Karnataka High Court
Sou. Channawwa @ Bhuvaneshwari vs Sri. Channamallappa S/O. Mahadevappa ... on 25 February, 2021
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COU RT OF KARNAT AKA
DHARWAD B ENCH
DAT ED THIS THE 25 T H DAY OF FEB RUARY, 202 1
PRESENT
THE HON'B LE MR. JU ST ICE SREENIV AS HARISH KUMAR
AND
THE HON'B LE MR. JU ST ICE P.N.DESAI
RFA NO.4206/ 2013
C/W.
RFA CROB.NO.100014/20 14
IN RF A NO.4206/2013
B ETWEEN:
1. CHANNAMALLAPPA
S/O. MAHADEVAPPA KIT TUR
AGE: 64 YEARS, O CC: B USINESS
R/O. H NO. 2157, KORE GALLI
SHAHAPU R, B ELAGAVI
2. SHIVA LIN GAPPA
S/O. MAHADEVAPPA KIT TUR
AGE: 60 YEARS, O CC: B USINESS
R/O. H NO. 2157, KORE GALLI
SHAHAPU R, B ELAGAVI
3. REKHA W/O. CHIDANAND HEBB ALLI
(D/O. LATE MAHADEVAPPA KIT TUR)
AGE: 49 YEARS,
OCC: HOUSEHOLD WORK
R/O. H NO. 2157, KORE GALLI
SHAHAPU R, B ELAGAVI.
...APPELLANT S.
(B Y SHRI MRU TYUNJAY T AT A B ANGI, ADVOCATE.)
2
AND:
1. SOU .CHANNAWWA @ B HUVANESHWARI
W/O. SUBHASH HALAB HAVI
AGE: 55 YEARS,
OCC: HOUSEHOLD WORK
R/O. NEELAKANTH NIWAS,
SHRI HARI NAGAR ,
AT POST : CHIKKODI
DIST: B ELAGAVI
2. SAROJINI
W/O. MALLIKARJUN SHETT AR
AGE: 53 YEARS,
OCC: HOUSEHOLD WORK
R/O. JUNI PETH, AT POST: RAMDU RG
DIST: B ELAGAVI
3. SOU .MAHANANDA
W/O. SHRISHA IL B ANDI
AGE: 51 YEARS,
OCC: HOUSEHOLD WORK
R/O. PEERAJ I PET H,
AT POST : GADAHINGLAJ
DIST: KOLHA PU R
4. SOU . ASHA
W/O. RAVINDRA HAMPANNAVAR
AGE: 47 YEARS,
OCC: HOUSEHOLD WORK
R/O. GU RU WAR PETH,
AT POST : CHIKKODI
DIST: B ELAGAVI
5. SOU .GEETA
W/O. JAMB ANNA NAGALIKAR
AGE: 44 YEARS,
OCC: HOUSEHOLD WORK
R/O. GANESH PARK APARTMENT
'A ' WIN G B HAGYA NAGAR, B ELAGAVI
....RESP ONDENT S.
(B Y SHRI A D SHILLEDAR, ADVOCATE.)
3
THIS REGU LAR F IRST A PP EAL IS FILED UNDER
SECTION 9 6 OF CODE OF CIV IL P RO CEDU RE, PRAYING TO
SET AS IDE TH E JU DGMENT AND DECREE DAT ED
05. 09.2 013, PASS ED IN O.S.NO.1 43/2009, ON THE FILE
OF THE III ADDL. SENIOR C IVIL JUDGE & ADDL. MACT,
B ELAGAVI, ETC.,.
IN RF A CROB. NO.100014/2014
B ETWEEN:
1. SOU . CHANNAWWA @ B HU VANESHWARI
W/O. SUBHASH HALAB HAVI,
AGE: 56 YEARS,
OCC: HOUSE HOLD WORK,
R/O: NEELAKANAT H NIWAS,
SHRI HARI NAGAR ,
AT/POST: CHIKKODI,
DIST: B ELAGAVI- 591 201.
2. SMT. SAROJINI
W/O. MALLIKARJUN SHETT AR,
AGE: 54 YEARS,
OCC: HOUSEHOLD WORK,
R/O. JUNI PETH,
AT/POST: RAMDURG,
DIST: B ELAGAVI- 591 123
3. SOU . MAHANANDA
W/O. SHRISHA IL B ANDI,
AGE: 52 YEARS,
OCC: HOUSEHOLD WORK,
R/O. PEERAJ I PET H,
AT/POST: GADAH INGALAJ,
DIST: KOLHA PU R 416 502
4. SOU . ASHA
W/O. RAVINDRA HAMANNAVAR,
AGE: 48 YEARS,
OCC: HOUSEHOLD WORK,
R/O. GU RU WAR PETH,
AT/POST: CHIKKODI,
DIST: B ELAGAVI- 591 201.
4
5. SOU . GEETA
W/O. JAMB ANNA NAGALIKAR,
AGE: 44 YEARS,
OCC: HOUSEHOLD WORK,
R/O. GANESH PARK APARTMENT A WING,
B HAGYA NAGAR, BELAGAV I- 590 001.
...CROSS OBJECT ORS.
(B Y SHRI A.D.SHILLEDAR, ADVOCATE, FOR SHRI
SANTOSH B RAWOOT, ADVOCATE.)
AND:
1. CHANNAMALLAPPA
S/O. MAHADEVAPPA KIT TUR,
AGE: 65 YEARS, O CC: B USINESS,
R/O. H.NO. 2157, KORE GALLI,
SHAHAPU R, DIST: B ELAGAVI- 590 001.
2. SHIVA LIN GAPPA
S/O. MAHADEVAPPA KIT TUR,
AGE: 61 YEARS, O CC: B USINESS,
R/O. H.NO. 2157,
KORE GALLI, SHA HAPUR,
DIST: B ELAGAVI- 590 001.
3. SOU . REKHA W/O. CHIDANAND HEB BALL I,
(D/O. LATE. MAHADEVAPPA KITTU R)
AGE: 50 YEARS,
OCC: HOUSEHOLD WORK
R/O. H.NO.2157, KORE GALLI,
SHAHAPU R, DIST: B ELAGAVI.
....RESP ONDENT S.
(B Y SHRI MRU TYUNJAY T AT A B ANGI, ADVOCATE, FOR
SHRI NINAD T KWATIHALL I, ADVOCATE.)
THIS CROSS OB JECTION IN RE GU LAR FIRST A PPEA L
IS FILED UNDER ORDER X LI RULE 22( 1) OF CODE OF
CIVIL PROCEDU RE, PRAYING TO MODIFY THE JUDGMENT
AND DECREE, DATED 05.09.2013, PASSED IN
O.S.NO.143/2009, ON THE FILE OF THE III AD DL.
SENIOR CIVIL JUDGE & ADDL. MACT, B ELAGAVI, ETC.,.
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RESERVED FOR JU DGMENT ON : 01.02.2021.
JU DGMENT PRONOU NCED ON : 25.02.2021.
THIS APPEAL AND CROSS OB JECTION HAVIN G B EEN
HEARD AND RES ERVED FOR JU DGM ENT, COMING ON FOR
PRON OU NCEMENT OF JU DGMENT THIS DAY ,
SHRI P.N.DESA I, J , DELIVERED THE FOLLOWING:
JUDGMENT
These appeal and cross objection arise out of the judgment and decree d ated 5.9.2013, passed by the III Addl. Senior Civil Judge, Belag avi, in O.S.No.143/2009, d ecreeing the suit in p art.
2. In RFA No.4206/2013, the appellants are the d efend ants and the respondents are the plaintiffs. In RFA CROB No.100014/2014, cross objectors are the plaintiffs and the respondents are the defend ants. They will b e referred as p er their resp ective ranks before the trial Court.
3. The b rief averments of the plaint are as follows:
a) That one Mahad evapp a, propositus of the family of the p arties to the suit died on 8.9.2007.
The wife of p ropositus by name Smt.Taramati d ied 6 on 26.11.2008, leaving behind p laintiffs No.1 to 5 and defendant No.3 being the d aug hters, and defend ants No.1 and 2, being the sons.
b) It is averred that the plaintiffs and the defend ants constituted a Hindu Undivided Family. Late Mahad evap pa was the karta of the family. The suit p roperties are the joint family prop erties of the plaintiffs and the defend ants. After the d eath of said Mahad evapp a Kittur, the plaintiffs gave a wardi to the Tahasild ar to enter the names of plaintiffs and defend ants in respect of the suit prop erties as no partition had taken p lace b etween them. The defend ants No.1 and 2 prod uced copy of the Will dated 25.5.2001 before the Tahasild ar and got their name entered in the records of rights illeg ally. The plaintiffs have disputed the g enuineness of the Will. City Survey Authorities, Belagavi, rejected the claim of defend ants No.1 and 2 on the ground that the so called Will is seriously d isp uted and it requires to be proved in accord ance with law before the Civil Court. Accordingly the names of the plaintiffs and the 7 defend ants came to be entered in the p roperty register card .
c) It is further plead ed that the deceased Mahad evapp a was not competent to execute the Will. He was suffering from acute diab etes, hig h blood pressure and also cancer since 1995. The d eceased Mahad evapp a was not in a sound disposing state of mind. Defend ants No.1 and 2 have created the Will just to g rab the suit p roperties and defeat the rights and interest of the plaintiffs. The deceased Mahad evapp a was not the ab solute and exclusive owner of the suit p rop erty. Therefore, the defend ants will not get any rig hts und er the said Will. Therefore the alleg ed Will is not binding on the plaintiffs.
d) It is further p leaded that, after the d eath of their father, the plaintiffs demand ed their share in the suit p roperties and requested defendants No.1 and 2 to effect p artition. But the defend ants did not come forward to effect p artition. Hence the p resent 8 suit for p artition and sep arate p ossession claiming 5/8 t h share in the suit p rop erty.
4. Defend ants No.1 and 2 filed written statement and a memo came to be filed on b ehalf defend ant No.3 that she would adopt the written statement filed by d efend ants No.1 and 2.
5. The defend ants admitted their relationship with the plaintiffs. They have denied the other averments of the plaint. The d efend ants contended that the plea of the plaintiffs that suit prop erties are the joint family properties of the plaintiffs and the defend ants and deceased was the karta of the und ivid ed family are all false. They denied the plea of the plaintiffs reg arding the Will. They denied the cause of action. It is the defence of the defend ants that the p laintiffs are well aware that defend ants No.1 and 2 acq uired absolute right and ownership over the suit property as legatees under the registered Will dated 25.5.2001 executed by propositus Mahadevapp a. It is further their d efence that the p arents of Mahad evappa died long back and 9 he did not possess any movable or immovable properties. Late Mahad evappa in ord er to earn livelihood commenced a cloth business and started earning . He was a freedom fighter. One Laxman Narayan Anantbhat, who was a close friend of late Mahad evapp a, gifted the lands bearing Sy.Nos.284, 319/1, 319/2 and 319/3 situated at Sambra in Belag avi through a registered gift d eed d ated 12.2.1947. So these lands were self acquired properties of late Mahad evap pa. The prop erty bearing CTS No.2157 was purchased by late Mahad evapp a through a reg istered sale deed dated 27.6.1946 for a sale consideration of Rs.5,000/- from one Veerappa Malleshap pa Kurali. He has performed the marriag e of p laintiffs by spending hug e amount and had given gold ornaments, silver articles and other valuables to the plaintiffs, so as to see that plaintiffs lead a comfortab le life in their matrimonial house. Since the date of marriag e, all the p laintiffs are resid ing in their matrimonial house comfortab ly. The said Mahad evapp a and Taramati 10 used to stay with d efend ants No.1 and 2 and they looked after the welfare of their p arents. Late Mahad evapp a had maintained a very good health till his death. The said Mahadevappa died on 8.9.2007.
6. It is further the defence of the d efendants that while cleaning the house, they came across the registered Will dated 25.5.2001, whereunder the southern portion of the house bearing CTS No.2157 and 2157/1 came to be bequeathed in favour of defend ant No.1. Likewise, front portion of the said house bearing the above said CTS number was bequeathed in favour of defend ant No.2, excep t 10 feet area in both the p roperties. The lands situated at Samb arag i villag e were bequeathed in favour of defend ants No.1 and 2 jointly. All the movable and immovable p roperties were also bequeathed in their favour. They also came to know that the said Will was reg istered in the office of Sub-Registrar, Belag avi, on 25.5.2001. They have further contended that, they app roached the attesting witnesses and enquired them about the execution of the Will and 11 came to know that their father had executed a registered Will in resp ect of the self acquired properties. Therefore, the defend ants No.1 and 2 alone are entitled to rig ht, title and interest over the said prop erties. Therefore the plaintiffs have no cause of action to file the suit. With these main contentions the defend ants prayed to dismiss the suit.
7. On the b asis of the above p leadings, the trial Court framed as many as five issues after recasting the earlier issues.
8. On behalf of the plaintiffs, plaintiff No.1 got examined herself as PW.1 and got marked 20 documents as Exs.P.1 to P.20. Defend ant No.2 got examined himself as DW.1 and got examined one witness as DW.2. They also got marked 16 documents as Exs.D.1 to D.16.
9. After hearing the arguments, the trial Court decreed the suit in p art holding that the plaintiffs are entitled to partition and sep arate 12 possession of their 5/8 t h share in suit house bearing CTS No.2157 and 5/8 t h share in 1 acre 27 guntas of land in Sy.No.319/1 of Samb ra village. Aggrieved by the decree, d efend ants have preferred appeal in RFA No.4206/2013 for allotting share only in 1 acre, out of 2 acres 27 guntas of land in Sy.No.319/1, plaintiffs have preferred cross objection in RFA CROB. No.100014/2014.
10. We have heard the arg uments advanced by Shri Mrutyunjay Tata Bangi, learned counsel for the defend ants and Shri A.T.Shilled ar, learned counsel for the plaintiffs.
11. The learned counsel for the d efendants arg ued that the suit prop erties are the self acquired properties of d eceased Mahad evapp a. The said Mahad evapp a d uring his lifetime had sold some of the prop erties and only Sy.No.319 remained with him. The plaintiffs very well knew that the properties are self acquired prop erties and only after filing the written statement, the plaintiffs changed their stand and contended that it is the joint family property. 13 The learned counsel further argued that the deceased Mahad evapp a b eing absolute owner and as it is the self acquired prop erty, was comp etent to execute the Will in resp ect of his p roperties. Accordingly he executed a registered Will d eed d ated 25.5.2001 in favour of defend ants No.1 and 2. The defend ants also examined one of the attesting witnesses, DW.2, who was also an ad vocate and their neighbourer. The Will was registered b efore the Sub-Reg istrar's office. Therefore, when the defend ants came to know about the Will after the death of their father, they filed application before the revenue and city survey authorities to enter their names to the suit p rop erties.
12. The learned counsel further argued that the suspicious circumstances as argued by the plaintiffs were also not p roved and not tenab le. The learned counsel pointed out that the suspicious circumstances are - (i) the deceased Mahad evap pa was suffering from diabetes, blood pressure and cancer. He was not keep ing good health. No 14 documents are produced by the plaintiffs to show that Mahad evap pa had any such d isease. Even nothing was elicited in the cross-examination of the defend ants in this regard. On the other hand , in the year 2002-03, the d eceased Mahad evapp a went to Goa to p articip ate in a felicitation function org anized in his honour as he was a freedom fig hter. Therefore, the first circumstance that the deceased was not in a sound state of mind has no basis. (ii) Attesting witness DW.2 is an advocate. That cannot be a suspicious circumstance. In fact, the said ad vocate has practiced for 40 years. He is neighbourer of d eceased Mahad evapp a's house. So, he being a neighbourer and ad vocate, it is quite natural and normal for Mahad evapp a to consult or contact DW.2 for making the Will. So, the said Ex.D.12 first Will came to b e executed. There is no dispute about the said Will. The said defend ant DW.2 has stated that he has seen Mahad evapp a signing the Will, and then he attested it. The other witness Sattig eri also stated that, after knowing 15 Mahad evapp a signed the Will, he attested after seeing it. So requirement of the Ind ian Succession Act are complied. (iii) The third suspicion is reg arding purchase of the stamp paper, name of the typ ist and no reference to earlier Will. The learned counsel submits that if Ex.D.12, the Will is perused, it is also in resp ect of d efend ants No.1 and 2 only. Ex.D.13 is also in respect of two children. Simp ly the name of the typist is not mentioned or the stamp pap er is purchased earlier is not a suspicious circumstance. (iv) The other suspicious circumstance is that the Will is not a natural Will. Such a contention is also not tenab le. The intention of deceased Mahadevapp a was to bequeath the properties to his sons. He never intended that any of the prop erty should go to the daughters. He has made averments as to why d aug hters are not given any property. The properties being the self acquired properties, the testator had capacity and right to bequeath the Will as per his own wish.
16
13. The learned counsel argued that Ex.P.7 is the family arrang ement made by the said Mahad evapp a. He has retained 1 acre 25 guntas in Sy.No.319 totally measuring 2 acres 25 guntas and gave 20 guntas each i.e., half acre to each of the defend ants No.1 and 2. Accordingly the names of defend ants No.1 and 2 were entered in revenue records. Therefore, the plaintiffs cannot seek any share in the said prop erty. The learned counsel arg ued that the trial Court without app reciating the evid ence in a proper perspective, without considering the nature of prop erties, wrongly decreed the suit.
14. The learned counsel for the d efendants relied upon the decision of Hon'b le Sup reme Court of India reported in AIR 2020 Supreme Court 3102, in Shivakumar and others vs. Sharanabasappa and others wherein the Hon'b le Supreme Court dealt with appreciation of evidence reg ard ing p roof of Will and b road ly summarized the relevant princip les governing the p roof of Will. 17
15. The learned counsel for the d efendants arg ued that, there is no p lead ing reg ard ing any suspicious circumstances in the Will. The plaintiffs cannot urg e such contention without stating suspicious circumstances. On the other hand, the defend ants evidence has proved due execution of the Will and disp elled the susp icious circumstances, if any. With these main arg uments, the learned counsel p rayed to set aside the judgment by allowing the appeal and d ismissing the cross objections.
16. Ag ainst this, Shri A.D.Shilled ar, learned counsel for the plaintiffs argued that, the documentary evidence prod uced by the plaintiffs clearly indicate that the suit properties are not the self acquired properties of the father of plaintiffs. On the other hand, Ex.P.5, the sale deed ind icates that the father of the plaintiffs along with the d efendants No.1 and 2 as their minor g uardian, sold the property in Sy.No.319 to one Bhairapp a. This itself indicates that the said prop erty was not self acquired property of Mahad evapp a. It is treated as joint 18 family prop erty. Ex.P.14 mortg ag e d eed executed by defend ants No.1 and 2 in respect of suit house bearing CTS Nos.2157 and 2157/1 ind icate that defend ants No.1 and 2 mortg ag ed the prop erty even during lifetime of their father. So the finding of the trial Court that the suit prop erties are self acquired properties of deceased Mahad evapp a needs interference.
17. The learned counsel for plaintiffs further arg ued that Ex.P.6 wardi and Ex.P.7 family arrang ement, will not create any right in favour of defend ants in respect of 1 acre of land. There is no plead ing by the defendants in this reg ard in their written statement. Ex.D.13 the alleged Will also makes no reference about the family arrang ement. The learned counsel further argued that the said Ex.P.7 is an unregistered document. Mere ward i will not create any right or title in immovab le p roperties. Ex.P.7 document is written on a bond paper. The said bond p ap er is purchased by the 1 s t defend ant in the name of his father. In fact, Ex.D.13 is also 19 purchased by S.M.Kittur, but not by late Mahad evapp a. This creates doubt about the genuinity of those documents.
18. The learned counsel relied upon a decision of the Hon'ble Supreme Court reported in AIR 2014 Supreme Court 1290 in Arikala Narasa R eddy vs. Venakata Ram Reddy Reddygari and another and relied on p arag rap h No.9 and argued that in this case there is no plead ing by the d efendants reg arding the said Ex.P.7 family arrang ement or reg arding Ex.P.6 wardi. No issue was framed in this reg ard. The learned counsel argued that the finding of the trial Court that 20 guntas of land each fell to the share of defend ants No.1 and 2 and denying the share to the plaintiffs is a perverse find ing and need s interference.
19. The learned counsel further argued that the Will relied on by the defend ants clearly indicates that it is not a Will executed by Mahad evap pa voluntarily and the Will is not proved in accord ance with law. Reg ard ing the sound state of mind of the 20 testator and his health, all the medical records were in the custod y of these defend ants. So, the plaintiffs could not p rod uce any documents. The learned counsel submits that the trial Court has prop erly considered the susp icious circumstances and the evid ence which indicate that the Will is not a natural Will and the trial Court has rightly answered issue No.3 ag ainst the d efendants. The learned counsel supported the reasoning given by the trial Court for disbelieving the Will Ex.D.13. With these arg uments he has prayed to dismiss the appeal and to allow the cross objections.
20. Now, the points that would arise for our consideration are as und er:
i) Whether the trial Court's finding that suit properties are self acquired properties of propositus Mahadevapp a is correct?
ii) Whether the finding arrived at by the trial Court that Ex.D.13 Will is not genuine, and not p roved , is based on settled principles reg ard ing proof of Will?21
iii) Whether the learned trial Court Judge erred in allotting share to the plaintiffs only in 1 acre 27 guntas out of total extent of 2 acres 27 guntas of land in Sy.No.391/1?
iv) Whether the judgment of the trial Court is capricious and p erverse, and need s interference by this Court? If so, to what extent?
21. We have perused the judgment of the trial Court. The learned trial Judge consid ering the documentary evidence prod uced by both the sid es, held that the suit prop erties are the self acquired properties of propositus Mahadevapp a. The learned trial Judge held that the plaintiffs have not pleaded the source of income to purchase these p roperties. On the other hand, it is evid ent that one of the properties was gifted by Laxman Anantbhat through a reg istered gift deed. So, Sy.No.319/1 is the self acquired prop erty of late Mahad evappa. It is only the heirs of Laxman Anantbhat, who can challeng e the gift, but plaintiffs cannot challenge the said gift as it 22 is alread y acted upon. The trial Court also held that PW.1 ad mitted that her father commenced cloth business for his livelihood. CTS No.2157 was purchased by Mahad evapp a through a registered sale deed . Simp ly b ecause it was resold to Mahad evappa, that does not amount to ancestral property. The trial Court held that plaintiffs have failed to p rove that the suit prop erties are the joint family p roperties of the plaintiffs and the defend ants, on the other hand, they are self acq uired p roperties of Mahad evapp a.
22. Reg arding proof of Will, the trial Court has referred to the princip les stated in the d ecisions of Hig h Court and the Hon'b le Supreme Court as to leg al req uirements for proof of Will. The trial Court found material discrep ancies in the evid ence of DW.2 one of the attesting witnesses to the Will. The trial Court found that the Will is not natural Will as it disinherited the natural heirs. Regarding the mental cond ition of the testator, the trial Court held that Mahad evapp a was in a sound disposing state of mind. The trial Court held that the very execution of 23 the Will is doubtful and not p roved . Accordingly answered issued No.3 in negative. The trial Court while calculating the share, relied on family arrang ement Ex.P.7 and held that it is acted upon. Therefore, as 20 guntas of land is allotted to each of the d efendants No.1 and 2, the plaintiffs are not entitled to the relief sought in the entire extent of 2 acres 27 guntas in Sy.No.319/1. Accordingly it decreed the suit in p art.
23. We have reassessed the evid ence on record in the light of arguments advanced by learned counsel for both the sid es.
POINT No.1:
24. The contention of the plaintiffs is that the suit schedule properties are the joint family properties of the plaintiffs and the defend ants. The oral and documentary evidence produced by the plaintiff clearly shows that suit sched ule properties are self acq uired prop erties of the d eceased Mahad evapp a. The suit land was g ifted to said 24 Mahad evapp a by one Mr. Laxman Narayan Anantb hat through a registered gift d eed dated 12.2.1947 as per Ex.D.7. The same is also admitted by the plaintiff. The house property was acquired by deceased Mahad evapp a through registered sale d eed which is at Ex.D.8 from one Veerappa Malleshap pa Kurali which is not d enied by PW.1. The deceased Mahad evapp a was a cloth merchant. He had no other income or any ancestral properties. Therefore, in view of the evidence placed on record , if the find ings of the trial Court is consid ered, it is evid ent that the learned trial Judge has rightly come to the conclusion that the suit prop erties are the self acquired p roperties of late Mahad evapp a. POINT No.2:
25. The arg ument of the learned counsel for the app ellants that, late Mahadevappa being an absolute owner of the said p roperties, bequeathed the suit schedule properties in favour of defend ants No.1 and 2 by way of registered Will d ated 25.5.2001 Ex.D.13, hence, the plaintiffs cannot 25 claim any share in it, will stand the test of proof of Will or not is to be examined.
26. It is settled p rincip le of law that one who claims property through Will has to prove the Will. The p ropound er of the Will has to show b efore the Court that the Will is not shrouded with suspicious circumstances and it is a natural Will. The propounder has to prove the capacity of the testator and its due execution. If there are any material suspicious circumstances, he must dispel those suspicious circumstances by cogent, convincing and leg ally reliable evidence. The onus is on the propounder to explain them to the satisfaction of the Court, before the Court accepts the Will as genuine.
27. The relevant principles governing the p roof of Will are summarized by Hon'ble Supreme Court in parag rap h No.11 of the decision Shivakumar and others (supra) relied by the defend ants, as und er:
11. For what has been noticed hereinabove, the relevant principles governing the adjudicatory process 26 concerning proof of a Will could be broadly summarised as follows:-
1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prud ent mind. Alike the p rinciples governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to b e insisted upon.
2. Since as per Section 63 of the Succession Act, a Will is req uired to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of p roving its execution, if there be an attesting witness alive and cap able of giving evid ence.
3. The uniq ue feature of a Will is that it sp eaks from the d eath of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introd uces an element of solemnity in the decision of the question as to whether the d ocument propounded is the last Will of the 27 testator. The initial onus, naturally, lies on the p ropounder b ut the same can b e taken to have b een p rimarily discharged on proof of the essential facts which go into the making of a Will.
4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attend ant upon the execution of the document give rise to suspicion, the propound er must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fab rication or alleges fraud, und ue influence, coercion etcetera in regard to the execution of the Will, such pleas have to b e proved by him, but even in the ab sence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed b een executed by the testator and/or as to 28 whether the testator was acting of his own free will. I n such ev entuality, it is again a p art of the initial onus of the propounder to remove all reasonable doubts in the matter.
6. A circumstance is "suspicious"
when it is not normal or is 'not normally exp ected in a normal situation or is not exp ected of a normal p erson'. As put by this Court, the suspicious features must be 'real, germane and valid' and not merely the 'fantasy of the doubting mind.'
7. As to whether any particular feature or a set of features q ualify as "suspicious" would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the depend ants; an active or leading part in making of the Will by the beneficiary thereund er etcetera are some of the circumstances which may give rise to suspicion. The circumstances above- noted are only illustrative and by no 29 means exhaustive b ecause there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will.
On the other hand, any of the circumstance qualifying as being
suspicious could be legitimately explained by the p ropound er. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.
8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after und erstanding the nature and effect of the dispositions in the Will?
9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the 30 judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will.
28. We have gone through the contents of Ex.D.13 Will meticulously. It reflects the following doubtful circumstances which are not exp lained by the d efend ants and which are not natural, not exp ected of an ordinary p rudent man in a normal situation.
a) The contention of the defendants is that after the death of propositus, while cleaning the house, they came across the registered Will Ex.D.13. Then they approached the attesting witness, enquired about the execution of the Will and came to know about the Will. Thereafter they g ave application to revenue authorities to enter their names. This contention of the d efendants may not be true as evident from Ex.D.13 Will itself. Because the stamp p ap er on which the Will is written was 31 purchased by d efend ant No.2 on 21.12.2000. His name appears in all the three pag es of stamp pap ers, as a purchaser of the said stamp pap ers on behalf of M.C.Kittur. The same is admitted by him in the cross-examination. The Will does not b ear any date on which it was written. Therefore, there is no date of execution of Will by the p ropositus Mahad evapp a. DW.1 ad mitted in his evidence that son of the 1 s t defend ant by name Somanath C. Kittur signed the said Will as an id entifying witness b efore the sub-registrar. The other attesting witness Sattig eri, was working in their saree shop since 30 years. Thus, when the d efend ants No.1 and 2, who are beneficiaries under the Will have taken active part in purchasing the stamp paper. Son of defend ant No.1 identified the testator and one of their shop workers attested it. This indicates that they have taken a false contention that while cleaning the house they found the Will and came to know about it.
32
b) According to defend ants, DW.2 Virup ax Bemb alag i, one of the attesting witnesses and who accord ing to them prep ared Ex.D.13, informed the testator in the month of May 2001, when the testator had come to his office and gave him copy of Will dated 9.11.1998 (Ex.D.12) and other documents to prep are the Will, then DW.2 told Mahad evapp a to arrang e for stamp papers. Accord ing ly on 24.5.2001 the said Sattigeri and Mahad evap pa hand ed over the stamp p apers to DW.2. But as already stated above, the stamp pap ers bear the date of purchase as 21.12.2000, nearly six months prior to the d ate of registration of the Will and also long prior to DW.2 asking propositus to b ring the stamp p apers. How the p ropositus anticip ated that DW.2 will one day ask him to bring the stamp papers and purchased those stamp p ap ers through one of the defendants six months p rior to registration? This circumstance indicates the role p layed by d efendants No.1 and 2 to grab the suit properties.
33
c) At p ag e No.2 of the said Will certain words are inserted by writing in black ink. But rest of the contents in the Will are typ ed in Kannada language. Who has made such corrections or insertions, is not forthcoming . No initials are found for having mad e correction. DW.2 stated that Mr.Sattigeri had carried out corrections. He had not advised Mahad evapp a to make initials to the corrections. It is in the evidence of defend ants that the deceased was not knowing Kannad a languag e. It is also p ertinent to note the signature of Sattigeri on the last page of the Will is in Kannad a lang uag e. But on 2 n d p age b efore the sub-reg istrar, his signature as identifying witness is totally different and it is in Eng lish languag e. The same is marked as Ex.P.20. These circumstances are not a normal course of conduct of a human b eing in a given situation. One cannot sign on the same document on the same day in two d ifferent languag es using two different inks. DW.2 further ad mitted in the cross-examination that he does not remember whether Sattigeri put his signature first as 34 a witness or he put his sig nature first on the Will. This doubtful circumstance is not exp lained.
d) DW.2 the attesting witness has admitted in the cross-examination that he is close family friend of the defend ant and late Mahadevapp a was a resp ectab le person and also a freedom fighter. DW.1 in his cross-examination states that Mahad evappa was looking after his wife with love and affection. He has also admitted that his mother had no income of her own and was suffering from blood pressure, sug ar and other ailments. DW.2 has also ad mitted that the 3 r d defend ant left her matrimonial house and was residing in their house. She was totally depend ant on the income of her father. She had no children and no ind epend ent source of income. In view of this admitted evidence of DW.1 if the present Will is considered, it is evident that no p rovision is made for his wife or the 3 r d d efend ant who is the daughter of the testator. On the other hand, it is mentioned, even after the d eath of his wife, her ornaments would also go to the defend ants No.1 and 35
2. Even it is mentioned that, a property which was stand ing his name, the wife of the 1 s t defendant by name Roop a was the only owner. Nothing is g iven either to the wife or to the daughters. It is mentioned that they are all married and living happily and they have no share in the said property. This appears to be totally unnatural one. The reasons assigned for exclusion of wife and defend ant No.3 and other daughters create a doubt about the genuineness of the said Will.
(e) In the last paragrap h of Ex.D.13 it is mentioned that it is the 'first' and the 'last' Will of the testator. The d ate is kept blank. Defendants have p roduced Ex.D.12 which is dated 9.11.1998. How the d efend ant came into possession of Ex.D.12 is not exp lained. The attesting witnesses shown to Ex.D.13 are the same attesting witnesses to Ex.D.12. There is no name of scribe on Ex.D.12. There is also no mention on Ex.D.13 as to who has typ ed it. DW.2 has not signed as a scribe of the Will but he has signed as a witness. According to DW.2, 36 the said Ex.D.12 Will was written by deceased Mahad evapp a. He asked him to prep arer another Will as the earlier Will was not leg ible. But, on perusing Ex.P.12, it is clearly legible. As already stated ab ove the said Mahadevapp a was not at all knowing Kannad a lang uag e. Then who has written the earlier Will is not forthcoming . If there is already a Will dated 9.11.1998, why there is no mention about the same in subsequent Will Ex.D.13. On the other hand it is stated that it is the first and the last Will of the testator. That circumstance is not exp lained by the defend ants so as to clear the suspicious surrounding the Will.
29. The plaintiffs have denied the execution and genuinity of the said Ex.D.13. On the other hand, evidence of defend ants failed to clear the suspicious circumstances surrounding the said Will. The possibility of fabrication of the Will by the defend ants cannot be ruled out. Whether the testator was acting on his own will in signing the document is to be proved, if there app ears to be 37 doubt in that matter. But here in the circumstances narrated above, unjust exclusion of leg al heirs and particularly the wife and 3rd defend ant, the suppression mad e by beneficiaries of the Will, and their taking active p art in reg istration of the Will, give rise to suspicious circumstance in the light of the evid ence placed before the Court. The said circumstances are not exp lained by the d efend ants. If the evidence of plaintiffs and defend ants are tested with the touch stone of the principles stated in the decision Shivakumar and others (supra), it is evident that the trial Court's finding that genuineness of Ex.D.13 is not estab lished , is supported by p roper reasons. Therefore, d efendants do not d erive any rig ht or title over the suit properties under the said Will Ex.D.13. POINT No s.3 and 4:
30. The learned trial Judge p artly d ecreed the suit by allotting share in only 1 acre 27 guntas out of total extent of 2 acres 27 guntas land in Sy.No.319/1. The reasons assigned by the learned 38 trial Judge are that, Mahad evappa during his lifetime gave 20 guntas each to defend ants No.1 and 2 as per family arrangement Ex.P.7, the same is acted upon as per Ex.P.8 and P.9. The same is ad mitted by PW.1. Therefore, only 1 acre 27 guntas was left out to the plaintiffs to claim their share. Accordingly they were allotted share in 1 acre 27 guntas in Sy.No.319/1 situated at Sambra village excluding one acre.
31. The learned counsel for the cross objectors is justified in his arg ument that such a finding has no leg al b asis at all. Neither it is the p leading of the parties nor it is contend ed by the defendants that there was any family arrangement made by d eceased Mahad evapp a as per Ex.P.7. The same is not mentioned in Ex.D.13-Will. The d efend ants have not stated anything about family arrang ement Ex.P.7 in their evidence. There is no issue framed on that point. It is the plaintiffs who have p roduced that document while adducing their oral evidence. Even PW.1, nowhere in the examination-in-chief has 39 referred to such a family arrangement. Without there being pleading, issues or evid ence, the learned trial Judge has p artly decreed the suit, rejecting the claim of the plaintiffs over 1 acre of land . In the decision relied by counsel for plaintiffs in Arikala Narasa R eddy (supra), at parag raph No.9 the Hon'b le Supreme Court has reiterated the principles stated by it earlier, that the Court cannot go beyond the plead ings of the p arties. The parties have to take proper plead ings and establish their case by adducing evid ence in support of their p lead ing. Relief not founded on the plead ings should not be granted . The d ecision of a case should not be b ased on grounds outside the plead ings of the p arties. In the ab sence of plead ings, the evid ence if any produced b y the parties, cannot b e considered .
32. We have p erused the evidence in this reg ard. Ex.P.6 d ated 18.2.1997 is a copy of wardi stated to have been given by deceased Mahad evappa to enter the names of defend ants No.1 and 2 to the extent of half acre to each in resp ect of 40 Sy.No.319/1. But the said document bears the signature of Mahad evapp a in Eng lish languag e. Admitted ly he was not knowing Kannada languag e. Who has written that Ex.P.6 document is not forthcoming . No reasons are assigned for such a transfer. There is no reference about any family arrang ement Ex.P.7 or p artition, in Ex.P.6. No reasons are assigned as to why and under what circumstance, propositus Mahad evapp a gave such a wardi to transfer one acre of agricultural land in the name of d efend ants No.1 and 2.
33. It is settled p rincip le of law that the rig ht and title in an immovab le p roperty worth more than Rs.100/- cannot be transferred without a registered document as required under section 17 of the Registration Act, 1908. It is also settled princip le that mere entry in a mutation would not create any right or title in an immovab le p rop erty. Therefore, this document Ex.P.6 would not convey any transfer of title to the d efend ants to the extent of 20 guntas each. Ex.P.7 is an unreg istered document styled as 41 'Kutumb a Vyavastha Patra'. The contents of the said document also indicate that it is a transfer. The reason mentioned is that, as Mahad evapp a was ag ed and unab le to perform ag ricultural work, he gave 20 guntas each to his sons and retained 1 acre 26 guntas. There is neither a partition nor a distribution of all the family properties. It is a type of a transfer or relinquishment of right in the immovable property. There was no reason for him to make arrang ement only in respect of 20 guntas. The contents of the said document creates a doub t, as ag ain the stamp papers of the said document were purchased by defendant No.2 in the name of M.C.Kittur. It is evid ent that the said document was not at all acted upon. It is not the contention of the defend ants No.1 and 2 that they were in possession of 20 guntas each. On the other hand , it is their defence statement that Mahad evappa was the owner in possession of the entire 2 acres 26 guntas and he has b equeathed the said entire property by way of Will Ex.D.13. There is no mention of the said family 42 arrang ement in both alleg ed Will i.e., either in Ex.D.12 or in Ex.D.13. On the contrary it is shown, Mahad evapp a was the owner in possession of entire 2 acres 26 guntas. Even before revenue authorities also no such contention was taken by the defend ants. Name of defend ants No.1 and 2 were not entered on the basis of either wardi or on the b asis of family arran gement. Not a single RTC or any document was produced to show that the name of these defend ants No.1 and 2 came to b e entered in revenue records subsequent to the year 1997. The defend ants have not prod uced any documents to show that they were in possession of the said properties. They have not add uced oral evid ence of any person to show the possession. On the other hand, they claim that the entire prop erty was bequeathed to them throug h Will. Now they cannot take shelter under the observation of the learned trial Judge about Ex.P.7 which is not p roved by the defend ants. Ex.P.8 is a document signed by the 2 n d defend ant to enter the name. It is not signed by 43 Mahad evapp a. Ex.P.9 is a 'U form'. It is mentioned in it that late Mahadevapp a Kittur had 'relinquished' 20 guntas in favour of his son which is not true. Therefore such a mutation entry will not create any right or title in respect of said land in favour of defend ants No.1 and 2. It is also settled princip le of law that mutation entries are not the documents of title. There is no evid ence to show that d efendants No.1 and 2 were in possession of said 20 guntas at any point of time. It is not their p leading or evid ence. Therefore, the find ing of the trial Judge at parag rap h No.43 is perverse and not based on any plead ing or evidence and needs interference b y us.
34. In view of the discussions made above, we find no merit in the appeal and the same is liab le to be dismissed . The cross objection is to be allowed. The plaintiffs are entitled to p artition and sep arate possession of their share of p rop erty in entire 2 acres 27 guntas of land in Sy.No.319/1 of Sambra village. To that extent the decree of the trial Court 44 need s mod ification. In the result, we p ass the following:
ORDER
i) The appeal in RFA No.4206/2013 is dismissed.
ii) The cross objection in RFA CROB
No.100014/2014 is allowed.
iii) The judgment and decree of the trial Court
is mod ified only to the extent that plaintiffs are entitled to 5/8 t h share in entire 2 acres 27 guntas of land in Sy.No.319/1 of Samb ra villag e instead of 1 acre 27 guntas only. Rest of the find ings remain unaltered.
iv) In view of the facts and circumstances of the case and relationship of the parties, we direct to both the p arties to b ear their own costs.
Sd/-
JUDGE Sd/-
JUDGE Mrk/-