Karnataka High Court
Smt A S Lakshmi Devi vs Smt C P Radhamma on 28 May, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF MAY 2013
BEFORE
THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA
R.F.A. No.1873/2010 (PAR)
BETWEEN:
1. Smt.A.S.Lakshmi Devi,
W/o. Late Y.A.Shivaprakash,
Aged about 55 years.
2. Sri.Amith.S.Prakash,
S/o. Late Y.A.Shivaprakash,
Aged about 23 years.
Both are Residing at
LIG, 146, Gangothri Hudco,
Chamaraka Mohalla,
Mysore.
3. Smt.Ashwini,
W/o. Sri.Harsha,
Aged about 27 years,
Residing at No.C.H.44/B,
4TH Main, Behind JSS Women's College,
Saraswathipuram,
Mysore. ....Appellants
(By Sri. S.Nagaraja, Advocate)
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AND :
Smt.C.P.Radhamma,
W/o. Late Anantha Padmanabha Rao,
Residing at No.F-11, 2nd Cross,
Shankaramatta Road,
Khile Mohalla, Mysore. ...Respondent
(By Sri.G.S.Manjunath &
M/s. M.T.Nanaiah Associates, Advocates)
This RFA is filed under Section 96 of CPC against
the judgment and decree dated 26.05.2010 passed in
O.S.No.158/2008 on the file of the Principal Civil Judge
(Sr.Dn) and CJM., Mysore, decreeing the suit for partition
and separate possession.
This Appeal coming for final hearing on this day,
the court delivered the following:
JUDGMENT
This First Appeal by Defendant Nos. 1 to 3 in O.S. No.158/2008 on the file of the Civil Judge, (Sr. Dn.), Mysore, is directed against the judgment and decree dated 26.05.2010 passed in the said case decreeing the suit filed by the Respondent/plaintiff for partition and separate possession of her ¼th share in the suit schedule properties.
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2) During the course of this judgment, for the sake of convenience, the parties herein would be referred with reference to the ranking in the trial court.
3) Plaintiff is the mother-in-law of 1st Defendant and paternal grand-mother of Defendant Nos. 2 & 3. One Y.A. Shivaprakash, the husband of the 1st Defendant and father of Defendant Nos. 2 & 3, died on 23.09.2007. He was the owner of the suit schedule properties. After the death of said Shivaprakash, his mother, the plaintiff, filed suit against her daughter-in-law and grand- children for partition and separate possession of her ¼th share in the suit schedule properties comprised of two immovable properties situated in Mysore inter alia contending that her son Shivaprakash died intestate leaving behind herself and Defendant Nos. 1 to 3 as his only legal heirs, as such, they have succeeded to the estate left behind him and therefore, she is entitled to ¼th share in the suit schedule properties.
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4) Defendant Nos. 1 to 3, upon service of suit summons entered appearance before the trial court and filed the joint written statement denying the case of the plaintiff. In the written statement they admitted the relationship between the parties and also the death of Shivaprakash on 23.09.2007. However, they denied that the said Shivaprakash died intestate. They contended that the said Shivaprakash during his lifetime and while he was in sound disposal state of mind, executed the Will dated 20.08.2007, wherein, he bequeathed all his moveable and immovable properties in favour of his wife and two children, as such, the plaintiff has not succeeded to any share in the properties of her son Shivaprakash. They further contended that Item No.2 of the schedule property originally belonged to the 1st Defendant, which she gifted in favour of her husband through Gift Deed to over-come some financial adjustments and even after the execution of the said Gift Deed, she continued to pay the bank loan and katha in respect of the said property continued in her name. They 5 further contended that they have no sources of income to live, while on the other hand, the plaintiff being a retired school teacher is drawing monthly pension of more than Rs.6,000/- and pension of Rs.2,000/- in respect of her late husband and she is living in a bungalow worth crores of rupees standing in her name and in addition, she also having two other sons, one of whom is working in USA as Software Engineer, while the other is a business man. Therefore, they contended that the plaintiff has filed the present suit only to harass them. In that view of the matter, all the Defendants sought for dismissal of the suit.
5) In the light of the pleadings of the parties, the trial court framed the following issues:-
i) Whether the plaintiff proves that the suit schedule property-Item No.1 belonged to late Y.A. Shivaprakash?
ii) Whether plaintiff proves that she had
financially assisted Defendant No.1 to
purchase suit schedule property-Item
No.2?
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iii) Whether plaintiff proves that 1st Defendant
had subsequently gifted the suit schedule property-Item No.2 to late Y.A. Shivaprakash?
iv) Whether plaintiff proves that subsequent to the death of late Y.A. Shivaprakash, the plaintiff is one of the four legal representatives left behind and having ¼th share in the suit schedule property i.e., Item Nos. 1 & 2?
v) What order or decree?
6) In support of her pleadings the plaintiff examined herself as PW.1 and relied on documentary evidence marked as Exs. P1 to P7.
7) During the trial, the Defendants produced the original Will said to have been executed by deceased Shivaprakash and got the same marked as Ex.D1.
The 2nd Defendant examined himself as DW.1. Two attestors of the Will were examined as DWs. 2 & 3. The Defendants also produced documentary evidence as per Exs. D2 to D8.
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8) After hearing both sides and on appreciation of oral and documentary evidence, the trial court by the judgment under appeal, answered Issue Nos.1, 3 & 4 in the affirmative and Issue No.2 in the negative, holding that the Defendants have failed to satisfactorily prove the execution and genuineness of the Will-Ex.D1. The trial court further opined that the evidence led by Defendants in proof of the Will is not satisfactory and the Defendants have failed to dispel all the suspicious circumstances around the execution of the Will. Therefore, the trial court doubted the genuineness of the Will. In that view of the matter, the trial court held that Shivaprakash died intestate and the plaintiff being his mother and being one of the Class-I heir, is entitled to ¼th share, while the Defendants - 1 to 3 being wife and children of Shivaprakash are entitled to ¾th share in both the suit schedule properties. Aggrieved by the said judgment 8 and decree, Defendant Nos. 1 to 3 are in appeal before this Court.
9) The respondent/plaintiff has appeared through her counsel. I have heard both sides.
10) Learned counsel for Defendant Nos. 1 to 3, at the out-set contended that though a specific contention had been raised in the written statement filed by Defendant Nos. 1 to 3 regarding the Will left behind by Shivaprakash, the trial court has not framed a specific issue in that regard. He further contended that though the Defendants had set-out an adverse case against the plaintiff by propounding Will executed by Shivaprakash, the plaintiff did not choose to file a reply or rejoinder disputing the case of the Defendant regarding execution of the Will and this circumstance has not been properly appreciated by the trial court while considering the proof of the Will. He further contended that though the Will- Ex.D1 has been proved in accordance with law since both the attestors to the Will have been examined before 9 the Court, whose evidence satisfactorily proves the execution of the Will by Shivaprakash, the trial court has erroneously doubted the evidence of these witnesses and this has resulted in erroneous finding recorded by the trial court. It is his further contention that the plaintiff has not put-forth any suspicious circumstances surrounding the execution of the Will and the Defendants have satisfactorily proved execution of the Will and therefore, the trial court has committed serious error in doubting the genuineness of the Will-Ex.D1. He further contended that the trial court also failed to take into consideration the circumstances of the gift of Item No.2 of the schedule property by the 1st Defendant in favour of her husband and even thereafter, she continuing to pay the instalments to the Bank. These circumstances, according to the learned counsel would indicate that the Gift Deed was a nominal one and it was never intended to pass on the title in respect of the said property in favour of Shivaprakash, her husband and therefore, the decree in respect of Item No.2 granted by the trial court 10 is erroneous. Therefore, the learned counsel sought for setting aside the judgment and decree of the trial court and for dismissal of the suit.
11) Per contra, learned counsel for the plaintiff sought to justify the judgment under appeal and contended that non-framing of a specific issue regarding Will put-forth by the Defendant in the written statement has not caused any prejudice to the parties since the parties after having fully understood their respective cases have led evidence and the trial court in the judgment under appeal has elaborately considered the evidence available on record regarding proof of Will and therefore, the judgment under appeal cannot be found fault with for the absence of a specific issue in that regard. He further contended that though the plaintiff has a right to file a reply or rejoinder when the Defendant had set-up a new case in the written statement, it is not obligatory and non-filing of the reply or rejoinder by itself cannot be a ground to come to the conclusion that the 11 plaintiff has accepted the case of the Defendant. It is his submission that having regard to the mandate of Section- 68 of the Indian Evidence Act, it is obligatory on the part of the propounder of the Will to prove the Will in accordance with law even if the opposite party does not dispute its genuineness, therefore, the circumstance of the plaintiff not filing any reply or rejoinder has been rightly not taken into consideration by the trial court, as such, the trial court has not committed any error in that regard. He further contended that, the trial court on elaborate consideration of the evidence available on record having found that the Will propounded by the Defendants is shrouded with suspicious circumstances and they have not been satisfactorily dispelled by the propounder, has disbelieved the Will, as such, the learned counsel contended that there are no grounds to interfere with the well-reasoned judgment of the trial court. He further contended that the plaintiff being the mother of the deceased Shivaprakash, is entitled for a share under Section-8 of the Hindu Succession Act, in 12 the property left behind by her son as such, the decree passed by the trial court is in accordance with law. He further contended that since the 1st Defendant did not dispute execution of Gift Deed in respect of Item No.2 of the plaint schedule property, merely because she continued to pay the instalments payable to the bank, by itself does not make the Gift a nominal one. He contended that, having regard to the fact that the 1st Defendant executed the Gift Deed in favour of her husband in respect of Item No.2 of the plaint schedule property, from the date of the Gift Deed, her husband became the absolute owner of the said property and therefore, the plaintiff is entitled for 1/4th share even in Item No.2 of the plaint schedule property. In this view of the matter, learned counsel for the plaintiff sought for dismissal of the appeal.
12) In the light of the above submissions and having regard to the facts and circumstances of the case, the following points arise for consideration in this appeal: 13
i) Whether non-framing of a specific issue regarding the Will propounded by the Defendants has resulted in prejudice to the case of any of the parties rendering the judgment under appeal illegal ?
ii) Whether the trial court is justified in
disbelieving the Will propounded by the
Defendants?
iii) Whether the trial court is justified in
decreeing the suit of the plaintiff and granting ¼th share to her in both the suit schedule properties?
13) As noticed supra, there is no dispute regarding the relationship inter-se between the parties.
It is also not in dispute that Item No.1 of the suit schedule property was allotted by MUDA in favour of the deceased Shivaprakash while Item No.2 of the plaint schedule though originally belonged to Defendant No.1 was gifted in favour of her husband under a registered Gift Deed. Thus, both the suit schedule properties were the separate properties of the said Shivaprakash. It is 14 also not in dispute that the said Shivaprakash died on 23.09.2007. The plaintiff brought the suit for partition contending that her son died intestate leaving behind herself and the Defendants as his only heirs. However, the Defendants propounded a Will said to have been executed by the said Shivaprakash bequeathing all his moveable and immovable properties in their favour. In the written statement the Defendants have specifically contended about the said Shivaprakash died leaving behind the Will dated 20.08.2007. Having regard to this specific stand, it was necessary on the part of the trial court to have framed an issue as to the proof of the Will. Perusal of the issues framed by the trial court indicates that no issue has been framed regarding the proof of the Will. However, perusal of the records secured from the trial court clearly indicates that the parties having understood their respective cases have led evidence and the trial court has elaborately considered the evidence led by the parties regarding execution of the Will. It is not the contention of the learned counsel for the 15 Defendants that on account of the failure on the part of the trial court to frame a specific issue, the Defendants have been precluded from leading any evidence. On the other hand, the Defendants have adduced oral evidence to prove the Will propounded by them. Therefore, the absence of specific issue in that regard has not in any way caused prejudice to the Defendants nor it has caused any prejudice to the plaintiff, since the witnesses examined on behalf of the Defendants have been elaborately cross-examined on behalf of the plaintiff. Therefore, in my considered opinion, non-raming of a specific issue has not in any way caused prejudice to the case of the parties nor it has rendered the judgment under appeal erroneous on that ground. Therefore, I answer Point No.1 accordingly.
Re. Point Nos. 2 & 3:
14) It is well-settled law by catena of decisions that the burden of proving a Will is on the propounder.
The Will has to be proved in accordance with Section-68 16 of the Indian Evidence Act and that it has been executed as per Section 63 of Indian Succession Act. It is also well-settled law by catena of decisions that heavy burden is on the propounder of the Will to dispel the suspicious circumstances, if any, surrounding the execution of the Will.
15) No doubt, the plaintiff has not filed any reply or rejoinder subsequent to the Defendants filing their written statement contending that the deceased Shivaprakash has left behind a Will. However, that circumstance by itself would not lead to a conclusion that the plaintiff has admitted the case of the Defendants. Of course, the plaintiff had an option to seek leave of the court to file subsequent pleading either denying or admitting the case put-forth by the Defendants. However, non-filing of such subsequent pleading by itself would not lead to a conclusion that the plaintiff has admitted the case of the opposite party. It is well settled, when a party propounds the Will, it is for him to prove and establish the execution of the will in 17 accordance with Section 68 of Evidence Act, even if the opposite party has not denied the same. The mandate of Section 68 is that if a document is required by law to be attested, it shall not be used as evidence until the requirement stated therein is satisfied. Therefore, the trial court is justified in not taking into consideration the circumstances of the plaintiff not filing a reply or rejoinder after the Defendants filed their written statement putting forth the Will. This leads me to consider the question of the genuineness of the Will. The trial court during the course of the judgment under appeal has noted the following circumstances to disbelieve the Will propounded by the Defendant.
i) About four months prior to the purported date of the Will, the said Shivaprakash had filed a divorce petition against his wife namely, the 1st Defendant before the Family Court at Mysore making several allegations against his wife and subsequently in the said proceedings, the said Shivaprakash had filed his evidence by way of affidavit reiterating the statements made in the divorce petition. In the light of that, it is highly 18 difficult to believe that the said Shivaprakash executed the Will bequeathing his properties to his wife and children excluding his mother.
ii) The Will does not specify as to who was the scribe, as such, the evidence of DW.2 that he was the scribe of the Will, cannot be accepted.
iii) The said Shivaprakash himself being an educated person as he was an Engineer and capable of writing the Will by himself and since admittedly Ex.D1 is not in the handwriting of Shivaprakash, it casts serious doubt as to the genuineness of the Will.
iv) The Will does not specify the details of the properties left behind by him.
16) The trial court on evaluation of the evidence of DWs. 2 & 3 has found that their evidence is not worthy of acceptance. Therefore, the trial court has disbelieved Ex.D1 and has proceeded to decree the suit.
17) No doubt, DWs. 2 & 3 in their evidence have stated about the said Shivaprakash executing the Will in 19 their presence. According to the evidence of DW.2, on the request of said Shivaprakash, he wrote the Will and in their presence, the said Shivaprakash subscribed his signature on the said Will. According to DW.2, as per the request of the testator he and DW.3 signed the Will and he was asked to keep the Will with him. According to him, about 3 or 4 months after the death of Shivaprakash, he handed over the Will paper to the 1st Defendant. Both the witnesses have been cross- examined on behalf of the plaintiff. Of course, they have denied certain suggestions put to them during the course of the cross-examination. Thus the evidence of DWs. 2 & 3, would indicate that the Will was executed by the deceased Shivaprakash. In the written statement filed by Defendant Nos. 1 to 3, on 16.09.2008 it is stated that original Will is produced before the Court for perusal. However, it was not produced on that day along with the written statement as is clear from the list of documents filed before the Court, wherein it is clearly indicated that the original Will was produced before the Court on 20 01.12.2009. It is also pertinent to note that during the cross-examination of PW.1, not even a suggestion was put to her that her son Shivaprakash has left behind a Will. PW.1 was cross-examined on 24.08.2009 and again on 13.10.2009. From this it is clear that the Will-Ex.D1 was not produced before the Court either before or during cross-examination of PW.1. It was produced before the Court only after the plaintiff was cross- examined and during the course of the evidence of Defendants.
18) Perusal of Ex.D1 indicates that there is no mention as to who scribed the Will. So, from the apparent tenor of Ex.-D1, it is not clear as to who wrote the contents of the Will. It is not the case of the Defendants that contents of Ex.D.1 are in the handwriting of Shivaprakash. On the other hand it is the definite case of the Defendants that the contents of Ex.D1 are in the handwriting of DW.2 M.R. Ravindra Kumar. Admittedly, the said Shivaprakash was an 21 Engineer, as such, he was highly educated person, therefore, he was capable of writing the Will by himself. It is not as if the testator had availed the services of a legally trained person for drafting the Will nor the services of a licenced document writer had been secured. Even according to DW.2, he was not a licenced document writer. It is not the case of the Defendants that the said Shivaprakash was not in a position to write the Will as on its purported date. There is absolutely no explanation in this regard. Therefore, the trial court has rightly taken this circumstance seriously to doubt the genuineness of the Will. If really DW.2 was the scribe, there was no difficulty for him to indicate in the document itself that it was scribed by him as per the dictation of the testator. Except the oral say of DW.2 that it was scribed by him, there is no other acceptable circumstance to come to the conclusion that the contents of Ex.D1 are in the handwriting of DW.2. Though DW.2 states in his evidence that Ex.D1 was left with him, nothing is stated in that regard in Ex.D1. In the absence of any statement 22 in Ex.D1 that the testator left the original Will with one of the attestors, the fact that Ex.D1 came from the custody of DW.2, is yet another strong circumstance to doubt its genuineness. Though DW.2 in his oral evidence Stated that about 3 or 4 months after the death of Shivaprakash, he handed over Ex.D1 to the 1st Defendant, the 1st Defendant did not choose to support the said statement since she did not enter the witness box. DW.1, who is the 2nd Defendant has not stated in his evidence about DW.2 handing over Ex.D1 to Defendant No.1 about 3 or 4 months after the death of his father Shivaprakash. If the Will-Ex.D1 had been handed over to the 1st Defendant after 3 or 4 months of death of Shivaprakash, there was no difficulty for Defendant No.1 or on the part of the other Defendants to have produced the same before the Court along with the written statement. As noticed supra, though it was stated in the written statement that the original Will is produced for the perusal of the Court, in fact, it was not produced along with the written statement and it was 23 produced only in the month of December 2009 after the completion of the cross-examination of PW.1. Therefore, this is yet another circumstance which clearly cast suspicion as to the genuineness of the Will.
19) Ex.D1 is purported to have been executed on 20.08.2007. There is no dispute and as evidenced by Ex.P6, the said Shivaprakash filed a divorce petition in M.C. No.118/2007 before the Family Court at Mysore against his wife namely, the 1st Defendant on 19.04.2007 and in that proceedings he filed his evidence by way of affidavit on 10.09.2007 as per Ex.P7. Having regard to the allegations made by Shivaprakash in the divorce petition, it is highly difficult to believe that he subsequently executed the Will bequeathing his properties to his wife and children. Having regard to the nature of the evidence available on record, in my opinion, the trial court is justified in holding that the Defendants have failed to prove satisfactorily the execution of the Will and its genuineness. The trial court is justified in 24 holding that the suspicious circumstances are not dispelled by the propounder of the Will. No circumstances are put-forth for excluding the mother, who is otherwise a natural heir to her son.
20) No doubt, it is an admitted fact that Item No.2 of the plaint schedule property was gifted by the 1st Defendant in favour of her husband Shivaprakash. The plaintiff in her evidence no doubt has admitted that even after the execution of the Gift Deed, Defendant No.1, has paid the instalments payable to Bank. However, once the Gift Deed is executed, it is not open to the 1st Defendant contend that the Gift Deed was a nominal one. The 1st defendant did not seek for cancellation of the Gift Deed on any grounds available to her under law. Therefore, as long as the Gift Deed stands in the name of Shivaprakash, it is not open to the 1st Defendant to contend that she continues to be the owner of the said property. If according to the 1st Defendant, even after the Gift Deed, she has gone on paying the instalments to the 25 Bank, it is open for her to claim contribution from the plaintiff to the extent of her share in the property. However, the 1st Defendant is estopped from contending that the property did not belong to her husband. It is an undisputed fact hat Item No.1 of the plaint schedule property was allotted in favour of the deceased Shivaprakash. Thus, both the suit schedule properties were separate properties of the said Shivaprakash. When the Will propounded by the Defendant is held to be not proved and is suspicious, it has to be held that the said Shivaprakash died intestate. The plaintiff being the mother is also a Class-I heir of the deceased Shivaprakash. Therefore, the trial court is justified in holding that the plaintiff is entitled for ¼th share in both the plaint schedule properties under Section 8 of Hindu Succession Act. The judgment under appeal, in my considered opinion, is sound and reasonable having regard to the evidence available on record and it does not suffer from any irregularity or illegality warranting interference by this Court. In this view of the matter, I 26 find no merit in this appeal. Accordingly, the appeal is dismissed.
SD/-
JUDGE KGR*