Karnataka High Court
Sanjeeva Naika And Anr. vs Shankara Narayana Naika (Since ... on 26 August, 2003
Equivalent citations: AIR2004KANT103, AIR 2004 KARNATAKA 103, 2004 AIR - KANT. H. C. R. 149, (2004) 1 KCCR 145, (2004) 2 RECCIVR 367
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
JUDGMENT K. Sreedhar Rao, J.
1. This appeal is filed against the Judgment and Decree dated 18-8-98 in R. A. No. 23/88 on the tile of the II Addl. District Judge, Mangalore, D. K., arising out of the Judgment and Decree dated 15-6-88 in O. S. No. 259/81 on the file of the II Addl. Civil Judge, Mangalore.
2. The appellants are the defendant Nos. 4 and 15 before the trial Court. The first respondent filed a suit for partition and possession in the suit schedule properties consisting of agricultural lands and moveable properties. One Thimmanna Naika and the deceased first defendant are the parents of plaintiff and defendants 2 to 7. Defendants 8 to 10 are the L.Rs. and children of deceased defendant No. 3 and defendants 11 to 14 are the L.Rs. and children of deceased defendant No. 5.
3. During the lifetime of Thimmanna Naika, there is a partition amongst Thimmanna Naika and his sons, the suit properties were allotted to the share of Thimmanna Naika. After his demise, the plaintiff claims a share in the suit properties. The contesting defendants are defendants 4 and 15, who are the father and son. During the lifetime of Thimmanna Naika, he executed a sale deed in favour of the 4th defendant as per Ex. D1 conveying Item No. 2 of Schedule 'A' and the rest of the properties were bequeathed in favour of 15th defendant by Thimmanna Naika under a registered Will Ex. D2. On the strength of these documents, the defendants 4 and 15 contended that the suit of the plaintiff is to be dismissed and that the plaintiff and other defendants are not entitled to any share in the property. The trial Court upheld the validity of the sale deed executed by Thimmanna Naika. But, however, held that the Will executed by Thimmanna Naika is a suspicious document, as such held that the Will is void and decreed the suit of the plaintiff partly excluding item I of the 'A' schedule property conveyed under Ex. D1 to the 4th defendant. The plaintiff had filed an appeal against the Judgment and Decree of the trial Court in R. A. No. 23/88 challenging the exclusion of item I of 'A' schedule property covered under Ex. D1 by the trial Court. The appeals of the plaintiff and defendant are dismissed. The 15th defendant challenged the Judgment and Decree. The Judgment and Decree of the trial Court is confirmed. Hence, this appeal.
4. The following question of law is formulated for consideration :--
"Whether the lower Court is justified in holding that Ex. D2 -- a registered Will is not executed at the free Will of the testator and the same is not proved?"
5. The trial Court and the Appellate Court concurrently hold that the Will Ex. D2 is shrouded with suspicious circumstances, which are as under :--
"(a) The beneficiary and the propounder of the Will DW-15 was present and actively participated at the time of execution of the Will as per the evidence of DW-4.
(b) The testator was not having sound health and proper mental disposition at the time of execution of the Will as per evidence of DW-4.
(c) The recitals in the Will that the 15th defendant was residing with the testator and assisting him is belied by the Voters' List and Ration Card of the testator, which does not show that the 15th defendant was the member of the family of the testator, whereas, the name of 15th defendant is found in the Ration Card obtained by 4th defendant (the father of 15th defendant)
(d) There are no valid reasons for the testator to exclude and disinherit his other children and to prefer 15th defendant."
6. The learned counsel for the respondent No. 1 (d) supported the findings of the trial Court and contends that the evidence of DW-4 cannot be accepted as an independent witness since there is an admission in his evidence that the 15th defendant (second appellant) had acted as witness to the Will executed by the father of DW-4 bequeathing the properties in favour of DW-4. Therefore, as a reciprocation, the 4th defendant is figured as a witness, as such, he is an interested witness. The learned counsel submits that there is a concurrent finding of fact that the Will is shrouded with suspicious circumstances, the findings are sound and proper and does not call for interference.
7. After carefully going through the reasons of the Courts below, I find, on the proved and established facts, the inferences drawn by the Courts below are perverse and contrary to the law. It is not always in every case that presence of beneficiary of the Will at the time of its execution should render the Will invalid. In a case where the beneficiary is a member of the family or a regular visitor, his mere presence cannot be a decisive factor to doubt the validity of the Will, unless, it is positively established that the beneficiary has acted in a manner to unduly influence the testator. In this regard, there is no evidence placed by the plaintiff to discharge the onus.
8. The contents of the Will disclose that the testator and his sons got separated by dividing the properties. Testator and his wife are old people, there was nobody to look after them. The 4th defendant is one of the sons was residing nearby and the 15th defendant-grandson is to reside with the testator and his wife and used to assist them, The fact that the Ration Card and Voters' List of the testator does not disclose that the 15th defendant was residing with them is not a decisive factor to infer that the 15th defendant was not assisting the testator. In the same village, the 15th defendant and the testator are residing. The 4th defendant is the natural father of the 15th defendant. It is quite natural for the 15th defendant to live with the natural father. At the same time, it is also possible for the 15th defendant to visit and stay with the testator to render effective assistance. Such a course of action on the part of 15th defendant cannot be disbelieved. Moreover, there is no cross-examination in this regard to disprove the recitals of the Will to that effect.
9. On the question of sound mental capacity of the testator, there is of course some discrepancy in the evidence of DWs-3 and 4. However, the discrepancy is not so serious to impeach the veracity to the Will. According to DW-3, the testator was having sound state of mind. DW-3 is a respectable witness, who has retired as a teacher. According to his evidence, testator has sound state of mind, whereas, DW-4 states that the mental faculties of the testator were little bit weakened. It is quite natural that a person aged above 80 years cannot have a strong and upright physical and mental faculty as of a youth or a middle-aged man. DW-4 also says that the mental faculties of the testator at the time of Ex. D2 were similar to the one prevalent at the time when Ex. D1 was executed about nine months prior to the Will. It is also come in evidence that prior to the Will since 7 to 8 months, the testator was not moving out of the house. The contention that DW-4 support the case of the second appellant because 15th defendant is a witness to the Will executed in favour of DW-4 by his father. Therefore, he is an interested witness is untenable. There is nothing on record to show that the Will executed for DW-4 is illegal and that the second appellant had illegally favoured DW-4 by being a witness to this Will. When there is a friendship and cordiality between the persons, it is quite natural that there would be a mutual co-operation and reciprocity in their conduct. In the present case, DW-4 and second appellant are friends and there is nothing more to show on record that the motives of DW-4 was otherwise tainted to act as a witness for the Will. The Will discloses the reasons for favouring defendant No. 15 (second appellant) with exclusive bequest, the other heirs of the testator are separated and living separately taking away their share of property. The second appellant was alone assisting the testator and his wife. The Will also stipulates that after demise of testator, the property is to be enjoyed by his wife and thereafter bequest shall go to the second appellant. In the context of naturality of facts and circumstances and for the reasons discussed above, it is unreasonable on the part of the Courts below to come to the conclusion that the Will was shrouded with suspicious circumstances. The transparent conduct of the 15th defendant is one favourable circumstances. If his intentions were mala fide and was unduly influencing the testator he would not have resorted to get the Will registered at the residence of the testator by summoning the Sub-Registrar and the witnesses. The attesting witnesses fully corroborate the case of the 15th defendant about the valid execution of the Will by testator.
10. In that view of the matter, the concurrent findings of the Courts below that the Will is void, bad in law and liable to be set aside. The question of law is answered in negative. The suit, of the plaintiff is dismissed. The appeal is allowed.