Karnataka High Court
Dr H M Jayanandaswamy vs H M Vijayakumar S/O. Late H.M. ... on 9 June, 2023
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R
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.6025 OF 2011 (PAR)
C/W
REGULAR SECOND APPEAL NO.5973/2011 (PAR)
IN R.S.A. No.6025/2011
BETWEEN:
DR. H.M. JAYANANDASWAMY
S/O. LATE H.M. SIDDHALINGIAH,
SINCE DECEASED BY HIS LR's
1(A) SMT. SIRAMATH BHAGYALATHA
W/O. S.R. SHIVAPRAKASH,
D/O. DR. H.M. JAYANANDASWAMY,
AGED ABOUT 58 YEARS,
OCC- HOUSEWIFE, R/O. NO.599/600,
14TH CROSS, NEAR SYNDICATE BANK,
VIJAYANAGAR, BENGALURU NORTH,
BENGALURU - 560 040.
Digitally
YASHAVANT signed by
NARAYANKAR YASHAVANT
NARAYANKAR 1(B) DR. H.M. RAJASHEKAR,
S/O. DR. H.M. JAYANANDASWAMY,
AGED ABOUT 54 YEARS,
OCC- MEDICAL PRACTITIONER,
RAMAYYA COLONY,
NEAR HUSSAIN NAGAR,
BALLARI - 583 101.
1(C) SMT. H.M. SHASHIKALA
W/O. DR. H.M. JAYANANDASWAMY,
AGED ABOUT 72 YEARS,
OCC- HOUSEWIFE,
R/O. 28TH WARD, M.J.NAGARA,
HOSAPETE HOBLI, TQ- HOSAPET,
DT.VIJAYANAGAR - 583 201.
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1(D) SRI. H.M. JAGADISH
S/O. DR. H.M. JAYANANDASWAMY,
AGED ABOUT 47 YEARS,
OCC- AGRI., R/O. 28TH WARD,
M.J.NAGARA,
HOSAPETE HOLI, TQ- HOSAPET,
DT.VIJAYANAGAR - 583 201.
1(E) GEETHA H.M.
D/O. DR. H.M. JAYANANDASWAMY,
AGED ABOUT 39 YEARS,
OCC - HOUSEHOLD,
R/O. 28TH WARD, M.J.NAGARA,
HOSAPETE HOBLI, TQ- HOSAPET,
DT.VIJAYANAGAR - 583 201.
(AMENDMENT CARRIED OUT
AS PER THE HON'BLE COURT
ORDER DATED 13.03.2023) ... APPELLANTS
(BY SRI M.R. RAJAGOPAL, SENIOR COUNSEL FOR
SRI DINESH M. KULKARNI, ADVOCATE FOR A-1(C TO E) AND
SRI BASAVANA GOUD T., ADVOCATE FOR A-1(A & B))
AND:
1. SRI H.M. VIJAYAKUMAR
S/O. LATE H.M. SIDDHALINGIAH,
AGE: 69 YEARS,
OCC: ADVOCATE CUM AGRICULTURIST,
R/O. NO.401B, 1ST MAIN ROAD,
N.C. COLONY, 31ST WARD, HOSPET,
BELLARY - 583 230.
2. DR. H.M. SAHAJANANDA
S/O. LATE H.M. SIDDALINGIAH,
AGE: 60 YEARS, R/O. NO.413, 7TH MAIN,
VIJAYA BANK LAYOUT, BEHIND IIM,
BANNERGHATTA ROAD,
BANGALORE - 78.
3. SMT. H.M. SUJAYA MANJULA @ H.C. PUSHPA
W/O. LATE H.H. CHANDRASHEKHARAIAH,
AGE: 67 YEARS,
C/O. DR. SHANMUKHA HIREMATH,
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NO.5P, 1ST CROSS, SHAMBHAVI COLONY,
GANDHI NAGAR,
DHARWAD - 580 004.
4. SMT. H.M. SUCHETHAKUMARI
W/O. B.VEDAMURTHY
AGE: 63 YEARS, R/O. 2ND CROSS,
M.J. NAGAR, HOSPET,
BELLARY - 583 203. ... RESPONDENTS
(BY SRI S.P. SHANKAR, SENIOR COUNSEL FOR
SRI VISHWANTATH HEGDE, ADVOCATE FOR R-1;
SRI R.M. PHIRANGI, ADVOCATE FOR R-2;
SRI C.R. HIREMATH, ADVOCATE FOR R-3 (NOC);
SRI MRUTYUNJAYA S. HALLIKERI, ADVOCATE FOR R-4 (NOC);
SRI B.VEDAMURTHY, ADVOCATE FOR R-4)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT & DECREE DATED 10.08.2011
PASSED IN R.A.NO.32/2010 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT - III AT HOSPET, ALLOWING
THE APPEAL, FILED AGAINST THE JUDGMENT DATED
19.02.2010 AND THE DECREE PASSED IN O.S.NO.64/2006 ON
THE FILE OF THE CIVIL JUDGE (SR.DN.), KUDLIGI, PARTLY
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION WITH MESNE PROFITS.
IN R.S.A. No.5973/2011
BETWEEN
H.M. VIJAYA KUMAR
S/O. LATE H.M. SIDDALINGAIAH,
AGE: 70 YEARS,
OCC: ADVOCATE CUM-AGRICULTURE,
R/O. 401 B, N.C. COLONY, 1ST MAIN ROAD,
31ST WARD, HOSPET, BELLARY DIST. ... APPELLANT
(BY SRI S.P. SHANKAR, SENIOR COUNSEL FOR
SRI VISHWANATH HEGDE AND
SMT. TANUJA HEGDE, ADVOCATE, (NOC))
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AND
1. DR. H.M. JAYANANDASWAMY
S/O. LATE H.M. SIDDALINGAIAH,
SINCE DECEASED BY HIS LR's
1(A) DR. H.M. RAJASHEKAR,
S/O. DR. H.M. JAYANANDA SWAMY,
AGED ABOUT 54 YEARS,
OCC: SERVICE,
R/O. 28TH WARD, M.J. NAGARA, HOSAPETE,
DIST: VIJAYANAGARA - 583 201.
1(B) SIRAMATH BHAGYALATHA
D/O. DR. H.M. JAYANANDA SWAMY,
AGED ABOUT 58 YEARS,
OCC: HOUSEHOLD,
R/O. 28TH WARD,
M.J. NAGARA, HOSAPETE,
DIST: VIJAYANAGARA - 583 201.
1(C) H.M. SHASHIKALA
W/O. DR. H.M. JAYANANDA SWAMY,
AGED ABOUT 72 YEARS,
OCC- HOUSEHOLD,
R/O. 28TH WARD,
M.J. NAGARA, HOSAPETE,
DIST: VIJAYANAGARA - 583 201.
1(D) JAGADEESH H.M.
S/O. DR. H.M. JAYANANDA SWAMY,
AGED ABOUT 47 YEARS,
OCC- SERVICE,
R/O. 28TH WARD,
M.J. NAGARA, HOSAPETE
DIST: VIJAYANAGARA - 583 201.
1(E) H.M. GEETHA
D/O. DR. H.M. JAYANANDA SWAMY,
AGED ABOUT 39 YEARS,
OCC- SERVICE,
R/O. 28TH WARD,
M.J. NAGARA, HOSAPETE
DIST: VIJAYANAGARA - 583 201.
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(AMENDMENT CARRIED OUT
AS PER THE HON'BLE COURT
ORDER DATED 13.03.2023)
2. DR. H.M. SAHAJANANDA
S/O. LATE H.M. SIDDALINGAIAH
AGE: 62 YEARS,
OCC: MEDICAL PRACTITIONER,
R/O. NO.413, 7TH MAIN,
VIJAY BANK LAYOUT, BEHIND IIM,
BANNERUGHATTA ROAD, BANGALORE.
3. H.M. SUJAYAMANJULA
S/O. LATE H.M. CHANDRASHEKARAIAH,
C/O. DR. SHANMUKHA HIREMATH,
NO.5P, 1ST CROSS, SHAMBHAVI COLONY,
GANDHINAGAR, DHARWAD.
4. SMT. H.M. SUCHETHAKUMARI
W/O. SRI B. VEDAMURTHY
AGE: 64 YEARS, R/O. 2ND CROSS,
M.J. NAGAR, HOSPET,
DIST: BELLARY. ... RESPONDENTS
(BY SRI M.R. RAJAGOPAL, SENIOR COUNSEL FOR
SRI DINESH M. KULKARNI, ADVOCATE FOR R-1(C TO E) AND
SRI T. BASAWANA GOUDA T., ADVOCATE FOR R-1(A & B);
SRI R.M. PHIRANGI, ADVOCATE FOR R-2;
SRI C.R. HIREMATH, ADVOCATE FOR R-3 (NOC);
SRI B.VEDAMURTHY, ADVOCATE FOR R-3 & R-4)
THIS RSA IS FILED UNDER SECTION 100 OF C.P.C.,
AGAINST THE JUDGEMENT & DECREE DATED 10.08.2011
PASSED IN R.A.N0.32/2010 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-III, AT HOSPET, PARTLY
ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT
DATED 19.02.2010 AND THE DECREE PASSED IN O.S.
NO.64/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN.),
KUDLIGI, PARTLY DECREEING THE SUIT FILED FOR PARTITION
& SEPARATE POSSESSION WITH MESNE PROFITS.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
ON 17/04/2023 FOR JUDGMENT AND COMING FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THIS COURT
PRONOUNCED THE FOLLOWING:
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JUDGMENT
Both the appeals arising out of the judgment and decree dated 10.08.2011 in R.A. No.32/2010 on the file of the Fast Track Court-III, Hospet and judgment and decree dated 19.02.2010 in O.S. No.64/2006 on the file of the Civil Judge (SR. Dn.), Kudligi.
2. RSA No.5973/2011 is preferred by the plaintiff insofar as denying share to the plaintiff in respect of item No.9 of 'B' schedule property.
3. RSA No.6025/2011 is preferred by defendant No.1 insofar as reversing the judgment and decree of the Trial Court on issue No.3 holding that Ex.D.18-Will is not proved in accordance with Section 63 (c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872.
4. This Court while admitting the appeal on 14.08.2013 framed the following substantial question of law:
"(1) Whether in the facts and circumstances of the case the Appellate Court was justified in -7- reversing the finding of the Trial Court on issue No.3 with reference to Ex.D18 Will?
(2) Whether in the facts and circumstances of the case the Courts below were justified in holding that Ex.D33 Gift Deed is genuine and denying share to the plaintiff over item No.9 of 'B' schedule property?"
5. Sri. S.P. Shankar, learned senior counsel for the appellant and Sri. M.R. Rajagopal, learned senior counsel for the respondent are heard on the substantial question of law framed by this Court.
6. Brief facts of the case are that, the plaintiff and defendant Nos.1 to 4 are the children of one H.M. Siddalingaiah. It is stated that during the life time of H.M. Siddalingaiah, he inherited 'A' Schedule property from his father and acquired 'B' schedule property from out of his earnings as he was working as a high school teacher and retired as an Headmaster of the Government High School. By way of amendment, the plaintiff stated that item No.8 of the 'B' schedule property was of the ownership of one Smt. Gowramma, who is none other than the sister of the -8- plaintiff's father and since the sister died issueless, the plaintiff's father and his brothers inherited the property and in light of the settlement entered into between the brothers, item No.8 has fallen to the share of H.M. Siddalingaiah. It is stated that item No.8A, Sy. No.425 which was totally measuring 1 acre 36 guntas out of which, 0.75 guntas was purchased by the plaintiff's father out of the income from the joint family properties and remaining 0.75 guntas was purchased by the plaintiff out of his professional income under the registered sale deed dated 11.10.1965 and it is self acquired property and not the joint family property.
7. It is further stated that item Nos.10 and 11 of 'B' schedule property though purchased in the name of H.M. Siddalingaiah, the plaintiff has contributed to purchase the said property and stated that at the time of agreement of sale, the plaintiff has paid the consideration amount and as such, the suit item Nos.10 and 11 of 'B' schedule property are not exclusive properties of H.M. Siddalingaiah. It is further stated that the alleged Will -9- executed on 10.08.1994 in favor of defendant No.1 is under suspicious circumstances since their father was not keeping good health and defendant No.1 taking undue advantage of his old age has got created the Will in his favour. According to the plaintiff since defendant No.1 refused to allot share in respect of suit schedule property, the cause of action arose to file suit for partition and separate possession seeking 1/4th share in the suit schedule property except item Nos.8A, 10 and 11 of the 'B' schedule property.
8. Pursuant to the issuance of summons, defendants appeared and filed their written statement.
9. Defendant No.1 filed written statement to the original plaint inter alia denying the plaint averments and contending that Sy. No.425A measuring 1 acre 36 guntas has not been included in the property. It is specifically stated by defendant No.1 that 'B' schedule property item Nos.9 to 11 are self acquired properties of H.M. Siddalingaiah having purchased the property under registered Sale Deed dated 14.03.1963 and 28.02.1973
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and the father of plaintiff and defendants executed registered Will bequeathing item Nos.9 and 11 in respect of 'B' schedule property in favour of defendant No.1 on 10.08.1994 and pursuant to the amendment of the plaint, defendant No.1 filed additional written statement inter alia contending that his father Sri. H.M. Siddalingaiah during his life time has executed the registered Will dated 30.01.1970 in his favour with respect to item No.9 of 'B' schedule property.
10. Defendant No.2 filed separate written statement contending that adjoining item No.9 of suit property, there is an open house site No.33 in Sy. No.213 measuring 60 x 40 feet which belongs to the father of defendant and the same is not included for partition and the partial partition is not maintainable. However, defendant No.2 stated that item Nos.10 and 11 of 'B' schedule property, the plaintiff has contributed to purchase the said property and these properties are not the exclusive properties of the defendants father. Defendant No.2 though raised several other contentions
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has sought for share to an extent of 1/4th in the suit schedule property.
11. Defendant No.3 filed written statement contending that she is entitled for share in the suit schedule property being Class-I legal heir. Defendant No.4 filed memo adopting the written statement filed by defendant No.3.
12. The Trial Court on the basis of the pleadings, framed the following issues:
"1) Whether the plaintiff proves that the suit schedule properties are the joint family properties of the plaintiff and defendants?
2) Whether the plaintiff proves that the land bearing sy.no.425 measuring 0.75 acres was purchased by him out of his income derived from the profession through registered sale deed dated 11/10/1965?
3) Whether the 1st defendant proves that the father of the plaintiff and defendants executed a registered Will bequeathing the item No.9 to 11 of the properties of 'B' schedule properties infavour of
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1st defendant on 10/8/94 and acted upon as per the Will?
4) Whether the plaintiff proves that he has got a right of 1/4th share in the 'B' schedule property?
5) Whether the plaintiff is entitled for the reliefs as sought for?"
13. The plaintiff in order to substantiate his claim examined himself as P.W.1 and got marked documents at Ex.P.1 to P.74. On the other hand, defendant No.1, 2 and 4 examined themselves as D.W.1, D.W.5 and D.W.4 respectively and two witnesses as D.W.2 and D.W.3 and got marked documents at Ex.D.1 to D.37.
14. The Trial Court on the basis of the pleadings, oral and documentary evidence held that the plaintiff has proved that:
(i) The suit 'A' schedule properties and item Nos.3 to 7 of the 'B' suit schedule properties are joint family properties and plaintiff has no right for share in the remaining 'B' schedule property;
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(ii) The plaintiff has failed to prove that the land bearing Sy. No.425 measuring 0.75 acres was purchased by the plaintiff out of his individual income under the registered sale deed dated 11.10.1965;
(iii) Defendant No.1 has proved that suit item Nos. 8 to 11 of 'B' schedule properties are the self acquired properties of his father H.M. Siddalingaiah and the suit item Nos.8 to 11 were bequeathed by their father under the registered Will dated 10.08.1994 in favour of defendant No.1;
(iv) The Gift Deed dated 30.01.1970 at Ex.D.33 is a genuine one.
And accordingly, decreed the suit in part declaring that the plaintiff has got 1/4th share in suit item 'A' schedule properties and item Nos.3 to 7 of 'B' schedule properties and by way of notional partition, allotted share in respect of the share allotted to their father Siddalingaiah to defendant Nos.3 and 4, who are
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daughters. The claim of plaintiff in respect of item Nos.8 to 12 of 'B' schedule properties was rejected.
15. Aggrieved by the rejection to allot share in item Nos.8 to 12 holding that defendant No.1 has proved due execution and attestation of Will dated 10.08.1994 in favour of defendant No.1 and holding that defendant No.1 has proved the execution of Gift Deed in his favour and that item Nos.8A, 10 and 11 are the self-acquired properties of the father of the plaintiff and defendants and non-granting of equal share to defendant Nos.3 and 4 by virtue of Hindu Succession (Amendment) Act, 2005, has preferred appeal before the first appellate Court.
16. The first appellate Court on the basis of the pleadings and arguments advanced, framed the following points for consideration:
"1. Is the Trial Court not justified in holding that the father of the plaintiff and defendants executed registered Will bequeathing the item No.9 to 12 properties of 'B' schedule in favour of Ist defendant on 10.08.1994 ?
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2. Is the trial court not justified in holding that the gift-deed dated 30.01.1970 executed by father of the plaintiff and defendants in respect of plot No.32 in Sy.No.212 situated at Ward No.15 Hospet being genuine one is duly acted upon?
3. Is the Trial Court not justified in holding that the land bearing Sy.No.425 measuring 0.75 acres purchased under registered sale-deed dated 11.10.1965 is not self-acquired property of plaintiff?
4. Is the Trial Court not justified in holding that the suit schedule 'B' properties at item No.8 to 12 are not the joint family properties of the plaintiff and defendants?
5. Is the trial court not justified in allotting equal share out of 1/4th share of their father by way of notional partition in respect of suit schedule 'A' and item No.3 to 7 of 'B' schedule to the Defendant NO.3 and 4?
6. Is it just and necessary to interfere with the Judgment and decree under appeal?"
17. The first appellate Court on re-appreciation of the material on record confirmed the judgment of the Trial Court insofar as the Gift Deed at Ex.D.33 and reversed the judgment of the Trial Court holding that defendant No.1
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has failed to prove the due execution and attestation of the Will dated 10.08.1994 and declaring that the plaintiff and defendant Nos.2 and 3 are entitled for 3/10th share and defendant Nos.3 and 4 are entitled for 1/20th share in the suit schedule 'A' properties and plaintiff and defendant Nos.1 to 4 are entitled for partition and separate possession of 1/5th share in the suit schedule item Nos.3 to 8 and 10 to 12 of 'B' schedule properties. The judgment and decree in respect of item No.9 of 'B' schedule property stood confirmed.
18. Aggrieved by the judgment and decree of the first appellate Court insofar as rejecting allotting share in item No.9, RSA No.5973/2011 is preferred by the plaintiff. Defendant No.1 has preferred RSA No.6025/2011 in reversing the finding of the Trial Court on issue No.3 with reference to the Will.
19. Sri. S.P. Shankar, learned senior counsel appearing for the plaintiff/appellant in RSA No.5973/2011 and for the respondents in RSA No.6025/2011 would contend that the document at Ex.D.33-the registered Gift
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Deed in favour of defendant No.1 would not conform to the statutory requirement of gift as envisaged under Sections 122 and 123 of the Transfer of Property Act ('the TP Act' for short) as it mandates that the donee must accept the gift and must take possession by endorsement likewise on the deed of gift and in the absence of the mandatory requirement on the alleged gift deed-Ex.D.33, is not a gift deed in the eye of law. Learned Senior counsel would further contend that the gift has to be accepted during the life time of the donor as provided under Sections of 122 and 123 of TP Act, when admittedly, the donor died in the year 1999 and the dispute arose in the year 2010, the question of donee accepting the gift after the death of the donor is out of question and hence, Ex.D.33 is to be discarded. It is further contended that Exs.D.34 and D.35 are the affidavits which came into existence of the alleged gift deed and the said affidavit does not contain the signatures of all the parties to the suit and the document does not fulfill the requirement as envisaged under law.
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20. The other contention of the learned senior counsel for the appellant is that Ex.D.18-Will dated 10.08.1994 is not in accordance with Section 63 (c) of the Indian Succession Act and Section 68 of the Indian Evidence Act and would contend that the word 'attestation' has been defined under Section 3 of TP Act and Section 63
(c) of the Indian Succession Act mandates as to how the attestor will have to act in a particular manner while attesting the Will. According to the learned senior counsel witnessing the execution of the Will is different from attesting the Will. Attesting much more than witnessing. There has to be a participation by the witnesses in execution of the Will and the testator must say that the document is his last Will and he has executed it freely, voluntarily and without any inducement or coercion and the testator must sign in the presence of two witnesses, who must endorse that the testator endorse the same in their presence and that they have subscribed their signature as witnesses, with commitment and attitude of 'animus' "attestandi" and perusal of Ex.D.18-Will would disclose that there is no compliance of Section 63 (c) of
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the Indian Succession Act and accordingly, would contend that the Will is not proved in accordance with law.
21. Learned senior counsel in support of his contention placed the reliance on the following judgments:
i. M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons, (1969) 1 SCC 573 (Abdul Jabbar Sahib) ii. Seth Loonkaran Sethiya and Others v. Mr. Ivan E. John and others reported in (1977) 1 SCC 379 (Seth Loonkaran Sethiya) iii. K. Laxmanan v. Thekkayil Padmini reported in (2009) 1 SCC 354 (Laxmanan)
22. Per contra, Sri. M.R. Rajagopal, learned senior counsel appearing for defendant No.1 in RSA No.5973/2011 and for the appellants in RSA No.6025/2011 would contend that the Trial Court while passing the decree has awarded notional share to defendant Nos.3 and 4 and in the absence of any challenge by filing any independent appeal or by raising
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cross objection, the first appellate Court was not justified in awarding share to the extent of 3/10th share and 1/20th share in the ancestral property and 1/5th share in the 'B' schedule property being the self acquired property. In support of his contention, learned senior counsel relied upon the judgment of the Hon'ble Apex Court in the case of Prabhakar Gones Prabhu Navelkar (dead) through legal representatives and others Vs. Saradchandra Suria Prabhu Navelkar (Dead) through legal representatives and others reported in (2020) 20 SCC 465 [Prabhakar Gones Prabhu]. Learned senior counsel would further contend that the Will dated 10.08.1994 has been proved in accordance with Section 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act and D.W.2 deposed that he has seen the deceased signing the Will and each of the witnesses appended their signatures to the Will in the presence of the deceased and the witness has seen the other witness endorsing the signature. In support of this contention, learned senior counsel has relied upon the following judgments:
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(i) Bhaiya Girja Datt Singh vs. Gangotri Datt Singh reported in AIR 1955 SC 346 (Bhaiya Girja Datt Singh)
(ii) K. Laxmanan v. Thekkayil Padmini, reported in (2009) AIR SC 951 (Laxmanan)
(iii) Ramesh Verma (dead) Through Legal Representatives and another v. Lajesh Saxena (dead) Through Legal Representatives and another reported in (2017) 1 SCC 257 (Ramesh Verma)
23. Since both the appeals are arising out of one suit and hence, are taken up together.
24. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record.
25. Undisputed facts are that the plaintiff and defendant Nos.1 to 4 are the sons and daughters of one H.M. Siddalingaiah. Initially, the plaintiff contended that the suit schedule 'A' properties are the ancestral
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properties and suit item 'B' schedule properties are the self acquired properties of their father H.M. Siddalingaiah. Later by way of amendment, the plaintiff sought to contend that the item No.8A, Sy. No.425 measuring 0.75 guntas was purchased by the plaintiff's father out of his income from joint family and remaining part of Sy. No.425 was purchased by him from his professional income and item No.8 was allotted in favour of his father from his sister and that item Nos.10 and 11 though purchased in the name of his father, the sale consideration amount at the time of agreement of sale was paid by the plaintiff.
26. The contest of the suit is by defendant No.1. Defendant No.1 contended that item Nos.9 to 11 have been purchased by his father out of his individual income under the registered sale deed and the said properties are bequeathed in favour of defendant No.1 by executing a registered Will dated 10.08.1994 and his father executed a registered Gift Deed dated 30.01.1970 with respect to item No.9 of the suit schedule property. It is the specific contention of defendant No.1 admitting that suit 'A'
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schedule property is the ancestral property and item Nos.9 to 11 are the properties purchased by their father during his life time from his own earning.
27. Though the plaintiff contended that at the time of purchase of item Nos.9 to 11 of B schedule properties, the plaintiff has contributed towards the acquisition of the said property. Ex.D.5-original registered Sale Deed dated 29.05.1965 in respect of suit item No.12 of the 'B' schedule property bearing Sy. No.425. Ex.D.6 is the original registered sale deed 11.10.1965 for having purchased 0.75 guntas in Sy. No.425. Ex.D.15 is the registered sale deed dated 14.03.1963 to show that the plaintiff's father purchased site measuring 15 x 30 feet. Ex.D.17 is the registered sale deed dated 28.02.1973 having purchased the suit property of item Nos.10 and 11 of 'B' schedule property by the father of the plaintiff and defendants. Item No.8 is the property allotted to the share of the father of the plaintiff and defendants in the partition between his brothers.
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28. The material on record evidences that item Nos.8 to 11 of 'B' schedule property are acquired by the father of plaintiff and defendants. Though the plaintiff contended that plaintiff has paid the amount for acquisition of the property of item Nos.10 and 11, however, no corroborative or rebuttal evidence is placed by the plaintiff to show that the plaintiff has equally contributed towards purchase of the property and in the absence of any material to prove the same, the Trial Court and first appellate Court were justified in holding that the plaintiff has failed to prove that item Nos.8 to 11 of 'B' schedule property are the joint family properties and this Court has no hesitation to hold on considering the evidence and the material on record that the suit item Nos. 8 to 11 are self acquired properties of H.M. Siddalingaiah-father of plaintiff and defendants.
29. In light of the reasoning assigned, the suit schedule item Nos.8 to 11 are self acquired properties of H.M. Siddalingaiah, the question falls for consideration regarding Ex.D.18-Will dated 10.08.1994 and Ex.D.33-Gift
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Deed dated 30.01.1970 are been proved in accordance with law and that is the substantial question of law framed by this Court.
30. In view of the finding recorded above, that the suit schedule property item Nos.8 to 11 are self-acquired property of H.M. Siddalingaiah, the determination of whether the father of plaintiff and defendants was competent to execute a Will or registered Gift Deed in favour of defendant No.1 would not arise. The only question to be answered is whether the said documents have been proved in accordance with law or not.
31. The Will executed by H.M. Siddalingaiah at Ex.D.18 dated 10.08.1994 in favour of defendant No.1 has to be proved by the propounder of the Will in accordance with Section 63 (c) of the Indian Succession Act and Section 68 of the Indian Evidence Act.
32. Section 63 (c) of the Indian Succession Act reads as under:
"63. Execution of unprivileged wills.-- Every testator, not being a soldier employed in an
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expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:--
(a) x x x
(b) x x x
(c) The will shall be attested by two or more
witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
33. A plain reading of Section 63 (c) envisages that the Will has to be attested by two or more witnesses and each of whom has seen the testator sign or affix his mark to the Will or has seen some other person signed the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of the witnesses shall sign the Will in the
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presence of 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.
34. In order to prove whether the attestation of the signature of the deceased on Ex.D.18-Will was in accordance with requirement of Section 63 (c) of the Indian Succession Act, defendant No.1 examined D.W.2 - the attesting witness and the scribe-D.W.3 who saw the deceased signed the Will and affixed their signatures in the presence of the deceased. The relevant portion of deposition reads as under:
"3) £ÁªÀÅ «¯ï£ÀÄß §gÉ¢nÖzÉÝÃªÉ ¸À» ªÀiÁqÀÄ JAzÀÄ ¹zÀÝ°AUÀAiÀÄå £À£ÀߣÀÄß PÉýPÉÆAqÀgÀÄ. DUÀ ¸ÀªÀÄAiÀÄ JµÀÄÖ DVvÀÄÛ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è. £Á£ÀÄ ¸ÁÖA¥ï ¥ÉÃ¥ÀgÀ£ÀÄß ªÀiÁgÀÄwÛgÀĪÁUÀ UÀÄgÀĹzÀÝAiÀÄå PÀmÉÖAiÀÄ ªÉÄÃ¯É PÀĽvÀÄ «¯ï §gÉzÀgÀÄ £Á£ÀÄ PÀmÉÖAiÀÄ ªÉÄÃ¯É PÀĽvÀÄ «¯ïUÉ ¸À» ªÀiÁrzÉ£ÀÄ £Á£ÀÄÄ PÀmÉÖAiÀÄ ªÉÄÃ¯É ¸À» ªÀiÁqÀĪÀÅzÀÄ ©lÖgÉ ¨ÉÃgÉ «µÀAiÀÄ £À£ÀUÉ UÉÆwÛ®è JAzÀgÉ ¤d.
«¯ï §gÉAiÀÄĪÁUÀ 1£Éà ¥ÀæwªÁ¢ ¸ÀܼÀzÀ°è EgÀ°®è «¯ï §gÉAiÀÄ®Ä JµÀÄÖ gÀÆ ¸ÁÖA¥ï ¥ÉÃ¥Àgï vÉUÉzÀÄPÉÆAqÀgÀÄ JAzÀÄ £Á£ÀÄ £ÉÆÃqÀ°®è. £Á£ÀÄ ªÀÄvÀÄÛ «±ÉéñÀégÀAiÀÄå «¯ïUÉ ¸À» ªÀiÁrzɪÀÅ. £Á«§âgÀÄ PÀmÉÖAiÀÄ ªÉÄÃ¯É ¸À» ªÀiÁrzɪÀÅ. «±ÉéñÀégÀAiÀÄå fêÀAvÀªÁV EzÁÝgÉ «¯ï£À°è §gÉzÀ «µÀAiÀÄUÀ¼ÀÄ
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£À£ÀUÉ UÉÆwÛ®è. £À£ÀUÉ ¸À» ªÀiÁrgÀĪÀÅzÀ£ÀÄß ©lÖgÉ G½zÀ «µÀAiÀÄUÀ¼ÀÄ £À£ÀUÉ UÉÆwÛ®è. ¹zÀÝ°AUÀAiÀÄå¤UÉ DUÀ ¸ÀĪÀiÁgÀÄ 90 ªÀµÀðUÀ¼ÀÄ DVvÀÄÛ. ¹zÀÝ°AUÀAiÀÄå£ÀĤUÉ DgÉÆÃUÀå ZÉ£ÁßV EvÀÄÛ PÀtÄÚ PÁt¸ÀÄwÛvÀÄÛ. £À£ÀUÉ PÀ£ÀßqÀzÀ°è ªÀiÁvÀæ ¸À» ªÀiÁqÀ®Ä §gÀÄvÀÛzÉ. £Á£ÀÄ EAVèµï ¨sÁµÉAiÀÄ£ÀÄß PÀ¯Éw®öè EAVèµï ¨sÁµÉ gÀÄdÄ vÉÆÃj¹zÀgÉ £À£ÀUÉ AiÀiÁgÀzÀÄ gÀÄdÄ JAzÀÄ UÀÄgÀÄw®è. 1£Éà ¥ÀæwªÁ¢AiÀÄÄ ¸ÁQë £ÀÄr¸À®Ä £À£ÀߣÀÄß PÀgÉzÀÄPÉÆAqÀÄ §A¢zÁÝgÉ. D ¢£À ¹zÀÝ°AUÀAiÀÄå ¸À¨ï jf¸ÀÖgï PÀZÉÃjUÉ §A¢®è ºÁUÀÆ «¯ï£ÀÄß §gɹ®è JAzÀÄ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è."
35. Perusal of depositions of D.W.2 and 3 makes it clear that there was participation by the witness in execution of the Will and the testator has signed in the presence of two witnesses and the witness-D.W.2 has seen the other witness signing the Will. Thus, the contention and the judgment relied upon by the learned senior counsel appearing for the plaintiff in the case of Abdul Jabbar Sahib would not come to the aid of the appellant/plaintiff in light of categorical statement made by the witness-D.W.2 and the scribe-D.W.3 having affixed their signatures in the presence of the testator.
36. In order to prove the execution of the Will as envisaged under Section 68 of the Indian Evidence Act,
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the propounder of the Will has to prove that, at the relevant time that the testator has sound state of mind and the said Will would be proved when atleast one of the witnesses is called upon for the purpose of proving the execution of the Will and this is the mandate provision as envisaged under Section 68 of the Indian Evidence Act.
37. The Hon'ble Apex Court in the case of Bhaiya Girja Datt Singh (stated supra) at paragraph No.16 has held as under:
"16. It still remains to consider whether the attestation of the signature of the deceased on the will, Ex. A-36 was in accordance with the requirements of Section 63, Indian Succession Act. Section 63 prescribes that:
"(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator .............."
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38. The Hon'ble Apex Court in the case of Ramesh Verma (stated supra), at paragraph Nos. 13 to 16 held as under:
"13. A Will like any other document is to be proved in terms of the provisions of Section 68 of the Evidence Act and the Indian Succession Act, 1925. The propounder of the Will is called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.
14. In Savithri v. Karthyayani Amma this Court has held as under: (SCC p. 629, para 17) "17. A will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The
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onus of proving the will is on the propounder. The testamentary capacity of the testator must also be established. Execution of the will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the will. It is required to be shown that the will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exists suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be accepted as genuine."
15. It is not necessary for us to delve at length to the facts of the matter as also the evidence adduced by the parties before the High Court. Suffice it to note that the execution of the wills has to be proved in accordance with Section 68 of the Evidence Act.
16. Insofar as the execution of the first will dated 7-12-1969 is concerned, the witnesses Shyam Mohan Bhatnagar and scribe Mahesh
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Narayan have stated that the testator Jaydevi executed the will and witnesses Shyam Mohan and R.P. Johri have signed. Witness Johri was the brother-in-law of Ramesh Verma and thus interested witness. Scribe Mahesh Narayan is known to mother-in-law of Ramesh Verma. After referring to their evidence, High Court held that execution of the Will has not been proved. Further, the High Court in its judgment has pointed out the contradictions in their evidences and recorded the factual finding that the will could not have been executed in the manner as alleged by the witnesses. We do not find any reason to interference with the factual findings recorded by the High Court."
39. Defendant No.1 in order to prove and dispel the suspicious circumstance surrounding the Will has contended that the plaintiff has not pleaded under what suspicious circumstances the Will came into existence. However, in his examination-in-chief, he contended that his father was not keeping good health. Ex.D.1 evidences that the father of the plaintiff and defendants was honored in a public function and other than merely stating that defendant No.1 has taken undue advantage of the old age of the father of the plaintiff and defendants, no material
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are placed before the Court to prove that the father of the plaintiff was not in a sound state of mind at the time of execution of the Will.
40. On the contrary, there are sufficient materials placed by defendant No.1 by leading evidence of witness, who categorically stated about the good health of the father of the plaintiff at that time and defendant No.1 being the propounder of the Will and onus of proving the Will being on the propounder has proved by placing sufficient material that when the Will was executed in favour of defendant No.1, the father of plaintiff and defendants was in a sound disposing state of mind. The suspicious circumstances would be like the genuiness of the signature of the testator, condition of the testator's mind, dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator mind was not free and in the absence of any specific suspicious circumstance having pleaded in the plaint, the propounder has established the due execution
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and attestation of the Will as required under Section 63 (c) of the Indian Succession Act and Section 68 of the Indian Evidence Act. Accordingly, the substantial question of law is answered by holding that the Will at Ex.D.18 is proved to be executed in favour of defendant No.1 and the first appellate Court was not justified in reversing the finding of the Trial Court on issue No.3 with reference to Ex.D.18- Will.
41. The plaintiff sought to contend that Ex.D.33-the Gift Deed dated 30.01.1970 is not in accordance with the statutory requirement of the gift as envisaged under Sections 122 and 123 of the TP Act. Ex.D.33-Gift Deed is in respect of item No.9 of the suit schedule property. In order to prove Ex.D.33, it is argued by the learned senior counsel for the plaintiff that the attestor of the gift deed has to be examined and in said absence, the gift is not valid in law.
42. Section 68 of the Indian Evidence Act would be of relevance to consider whether the attesting witness needs to be examined to prove the execution of any
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document other than the Will. The said section reads as under:
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
43. A plain reading of said section would evidence that Section 68 of the Act does not become operative and functional in respect of gift and it would be operational only if the execution of the said document by the person who purports to have been executed is specifically denied.
44. In the present case, admittedly, the gift is in the year 1970, the father of the plaintiff and defendants
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died in the year 1999. The plaintiff is in possession of item No.9 of 'B' schedule property which is the property gifted as per the gift deed. The settled position being that other than the Will execution of any registered document, not specifically denied by the executant examination of the attesting witness is not mandatory as envisaged under Section 68 of the Indian Evidence Act. The Apex Court in the case of Govindbhai Chhotabhai Patel and other vs. Patel Ramanbhai Mathurbhai reported in (2020) 16 SCC 255 has held at paragraph Nos.23 to 25, which read as under:
"23. A gift deed is required to be compulsorily attested in terms of Section 123 of the Transfer of Property Act, 1882. Similar is the provision in respect of execution of a will which is required to be attested in terms of Section 63 of the Indian Succession Act, 1925. Section 68 of the Evidence Act makes it mandatory to examine one of the attesting witnesses for the purpose of proving of the execution of will but such limitation is not applicable in respect of proof of execution of any document which has been registered in accordance with the provisions of the Registration Act, 1908, unless the execution is specifically denied.
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24. The gift deed (Ex.104) is registered and that all the requirements of Section 123 of the Transfer of Property Act have been fulfilled, is the finding of the Trial Court. The learned trial court recorded the following findings:
"However, as far as it is concerned with the gift deed of Ext. 104, in order to prove that late Chhotabhai Ashabhai executed this gift deed in favour of the defendant in fully conscious state, it is necessary as per section - 123 of the Transfer of Property Act that this gift deed should be signed by the executer in presence of the two witnesses that means it should be executed in the presence of two attesting witnesses. Moreover, it should be proved that such gift deed is registered. Looking to the gift deed at Ext. 104, it is an indisputable fact that it is properly registered before the Sub-Registrar, Padra. It is also an indisputable fact that (1) Bhikhabhai Ramabhai and (2) Karshanbhai Dhulabhai have put their signatures in this gift deed as the attesting witnesses. Thus, it is found that all the requirements of Section 123 of the Transfer of Property Act have been fulfilled. However, along with this, it is also necessary to examine the attesting witnesses of the deed."
25. The argument of the learned counsel for the appellants is that the attesting witnesses of the
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gift deed are Bhikhabhai Ramabhai and Karsanbhai Dhulabhai, whereas Solanki Bhikhabhai Ramabhai and Vaid Alkaben Vinodchandra are the witnesses at the time of registration of the document. It is argued that the attesting witnesses of the document have not been examined which is a mandatory requirement to prove execution of the gift deed in terms of Section 68 of the Evidence Act. The High Court has held that the appellants have not denied specifically the execution of the gift deed, therefore, it was not necessary for the Donee to examine one of the attesting witnesses."
45. Accordingly, the substantial question of law framed in this regard by this Court is answered by holding that Ex.D.33 is genuine and the plaintiff is not entitled for share in item No.9 of 'B' schedule property.
46. The another contention raised by defendant No.1 in his appeal is that granting of shares by the first appellate Court to defendant Nos.3 and 4 in the absence of any independent appeal or cross-appeal is not sustainable in light of the settled proposition of law that the Court can grant share to the party, if they are legally entitled to.
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47. In the present case, defendant Nos.3 and 4 are the daughters and in light of the law declared by the Apex Court in the case of Vineeta Sharma v. Rakesh Sharma, reported in (2019) 6 SCC 162, the daughters are to be treated as coparceners and are entitled for equal share in the suit schedule property. Thus, the contention of defendant No.1 that the first appellate Court was not justified in allotting share to defendant Nos.3 and 4 is unacceptable.
48. It is relevant to note that in fact, the appellate Court fell in error in awarding notional share in 'A' schedule property which this Court is of the considered view needs to be modified.
49. For the reasons stated supra, this Court pass the following:
ORDER
(i) RSA No.5973/2011 filed by the plaintiff is hereby dismissed.
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(ii) RSA No.6025/2011 filed by defendant No.1 is hereby allowed and plaintiff is not entitled for share in item No.8 to 11 of the suit schedule property. However, the shares of the plaintiff and defendants are modified by allotting equal 1/5th share in 'A' schedule property and item Nos.3 to 7 of 'B' schedule property.
(iii) Office to draw the decree accordingly.
No order as to costs.
Sd/-
JUDGE MBM