Bangalore District Court
Sri.Gnana Prema Kumar vs Smt.J.Hemalatha on 12 November, 2019
IN THE COURT OF THE XLII ADDL., CITY CIVIL & SESSIONS JUDGE AT
BENGALURU CITY (CCH.No.43)
PRESENT: Sri.P.Srinivasa,
B.A.L., LL.M.,
XLII Addl., City Civil & Sessions Judge,
Bengaluru City.
Dated this the 12th day of November, 2019.
O.S.No.2649/2010
Plaintiff:- Sri.Gnana Prema Kumar,
S/o.Late G.Moses Sudarshan,
Aged about 48 years,
R/at "PRANATHI"
1st Main, 2nd Cross,
Shanthinagara,
Hassan - 573 201.
(By Adv. H.T.Nataraj)
v.
Defendants:- 1. Smt.J.Hemalatha,
W/o.Late Shanthakumar,
Aged about 68 years,
Retired Teacher,
2. Smt.Asha.V.K.,
D/o.Late Shanthakumar,
Aged about 44 years,
3. Sri.Edwin.V.K.,
S/o.Late Shanthakumar,
Aged about 42 years,
4. Smt.Elezibath.V.K.,
D/o.Late Shanthakumar,
Aged about 42 years,
Judgment
2 O.S.No.2649/2010
5. Smt.Pushpa.V.K.,
D/o.Late Shanthakumar,
Aged about 38 years,
6. Smt.Mary.V.K.,
D/o.Late Shanthakumar,
Aged about 35 years,
All are R/at Santhepalya,
D.C.Bungalow,
Tumkur.
7. Smt.M.S.Shakeela Kumari,
W/o.Sri.Roopsingh,
Aged about 50 years,
R/at # 130/S, Sharon Villa,
25/10th Cross Road,
2nd Stage, Hebbal Layout,
Mysore -17.
8. Sri.Naveen Kumar,
S/o.Sri.G.Mosses Sudarshan,
Aged about 46 years,
R/at Aralikatte Road,
Opposite to Sujala College,
Northern Extension,
Hassan - 573 201.
(D1 to D6 by Adv.R.A.Dev Anand
D7 & D8 by Adv. S.S.Renuka Prasad)
Date of institution of the suit : 15.04.2010
Nature of the suit : Partition & Declaration
Date of commencement of : 09.03.2015
Recording of the evidence
Date on which the Judgment : 12.11.2019
was pronounced
Judgment
3 O.S.No.2649/2010
Total Duration : Years Months Days
09 06 27
(P.SRINIVASA)
XLII ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
JUDGMENT
The plaintiff has filed the above suit for partition, declaration and costs.
2. The plaintiff's case in brief as under:-
It is the case of the plaintiff that, suit schedule property originally belonged to his great grandfather i.e., B.John Wesley and he died intestate on 30.11.1954 and his legal heirs partitioned his properties vide., Partition Deed dated 10.02.1966. As per the said Partition Deed, the suit schedule property was allotted to the share of J.C.Pushpamma i.e., plaintiff's grandmother. Said J.C.Pushpamma was married to one V.Joseph. G.M.Jayakumari and J.Hemalatha are the daughters of J.C.Pushpamma. Said G.M.Jayakumari was married to one G.Moses Sudharshan and J.Hemalatha i.e., defendant No.1 was married to one Shanthakumar. Plaintiff, defendants 7 & 8 are the children of said Smt.G.M.Jayakumari. The defendants 2 to 6 are the children of defendant No.1. Said G.M.Jayakumari died on Judgment 4 O.S.No.2649/2010 20.07.1973 at Hassan, leaving behind her husband and children.
G.M.Jayakumari's Husband i.e., G.Moses Sudharshan also died intestate, leaving behind plaintiff and defendants 7 & 8 as his legal heirs. Said J.C.Pushpamma died intestate in the year 1976. The parties to the suit are Christians hence, as per the provisions of Indian Succession Act, 1945 the plaintiff and defendants are the legal heirs and they succeed to the suit schedule property. The plaintiff and defendants are in joint possession and enjoyment of the suit schedule property. The defendant No.1 was the eldest member of the family and plaintiff and defendants 7 & 8 were minors at the time of their mother's death therefore, defendant No.1 was managing the suit schedule property and khatha stands in the name of defendant No.1 on behalf of all the members of the family and she is paying taxes to the concerned authorities on behalf of all the parties. The plaintiff requested defendant no.1 to partition the suit schedule property but, defendant No.1 failed to partition the suit schedule property. The plaintiff came to know that the defendants are trying to alienate the suit schedule property. Hence, the plaintiff has filed the above suit.
3. In response to the suit summons, defendants 1 to 8 have appeared before the court through their respective counsels. The defendants 1 to 6 have filed common written statement.
Judgment 5 O.S.No.2649/2010 Defendant No.8 has filed separate written statement and defendant No.7 has adopted the written statement of defendant No.8.
4. The defendants 1 to 6 in their written statement admit the relationship between the parties. Further, defendants 1 to 6 admit that suit schedule property originally belonged to B.John Wesley and he died on 30.11.1954. Further, defendants 1 to 6 admit that as per Partition Deed J.C.Pushpamma acquired the suit schedule property. The defendants 1 to 6 admit the G.M.Jayakumari died on 20.07.1973 and J.C.Pushpamma died in the year 1976. It is the case of defendants 1 to 6 that J.C.Pushpamma executed a WILL dated 25.07.1976 in favour of defendant No.1 and bequeathed the suit schedule property to defendant No.1. The defendant No.1 became the absolute owner of the suit schedule property and exercised ownership rights over the suit schedule property and also let out suit schedule property to tenants and was collecting rents from the tenants as owner of the property. The defendant No.1 has executed Gift Deeds in favour of her daughters. Now, defendants 2, 4, 5 & 6 are the absolute owners of their respective shares of the suit schedule property. The plaintiff is aware of acquisition of the property by defendant No.1 under WILL executed by J.C.Pushpamma in the year 1975 and the act of Judgment 6 O.S.No.2649/2010 defendant No.1 executing Gift Deeds in favour of her children. The plaintiff is not entitle for any share in the suit schedule property. Hence, prayed that suit may be dismissed with costs.
5. After filing of the written statement, the plaintiff has amended the plaint and has contended that alleged WILL is a concocted, created and fabricated document and it has come into existence under suspicious circumstances and also denied the execution of the WILL by J.C.Pushpamma in favour of defendant No.1. Further, the plaintiff has contended that both the Gift Deeds dated 11.04.2008 and 05.08.2011 executed by defendant No.1 in favour of the defendants 2 to 6 is not binding on the plaintiff and defendant No.1 has no authority to execute Gift Deeds in favour of her children. The said Gift Deeds are not binding on the plaintiff herein.
6. The defendants 7 & 8 in their written statement admit plaintiff's claim and also claim their share in the suit schedule property.
7. On the basis of above pleadings, below mentioned issues arise for consideration:-
ISSUES
1. Whether the plaintiff proves that he has got Judgment 7 O.S.No.2649/2010 share in the suit schedule property and he is in joint possession and enjoyment of the same with the defendants?
2. Whether the defendants prove that partition effected between Smt.Susheela Kanaka and Smt.H.C.Pushpamma, mother of defendant No.1?
3. Whether the defendants further prove that J.C.Pushpamma had executed a WILL bequeathing the entire "B" item of property in favour of defendant No.1?
4. Whether the defendants prove that defendant No.1 gifted the suit schedule property in favour of defendants 2, 4, 5 and 6 on 11.04.2008?
5. Whether the plaintiff is entitled for the reliefs as sought for?
6. What order or decree?
ADDITIONAL ISSUES
1. Whether the plaintiff proves that Gift Deed dated 11.04.2008 executed by defendant No.1 in favour of defendants 2, 4, 5 and 6 is not binding on the share of the plaintiff?
2. Whether the plaintiff proves that Gift Deed dated 05.08.2011 executed by defendant Judgment 8 O.S.No.2649/2010 No.1 is not binding on plaintiff's share?
8. To prove the case of the plaintiff, the plaintiff examined himself as PW-1 and got marked Ex.P1 to P21. The defendant No.1 examined as DW-1 and got marked Ex.D1 to D8.
9. Heard arguments. The learned counsel for plaintiff has relied upon the following citations reported in:
1. (2001) 4 Supreme Court Cases 325, in the case of Clarence Pais and others v.
Union of India.
2. (2010) 5 Supreme Court Cases 770, in the case of Balathandayutham and another v. Ezhilarasan.
3. (2015) 8 Supreme Court Cases 615, in the case of Jagdish Chand Sharma v.
Narain Singh Saini (dead) through legal representatives and others.
4. (2006) 13 Supreme Court Cases 433, in the case of Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and others.
5. 1988 SCC OnLine Ker 232, in the case of R.Saraswathy v. P.Bhavathy Ammal and another.
6. 2008 (3) KCCR 1484, in the case of J.T.Surappa and another v.
Sri.Satchidhanandadendra Saraswathi Judgment 9 O.S.No.2649/2010 Swamiji Public Charitable Trust and others.
7. 2018 (1) KCCR 716, in the case of Siddanagouda and others v.
Smt.Gadugewwa and others.
8. (2010) 5 Supreme Court Cases 274, in the case of S.R.Srinivasa and others v.
S.Padmavathamma.
The learned counsel for defendants 1 to 6 has relied upon the following citations reported in:
1. (2011) 3 Supreme Court Cases 436, in the case of State of Orissa and another v.
Mamata Mohanty.
2. (2011) 11 Supreme Court Cases 786, in the case of Kalyan Singh Chouhan v. C.P.Joshi.
3. (2008) 17 Supreme Court Cases 491, in the case of Bachhaj Nahar v. Nilima Mandal and another.
4. AIR 1982 Supreme Court 133, in the case of Smt.Indu Bala Bose and others v.
Manindra Chandra Bose and another.
5. AIR 1964 Supreme Court 529, in the case of Shashi Kumar Banerjee and others v.
Subodh Kumar Banerjee since deceased and after him his legal representatives and others.
Judgment 10 O.S.No.2649/2010
6. AIR 1957 ANDHRA PRADESH 130, in the case of The State of Andhra represented by Deputy Commissioner of Commercial Taxes, Kakinada v. Sri.Arisetty Sriramulu.
7. 1969 AIR 78, in the case of Dhulabhai and others v. The State of Mandhya Pradesh and another.
10. My findings on the above said issues are as follows:-
Issue No.1:- In the Affirmative.
Issue No.2:- In the Affirmative.
Issue No.3:- In the Negative.
Issue No.4:- In the Negative.
Issue No.5:- In the Affirmative.
Addl. Issue No.1:- In the Affirmative.
Addl. Issue No.2:- In the Affirmative.
Issue No.6:- As per final order.
for the following:-
REASONS
11. Issue Nos.1 to 5 & Additional Issue Nos.1 & 2:-
These issues are taken up together for consideration to avoid repetition of facts, evidence and convenience.
12. Both plaintiff and defendants in their pleadings and evidence admit below mentioned facts:
1. That parties to the suit belong to Christian Religion.
Judgment 11 O.S.No.2649/2010
2. That B.John Wesley is the great grandfather of the plaintiff and grandfather of defendant No.1.
3. That B.John Wesley had 3 daughters namely, Susheela Kanaka, Pushpamma and Manorangita.
4. That B.John Wesley had acquired property bearing No.44, Lakkasandra Extension and said property was his self-acquired property.
5. That B.John Wesley died intestate on 30.11.1954.
6. That J.C.Pushpamma was married to V.Joseph.
7. That G.M.Jayakumari and J.Hemalatha i.e., defendant No.1 are the daughters of J.C.Pushpamma.
8. That G.M.Jayakumari was married to G.Moses Sudarshan and J.Hemalatha was married to Shanthakumar.
9. That G.M.Jayakumari died on 20.07.1973 at Hassan.
10. That G.M.Jayakumari's husband is also dead.
11. That plaintiff, defendants 7 & 8 are the children of G.M.Jayakumari and G.Moses Sudarshan.
12. That defendants 2 to 6 are the children of defendant No.1 and Shanthakumar.
PW-1 in his evidence has stated that after the death of B.John Wesley his legal heirs partitioned the properties as per Partition Deed dated 10.02.1966 and the suit schedule property was allotted to the share of J.C.Pushpamma. The plaintiff has produced certified copy of Partition Deed dated 10.02.1966 at Ex.P2 and defendants 1 to 6 have produced the original Partition Deed dated 10.02.1966 Judgment 12 O.S.No.2649/2010 at Ex.D1. Ex.D1 is an undisputed document hence, this court can rely upon Ex.D1. From Ex.D1, it goes to show that the suit schedule property was allotted to share of J.C.Pushpamma and she acquired title over the suit schedule property. There is no dispute regarding acquisition of suit schedule property by J.C.Pushpamma.
13. The main dispute between the parties is that, plaintiff claims that J.C.Pushpamma died intestate leaving behind plaintiff and defendants 1 to 8 as her legal heirs and they succeed to the suit schedule property. On the other hand, the defendants 1 to 6 contend that J.C.Pushpamma has executed WILL dated 25.07.1976 and bequeathed the suit schedule property in favour of defendant No.1 and defendant No.1 has acquired absolute title over suit schedule property and in turn, she has executed Gift Deeds in favour of her daughters and plaintiff is not entitle for share in the suit schedule property. The defendant No.1 has produced the original WILL before this court at Ex.D2. Admittedly, Ex.D2 is a unregistered WILL. As per the contents of the WILL, one A.V.Balaiah and M.Lakshmi Narasimhaiah are the attesting witnesses and one B.K.Narasimha Murthy is the scribe of the alleged WILL. WILL is dated 25.07.1976. The burden is on defendant No.1 to prove the execution and attestation of the WILL.
DW-1 in her cross-examination has stated as follows:-
Judgment 13 O.S.No.2649/2010 "I was not aware about the execution of will by my mother. My father was knowing it. My father had suffered stroke to his left side of the body, however he was talking. My father use to sign even at the time was suffering from paralysis. 12 days after the death of my mother my father informed me about the will deed left by my mother."
From the above evidence of DW-1 i.e., defendant No.1, it is clear that defendant No.1 was not present at the time of execution or attestation of the WILL. DW-1 is not competent to say whether testator has executed the WILL out of her free will and having sound disposition of mind. DW-1 is not competent to say regarding whether WILL was duly attested i.e., attesting witnesses saw the testator sign the WILL or acknowledged the WILL. Therefore, evidence of DW-1 regarding execution and attestation of WILL is not helpful to the defendants.
14. In 1988 SCC OnLine Ker 232, in the case of R.Saraswathy v. P.Bhavathy Ammal and another, wherein the lordship have held as under:
"6. A question immediately would arise: what is the legal position in the matter of proof of a will? We have already seen that will is a document which is required by law to be attested. Such documents shall not be used as evidence until at least one attesting witness has been called for proving its Judgment 14 O.S.No.2649/2010 execution, if there be an attesting witness alive and subject to the process of court and capable of giving evidence . ( See S.68 of the Evidence Act). The proviso to this section however relaxes the rigour of this procedure in regard to proof of execution of the documents required by law to be attested, not being a will provided the said documents have been registered in accordance with the provisions of the Registration Act. It therefore follows that in regard to those documents other than a will it is not necessary to call an attesting witness to prove the execution. But it is necessary to call an attesting witness to prove the execution of even such a registered document if its execution by a person by whom it purports to have been executed is specifically denied. It is thus clear from this section that, so far as a will is concerned, the same, unlike other documents which require by law to be attested, cannot be use as evidence unless at least one attesting witness alive and capable of giving evidence. Where no such attesting witness can be found, it is not as if, the execution of such documents cannot be proved at all. A reference in this connection to S.69 Evidence Act is relevant. This section prescribes the mode of proof of a document, referred to in S.68, where no such attesting witness can be found. The section provides that if the attesting witness is not found it must be proved that the attestation of one attesting witness at least, is in his handwriting, and that the Judgment 15 O.S.No.2649/2010 signature of the person executing the document is in the handwriting of that person. There is a general statement of law. But in regard to proof of a will the expression "and that the signature of the person executing the document is in the handwriting of that person", in my judgment, is not available in view of the provisions contained in S.63(a) which says that it is not necessary that the will for its validity, shall contain the signature of the testator. It therefore follows that in the case of a will, if the attesting witness cannot be found, the execution can be proved by examining a witness who can identify the signature of the attestor. In other words there is no need to establish that the signature of the person executing the will (that is, the testator) is in his handwriting as in the case of other documents referred to in the section. Identical provision is contained in S.70 of the Evidence Act also. This sections says that the admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested. The admission referred to in this section, is the admission of a party to the document and therefore when an executant makes an admission the exception embodied in this section is applicable. That is why it is said that this section is an exception to general rule contained in S.68. Section 70 however, is inapplicable to a will because the executant of a will, which will become Judgment 16 O.S.No.2649/2010 effective only on the death of the executant, will not be available to admit the execution at the relevant time. It is these sections, namely Ss.68, 60 and 70, the legislature wanted to treat a will differently from the other documents, which like a will, are required by law to be attested. A reference to S.71 of the Evidence Act also is relevant in this context. This section speaks a situation, brought about by the attesting witness either denying the execution or not recollecting the execution of the documents. In such cases that is, where the attesting witness either denies or does not recollect the execution of the document, the execution of the document required by law to be attested, can be proved by other evidence. Subject to what is stated above, in my judgment, a will also requires to be proved like any other document. Whatever that be, in order to have a will received in evidence, the propounder must prove that the will have validly been executed, that is, executed in accordance with the provisions contained in S.63 of the Evidence Act."
From the above judgment, it is clear that the propounder of the WILL has to prove the WILL by examining one of the attesting witnesses before the court. In the present case, one A.V.Balaiah and M.Lakshmi Narasimahaiah are the attesting witnesses and one B.K.Narasimhamurthy is the scribe of the WILL. For the reasons best Judgment 17 O.S.No.2649/2010 known to the defendants 1 to 6, the defendants 1 to 6 have failed to examine the attesting witnesses and scribe before this court.
15. In 2015 SCC OnLine Delhi 14461, in FAO (OS) 355/2008, in the case of Jagdish Prasad v. State, wherein the lordships have held as follows:
"........
13. The legislature was conscious of the fact that a situation may arise where both attesting witnesses have taken the train to the heaven before the testator died or before the beneficiary propounds the Will. The consciousness of the legislature can be found in Section 69 of the Indian Evidence Act, 1872, which reads as under:-
"69. Proof where no attesting witness found -
If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person."
14. Section 69 of the Indian Evidence Act, 1872, while dealing with a situation where no attesting witness can be found, requires evidence to be led that the signatures on a document which law Judgment 18 O.S.No.2649/2010 requires to be attested by one or more witnesses are that of the executant with further proof that there is attestation in his handwriting by one attesting witness.
15. Law does not envisage that if both attesting witnesses to a Will have died or for some reason are not available, that would be the end of the Will. The way forward has been guided by the legislature under Section 69 of the Indian Evidence Act, 1872.
16. In the decision reported as (2008) 14 SCC 754 Babu Singh & Ors. Vs. Ram Sahay @ Ram Singh, after noting Section 69 of the Indian Evidence Act, 1872, in paragraph 17 and 18, the Supreme Court observed as under:-
"17. It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the will may be proved in the manner indicated in Section 69 i.e. by examining witnesses who were able to prove the handwriting of the testator or executants.
18. Whereas, however, a will ordinarily must be proved keeping in view the provisions of Section 63 of the Succession Act and Section 68 of the Act, in the event the ingredients thereof, as noticed Judgment 19 O.S.No.2649/2010 hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed. However, signature and handwriting, as contemplated in Section 69, must be proved." From the above judgment, it is clear that in case of death of attesting witnesses, the profounder has to prove the WILL as per Section 69 of the Evidence Act. In the present case, defendant No.1 in her examination-in-chief no where has stated that attesting witnesses are not alive. For the first time DW-1 in her cross- examination says that both the attesting witnesses are not alive. No documentary evidence is produced by defendants 1 to 6 before this court to show that attesting witnesses are not alive. DW-1 admits that she knows both the attesting witnesses and they were residing at Hariyoor, Tumkur Taluk and Antharasanahalli, Tumkur Taluk respectively. Further, DW-1 also says that son of Balaiah by name Girish is well known to her and he is alive. Similarly, DW-1 admits that B.K.Narasimha Murthy i.e., scribe is also alive. From the above evidence of DW-1, it can be inferred that scribe and son of one of the attesting witnesses are alive and available. For the reasons best known to the defendants, the defendants 1 to 6 have not taken steps to examine said Girish or scribe B.K.Narasimhamurthy before this court to prove the WILL. Non- examination of said Girish and scribe before this court is fatal to Judgment 20 O.S.No.2649/2010 case of the defendants 1 to 6. Therefore, the defendants 1 to 6 have failed to prove the execution and attestation of the WILL as required under Evidence Act. Therefore, WILL is liable to be set aside on the above said ground.
16. Advocate for the plaintiff argued that WILL is surrounded by suspicious circumstances therefore, WILL is liable to be set aside. It is pertinent to note that, DW-1 in her evidence admits that prior to filing of the above suit the relationship between herself and her sister and her children was cordial. From the above evidence, it is clear that there is no hostility among the parties or their predecessors. It is pertinent to note that, in the WILL other legal heirs of J.C.Pushpamma are dis-inherited. No explanation is given in the WILL for dis-inheriting other legal heirs of J.C.Pushpamma in the WILL. DW-1 has not adduced any evidence before this court to show why other legal heirs of J.C.Pushpamma were dis-inherited under the WILL. The above said circumstance is a suspicious circumstance and the defendants 1 to 6 have failed to remove the said suspicion.
17. It is pertinent to note that, the defendants 1 to 6 have not adduced any evidence regarding who had the custody of the WILL. DW-1 in her cross-examination says that after the death of her mother, on the 12th day she received WILL from her father. Per Judgment 21 O.S.No.2649/2010 contra, in the WILL it is specifically mentioned as "J.C.Pushpamma w/o late V.Joseph". From the recitals of the WILL, it demonstrates that on the date of execution of WILL V.Joseph was not alive. Admittedly, J.C.Pushpamma and V.Joseph both are Retired Teachers. DW-1 in her evidence says that she has Death Certificate of V.Joseph in her possession. The said Death Certificate of V.Joseph would be best evidence to determine whether V.Joseph was alive or dead on the date of execution of the WILL. This court had directed defendant No.1 to produce Death Certificate of V.Joseph, which is in the custody of defendant No.1 before this court. Inspite of direction by this court defendant No.1 failed to produce the Death Certificate of V.Joseph before this court. Therefore, adverse inference has to be drawn against defendant No.1. It is settled proposition of law that documentary evidence prevail over oral evidence. Therefore, evidence of DW-1 that WILL was handed over to her by her father after the death of her mother cannot be accepted. The above said circumstance is a suspicious circumstance and the defendants 1 to 6 have failed to adduce evidence to remove the said suspicion.
18. It is also pertinent to note that, in Ex.D2 i.e., WILL, there is no endorsement on the WILL to the effect that the testator has put her signature in the presence of attesting witnesses and the Judgment 22 O.S.No.2649/2010 attesting witnesses have signed the said document in the presence of the testator. No evidence is produced by the defendants 1 to 6 to show that WILL was signed by the testator in the presence of the attesting witnesses and the attesting witnesses have signed the WILL in the presence of the testator. The defendants 1 to 6 have failed to remove the above said suspicious circumstance.
19. It is pertinent to note that, DW-1 admits that both the attesting witnesses were working in the defendant No.1's husband's school. No evidence is produced by the defendants 1 to 6 to show who had requested the attesting witnesses to attest the WILL. The attesting witnesses are known to defendant No.1's husband. The above said circumstance is also a suspicious circumstance.
20. It is pertinent to note that, in the WILL on the first page there is no signature of J.C.Pushpamma. No explanation is given by defendant No.1 regarding absence of signature of J.C.Pushpamma on page No.1 of the WILL. On the second page of the WILL is signed as "G.E.Pushpamma" instead of J.C.Pushpamma. Further, DW-1 in her cross-examination admits that J.C.Pushpamma was unwell at the time of execution of the WILL. There is no evidence produced by defendant No.1 to show that even though J.C.Pushpamma was unwell, she gave instructions to the scribe to write the WILL and Judgment 23 O.S.No.2649/2010 was able to understand the nature of the document and executed the document as per law. The above said circumstances are suspicious circumstances and defendant No.1 has failed to give proper explanation or evidence to overcome the said suspicious circumstance. Therefore, WILL i.e., Ex.D2 is also to be set aside on the above said suspicious circumstances.
21. Advocate for defendants 1 to 6 argued that plaintiff has not specifically denied the WILL and has not sought any relief of declaration in respect of the WILL and has not pleaded specifically how fraud or coercion etc., was played in the plaint therefore, examination of attesting witnesses is not mandatory and relied upon the judgment reported in AIR 1982 Supreme Court 133 and AIR 1964 Supreme Court 529.
In (2010) 5 Supreme Court Cases 274, in the case of S.R.Srinivasa and others v. S.Padmavathamma, wherein the lordship have held as under:
"A. Succession and inheritance - Will - Admission - Legal position with regard to admission and evidentiary value thereof, summarised - Held, admission about making of will does not amount to admission of due execution and genuineness of will - Hindu Succession Act, 1956 - S.30 - Succession Act, Judgment 24 O.S.No.2649/2010 1925 - S. 63 - Evidence Act, 1872, Ss.17, 58 and
68. B. Succession and Inheritance - Will - Proof of execution of - Mode and manner of proof and legal provisions governing it - Legal position summarised - Hindu Succession Act, 1956 - S.30 - Succession Act, 1925 - S. 63 - Evidence Act, 1872, S.68.
C. Hindu Succession Act, 1956 - Ss.30, 15 and Sch.
- Will - Proof of execution of - Examination of scribe of will who had not signed the will with intention to attest, held, not sufficient to satisfy the statutory requirement of examination of at least one attesting witness for proving the will - Succession Act, 1925 - S.63 - Evidence Act, 1872 - S.68.
......
Held:
In the present case, none of the attesting witnesses have been examined. The scribe, who was examined as DW-2, has not stated that he had signed the will with the intention to attest. In his evidence, he has merely stated that he was the scribe of the will. He even admitted that he could not remember the names of the witnesses to the will. In such circumstances, the test that the witness should have put his signature anima attestandi, has not been satisfied. Therefore, the signature of the scribe could not be taken as proof of attestation. The execution of a will of the scribe Judgment 25 O.S.No.2649/2010 could not be taken as proof of attestation. The execution of a will can be held to have been proved when the statutory requirements for proving the will are satisfied. Thus, it is evident that the will has not been duly proved."
In 2008 (3) KCCR 1484, in the case of J.T.Surappa and another v. Sri.Satchidhanandadendra Saraswathi Swamiji Public Charitable Trust and others, wherein the lordship have held as follows:
"C. INDIAN EVIDENCE ACT, 1872 - Section 68 - Will - Proof - Examination of one of the attesting witness a must.
E. WILL - Proof - Though admitted - Examination of one of the attesting witness a must Suit is dismissed."
THE HIGH COURT OF JUDICATURE AT MADRAS in C.S.No.260 of 2011, in the case of Tamilkodi v. N.Kalaimai and another, wherein the lordships have held as follows:
"12. So far as Will is concerned, a special mode of proof is prescribed by Section 63 of the Indian Succession Act. Section 68 of the Evidence Act prescribes a mode of proving the Will. When the law prescribes special mode of proof for Will, de hors the objections raised or not, a duty is cast upon the parties to prove the will, in the manner prescribed. As the will is a document required by law to be attested, it shall Judgment 26 O.S.No.2649/2010 not be used in evidence until at least one attesting witness is examined. In order to prove due attestation of the will, the propounder of the will has to prove that two witnesses saw the testator signing the will and that they themselves signed the will in the presence of the testator."
From the above judgments, it is clear that inspite of objections raised or not, the profounder of the WILL is bound to prove the WILL as described under law. In the present case, in the plaint the plaintiff has denied the execution of the WILL and also has contended that WILL is a concocted document and surrounded by suspicious circumstances. In view of the above said pleadings, the burden is on defendant No.1 to prove the alleged WILL. In the citations reported in AIR 1982 Supreme Court 133 and AIR 1964 Supreme Court 529, the Hon'ble Supreme Court has clearly held that in the absence of suspicious circumstances surrounding the execution of the WILL, proof of testamentary capacity and signature of the testator required by law is sufficient to discharge the onus. In the present case, there are suspicious circumstances as stated above and admittedly, DW-1 was not present at the time of alleged execution and attestation of the WILL therefore, evidence of DW-1 is not sufficient to prove testamentary capacity of the testator. The citation relied upon by the counsel for defendants 1 to 6 in AIR 1982 Supreme Court 133 and AIR Judgment 27 O.S.No.2649/2010 1964 Supreme Court 529 are not applicable to the fact and circumstances of the present case. Therefore, the above arguments of defendants' counsel is not sustainable under law.
22. Advocate for defendants 1 to 6 argued that the plaintiff has not challenged the WILL and no relief is claimed by the plaintiff against the WILL therefore, the suit is not maintainable. In this regard, advocate for defendants 1 to 6 relied upon the judgments reported in (2011) 3 Supreme Court Cases 436, (2011) 11 Supreme Court Cases 786 and 2008 (17) Supreme Court Cases 491. In the plaint, the plaintiff has specifically contended that WILL is not executed by J.C.Pushpamma and said WILL is a concocted and fabricated document. Based on the said pleadings Issue No.3 regarding proof of WILL is framed by this court. There is pleading regarding denial of execution of WILL and issue regarding proof of WILL and this court has power to grant appropriate relief when pleadings and issues are present. The above said citations referred by defendants' counsel are not applicable to the facts and circumstances of the present case.
23. PW-1 in his examination-in-chief has stated that defendant No.1 has no absolute right to execute Gift Deeds in respect of the suit schedule property as per Ex.D8 and D7 in favour Judgment 28 O.S.No.2649/2010 of defendants 2 to 6 and said Gift Deeds are not binding on the plaintiff. It is pertinent to note that, defendant No.1 has failed to prove execution and attestation of WILL as per law. Therefore, defendant No.1 has not acquired absolute title over the suit schedule property. Consequently, the Gift Deeds i.e., Ex.D7 & D8 executed by defendant No.1 do not convey absolute title in respect of the suit schedule property in favour of defendants 2 to 6. Therefore, the said Gift Deeds i.e., Ex.D7 & D8 are not binding on the plaintiff and defendants 7 & 8.
24. The plaintiff and defendants 7 & 8 are the children of deceased G.M.Jayakumari and lineal descendants of J.C.Pushpamma. Therefore, plaintiff and defendants 7 & 8 are entitle for 1/6th share each in the suit schedule property. The citations relied upon by the learned counsel for defendants 1 to 6 reported in AIR 1957 ANDHRA PRADESH 130 and 1969 AIR 78 are not applicable to facts and circumstances of the present case. In the light of above discussion, I answer Issue Nos.1, 2 & 5 and Additional Issue Nos.1 & 2 in the Affirmative, Issue Nos.3 & 4 in the Negative
25. Issue No.6:-
In view of my above discussion, I proceed to pass the following:
Judgment 29 O.S.No.2649/2010 ORDER Suit of the plaintiff is decreed with costs.
The plaintiff is entitle to get 1/6th share in the suit property.
The defendants 7 & 8 are entitle to get 1/6 th share in the suit property.
It is hereby declared that Gift Deed dated 11.04.2008, registered as Document No.SHR-1-0034-2008-09, in the Office of the Sub-Registrar, Shanthinagar, Bangalore in favour of defendants 2, 4, 5 & 6 is null and void and not binding on share of plaintiff, defendants 7 and 8.
It is hereby declared that Gift Deed dated 05.08.2011 registered as Document No.SHR-1-00619/2011-12, stored in CD No.SHRD16, in the Office of the Sub-Registrar,in favour of defendants 2 & 5 is null and void and not binding on share of plaintiff, defendants 7 and 8.
Draw preliminary decree accordingly.
(Dictated to the Judgement Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 12th day of November, 2019) (P.SRINIVASA) XLII Addl., City Civil & Sessions Judge, Bengaluru City.
Judgment 30 O.S.No.2649/2010 ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - Sri.Gnana Premakumar
(b) Defendants' side:
DW.1 - Smt.J.Hemalatha II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : Genealogical Tree
Ex.P2 : Certified copy of Partition Deed
dated 10.02.1966
Ex.P3 : Endorsement
Ex.P4 to 6 : Tax Paid Receipts
Ex.P7 : Death Certificate of G.M.Jaya Kumari
Ex.P8 : Khatha Extract
Ex.P9 : Encumbrance Certificate
Ex.P10 : Tippani
Ex.P11 : Letter dated 05.03.2005
Ex.P12 to 21 : 9 Photos along with CD
(b) Defendants' side:
Ex.D1 : Original Partition Deed dated
10.02.1966
Ex.D2 : Original unregistered WILL dated
25.07.1976
Ex.D3 : Khatha Certificate
Ex.D4 to 6 : Tax Paid Receipts
Ex.D7 : Original Gift Deed dated 11.04.2008
Judgment
31 O.S.No.2649/2010
Ex.D8 : Original Gift Deed dated 05.08.2011
XLII ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.Digitally signed by SRINIVASA DN: cn=SRINIVASA,ou=HIGH COURT OF
SRINIVASA KARNATAKA,o=GOVERNM ENT OF KARNATAKA,st=Karnataka, c=IN Date: 2019.11.14 15:39:43 IST Judgment