Karnataka High Court
Siddanagouda vs Gadigewwa on 25 October, 2017
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF OCTOBER, 2017
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
REGULAR SECOND APPEAL NO.100608/2016 (DEC)
BETWEEN:
1. SIDDANAGOUDA
S/O BASANGOUDA PATIL
@ KENCHANGOUDAR
AGE: 50 YEARS
OCC. AGRICULTURE
R/O BAAD VILLAGE
TQ & DIST. DHARWAD-580001
2. BASANGOUDA S/O BASANGOUDA PATIL
@ KENCHANGOUDAR
AGE: 45 YEARS
OCC. AGRICULTURE
R/O BAAD VILLAGE
TQ & DIST. DHARWAD-580001
3. KALLANGOUDA S/O BASANGOUDA PATIL
@ KENCHANGOUDAR
AGE: 43 YEARS
OCC. AGRICULTURE
R/O BAAD VILLAGE
TQ & DIST. DHARWAD-580001
... APPELLANTS
(BY SRI V G BHAT, ADVOCATE)
2
AND
1. SMT.GADIGEWWA
W/O CHANNAMALLAYYA HIREMATH
AGE: 67 YEARS
OCC. HOUSEHOLD
R/O DEVAR HUBBALLI
TQ & DIST. DHARWAD-5800118
2. SMT.RACHAWWA @ SHOBHA
W/O BASAVARAJ HIREMATH
AGE: 64 YARS
OCC. HOUSEHOLD
R/O ALNAVAR
TQ & DIST. DHARWAD-581103
... RESPONDENTS
THIS APPEAL IS FILED UNDER SECTION 100 OF C.P.C.,
PRAYING THE COURT TO SET ASIDE THE JUDGMENT AND
DECREE PASSED BY THE IV ADDL.DISTRICT AND SESSIONS
JUDGE, DHARWAD IN R.A.NO.57/2015 DATED 28.04.2016 AND
THE JUDGMENT AND DECREE PASSED BY THE III ADDL.
SENIOR CIVIL JUDGE, DHARWAD IN O.S.NO.94/2003 DATED
25.03.2015 AND ETC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed under Section 100 of the Code of Civil Procedure, 1908, by the appellants challenging the judgment and decree passed by the IV Additional District and Sessions Judge, Dharwad in R.A.No.57/2015 whereby 3 the judgment and decree passed by the III Additional Senior Civil Judge, Dharwad in O.S.No.94/2003 is confirmed.
2. For the sake of convenience, the parties are referred as per their status before the trial court.
3. The plaintiffs filed O.S. No.94/2003 against the defendants for the relief of partition and separate possession of suit schedule properties contending that their father Satayya, who died on 15.04.1997 had three daughters, namely, plaintiffs No.1 and 2, and mother of defendants No.1 to 3. It was alleged that the defendants who were residing with Satayya created a fake Will by playing undue influence and fraud on him and the said Will is not binding on them and they are entitled for their legitimate share in suit properties. The defendants appeared in the suit proceedings and contested the same. The trial court, on the basis of the pleadings of the parties, framed five issues. On appreciation of evidence, decreed the suit in part allotting 2/3rd share to plaintiffs No.1 and 2 and 1/3rd share to defendants No.1 to 3. 4 Aggrieved by the same, the defendants preferred appeal before the lower appellate court, which came to be dismissed confirming the judgment and decree passed by the trial court. Hence, this second appeal.
4. Learned counsel, Sri V.G. Bhat appearing for the appellants/defendants would contend that the courts below failed to appreciate the fact that the appellants and their mother were looking after the deceased Satayya till his last breath as well as his wife deceased Smt. Basavannewwa and appreciating the services rendered by them and Satayya having no male issues, executed a registered Will in respect of the suit properties in favour of the appellants. The courts below brushing aside the crucial material placed on record by the defendants decreed the suit of the plaintiffs which resulted in mis-carriage of justice. It was further contended that the wife of one of the deceased attesting witness to the Will was examined. Despite the same, the courts below proceeded to hold that the Will was not proved for not 5 examining even one of the attesting witness, which is wholly unjustifiable. Further the learned counsel submitted that tenancy rights in property measuring 4 acres 31 guntas of Baad village in R.S. No.119 is pending before the Land Tribunal, Dharwad. In such circumstances, unless the plaintiffs co-operate with the defendants, it is difficult to get the said property. It is the apprehension of the appellants that in the final decree proceedings, now pending before the Execution Court, this property in which no rights are still vested on the parties to the suit may be allotted to the share of the defendants and in such circumstances, it would cause great injustice to the defendants unless the said property is granted in favour of the parties to the suit by the Land Tribunal, Dharwad.
5. Having heard the learned counsel for the appellants and perusing the material on record, it is clear that the plaintiffs are the daughters of deceased Satayya. The plaintiffs are claiming their rights over the suit properties , being the children of deceased Satayya, whereas the 6 defendants are claiming their rights based on the registered Will said to have been executed by the deceased Satayya on 02.07.1990. The crucial point that was required to prove the Will was, examination of one of the attesting witnesses to the Will, to claim the entire suit property as the beneficiaries under the Will executed by deceased Satayya. At this juncture, it would be apt to refer to the judgment of this Court in the case of Sri J.T. Surappa and Another v. Sri.Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and others, reported in ILR 2008 KAR 2115, wherein this Court has held that to prove the Will to be valid, five steps have to be considered. The first step is that if the document produced before the Court prima facie do not satisfy these legal requirements, the Court need not make any further enquiry, insofar as its due execution is concerned. The second step is that when the legal heirs are disinherited, the Court has to scrutinize the evidence with greater degree of care than usual. The third step would be to find out whether the testator was in a sound state of mind at the time of 7 executing the Will. The fourth step would be to find out whether there exists any suspicious circumstances surrounding the execution of the Will. The fifth step is to consider whether the Will that is executed is in accordance with Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872. Therefore, before a Will is said to have been executed, it has to pass the dual test under Section 68 of the Indian Evidence Act as well as under Section 63 of the Indian Succession Act. Section 68 of the Indian Evidence Act makes it clear that the said document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. Before execution of the Will is held to be proved, examination of one attesting witness at least is a must. In the absence of examining any one of the attesting witnesses to the Will, examining the wife of one of the deceased attesting witness would not validate the Will or the proof of the Will. As such, based on the Will, the claim made by the defendants on the entire suit property is not sustainable. 8
6. As regards the apprehension of the appellants that the plaintiffs may not co-operate in the proceedings before the Karnataka Land Tribunal is wholly mis-conceived. When share is allotted to the plaintiffs including the property which is to be granted by the Land Tribunal, it is beneficial for the plaintiffs to participate in the proceedings co-operating with the defendants. Otherwise, the entire share of the plaintiffs in the properties would be reduced. It is the further apprehension of the appellants that before the Execution Court in the final decree proceedings while allotting the share to the parties, this property which is not yet been granted to the parties may be allotted to the share of the defendants. Such apprehension cannot be countenanced for the reason that it is always open to the defendants to putforth before the Execution Court regarding the actual aspects of the matter, more particularly, when the property if not granted by the Land Tribunal to the parties, the same cannot be allotted to the share of the defendants exclusively. Considering these 9 aspects, this Court do not find any substantial question of law to entertain the second appeal.
The appeal is devoid of merits and accordingly stands dismissed.
(Sd/-) JUDGE CLK/hnm