Karnataka High Court
Smt. M Umadevi vs Sri B S Sachidanandamurthy on 27 August, 2014
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF AUGUST 2014
BEFORE
THE HON'BLE MR.JUSTICE PRADEEP D. WAINGANKAR
REGULAR FIRST APPEAL NO.1085/2012
BETWEEN:
SMT. M. UMADEVI
W/O MAHADEVAIAH
AGED ABOUT 74 YEARS
RESIDING AT No.478, 1ST BLOCK
9TH CROSS, JAYANAGAR
BANGALORE-560 011.
...APPELLANT
(BY SRI. S.V. SHASTRI, ADV.,)
AND:
1. SRI. B.S. SACHIDANANDAMURTHY
S/O LATE B.P. SADASHIVAIAH
No.51/8, 1ST 'A' MAIN ROAD
1ST STAGE, KHB COLONY
BASAVESWARANAGAR
BANGALORE-560 079.
2. SRI. B.S. SHIVAMURTHY
S/O LATE B.P. SADASHIVAIAH
No.278, 8TH MAIN ROAD
VIJAYANAGAR, PIPELINE
BANGALORE-560 040.
3. SRI. B.P. RAJESHEKAAIAH
S/O LATE PUTTACHANNAIAH
AGED ABOUT 84 YEARS.
2
4. SRI. B.P. SIDDALINGAIAH
S/O LATE PUTTACHANNAIAH
AGED ABOUT 81 YEARS.
BOTH ARE RESIDING AT
BITASANDRA PALYA VILLAGE
SOLUR HOBLI, MAGADI TALUK
BANGALORE-562127.
5. SRI. B.S. PARAMASHIVAIAH
S/O LATE B.P. SADASHIVAIAH
AGED ABOUT 84 YEARS
RESIDING AT No.1199, 4TH CROSS
R.P.C. LAYOUT, HAMPINAGAR
BANGALORE-560 040.
6. SRI. B.P. PUTTASWAMAIAH
S/O LATE B.P. SADASHIVAIAH
AGED ABOUT 82 YEARS
RESIDING AT No.13
BEHIND TELECOM BUILDINGS
KHB COLONY, BANGALORE-79.
7. SRI. BKK. MRUTHYUNJAYA
S/O LATE B.P. SADASHIVAIAH
AGED ABOUT 80 YEARS
ORGANIZING SECRETARY
ESHWARIYA VISHWA VIDYALAYA
RAJATHAN TATE - 302001.
8. SMT. B.S SOWBHAGYA
AGED ABOUT 77 YEARS
RESIDING AT CHIKKABELLAVAGALA
DODDABALLAPUR TALUK
BANGALORE RURAL DIST - 561203.
9. SRI. B.S. NATARAJ
S/O LATE B.P. SADASHIVAIAH
AGED ABOUT 75 YEARS
RESIDING AT BITTASANDRA PALYA
YENNEGERE POST, SOLUR HOBLI
MAGADI TALUK
3
BANGALORE DISTRICT - 562127.
10. SMT. B.S. LALITHAMBA
W/O T. BASAVARAJAIAH
AGED ABOUT 68 YEARS
RESIDING AT 1ST MAIN, 2ND CROSS
SRINAGARA, DEVARAYAPATNA POST
TUMKUR - 572101.
11. SRI. B.S. SHADAKSHARI SWAMY
S/O LATE B.P. SADASHIVAIAH
AGED ABOUT 66 YEARS
RESIDING AT No.232/A, 7TH 'D' MAIN
17TH 'C' BLOCK, BASAVESHWARANAGAR
BANGALORE - 70.
12. SRI. B.S. PRABHUDEVARU
S/O LATE B.P. SADASHIVAIAH
AGED ABOUT 64 YEARS
RESIDING AT No.109, 'ASHIRWAD'
4TH MAIN ROAD, SRI VENKATESWARA LAYOUT
ANDRAHALLI MAIN ROAD
VISHWANEEDAM POST,
BANGALORE-560091.
... RESPONDENTS
(NOTICE TO R1, R2, R5, R6, R8, R10, R11 ARE SERVED
AND UNREPRESENTED.
NOTICE TO R3, R4, R9 ARE HELD SUFFICIENT THROUGH
PAPER PUBLICATION.
NOTICE TO R12 IS HELD SUFFICIENT
NOTICE TO R7 IS DISPENSED WITH)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC, AGAINT THE JUDGMENT AND
DECRE DATED 29.02.2012 PASSED IN O.S.5432/1994 ON
THE FILE OF THE XXXVIII ADDITIONAL CITY CIVIL JUDGE
AT BANGALORE CITY, DECREEING THE SUIT FOR
PARTITION AND SEPARATE POSSESSION.
THIS REGULAR FIRST APPEAL HAVING BEEN
HEARD AND RESERVED FOR PRONOUNCEMENT OF
4
JUDGMENT, THIS DAY, PRADEEP D. WAINGANKAR J.,
PRONOUNCED THE FOLLOWING:-
JUDGMENT
This appeal by the legal representative of deceased defendant No.3 is against the judgment and decree dated 29.02.2012 in O.S.No.5432/1994 on the file of the XXXVIII Additional City Civil Judge, Bangalore, whereby the suit for partition and separate possession filed by the plaintiffs came to be decreed.
2. Brief facts which gave rise to this appeal are as under:
It is alleged in the plaint that the plaintiff-B.P. Sadashivaiah, defendant No.1-B.P. Rajashekaraiah, defendant No.2-B.P. Siddalingaiah and husband of defendant No.3, B.P. Shankaraiah are brothers. They constituted a Hindu Joint Family. The suit schedule 'A' and 'B' properties are the joint family properties of the plaintiff and defendants. 'B' schedule property was purchased in the name of Sri. B.P. Shankaraiah, the husband of defendant No.3-Smt. Parvathamma out of 5 joint family funds. Defendant No.3 wife of deceased-
B.P. Shankaraiah with the help of her brother made an attempt to knock of the 'B' schedule property, though it was purchased out of joint family funds from the Karnataka Housing Board in pursuance of sale deed dated 20.11.1979. Therefore, the plaintiff demanded his 1/4th share in both suit schedule properties. When the defendant No.3, wife of B.P. Shankaraiah declined to give the share in 'B' schedule property, the plaintiff filed a suit for partition and separate possession of his 1/4th share in both the Schedule properties by metes and bounds.
3. The suit was contested by defendant No.3- Smt. Parvathamma, contending that 'B' schedule property is the self-acquired exclusive property of her husband deceased-B.P. Shankaraiah and after the death of her husband, it came to be entered in her name. It is a house property purchased by her husband from the Karnataka Housing Board under a sale deed 6 dated 20.11.1979 out of his own funds and hence, she sought for dismissal of the suit so far as 'B' schedule property is concerned.
4. During the pendency of the suit, defendant No.3-Parvathamma died leaving behind a Registered Will in respect of 'B' schedule property in favour of her sister-M. Umadevi, who was brought on record as defendant No.3(a). She has taken up a contention that she is the absolute owner of the 'B' schedule property which she acquired on the strength of a Registered Will dated 24.07.1981 executed by deceased-Parvathamma. It is further contended that Parvathamma had paralysis stroke and after death of her husband, she was taking care of her and as such, out of love and affection, she executed a Will dated 24.07.1981 whereby she bequeathed 'B' schedule property in her favour. Hence, defendant No.3(a) has sought for dismissal of the suit so far as 'B' schedule property is concerned. 7
5. Based on the pleadings and upon going through the documents placed on record, the trial Court framed the following issues:
1) Whether plaintiff proves that he and Defendant Nos. 2 and 3 constitute an Undivided joint Hindu family?
2) Whether plaintiff proves that schedule B property is the joint family property?
3) Whether defendant No.3(a) proves that Suit in respect of 'B' schedule property Suit is barred by time?
4) Whether the defendant No.3(a) proves that suit is in respect of 'B' schedule is hit by principles of resjudicata?
5) Whether the defendant No.3(a) proves that 'B' schedule property is self-acquired Property of husband of defendant No.3?
6) Whether the 3rd defendant proves that his is not maintainable in view of non- inclusion of all properties for partition?
7) Whether there is no cause of action to file this suit?
8) Whether the Court fee paid is
insufficient?
8
9) Whether the plaintiff is entitled for
equable partition of suit properties by metes and bounds and for separate possession?
10) Whether 3rd defendant alternative is entitled for partition of 1/4th share in the entire properties and separate possession and further direction to plaintiff to renders accounts for entire properties for 12.12.1980?
11) To what reliefs parties are entitled to?
12) What decree or order?
Additional Issue:
1) Whether defendant No.3(a) proves that by executing a Will dated 24.7.1981, defendant No.3 deceased Smt. Parvathamma had bequeathed suit schedule 'B' property in her favour and hence after her death she has become absolute owner of the same?
6. After framing of the issues, original plaintiff died and his legal representatives were brought on record. In order to prove their case, plaintiff No.1(a) has 9 been examined as PW-1, Exs.P-1 to P-18 were marked. On behalf of defendants, defendant No.3(a)-M. Umadevi has been examined as DW-1, scribe of the Will- Gopalaiah, Advocate as DW-2 and the children of attesters to the Will have been examined as DW-3 and DW-4 since both the attestors died. Ex.D-1 to D-122 came to be marked. Defendant No.2-B.P. Siddalingaiah has been examined as DW-5. The trial Court upon hearing the arguments and upon appreciation of the entire evidence placed on record, decreed the suit as prayed for by the plaintiff granting partition and separate possession of 1/4th share in both 'A' and 'B' schedule properties by metes and bounds.
7. Aggrieved by the decree for partition of 'B' schedule property defendant No.3(a)-M. Umadevi has preferred this appeal on the ground that the trial Court has erred in coming to the conclusion that 'B' schedule property is a joint family property, though it was established by cogent evidence that it is the self- 10 acquired property of B.P. Shankaraiah, the husband of defendant No.3-Parvathamma, who bequeathed the property in favour of defendant No.3(a) her own sister.
8. I have heard the arguments addressed by the learned counsel for the appellant. Respondents though served are unrepresented. Perused the records.
9. Learned counsel for the appellant would submit that defendant No.3-Parvathamma during her life time executed a Registered Will in favour of defendant No.3(a)-M. Umadevi whereby she bequeathed the 'B' schedule property in favour of defendant No.3(a) and the said Will has been duly proved by examining the scribe and children of the attesters to the Will. Inspite of proofs as to the due execution of the Will, the trial Court has wrongly came to the conclusion that the Will is not duly proved and thereby the judgment and decree so far as it relates to the partition of 'B' schedule property, has led to miscarriage of justice. Hence, the learned counsel has sought to set aside the judgment 11 and decree only so far as it relates to the 'B' schedule property.
10. Upon hearing the submission made by the learned counsel for the appellant and upon perusal of the entire material on record, the following points would arise for my determination:
1) Whether the finding arrived at by the trial Court that 'B' schedule property is also a joint family property is sustainable in law?
2) Whether the trial Court is justified in recording a finding that the Will in question is not duly proved?
3) What order?
11. Before proceeding to answer the points formulated for consideration, it is necessary to state the development that had taken place during the pendency of the suit. The suit was filed by one B.P. Sadashivaiah against his two brothers B.P. Rajashekaraiah, B.P. Siddalingaiah and wife of his deceased brother-B.P. 12 Shankaraiah, who was defendant No.3 for partition and separate possession of his 1/4th share in both 'A' and 'B' schedule property. 'A' schedule properties are the landed properties situated in Magadi Taluk. Whereas 'B' schedule property is the residential house situated at Vijayanagar. So far as 'A' schedule properties are concerned, there is no dispute between the parties that they are ancestral properties and as such, there is no challenge to the decree so far as it relates to partition and separate possession of 'A' schedule property. The dispute is only in respect of 'B' schedule property i.e., house property situated at Vijayanagar. The case of the plaintiff and defendant Nos.1 and 2 is that the said house was purchased in the name of their deceased brother-B.P. Shankaraiah out of joint family funds. Whereas, it is the case of the defendant No.3-Smt. Parvathamma the wife of deceased-B.P. Shankaraiah that Shankaraiah was a Government servant working in Bangalore and the Karnataka Housing Board allotted the site to her husband who thereupon constructed a 13 residential building out of his own funds wherein he was residing along with his wife till his death and that other brothers are in noway concerned to the schedule property. The deceased-B.P. Shankaraiah had no issues. After the death of B.P. Shankaraiah, the plaintiff-B.P. Sadashivaiah filed O.S.No.2701/1981 for a decree of permanent injunction alleging that after the death of B.P. Shankaraiah, his wife Parvathamma with the help of her brother trying to dispose off the schedule 'B' property. But, the suit came to be dismissed by the judgment and decree dated 30.01.1991 holding that bare suit for injunction is not maintainable without a relief for declaration. R.F.A.No.163/1990 preferred against the judgment and decree also came to be dismissed on 27.07.1994. During the pendency of the suit, defendant No.3-Smt. Parvathamma died and the case was posted for taking steps on 13.01.1999. But, the plaintiff and defendant Nos.1 and 2 got pre-poned the suit on 08.01.1999 and filed a compromise petition requesting the Court to pass a decree in terms of 14 compromise petition granting 1/3rd share to the plaintiff, defendant Nos.1 and 2 in both 'A' and 'B' schedule properties. The Court accepted the compromise petition and passed a decree.
12. Smt. Parvathamma died leaving behind a Registered Will in favour of her sister M. Umadevi, whereby she bequeathed the 'B' schedule property in her favour. She filed an application to come on record on the strength of the Will in the suit which was already disposed off by compromise decree. So the application came to be rejected. She preferred Civil Revision Petition No.2140/1999 before this Court. This Court also dismissed the revision petition. Against the dismissal of the revision petition M. Umadevi preferred Civil Appeal No.7895/2001 before the Hon'ble Supreme Court. The Supreme Court allowed the Civil Appeal, set aside the order passed by this Court and remanded the matter to this Court to consider the application filed by M. Umadevi to come on record afresh. After remand, by 15 order dated 01.03.2006, application filed by Smt. M. Umadevi came to be allowed. The compromise decree was set aside and M. Umadevi was permitted to come on record as defendant No.3(a) to contest the suit. She filed additional written statement. Defendant Nos.1 and 2 who had earlier not filed written statement filed their written statement admitting the case of the plaintiff. Thus, defendant No.3(a) claimed the schedule 'B' property exclusively on the strength of the Will executed by her sister Smt. Parvathamma, the wife of Late. B.P. Shankaraiah. The trial Court while decreeing the suit as prayed for by the plaintiff held that the 'B' schedule property is also the ancestral property acquired in the name of B.P. Shankaraiah out of joint family fund. The trial Court also held that the Will set up by defendant No.3 is shrouded with suspicious circumstances.
13. Therefore, aggrieved by the decree so far it relates to 'B' schedule property, this appeal is preferred by defendant No.3(a)-Smt. M. Umadevi alleging that 'B' 16 schedule property was the self-acquired property of B.P.Shankaraiah and after his death Smt. Parvathamma, his wife succeeded to the schedule property and Smt. Parvathamma in turn during her life time executed a Will in Smt. M. Umadevi, whereby she bequeathed the 'B' schedule property in favour of defendant No.3(a).
14. Therefore, two points which are necessary for the disposal of this appeal are as under:
1) Whether the 'B' schedule
property is a self-acquired
property of deceased-B.P.
Shankaraiah?
2) Whether the Will executed by
Parvathamma in favour of her
sister dated 31.07.1981 is the
duly executed Will by
Parvathamma?
15. So far as the nature of acquisition of 'B' schedule property is concerned, it has been categorically pleaded by defendant No.3-Parvathamma 17 that it is the self-acquired property of her husband B.P. Shankaraiah which was allotted with a site by the Karnataka Housing Board wherein he constructed a house and was residing along with his wife. Whereas 'A' schedule properties are the landed properties in Magadi Taluk, where the other brothers of her husband were residing. Ex.D-23 is the sale deed executed by the Karnataka Housing Board in respect of 'B' schedule property in favour of the husband of the defendant No.3. Nothing is placed on record by the plaintiff to show that 'B' schedule property was purchased out of joint family funds. The documents produced by the defendant No.3(a) establish that the consideration amount for the purchase of 'B' schedule property was paid by the husband of defendant No.3. It is also evident that defendant No.3 and her husband were the only persons residing in the 'B' schedule property till their death. Inspite of sufficient evidence placed on record by defendant No.3(a) to establish that the 'B' schedule property is a self-acquired property of late B.P. 18 Shankaraiah, the trial Court without consideration of the same erroneously held that it is an ancestral property. The finding to that effect is liable to be set aside holding that 'B' schedule property is the self acquired property of the husband of defendant No.3.
16. Since 'B' schedule property is the self- acquired property of late B.P. Shankaraiah who died intestate, his wife deceased defendant No.3- Parvathamma succeeded to the 'B' schedule property which is the self-acquired property at her hands. As such, she was competent to execute a Will in respect of 'B' schedule property. The case of the defendant No.3(a) is that after the death of her husband, the defendant No.3 was totally neglected by all the family members. She was in fact residing at Jayanagar in the house of her parents. She was being nourished and looked after by her parents and defendant No.3(a) and therefore, out of her love and affection, she executed a Registered Will in favour of defendant No.3(a) dated 19 31.07.1981. Since the defendant No.3(a) is the propounder of the Will, the burden is on her to prove that it is the Will that has been duly executed by her sister Parvathamma out of her free will and volition. Ex.D-1 is the Will. The scribe of the Will is one Gopalaiah, an advocate who has been examined as DW-
2. Both the attestors to the Will died when the evidence was going on. As such, defendant No.3(a) examined their children B.V. Umesh and A.V. Kumar as DW-3 and DW-4 for identification of the signature of their fathers on Ex.D-1. Ex.D-1-Will is on a stamp paper of Rs.5/-. In the body of Ex.D-1, it is stated "In witness whereof, I, Parvathamma sign this document at Bangalore City on 24th day of July 1981". This Will shall come into effect after my death." But, the stamp paper used for Will was purchased on 27.07.1981, the Will was registered on 31.07.1981 before the Sub-Registrar. Since the stamp paper used for the Will was purchased on 27.07.1981 and in the body of the Will-Ex.D-1, it is written that 'in witness whereof, I, Parvathamma sign this document at 20 Bangalore City on 24th day of July 1981', it is contended before the Court below that it is a bogus document shrouded with full of suspicion which found favour with the Court below. When the stamp paper itself was purchased on 27.07.1981, the recital in the Will that Parvathamma signed the Will on 24.07.1981 has no meaning at all. Be that as it may, Will came to be registered on 31.07.1981. The stamp paper purchased on 27.07.1981. Therefore, if at all, the Will ought to have been executed in between 27.07.1981 to 31.07.1981. The question of execution of the Will on 24.07.1981 as recited in the Will does not arise. For clarification of the same, it is necessary to go through the evidence of scribe of the Will-Gopalaiah, an advocate who has been examined as DW-2. The evidence of DW- 2-Gopalaiah, scribe of the Will is that he has been practicing as an advocate since 08.08.1958, he was knowing deceased-Parvathamma, she was his neighbour and client, she had engaged him as an advocate in HRC No.561/1982 and HRC No.136/1984. 21 He has identified Ex.D-1 dated 31.07.1981 as the Will executed by defendant No.3-Parvathamma, he himself drafted Ex.D-1 as per the instruction given by defendant No.3, he singed on Ex.D-1 as a scribe and he indentified his signature at Ex.D-1(a). His further evidence would go to show that Smt.Parvathamma affixed her thumb impression on the Will in his presence which is marked as Ex.D-1(b), witness by name Appajappa and V.R. Veeranna had signed Ex.D-1-Will as attesting witnesses and he identified their signatures at Ex.D-1(c), D-1(d), he has also identified another thumb impression of Smt.Parvathamma on Ex.D-1 marked as Ex.D-1(e). Further, his evidence is that he knew both Appajappa and V.R. Veeranna, they are no more and that on the date of execution of Will, Smt. Parvathamma was hale and healthy.
17. In the cross-examination, he states that he stopped practicing as an advocate since 4-5 years, he has admitted that as an advocate he drafted number of 22 Wills. Regarding the age of the attesting witnesses, he has stated that they were of the age group of 50 to 60 years, he has pleaded ignorance about the date of their deaths. Further, he has stated that he does not know if the stamp paper on which Ex.D-1 has been typed one week earlier to the date of execution of the Will. He also states that he has not seen the date of purchase of the stamp paper used for Ex.D-1. Further, he has stated that he has not typed Ex.D-1 Will, he does not know who typed Ex.D-1, three days earlier to the date of execution of the Will by Parvathamma, he had drafted her Will, but he had not retained the draft of the Will. On the other hand, he has stated that he gave the draft of the Will to Nagaraju for typing and after preparing typed Will as per Ex.D-1, the draft of the Will was torn out. The suggestion made to him that he has signed when there were no witnesses were present and Parvathamma was also not present has been denied by him. Further, he states that he does not know if on 24.07.1981 Smt. Parvathamma was admitted to 23 NIMHANS, ten days earlier to 24.07.1981. Further, suggestion made to him that she was not of sound disposing state of mind is also denied. Further, he states that he had not instructed Nagaraju to get the Will prepared by typing on a stamp paper. Further, he states that Smt. Parvathamma had told the boundaries of the property shown in the Will. He has also stated that three days before he prepared draft Will, Parvathamma came and gave instructions for preparing Will. Further, he has stated that three days after he handed over the draft Will to Nagaraju, he prepared fair Will and on the same day he had signed the fair copy of the Will after the testator and the attesting witnesses signed the Will. Therefore, from the evidence of DW-2- the scribe of the Will, who is an advocate, aged about 70 years, having office at Jayanagar, one thing is evident that the instructions to draft the Will were given to him by Smt. Parvathamma. It is also evident from his evidence that he prepared a draft Will at the first instance and thereafter handed it over to Nagaraju for 24 the purpose of typing. Nagaraju, inturn typed the Will on a stamp paper and the same was executed and presented for registration on 31.07.1981 at Neuro Centre Hospital, Ward No.103 between 5.30 pm to 5.45 pm by S.G. Parvathamma with necessary fees amount to Rs.45/-. She was identified by Dr. P.N. Renjen. The Sub-Registrar has registered the Will on 31.07.1981.
18. Section 63 of the Indian Succession Act speaks about the execution of the unprivileged will. It reads as under:
"Execution of unprivileged wills:- Every testator, not being a soldier employed in an 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) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, 25 shall be so placed that it shall appear that it was intended thereby to give 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 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."
19. From the reading of Section 63 of the Indian Succession Act, it is evident that a Will is required to be attested by two or more witnesses, each of whom has seen the testator signing or affixing his mark on the Will or has seen some other person signing the Will in the person and by the direction of the testator or has been 26 received from the testator a personal acknowledgment of the signature or mark, or his signature or the signature of such other person and that each of the witnesses has signed the Will in the presence of the testator.
20. The Will Ex-D1 fulfills all the requirements contained in Section 63 of the Indian Succession Act as could be seen from the evidence of DW-2 the scribe of the Will.
21. Section 68 of the Indian Evidence Act speaks against the use of the Will in evidence unless one attesting witness atleast has been examined to prove the execution if there be an attesting witness alive and capable of giving evidence. In the case on hand, both the attesting witnesses have died as could be seen from the evidence of DW-3 and DW-4 their children, apart from Exs.D-121 and 118, the death certificates of Appajjappa and V.R. Veeranna, the attesters whose signatures on the Will are at Ex.D-1(c) and D-1(d). Section 69 of the Evidence Act speaks about proof 27 where no attesting witness found. It envisages that if no such attesting witness can be found, it must be proved that the attestation of one attesting witness atleast is in his handwriting. Since both the attesting witnesses are no more, DW-1 propounder of the Will examined B.V. Umesh, son of V.R. Veeranna, one of the attesting witnesses of the Will as DW-3 who inturn has stated that he is the son of V.R. Veeranna, residing at 9th Block, Jayanagar, Bangalore. His father expired on 21.04.2006 Ex.D-118 is the death certificate of his father which discloses that he died on 21.04.2006. He has also produced his driving licence marked as Ex.D- 119 wherein his father's name is shown as V.R. Veeranna. He identified his father's signature on the will Ex.D1 at Ex.D1(d). Similarly, DW-1 has examined A.V. Kumar, son of Appajappa, who inturn has stated that he is the son of Appajappa and that his father is no more. He has produced the death certificate of his father marked as Ex.D-121, copy of driving licence marked as Ex.D-122. He has identified the signature of 28 his father at Ex.D-1 at Ex.D-1(c), D-1(f) (g) (h) (i). I find nothing in their cross-examination so as to doubt on disbelieve their testimony. Thus, the propounder has proved due execution of the Will by cogent and satisfactory evidence. Merely because the date of the execution of the Will is typed as 24.07.1981, it cannot be said to be suspicious circumstance surrounding the Will. The said date is nothing but the date on which the Will was drafted by DW-2. Thereafter, he handed over manuscript to one Nagaraju who inturn purchased the stamp paper of Rs.5/- on 27.07.1981 and got it typed on a stamp paper on 27.07.1981. While typing the Will, the date shown as 24.07.1981 in the manuscript ought to have been corrected as 27.07.1981 by the typist. It is purely an error committed by typist and nothing else. It was executed while she was in NIMHANS before the scribe, attesting witnesses, doctor and the Sub- Registrar to whom it was presented after the execution in the hospital itself for registration. Since she had paralysis stroke for which she was admitted in 29 NIHMANS, she affixed her thumb impression though she was in the habit of putting her signature. It has been spoken by DW-2 the scribe of the Will in his evidence. Therefore, affixing thumb impression on the Will is not a suspicious circumstance surrounding the Will. The execution of the Will by Parvathamma in favour of defendant No.3(a) is further fortified from the fact that after the death of her husband, she was being neglected by all the members of her husband's family. She was also thrown out by the plaintiff from 'B' schedule property where she was residing which made her to reside with her parents and sister-the appellant at Jayanagar. The very fact that two suits came to be filed one after another against her one for injunction and another for partition of the 'B' schedule property itself goes to show that the relationship between Parvathamma and members of her husband's family including plaintiff and defendants were totally strained. There was no scope for her to repose confidence in any of the members of her husband's family. Under such 30 circumstances, it is but natural for Parvathamma to bequeath 'B' schedule property in favour of her sister out of love and affection since she was taking care of her. By giving all types of pinpricks, harassment to Parvathamma during her life time neither the plaintiff nor the defendants can expect her to die intestate so that they can knock off her property. Keeping in mind the conduct of the plaintiff and defendants and their attitude towards her during her lifetime, she executed Will-Ex.D-1 in favour of the appellant-her sister and bequeathed 'B' schedule property in her favour. I do not see any suspicious circumstances surrounding the Will. It is suffice to say that defendant No.3(a) has proved that the Will Ex.D-1 is duly executed by deceased Parvathamma with a sole intention that after her death 'B' schedule property should go to her sister appellant/defendant No.3(a). The trial Court without taking note of the situation with which Parvathamma was confronted after the death of her husband and without taking into consideration two suits filed by the 31 plaintiff against Parvathamma, by giving importance to the date 24.07.1981 wrongly typed in the Will erroneously held that the Will is shrouded with suspicious circumstances and thereby declared the Will as null and void. The finding of the trial Court to that effect is perverse and not sustainable in law. It is contrary to the evidence on record. As such, it is liable to be set aside holding that Ex.D-1 is the duly executed Will by deceased-Parvathamma out of her free will and volition. In view of the Will, appellant/defendant No.3(a) succeeded to schedule 'B' property became the exclusive owner of 'B' Schedule Property.
22. In fact Parvathamma also acquired 1/4th right of her husband in 'A' schedule property after the death of her husband being ancestral property. Since she has not included her share in 'A' schedule property in the Will, her 1/4th share in the 'A' schedule property shall revert back to the plaintiff and defendant Nos.1 and 2 in view of Section 15 of the Hindu Succession Act. 32 As such, the judgment and decree so far as it relates to 'A' schedule property is concerned is hereby confirmed, while setting aside the judgment and decree so far as it relates to 'B' schedule property. In the result, I pass the following order.
The appeal is allowed. The judgment and decree dated 29.02.2012 in O.S.No.5432/1994 on the file of the XXXVIII Additional City Civil Judge, Bangalore, so far as it relates to 'A' schedule property is hereby confirmed. The judgment and decree so far as it relates to 'B' schedule property is hereby set aside holding that the 'B' schedule property is the exclusive property of appellant-Smt.Umadevi who was defendant No.3(a) in the original suit. Consequently, the suit filed by the plaintiff for partition and separate possession of 1/4th share in 'B' schedule property is hereby dismissed.
Sd/-
JUDGE PMR