He was moving and interacting freely 60 O.S.No.4522/2003 and normally. I have seen late P.Muninarayanappa signing the Will dated 17.05.1999 and he has signed the same in may presence. As I could see, there was no force, undue influence or coercion on late P.Muninarayanappa to execute the Will and he has executed the same on his own free Will."
56. He has identified the signature of testator in both pages of the Will and marked as Ex.D1(a) and Ex.D1(b). Signature of the DW.3 in the Will is marked as Ex.D1(c).
57. In his cross-examination, he has deposed as follows:
"I studied upto SSLC. Till 2004, I was running my own taxi bearing No. KA-07-1551 and now I am doing real estate brokerage. The financier seized said car. I have a registration certificate of the car and I can produce it. The address mentioned in affidavit evidence is my residential address. Now is in the possession of the children. The said house is in the name of my wife. It is false to 61 O.S.No.4522/2003 suggest that name of my father is Muniyappa and not Munivenkatappa. I have the documents to show that my father's name is Munivenkatappa such as Driving license, Voter identity card, Transfer certificate. I am not income tax assessee. I can produce my identity cards. All the above identity cards are with my advocate Laxmi Narayana.
7. Kolar town is bigger than Hoskote. I am residing at Kolar from the year 1977. In Kolar I was doing little real estate brokerage. I do not have office in Kolar or in Hoskote.
I have not presented any document for registration. I came to know from Muninarayanappa that he was the resident of Mahadevapura. I have not visited the resident of Muninarayanappa. I came to know Muninarayanappa in the year 1995. I do not know the name of his wife. He had a son and a daughter but I do not know their name. I have not seen the son of Muninarayanappa. I used to visit Taluk office and at that point time Muninarayanappa visit Taluk office and hence I came to know Muninarayanappa. I do not have immovable properties in Hoskote. My 62 O.S.No.4522/2003 daughter is married to Hoskote and my relatives are in Hoskote. I used to visit Taluk office to obtaining property records for the purpose of real estate. I do not remember the name of the parties in particular. Around 4 to 5 years back I lastly visited Hoskote Taluk office. Except Taluk office, Sub-Registrar office, I have not visited other Government office. For the last 5 year I have not visited sub-registrar office. Except one of the document in the year 1999 I have not signed any other documents in the sub-registrar office. The said document is the Will executed by Muninarayanappa. I do not remember whether I signed as a witness in some other documents.
8. Defendant no.3 came to my house at Kolar and request me to come as a witness. I verified as to the deposition of Kushalkumar. 15 days back he came to Kolar. Relatives of Kushalkumar are residing in Kolar and through his relatives he found my address. C.M.R. Harish is the relative of the Kushal Kumar. I do not know his address. He is a business man. It is true that there are many persons by name Shankarappa in Kolara".
63 O.S.No.4522/2003
58. It is pertinent to note that during the cross- examination of DW.3 the identity of the attesting witness itself is disputed and hence, the defendants have further examined the attester DW.3 and marked Ex.D4 to D9. Ex.D4 is the Aadhar Card of the DW.3 which reflects his name Sahukar Shankarappa.M S/o. Late Munivenkatappa. Ex.D5 is the driving license reveal that, his name is M.Shankarappa son of Munivenkatappa. Ex.D6 is the voter identity card of DW.3 reveal that his name is mentioned as M.Shankarappa s/o of Munivenkatappa. Ex.D7 is the sworn affidavit dated 25.11.2010 reveal that his name is M.Shankarappa @ Sahukar Shankarappa and he has changed his name to Sahukar Shankarappa. M. Ex.D8 is the paper publication dated 28.11.2010 reveal that, he has published paper notification regarding M.Shankarappa into Sahukar Shankarappa S/o. Munivenkatappa. Ex.D9 is the School report reveal that Shankarappa.N is the father of Anjani Goutham.
64 O.S.No.4522/2003
59. In the further cross-examination of DW.3 he has deposed as follows:
"Will was executed on 17.05.1999. I was doing Real Estate business in Kolar. I came to Hoskote around 12.45 p.m. on that day. Muninarayanappa and an advocate were present. I do not know the name of advocate. Muninarayanappa came along with Will. I do not know where he prepared the Will. I read over the contents of the Will. In my presence Muninarayanappa signed the Will. Again I say that I read over the Will in bits. After reading the Will I found the signature of Muninarayanappa in the Will. He told me to sign the Will and hence I signed the Will. Advocate and Muninarayanappa have taken the Will after I put my signature. Muninarayanappa and his advocate were inside the sub-registrar office and I came out. Advocate did not sign in my presence. But Mr.Ramesh signed the Will in my presence. I know Mr.Ramesh. But now I do not now his whereabouts.
It is true that there was a civil dispute myself and Munirathnam Naidu in O.S.No.351/2018. I was in police custody during 65 O.S.No.4522/2003 the pendency of O.S.No.351/2018 on the charges of murder. After decree of the said suit, I preferred R.A.No.30/2020. I do not know that R.A. has been allowed in my favour. The S.C.47/2019 is pending trial against me.
It is false to suggest that I know very well Ramanjanaiah son of Muninarayanappa. It is false to suggest that Muninarayanappa never signed the Ex.D.1. It is false to suggest that he never appeared before the sub-registrar office. I do not know that Ramanjanaiah brought the 3rd person as Muninarayanappa and executed the Will. It is false to suggest that I am deposing falsely with the intention to help the children of Muninarayanappa. I have not seen Muninarayanappa putting his thumb impression. It is false to suggest that Muninarayanappa did not sign any page of the Will."
60. On perusal of the above evidence of DW.3 and documents produced by him marked at Ex.D4 to 9 reveal that, he is the son of Munivenkatappa. In Ex.P2 Will also his name is mentioned as M.Shankarappa son of Munivenkatappa, Kolara Town. Therefore, it is crystal clear 66 O.S.No.4522/2003 that DW.3 is the person who is one of the attestor to the Will dated 17.05.1999.
61. Ex.D2 is the letter dated 19.12.2016, issued by an advocate by name Sri. R.Lakshman Raj, No.35, first floor near Balaji Nursing Home, Shanthi Layout, Bangalore to the defendant No.3 to 5 stating that a Will dated 17.05.1999 was found in the office of Advocate M.Halappa who is the senior advocate of R.Lakshman Raj. Advocate Halappa was died and after vacating the office of Sri. Halappa, R.Lakshman Advocate found a Will dated 17.05.1999. Hence, advocate R.Lakshman Raj wrote a letter to defendant No.3 to 5 under Ex.D2 by requesting them to collect the Will. So, it is clear the Will dated 17.05.1999 seen the light of the day after 19.12.2016. These facts are also elaborately discussed by the Hon'ble High Court of Karnataka in the RP.No.51/2018.
62. To rebut the evidence of DW.2 and 3, the plaintiff is further examined in chief by denying the execution of Will by P.Muninarayanappa and reiterating the averments made 67 O.S.No.4522/2003 in the additional pleadings and relied upon Ex.P6 to Ex.P18 and examined a handwriting expert.
63. Ex.P6 and Ex.P7 are the certified copies of the Judgment and decree in R.A.No.30/2020. Ex.P6 reveal that Mr.Sahukar Shankarappa being the defendant in O.S.NO.351/2018 on the file II Addl.Civil Judge and JMFC Court, KGF has preferred a regular first Appeal against the plaintiff Munirathnam Naidu, in that case challenging the judgment and decree. That appeal was allowed and the judgment and decree passed in O.S.No.351/2008 was set aside. Ex.P8 is the valuation slip filed in the R.A.NO.30/2020.
64. Ex.P9 is the copy of the FIR in crime No.355/2018 dated 22.09.2010 reveal that, one Mr.B.N.Ashwathanarayanaswamy lodged a police complaint against Belthur Ramesh and others wherein Mr.Shankarappa of Mochipalya, Kolar Town is arraigned as accused No.2 for the offence punishable u/Sec.120B, 201, 302 of IPC. This FIR is produced by the plaintiff to 68 O.S.No.4522/2003 demonstrate that the DW.3 who is the attester of the Will has criminal background and hence, his evidence cannot be relied. On the other hand, the advocate for defendant No.3 to 5 has contended that, this FIR was registered in the year 2010 but the Will executed by Muninarayanappa in the year 1999 and contended that mere lodging of an FIR against the witness herein itself is not a ground to disbelieve his evidence. It is well settled law that the conduct of the witness is not relevant in civil cases to adjudicate the dispute.
65. To substantiate the additional pleadings, the plaintiff has relied upon Ex.P10 to P14 i.e., evidence collection, expert opinions, sale deed dated 17.09.1954 having admitted signature of Muninarayanappa. Ex.P10 the evidence collection form reveal that on 30.09.2021 Smt. Dhanalakshmi who is the plaintiff herein had contacted the Scientific laboratory for the purpose of comparing the signature and thumb impression on the disputed Will. In the evidence collection form, the expert received photocopy of 69 O.S.No.4522/2003 the Will dated 17.05.1999 containing 4 sheets, colour photocopy of the document issued by State Huzur Treasury dated 14th September 1954.
66. On perusal of the Evidence Collection Form, marked at Ex.P10 and Ex.P12 reveal that only xerox copy of the Will dated 17.05.1999 was placed before the handwriting expert along with xerox copy of sale deed dated 17.09.1954. Therefore, it is clear that opinion of the handwriting expert is based on the signature and thumb impression of the testator found in the xerox copy of the Will and compared with the signature found in the xerox copy of sale deed.
67. Ex.P11 is the opinion of fingerprint expert reveal that photocopy of the document dated 17.05.1999 bearing the questioned fingerprint and colour photocopy was produced before the expert. The expert conducted examination of questioned finger print and come to the conclusion that the ridge characteristics upon comparison about the question finger prints and the admitted fingerprints appear to be not similarly positioned. Based on the 70 O.S.No.4522/2003 conclusion, he opined that the questioned finger print and admitted finger print does not appear to be identical. In Ex.P13, opinion on signature examination also he received photocopy of the questioned document and photocopy of written statement. After examination he came to the conclusion that, the questioned signatures and the provided admitted signatures does not appears to be similar.
68. The plaintiff has examined the Scientific expert as PW.2. In his examination in Chief, he has deposed as follows:
"I am working as a Chief operating officer in Proaxis solutions which is a Forensic lab. On 25-09-2021 I received a requisition from Mr.Chandrashekhar to conduct thumb impression and signature examination. I received disputed thumb impression and signature of Muninarayanappa. I have examined the disputes and thumb impression and signature of Muninarayanappa in a Will dated 17-05-1999. On my examination I found that signature and thumb impression are not similar when compare to the admitted 71 O.S.No.4522/2003 signatures i.e., the certified copy of compromise petition Ex.P.15. Ex.P.11 is the opinion report submitted by me my signature in the Ex.P.11 is marked as Ex.P.11(a). Evidence collection forms are already marked as Ex.P.10 and Ex.P.12. Another report dated 16-10-2021 is marked as Ex.P.13 as also bears my signature is marked as Ex.P.13(a). Ex.P.11 and Ex.P.13 are the opinion finger print examination and opinion on signature examination. I have also examined the admitted thumb impression in the Ex.P.14."
69. In his cross-examination, he has stated that, I have done M.Sc. in Forensic science in the year 2017. After obtaining the degree I worked for 1 year at the State forensic laboratory at Hyderabad. I set up my independent laboratory in the year 2018. I have records to show my education qualification and experience. It is false to suggest that I have no expertise in forensic science. It is false to suggest that I have no qualification to give expert opinion. 72 O.S.No.4522/2003
Mr. Chandrashekhar approached our laborator to give an opinion. I did not
discussed any thing with him or received any file. Out front office received documents from Mr.Chandrashekar. Based on the request letter we start the process. While in submitting and at the time of receiving the report Chandrashekar visited twice into our office.
We have the equipment for forensic
laboratory.
Based on the Annexure 1 and 2 on
Ex.P.11, I gave my report as Ex.P.11. It is not correct to suggest Annexure no.1 is the bottom of the thumb impression and Annexure no.2 is the top of the thumb impression. I say both are bottom of the thumb impression. In Annexure no.2 i.e., overlapping of thumb impression and it may be photocopying. Annexure no.1 to Ex.P.11 in which bottom thumb impression is fit for examination and the rest is unfit. It is false to suggest that I gave my opinion on the thumb impression of 3rd parties that was furnished by Mr.Chandrashekar.
73 O.S.No.4522/2003While examine the thumb impression we examine, ridges, fork and loop etc., I have not examined ridges, fork and loop. Witness volunteers ridges, fork and loop were not visible in the given thumb impression. It is not correct to suggest that because of not examine ridges, fork and loop, my report is incorrect. In my opinion I have stated admitted signature and disputed signature. But the person who brought the document told me these are the disputed signatures and rest of the admitted signatures.
Some time signatures character may vary due to sitting posture while making signatures and also while standing. There may be variation of signature here after but it is negligible variation. It is false to suggest that the variation mentioned in my report is general in all signature. My opinion is that there is a possibility that same person may not have executed the disputed document. It is false to suggest that I gave a false report to favour Mr.Chandrashekar."
74 O.S.No.4522/2003
70. The above cross-examination of PW.2 reveal that, he is supposed to examine the ridges, fork and loop etc., Admittedly, he has not examined ridges, fork and loop as they are not visible in the given thumb impression. His opinion is based on representation made by the person who brought the document for comparison stating that some of the disputed signatures and some of the admitted signatures.
71. The Learned Advocate appearing for the plaintiff has relied upon the following decisions:
1. (1998) 4 Supreme Court Cases 384 -
Between Gurdial Kaur and others Vs. Kartar Kaur and others. Wherein it was held that, "whenever there is any suspicious circumstance, the obligation is cast on the propounder of the Will to dispel the suspicious circumstance. As in the facts and circumstances of the case, the court of appeal below did not accept the valid execution of the Will by indicating reasons and coming to a specific finding that suspicion had not been dispelled to the satisfaction of the Court and such finding of the court of appeal below has 75 O.S.No.4522/2003 also been upheld by the High Court by the impugned judgment, we do not find any reason to interfere with such decision. This appeal, therefore, fails and is dismissed without any order as to costs."
2. AIR 1962 Supreme Court 567 - Between Rani Purnima Debi and another Vs. Kumar Khagendra Narayan Deb and another. It was held that, "If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered will not by itself be sufficient to dispel all suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the Will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering 76 O.S.No.4522/2003 the Will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not be of much value. Registration may take place without the executant really knowing what he was registering."
3. AIR 1977 Supreme Court 74- Between Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and others. It was held that, "In cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant what, generally, is an adversary proceeding becomes in such cases a matter of Court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious 77 O.S.No.4522/2003 circumstances surrounding the making of the Will."
4. ILR 1985 12 KAR 1911 - Between Sumitrabai Vs. Madhavarao. Wherein the Hon'ble High Court has held that, " the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed by Section 63 of the Indian Succession Act. Where there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court. The suspicious circumstances may be as to the genuineness of the will, the condition of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair in the context. In all such cases, the Court would naturally expect the propounder to remove completely such suspicious circumstances before the document is accepted as the last will of the testator. There is one other aspect which needs to be emphasised. If the propounder himself takes part in the execution of a will which confers on him substantial properties, it will be a greater suspicious circumstance which must be properly 78 O.S.No.4522/2003 explained by the propounder by clear and satisfactory evidence."
5. ILR 2007 KAR 1484 - Between W.E.Sambandam Vs. W.E.Sathyanarayanan and others. Wherein it was held that, "Satisfaction of the Court-Execution of the registered Will - Typed Will came to be registered when the testator was in hospital - Suspicious character of the will - Finding of the Trial Court - will is not genuine - Challenge to - Held, A mere registration of the Will would not wipe out the suspicious character of a Will - Learned Trial Judge has rightly disbelieved the Will."
6. AIR 1959 Supreme Court 443 - Between H.Venkatachala Iyengar Vs. B.N.Thimmajamm and others. It was held that, "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, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 & 68 of the Evidence Act are relevant for this purpose. Under Section 79 O.S.No.4522/2003 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 & 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 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 & 63 of the Indian Succession Act are also relevant. 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 provisions. 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 80 O.S.No.4522/2003 documents so in the case of proof of wills 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."
72. In support of the contentions of the Learned Advocate appearing for the defendant Nos.3 to 5, he has relied upon the following decisions.
1. AIR 1964 Supreme Court 529 - Between Shashi Kumar Banerjee and others Vs. Subodh Kumar Banerjee (since deceased and after him his legal representatives and others. In this decision it was held that, "The expert's evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence.
Where the question is whether the will was executed on the date on which it purports to have been executed and there are no suspicious circumstances attached to the will, the mere 81 O.S.No.4522/2003 opinion of the handwriting expert that it was executed much later cannot override the positive evidence of the attesting witnesses especially when he has not applied any chemical test which according to his own opinion are essential.
Where the evidence of both the attesting witnesses to the will is that the will was executed in the after-noon on the date on which it purported to have been executed, a slight discrepancy in the evidence of these witnesses as to the time when the will has executed is not so serious as to destroy the value of their evidence especially when the witnesses were giving evidence after 8 or 9 years after the execution of the will.
The mere fact that the attesting witnesses to a will happen to be chance witnesses is no ground for disbelieving their evidence. If may be that it is more usual for witnesses to be called when a person is intending to execute a will; even so there is nothing impossible in advantage being taken of the accidental presence of witnesses in this connection."
82 O.S.No.4522/2003
2. AIR 1985 Supreme Court 500 - Between Satya Pal Gopal Das Vs. Smt. Panchubala Dasi and others. Wherein it was held that, " Will in favour of person brought up as child of testator's family - All properties of testator bequeathed to legate under will - No provision made for testator's wife and widowed daughter- in-law - Will executed and presented for registration by testator himself - Testator dying four years after execution and registration if will but taking no steps to cancel or revoke it - Circumstances dispels any suspicion that may attach to the Will."
3. AIR 1995 Supreme Court 1684 - Between Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (dead) by L.Rs. And others. It was held that, "Deprivation of the natural heirs by the testatrix should not raise any suspicion, because the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially.
83 O.S.No.4522/2003
Will was registered - Sub-registrar certifying that will had been read over to executor who, on doing so, admitted contents - Fact that witnesses to document were interested, loses significance."
4. 1995 AIR SCW 2884 - Between PPK Gopalan Nambiar Vs. PPK Balakrishnan Nambiar and others. In this decision it was held that, "Will - Validity of -Discrepancy in evidence of attestor - Would not vitiate validity of a registered will which was duly endorsed by registrar - Whole of estate given to son in exclusion of daughter - Not itself sufficient to generate suspicion - Will executed and registered 8 years prior to death of testator - No evidence or statement made regarding invalidity of will in pleadings - Nothing was stated with regard to alleged pressures brought on executor of will - Suspicion raised regarding validity of will is without any basis - Property covered under "will" stand excluded form partition."
5. 2003 AIR SCW 4018 - Between Ramabai Padmakar Patil (dead) by LRs and others Vs. Rukminibai Vishnu Vekhande and others. Wherein it was held that, " In the instant case the 84 O.S.No.4522/2003 fact that the mother in her Will excluded all other daughters and gave the entire property to the widowed daughter could not be a ground to cast any doubt regarding the authenticity of the Will in the facts and circumstances of the case. It is not a case of exclusion of a son who may have been living with the parents or looking after them. It is a case of making provision for a widowed daughter who had bee left a destitute on account of death of her husband at a very early age. If the parental property was to be divided equally amongst all the seven sisters, the share inherited by plaintiff, widowed daughter would have been quite small making it difficult for her to survive. The house is situate in a village and is not in a big town or city where it may have any substantial value. In fact, if the background in which the Will was executed is examined carefully, it would be apparent that this was the most natural conduct of the mother and giving of equal shares to all the daughters would have entailed a serious hardship to the plaintiff who was living with her for over 20 years and was looking after her. Moreover, the other daughters of testator mother are residing at different places 85 O.S.No.4522/2003 with their husbands."
6. 2005 AIR SCW 5085 - Between Pentakota Satyanarayana and others Vs. Pentakota Seetharatnam and others. It was held that, "Signatures of Registering Officer and of identifying witnesses affixed to registration endorsement - Endorsement by sub-registrar that executant has acknowledged execution before him - Amounts to attestation - Executants signature taken by sub-registrar in document - Signature and thumb impression of identifying witnesses were also taken in document - All witnesses deposed that they had signed as identifying witnesses and that the testator was in sound disposition of mind -Document also contained signatures of attesting witnesses and scribe - Held burden of proof to prove Will had been duly and satisfactorily discharged by claimants.
Active participation and execution of Will by propounders / beneficiaries - That by itself is not sufficient to create any doubt either about testamentary capacity or genuineness of Will.
Natural heirs were excluded and legally wedded wife was given lesser share - Not a 86 O.S.No.4522/2003 suspicious circumstance - Circumstances of depriving natural heirs should not raise any suspicion because whole idea behind execution of Will is to be interfered in normal line of succession and so natural heirs would be debarred in every case of Will.
Testator brought draft Will when he went to document writer and asked him to scribe the same -It is not suspicious circumstance nor is fact that 4 male persons accompanied testator while going to attesting witness - More so, when deposition of witnesses was taken 17 years after registration of Will."
7. 2012 AIR SCW 2347 - Between Mahesh Kumar (Dead) by Lrs. Vs. Vinod Kumar and others. In this decision it was held that, Both attesting witnesses need not sign Will simultaneously - Fact that one of attesting witness stated that he did not know when other attesting witness came - Not ground to hold that Will was not duly attested when both witnesses have stated that testator had read out and signed Will in their presence and thereafter they had appended their signatures.
87 O.S.No.4522/2003
Attesting witness living far away from place where Will was executed - Non-examination of persons belonging to same community -
Absence of recital in Will that earlier Will was cancelled - Bequeath of entire property only to one son who has taken care of testator in his old age and exclusion of other sons - Not suspicious circumstances casting doubt on validity of will."
73. Ex.P15 is the compromise petition filed in O.S.NO.7150/1998 wherein Ramanjaneya and Dhanalaxmi being the plaintiffs and Muninarayanappa being the defendant have resolved their dispute by dividing the property comprised in Sy.No.159 and house bearing No.74, K.S.No.64. Ex.P16 is the copy of the vakalath signed by Muninarayanappa in O.S.NO.7150/1999. Ex.P17 is the letter dated 29.11.2021 issued by the secretary of Karnataka Bar council addressed to the plaintiff herein shows that Sri.Lakshman.R advocate was enrolled as an advocate before the Karnataka State Bar Council on 04.06.2004 with Reg.No.KAR.1055/2004 and at the time of enrollment he 88 O.S.No.4522/2003 gave his address as No.2020, Thurabarahalli lane, Saudayya Road, Mandi Mahal, Mysuru, Karnataka 570021.
74. Ex.P18 is the copy of the details furnished by the Karnataka State Bar Council which reflects the name and address of advocate Sri.Lakshmana Raj.R. Ex.P17 and 18 are produced by the plaintiff to counter the contention of defendant No.2 to 5 that R.Lakshmana Raj advocate was practicing in Shanthi Layout, Bangalore. According to the plaintiff, advocate R.Lakshmana Raj was not at all practicing in Bangalore because his address mentioned in Bar Council enrollment as the resident of Mysuru. The court cannot agree with the contention of the plaintiff for the simple reason that at the time of enrollment as an advocate, normally the applicant gives his permanent address. That does not mean that an advocate should practice as an advocate at the place furnished to the Bar council at the time of his enrollment only.
75. On perusal of the evidence on record, the explanation for not producing the Will during the pendency of this suit or at the appeal stage is well explained. Further, 89 O.S.No.4522/2003 the Hon'ble High Court in R.P.No.51/2018 in R.F.A.NO.2010/2009 specifically observed that the ground urged is that the petitioners could not produce the document as it was not within their knowledge and could not produce despite its existence in the year 1999 and thus, it is a discovery of evidence that was present at the time of disposal of RFA.NO.2010/2009 and the trial court has to give a re-look and dispose of the matter after consideration of the Will.
76. The testator Muninarayanappa was aged 65 years as on the date of execution of the Will marked at Ex.D1. It is not the case of the plaintiff or the defendant No.1 that Muninarayanappa was suffering from serious ill health. On the other hand, it is the case of the plaintiff that the Will is outcome of the fraud. When the fraud is pleaded the burden also lies upon the party who pleads fraud as contemplated under Order VI Rule 4 of CPC. The evidence of the attestator reveal that Muninarayanappa was healthy as on 90 O.S.No.4522/2003 the date of execution of the Will and he was in sound disposing state of mind.
77. There is evidence on record to show that, Muninarayanappa and his wife were residing together. The court cannot find fault with the testator as to why he left the Will in the custody of his advocate Halappa. It is for the testator either to disclose or not to disclose the execution of the Will with his wife. There is specific evidence to the effect that why the Will not see the light of the day for several years.
78. Therefore, in the light of the decisions referred by both the sides and by considering the evidence on record, the defendant Nos.3 to 5 have proved that P.Muninarayanappa had executed a Will dated 17.05.1999 out of his free Will while he was in sound disposing state of mind. Therefore, though the plaintiff is the member of the joint family the item No.1 of the suit schedule property was bequeathed by Muninarayanappa by registered Will in favour of defendant Nos.3 to 5. Hence, plaintiff is not entitled for 91 O.S.No.4522/2003 partition with respect of item No.1 of the schedule property. However, the plaintiff is entitled for 1/3 rd share in the item No.2 of the plaint schedule property. Item No.3 of the suit schedule property is no more available for partition as held by this court in the judgment dated 13.12.2008. For the above reasons, I answer Issue No.1 partly in the affirmative, Issue No.4 and 5 in the Negative. Further, Addl. Issue No.1 is answered in the Affirmative.
79. ISSUE No.2 and 3 :-
These issues are taken up together for consideration to avoid repetition of facts.
For the reasons recorded on Issue Nos.1, 4, 5 and Addl. Issue No.1, I hold that the plaintiff, the first defendant are being the class-I heirs of Muninarayanappa are entitled to partition and separate possession of their 1/3rd share each in the Item No.2 of the plaint schedule property only.
The defendant No.2 to 5 being the legal heirs of deceased Ramanjaneya are entitled for the remaining 1/3rd share in the item No.2 of the plaint schedule property. Since, the 92 O.S.No.4522/2003 defendant Nos.3 to 5 have proved the execution of the Will by Muninarayanappa bequeathing the item No.1 of the plaint schedule property in their favour, plaintiff and defendant No.1 and 2 are not entitled for partition in item No.1. So far as item No.3 of the plaint schedule is concerned, it is admitted fact that the plaintiff and the defendant Nos.1 to 5 have withdrew that amount and divided amongst themselves. Therefore, partition of the item No.3 of compensation amount does not arise. Hence, I answer the Issue Nos.2 and 3 partly in the Affirmative.
80. ISSUE No.6 :-
In view of my findings on issue Nos.1 to 5 and Addl.
Issue No.1, I pass the following:-
ORDER The suit of the plaintiff for partition and separate possession is partly decreed.
The plaintiff is entitled for partition and separate possession of her 1/3rd share in the item No.2 of the plaint schedule.93 O.S.No.4522/2003
The suit of the plaintiff in respect of item No.1 and 3 of the plaint schedule is dismissed. With respect of mesne profits from item No.2 of the plaint schedule property is concerned there should be separate enquiry under Order XX Rule 12 of CPC.
Draw preliminary decree accordingly.
(Dictated to the Stenographer directly on computer, corrected and then pronounced by me in the open Court on this the 17th day of February, 2022).
(DINESH HEGDE) C/c XXII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
ANNEXURE List of Witnesses examined for the plaintiff :
P.W.1 - Smt. Dhanalakshmi P.W.2 - Senthil Kumar C.S List of Documents exhibited for the plaintiff:
Ex.P.1 RTC Extract Ex.P.2 Copy of Death Certificate Ex.P.3 Final decree for Partition U/Or.20 Rule 18 CPC passed in O.S.7150/98. Ex.P.4 Joint memo along with cause title of 94 O.S.No.4522/2003 O.S.NO.4522/2003 Ex.P.5 Document showing the amount
standing to the credit of the account in the bank Ex.P.6 Certified copy of the Judgment in R.A.NO.30/2020 Ex.P.7 Copy of Decree Ex.P.8 Valuation slip Ex.P.9 Copy of the FIR Ex.P10 Evidence collection form Ex.P11 Expert opinion dated 16.10.2021 Ex.P11(a) Signature (through PW.2) Ex.P12 Evidence collection form dated 25.09.2021 Ex.P13 Expert opinion dated 16.10.2021 Ex.P13(a) Signature (through PW.2) Ex.P14 sale deed dated 17.09.1954.
Ex.P14(a) typed copy of Ex.P14.
Ex.P15 Compromise petition filed in
O.S.7150/1988
Ex.P16 Certified copy of vakalath
Ex.P17 Letter dated 29.11.2021
Ex.P18 Certified copy of details furnished by
the Karnataka State Bar Council.
List of Witnesses examined for the Defendant :
D.W.1 - Smt. Bharathi D.W.2 - Kushal Kumar D.W.3 - M. Shankarappa List of Documents exhibited for the defendant:
Ex.D.1 Registered Will dated 17.05.1999
Ex.D.2 Letter dated 19.12.2016
Ex.D.3 Death certificate
Ex.D.1(a,b,c) Signatures (through DW.3)
95 O.S.No.4522/2003
Ex.D.4 Aadhar Card
Ex.D.5 Driving license
Ex.D.6 Voter I.D
Ex.D.7 Sworn Affidavit
Ex.D.8 Paper publication dated 28.11.2010 Ex.D.9 School Report.
C/c-XXII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.96 O.S.No.4522/2003