Karnataka High Court
V Sreedhara Murthy vs Bramhanara Sangha (R) on 11 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11 TH
DAY OF JULY, 2025
R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR SECOND APPEAL NO.238/2021 (DEC)
BETWEEN:
V. SREEDHARA MURTHY
S/O V VENKATARAM
AGE ABOUT 60 YEARS
ADVOCATE
FOSTER SON OF LATE V.SUBAMMA
R/AT NO.994, SREE NIVASA
BRAHMINS STREET
KOLAR - 563 101.
... APPELLANT
(BY SRI. Y.R.SADASIVA REDDY, SENIOR COUNSEL FOR
SRI. SURESH BABU B.N., ADVOCATE)
AND:
BRAMHANARA SANGHA (R)
GAYTHRI PRARTHANA MANDIRA
P.C.EXTENSION, KOLAR CITY
KOLAR - 563 101
REP. BY ITS SECRETARY.
... RESPONDENT
(BY SRI. S.N.PRASHANTH CHANDRA, ADVOCATE)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 20.10.2020
PASSED IN R.A.NO.99/2017 ON THE FILE OF THE I ADDITIONAL
2
DISTRICT JUDGE, KOLAR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 28.04.2017
PASSED IN O.S.NO.61/2012 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE, KOLAR AND ETC.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 02.07.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard learned counsel for the appellant and learned counsel for the respondent.
2. This second appeal is filed against concurrent finding of the Trial Court and the First Appellate Court and the Trial Court granted the relief of declaration declaring that plaintiff is the absolute owner of the suit schedule property by virtue of Ex.P3-Will deed and defendant is directed to deliver vacant possession of suit schedule property to the plaintiff-Sangha within three months and if defendant fails to deliver possession, then the plaintiff is at liberty to recover possession under the 3 process of Court and the said judgment has been confirmed in R.A.No.99/2017 dismissing the appeal.
3. The factual matrix of case of the plaintiff before the Trial Court is that plaintiff is a Sangha registered under Karnataka Societies Registration Act, 1960. It was formed and registered on 04.10.1980 with an object of doing social and charitable work in the community. Its Secretary is authorized to represent the Sangha and also to institute the suit against the defendant. It is the case of the plaintiff in the suit that one V. Subbamma, daughter of late V. K. Venkateshaiah was the absolute owner in possession of the suit schedule property by virtue of a registered sale deed dated 06.04.1971. She has purchased the same from its earlier owner T. Thimmarayappa, son of T. Ramaiah. The municipal records were standing in her name and she was paying taxes to the government. The said V.Subbamma was a retired government employee and she is a divorcee having no issues. She was a member in the plaintiff's Sangha, who used to express her zeal and ambition to bequeath the suit schedule property to the Sangha for the purpose of 4 providing required education and necessities to the poor children. Hence, she has bequeathed the suit schedule property in favour of plaintiff-Sangha through a registered Will dated 13.07.2005. It is also contented that she was in a sound disposition of mind and health and also she has expressed her desire that suit schedule property shall go to the plaintiff-Sangha and its income should be used for the purpose of its development. It is also the case of the plaintiff that she died testate on 11.09.2010 and the said Will deed was acted upon. It is also contended that suit schedule property devolved upon the plaintiff and the Secretary of the Sangha has applied to CMC, Kolar for transfer of khatha. The khatha was also transferred in favour of Sangha, but the D.C., Kolar has set aside the same in Municipal Appeal No.8/2011-12 by restoring the khatha in the name of V. Subbamma till the order is passed by a Civil Court. It is contented that said V. Subbamma was living in the suit schedule property by collecting rents from two shopkeepers. After her death, the suit schedule property came to the control and management of the plaintiff by way of testamentary succession. The defendant has no manner of right, title or 5 interest over the suit schedule property, but he has trespassed into the same on 12.10.2010 by breaking open the lock. The defendant remained unauthorisedly in the suit schedule property by taking advantage of absence of office bearers of plaintiff- Sangha. The defendant has not delivered possession of the suit schedule property, inspite of making efforts by the office bearers. Hence, the plaintiff-Sangha has requested the Court to grant the decree with possession.
4. In pursuance of the suit summons, the defendant has appeared and filed the written statement denying all the averments. The defendant contended that he is the absolute owner in actual possession and enjoyment of the suit schedule property, as the same is his ancestral property. The said V. Subbamma died intestate on 11.09.2010 leaving behind him as her only legal heir. He was in joint possession and enjoyment of the suit schedule property along with said V. Subbamma. After her death, he continued his possession and enjoyment of the suit schedule property. The plaintiff by using influence has got changed khatha in favour of Sangha and an appeal was filed 6 and the same was set aside and he is in actual possession and enjoyment of the suit schedule property as its absolute owner.
5. It is also his contention that he has taken care and protection of V. Subbamma till her death, who is his paternal aunt and he has performed her funeral ceremonies and he is also performing annual ceremonies of deceased V. Subbamma as per Hindu Brahmin customary rites. He is the only legal heir of V. Subbamma, who became absolute owner of the suit schedule property. The plaintiff has no manner of right, title or possession over the suit schedule property and there is no cause of action for the plaintiff to file this suit. The plaintiff has not properly valued the suit and the Court fee paid is insufficient. The suit schedule property is worth more than Rs.15,00,000/- and the plaintiff has undervalued the suit schedule property. It is also contented that the property originally belongs to one Gowramma, who is the mother of late V.K. Venkateshaiah, who is none other than the father of V. Subbamma and V. Venkatarama. The said Gowramma has acquired the suit schedule property through a registered sale deed dated 7 06.03.1920. She has executed a registered settlement deed through which the said V.K. Venkateshaiah has acquired the suit schedule property under a registered settlement deed dated 13.04.1943. It is also contended that V.K. Venkateshaiah and his wife Seethamma are the parents of V. Subbamma and V. Venkatarama and all of them were living together in the suit schedule property. On 12.12.1969, the thread ceremony of defendant and also the marriage of V. Subbamma was performed. Later on the said V. Subbamma has obtained a divorce decree from the Court. He started residing with V. Subbamma due to love and affection from the age of six months. His grand parents and also V. Subbamma have brought him from his parents and gave education. The said V. Subbamma has performed his marriage on 07.12.1992 and all of them were living together in one family in the suit schedule property. His grandfather V.K. Venkateshaiah has executed a nominal sale deed in favour of T. Thimmarayappa on 25.11.1969 for meeting marriage expenses of V. Subbamma. As such, the said Thimmarayappa has reconveyed the suit schedule property in favour of V.K. Venkateshaiah through a registered 8 reconveyance deed dated 05.04.1971. Even though V. Subbamma has purchased the suit schedule property, it has not lost the character of joint family property. His grandfather V.K. Venkateshaiah and his children have got legitimate right over the suit schedule property. The said V. Subbamma had no exclusive right to encumber the suit schedule property by way of any conveyance deed. The plaintiff has created the said document which is a forged one. One K.S. Ramasheshaiah, who is the maternal uncle of V. Subbamma, has signed as a witness to the nominal sale deed in favour of Thimmarayappa and also to the reconveyance deed executed by said Thimmarayappa. The deceased V. Subbamma has no issues, who has fostered him since from his childhood. His name is entered in ration card and voter's list. The deceased V. Subbamma has suffered heart attack for two times and during the said period, he has taken care of her health. She has taken treatment from Dr. V.S. Krishna Murthy and by taking undue advantage of the situation, the said Doctor, in order to deceive the defendant has created the alleged Will deed by active collusion with the members of the plaintiff-Sangha. The alleged Will deed is a false, forged, 9 concocted, fabricated and created document. The plaintiff has not acquired any right, title or interest over the suit schedule property and he is not entitled for the suit reliefs.
6. The Trial Court having considered the pleadings of the parties, framed the following issues and additional issues:-
"(i) Whether plaintiff proves that plaintiff is the absolute owner of the suit schedule property by virtue of the suit schedule property by virtue of the registered Will dated 13.07.2005 executed by V. Subbamma in favour of plaintiff Sangha?
(ii) Whether the plaintiff proves the alleged interference and trespass on 12.10.2010 by the defendant into the suit schedule property?
(iii) Whether the defendant proves that he is the absolute owner in actual possession & enjoyment of the suit schedule property as contended in the written statement?
(iv) Whether the defendant proves that the plaintiff Sangha by colluding with Dr. V.S. Krishna Murthy has forged and created the Will dated 10 13.07.2005 as contended in the written statement?
(v) Whether the Court fee is sufficient?
(vi) Whether the plaintiff is entitled for decree as prayed for?
(vii) What order or decree?
Additional issues dated 16.03.2017:
1. Whether the defendant proves that the suit is not maintainable in law without producing probate?"
7. In support of the claim of the plaintiff, the plaintiff- Sangha examined the Secretary of the Sangha as P.W.1 and got marked the documents as Exs.P1 to P10. The plaintiff has also examined two witnesses as P.Ws.2 and 3. On the other hand, the defendant examined himself as D.W.1 and got marked the documents as Exs.D1 to D39. The defendant also examined five witnesses as D.Ws.2 to 6.
8. The Trial Court having considered the material available on record, answered issue No.1 as 'affirmative' that 11 plaintiff is the absolute owner of the suit schedule property by virtue of the registered Will dated 13.07.2005 and answered issue No.2 as 'partly affirmative' that defendant is interfering with the property of the plaintiff and the contention of the defendant that he is the absolute owner was negatived and so also negatived issue No.4 regarding allegation of collusion of Dr. V.S. Krishna Murthy in creating the document and answered other issues as 'affirmative' and additional issue framed by the Court regarding maintainability was answered as 'negative' and granted the relief as sought in the plaint declaring the plaintiff as owner and directed the defendant to deliver possession.
9. Being aggrieved by the said judgment and decree, an appeal is filed before the First Appellate Court in R.A.No.99/2017. The First Appellate Court having reconsidered the grounds urged in the appeal as well as the arguments of respective counsel, formulated the following points:
"1. Whether the Suit filed by Sangha without obtaining a probate in respect of the Will dated 13.07.2005 (Ex.P3) is maintainable?12
2. Whether the Sangha has proved the due execution of the said Will dated 13.07.2005 (Ex.P3) by late V. Subbamma?
3. Whether the impugned Judgment & Decree of the Trial Court calls for any interference by this Court in exercise of Appellate jurisdiction?
4. To what Order?"
10. The First Appellate Court having considered the grounds urged in the appeal, answered point No.1 as 'affirmative' in coming to the conclusion that suit is maintainable without obtaining any probate and comes to the conclusion that Sangha has proved said execution of the Will dated 13.07.2005 (Ex.P3) and answered point No.2 as 'affirmative' and answered point No.3 as 'negative' in coming to the conclusion that it does not require any interference and affirmed judgment of the Trial Court in coming to the conclusion that very execution of Will is proved and the same does not suffer from any suspicious circumstances. Being aggrieved by the judgment and decree of the Trial Court and confirmation made by the First Appellate Court, the present second appeal is filed before this Court. 13
11. The main contention of learned counsel for the appellant in this second appeal is that though appellant has taken the contention that Gowramma has acquired the suit schedule property under the registered sale deed dated 06.03.2020 and subsequently, Smt. Gowramma has executed registered settlement deed in favour of her son V.K. Venkateshaiah dated 13.04.1943. It is admitted that V.K. Venkateshaiah had two children namely V. Subbamma and V. Venkatarama. It is specifically contended that in view of marriage of his daughter V. Subbamma and for the thread ceremony of this appellant, he executed a nominal sale deed in favour of Thimmarayappa on 25.11.1969 and received Rs.4,000/- in order to spend for her marriage. Subsequently, V. Subbamma obtained the sale deed from Thimmarayappa on 05.04.1971 even during the life time of V.K. Venkateshaiah. It is also contended that V. Subbamma had no valid right title to sell the property as the appellant is the son of her brother Venkatarama and the property in question is the joint family property and he also had a share in that property. In respect of this aspect, the Trial Court has not framed any issue and without 14 framing an issue, the Trial Court comes to the conclusion that V. Subbamma had a valid title over the property which is illegal and improper. Hence, the judgment and decree is erroneous. It is also contended that Courts below failed to appreciate the evidence of defendant and his witnesses regarding execution of the Will and regarding succession of the property and passed the impugned judgment and decree. It is also contented that Courts below comes to the conclusion that Will vide Ex.P3 cannot be held as a suspicious circumstances as contended by the defendant. But, the defendant has strongly relied upon the circumstances that the original Will was in the custody of the Sangha since 2005 itself and the person, who has executed the said Will died during the year 2010. That itself proves that Will is a suspicious document. There are various judgments of this Court as well as First Appellate Court regarding custody of Wills and this fact was not appreciated by both the Courts below while passing the impugned judgment and decree.
12. It is also contented that defendant has taken a contention that Dr. V.S. Krishna Murthy, who was treating 15 deceased V. Subbamma, taking undue advantage obtained the Will in the name of Sangha and also got his influence to include his name as a nominee of deceased V. Subbamma, who is not at all a relative of V. Subbamma and he is a stranger to that family. The defendant has produced several documents to prove that Dr. V.S. Krishna Murthy has received certain amounts from post offices which are standing in the name of V. Subbamma. This fact was also not appreciated by both the Courts. It is also the contention that property is a joint family property and the defendant and his foster mother are in joint possession and both the Courts failed to take note of the very averments made in the written statement and he is a foster son and he has taken care of V. Subbamma throughout her life. The First Appellate Court ought to have remanded the matter to the Court below for framing fresh issues, but not done the same and erroneously confirmed the judgment of the Trial Court and failed to take note of validity, genuineness and authenticity. But, the Courts below failed to consider the evidence of P.W.3, who is the alleged attester of Will and his conduct has not been considered and it is conclusively proved that he is a stock witness and a close aid of 16 P.W.2-Kittappa and he was having interest in the Sangha and his evidence has not been considered by both the Courts properly. It is further contended that both the Courts failed to take note of the fact that document of Ex.D15 is a nominal sale deed and also failed to see the contents of document Ex.D16 reconveyance deed, wherein the contents of the document clearly says that Ex.D15 is a nominal sale deed. During the lifetime of Venkateshaiah, he paid the amount of Rs.5,000/- to V. Subbamma, in order to get back the sale deed from Thimmarayappa. Accordingly, she paid the amount, but obtained the sale deed in her name vide Ex.P9 and this fact was not appreciated by both the Courts.
13. This Court having considered the grounds urged in the second appeal during the course of admission, admitted the second appeal and framed the following substantial questions of law for consideration in this second appeal:
"i) Whether the Courts below failed to consider the effect of Ex.D16 on the rights of Smt. Subbamma in respect of the suit schedule property?17
ii) Whether there were any suspicious circumstances that surrounded the execution of Ex.P3?
iii) Whether the defendant had any undivided share in the suit schedule property and was therefore entitled to resist the suit for declaration and possession?".
14. Learned counsel for the appellant in his arguments he reiterated the grounds which have been urged in the second appeal and contented that when the suit is filed for the relief of declaration and possession, ought to have taken note of contents of Ex.D15 and also ought to have taken note of Ex.P9 original sale deed dated 05.04.1971 under which V. Subbamma had purchased the property. Learned counsel would vehemently contend that the property originally belongs to Gowramma, who had purchased the same in the year 1920 and it is not in dispute that there was settlement deed and property was settled in favour of her son V. K. Venkateshaiah and nominal sale deed is dated 25.11.1969 in favour of T. Thimmarayappa and contents of said nominal sale deed has not been taken note and the fact 18 that reconveyance deed was also executed in favour of V. Subbamma on 05.04.1971 is not in dispute, but failed to take note of recitals of nominal sale deed as well as reconveyance deed. Learned counsel would vehemently contend that V. Subbamma had not executed the Will and the same is a created document and description mentioned in Ex.P3 is in the handwriting and no attestation of mentioning the description of property in the alleged Will. It is contended that once it is in the manuscript, it should have been attested by the attester and also in the Will, nowhere it is stated that testator having read the papers signed the same and subscribed her signature having had the knowledge of contents of documents. Learned counsel would vehemently contend that the very document is doubtful.
15. It is further contended that P.W.2, who is a scribe categorically admits during the course of cross-examination that on each and every dates of hearing, he was visiting the Court and had the knowledge of Will and he is an interested witness, who came before the Court and gave the evidence as a scribe of the document. Learned counsel also brought to notice of this 19 Court that he is an interested witness, since he is also member of the Sangha. Learned counsel also brought to notice of this Court the document of Ex.P3 and contend that corrections are admitted, but there is no shara and also it is elicited that whenever any correction is made, the same ought to have been signed, but there is no signature. Learned counsel would vehemently contend that photo which is available in Ex.P3 not belongs to V. Subbamma and categorically admitted that photo is not that of V. Subbamma and to that effect, there is an admission on the part of the witness. Learned counsel would vehemently contend that the document is disputed and she was not having sound state of mind while executing the same and the document is created with the aid of the Doctor, who was treating V. Subbamma and the said Doctor is not examined with regard to her mental status and specific allegation is attributed against him and inspite of said contention, the Doctor is not examined before the Court.
16. It is contended that P.W.1, who has been examined before the Court has not stated as to how the Sangha got 20 possession of the property and only contend that they were dispossessed and once they have not proved the fact that possession was not delivered, question of dispossession does not arise. Learned counsel also brought to notice of this Court the procedure for depositing of Wills under Sections 42 and 43 and also brought to notice of this Court Section 20 of the Registration Act, 1908 and contend that there is no signature of the executant and scribe on the corrections and the very Will which is accepted by the Trial Court and the First Appellate Court is surrounded by suspicious circumstances. Learned counsel would vehemently contend that both the Courts considered the effect of Ex.D16 on the rights of V. Subbamma in respect of suit schedule property and the same was executed only the ground that earlier sale deed was only a nominal sale deed and the same was reconveyed. Learned counsel would vehemently contend that defendant had undivided share in the suit schedule property and he is entitled to resist the suit for declaration and possession and the rights of the defendant was not considered. 21
17. Learned counsel for the appellant in support of his argument, he relied upon the judgment in D.R. RATHNA MURTHY VS. RAMAPPA reported in 2010 6 SUPREME 769.
The counsel referring this judgment brought to notice of this Court discussion made in paragraph No.12 i.e., Rule 42 of Rules, Manner of noting interlineations, etc. - Each important interlineations, erasure or alteration occurring in a document shall, whenever possible, be caused to be noted or described at the foot of the document and to be signed by the executant before the document is accepted for registration. Therefore, Rule 42 mandatorily requires that if there is any interlineations, erasure, alteration etc., it must be mentioned and described at the foot of the document and must be duly signed by the executant before the document is accepted for registration. Hence, learned counsel would contend that when there are insertions, particularly while describing the property, no such attestation of the testator is found and the same is admitted during the course of evidence.
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18. Learned counsel also relied upon the judgment in SMT. JASWANT KAUR VS. SMT. AMRIT KAUR AND OTHERS reported in 1977 1 SCC 369. Learned counsel referring this judgment would vehemently contend that when suspicious circumstance is found, the Court has to examine the same and brought to notice of this Court the proposition laid down in the case of R. VENKATACHALA IYENGAR VS. B.N. THINMMAJAMA reported in AIR 1959 SC 443, wherein discussion was made in respect of Section 63 of Succession Act and Section 68 of Evidence Act and brought to notice of this Court proposition laid down in paragraph No.4, wherein it is observed that cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a 23 sound and disposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstance makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator. The counsel referring this judgment would vehemently contend that in the case on hand, Ex.P3 is very clear that description of the property is mentioned in handwriting and the same is not attested by the testator. The counsel would contend that the document of Ex.D16 is very clear that the same is only a reconveyance and V. Subbamma was not having exclusive right over the property, since her father executed a nominal sale deed and the same was also not taken note of by both the Trial Court and the First Appellate Court and there are suspicious circumstances, since document was created and even very execution was not properly 24 proved and P.W.2 is an interested person and a member, who is working in the Sangha and he prepared the document and also not examined the Doctor, who treated V. Subbamma and specific allegation is made that document was created at the instance of the Doctor and all these suspicious circumstances are not removed by the propounder of the Will.
19. The counsel also relied upon the judgment in J.T. SURAPPA & ANOTHER VS. SRI SATCHIDHANANDENDRA SSPCT & OTHERS reported in 2008 0 SUPREME (KAR) 267. The counsel referring this judgment brought to notice of this Court paragraph Nos.24 and 25, wherein the Apex Court has observed with regard to careful path regarding enquiry to be conducted with regard to Will i.e., five steps "PANCHAPADI" required to be proved, when the Will is propounded. The counsel also brought to notice of this Court that in the judgment discussion was made regarding Section 63 of Indian Succession Act and also Section 68 of the Indian Evidence Act and also definition of Will under Section 2(h) of the Indian Succession Act, 1925 i.e., Will means the legal declaration of the intention of the 25 testator with respect to his property which he desires to be carried into after his death. Learned counsel also brought to notice of this Court that in the judgment held that Court need not make any further enquiry, insofar as due execution, but take note of first step and once legal requirements are satisfied, the second step would be to find out whether under the Will, the testator has disinherited the persons, who would have inherited or succeeded to his property in the absence of a Will. It is quite natural, if anybody is disinherited, if under a Will, the testator were to disinherit a legal heir, in particular his wife and children and then it would be improbable or unnatural but not invalid. In such circumstances, it is necessary for the Court to find out reasons for disinheritance. The counsel referring this judgment would vehemently contend that the defendant is a son of brother of V. Subbamma and originally property belongs to Venkateshaiah and Venkateshaiah had two children i.e., Subbamma and her brother i.e., the father of the defendant and when the document of sale deed executed in favour of Thimmarayappa is a nominal document and the same was reconveyed in the name of V. Subbamma and the defendant also 26 inherit the property and both the Courts failed to take note of the same and in the judgment, detailed discussion was made about steps for proving the Will and also suspicious circumstances which were found in the execution of Will.
20. Per contra, learned counsel for the respondent, in respect of the contentions of the appellant and principles laid down in the judgments would vehemently contend that it is not in dispute that plaintiff-Sangha was registered. The counsel would vehemently contend that the defendant is a foster son and also contend that the defendant is the son of brother of the testator. The counsel would vehemently contend that when the property was purchased by V. Subbamma in the year 1971, the said property becomes the absolute property of V. Subbamma under Section 14 of the Hindu Succession Act. The counsel would vehemently contend that the main contention of the appellant is in respect of Ex.D16 and the same does not create any right in favour of the defendant. The counsel also would vehemently contend that when defendant is not a natural heir of V. Subbamma and question of disinheriting the property also 27 does not arise. The counsel would vehemently contend that in Ex.P3, it is categorically mentioned that she is a divorcee and not having any issues and she is the member of the Sangha and only with an intention to educate the poor people belonging to the particular community, the Will was executed and the same was registered before the Sub-registrar. The counsel would vehemently contend that the document is not attested, wherein boundary is described writing in the pen and the very Will cannot be doubted. Though the date is mentioned in the Will as 03.07.2005, correction was made in the pen as 13.07.2005. But, in words, categorically mentioned the particular date and the same cannot be doubted. The counsel would vehemently contend that the pen which was used for description of the property was used by the attester while signing the document and when the Will was prepared, the description of the property was kept in blank and the same is inserted before registration of the Will. The counsel would vehemently contend that both the Courts have taken note of admission and also the evidence available on record i.e., both oral and documentary evidence and not committed any error in appreciation of material on record 28 and the Court has to consider third substantial question of law at the first instance, since the defendant was not having any right of inheriting the property and then answer other substantial questions of law and there are no suspicious circumstances as contended by the appellant and in the findings of both the Courts, there is no perversity.
21. In reply to this argument of learned counsel for the respondent, learned counsel for the appellant brought to notice of this Court cross-examination of P.W.1 regarding handing over of documents and also brought to notice of this Court document of Ex.P3 regarding insertion of date as well as description of the property. P.W.2 is also a member of Sangha, who played the role in execution of the Will and he is also an interested witness to have the document of Will. The counsel also would contend that Will is surrounded with suspicious circumstance and the same is not met by both the Trial Court and the First Appellate Court.
22. In reply to this argument of learned counsel for the appellant, learned counsel for the respondent would contend that 29 there is no right to the appellant on the property which was bequeathed by V. Subbamma and also contend that though he claims that he is a legal heir, but not arrayed other legal heirs of his father. The counsel also brought to notice of this Court admission on the part of D.W.1 and also suggestion made to the witnesses about the Will. The counsel also brought to notice of this Court page No.52 of the judgment of the Trial Court and also contend that not questioned the earlier sale made by Venkateshaiah and also subsequent purchase made by V. Subbamma at any point of time and property is exclusive property of V. Subbamma. Hence, she has bequeathed the property and reason also assigned in the Will while disposing of the property and the same is for public cause.
First Substantive Question of Law:
23. Having considered the case of the appellant which has been urged in the appeal and also the submission of the respective counsel during the course of arguments and also considering the substantive questions of law framed by this Court, this Court has to analyse the said substantive questions of 30 law and also principles laid down in the judgments referred supra.
24. Now, this Court intends to consider first substantive question of law that whether the Courts below failed to consider the effect of Ex.D16 on the rights of Smt. Subbamma in respect of the suit schedule property.
25. Having perused the document of Ex.D16, no doubt, this document was executed on 25.11.1969 by the father of Subbamma in favour of T Thimmarayappa and there was a condition of reconveyance and the same is having paid the consideration to V K Venkateshaiah and the sale consideration is shown as Rs.4,000/-. There is also a recital in the said document as separate tenancy agreement agreeing to pay the amount inclusion of any arrears of rent and to execute the document in favour of the vendor Sri V K Venkateshaiah. It is important to note that in the said agreement, time was stipulated for a period of five years. If payment was not made within the said stipulated period, absolute right is conveyed in favour of the purchaser.
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26. This Court also considered the document of Ex.P9 i.e., reconveyance deed of the property in favour of Subbamma. It is important to note that in this document it is stated that the property was reconveyed and earlier there was an agreement dated 26.12.1970 and having received the amount of Rs.5,000/- reconveyed the property by executing the sale deed in favour of Subbamma. On perusal of this document, there is a reference to the condition which was stipulated in the earlier document of reconveyance and also reference of earlier registered agreement dated 05.01.1970 and also reference was made that agreed to reconvey the property in favour of her father V K Venkateshaiah and also there is a reference of consent of V K Venkateshaiah to reconvey the property in favour of Subbamma.
27. Having considered this substantive question of law framed by this Court, this Court has to read both the documents i.e., Ex.P9 and D16 conjointly. Having read the same conjointly, it is clear that in terms of Ex.D16, there is a reconveyance clause. The fact that sale consideration was passed while executing the document is not in dispute for having received 32 Rs.4,000/- while executing the document in terms of Ex.D16. The very contention of the counsel for the appellant that the document is only a nominal sale deed, cannot be accepted since the same is a sale deed for passing of sale consideration. But there is a reconveyance clause and accordingly, the property is also reconveyed within the time stipulated as per Ex.P9. The Court has to take note of the fact that the sale consideration was paid by Subbamma and for having reconveyed the property in favour of Subbamma, there was consent of earlier vendor - V K Venkateshaiah, who is none other than the father of Subbamma and the same is not disputed.
28. The very contention of the appellant counsel that when such reconveyance clause is made, the property was purchased by Subbamma, thus, the same is joint family property, cannot be accepted. It is not the case of the defendant that Venkateshaiah got the reconveyance deed in the name of his daughter paying the sale consideration and he gave the consent while repurchasing the property by his daughter Subbamma. If really, the Venkateshaiah has got money to 33 repurchase the same, he would have repurchased the same in his name, but sale consideration was paid by Subbamma. Merely because there was a clause for reconveyance, it cannot be held that the property is a joint family property as contended by the defendant counsel.
29. It is also important to note that there is no dispute that originally the property belonged to Gowramma who had purchased the same in the year 1920. It is also not in dispute that the very Gowramma executed the settlement deed in favour of her son - V K Venkateshaiah on 13.04.1943. It is important to note that when the property belonged to Gowramma, the same was her absolute property and during her lifetime she executed a settlement deed in favour of her son. On the execution of the said document, the property became as separate property of Venkateshaiah. No doubt, it is the claim of the defendant that he is the son of the brother of Subbamma that is Venkataramu. But the fact is that when the property is a separate property of Venkateshaiah, he had sold the property during his lifetime in favour of T Thimmarayappa for 34 consideration but there was a reconveyance clause. But the fact is that the said Venkateshaiah had not repurchased the property, but allowed his daughter to repurchase the property and his daughter paid the sale consideration and obtained the sale deed on 05.04.1971. In view of Section 14 of Hindu Succession Act, the same become absolute property of said Subbamma and Subbamma also executed the registered Will in favour of Sangha. Having considered the flow of title of property and also considering the conjoint reading of documents of Ex.P9 and D16, no doubt, there is a reconveyance clause, but the same is not a nominal sale deed as contended by the appellant counsel during the course of his argument and both the properties are outright sale and sale consideration was passed while executing the document. When such being the case, only on the ground that there was a reconveyance clause, the defendant got right over the property cannot be accepted and hence, I answer this substantive question of law as negative.
Second Substantive Question of Law:
30. The second substantive question of law is that whether there were any suspicious circumstances that 35 surrounded the execution of document of Ex.P3. This Court has to consider the same in the light of the arguments of the appellant counsel. The appellant counsel mainly relies upon the judgment in the case of D R RATHNA MURTHY referred supra and also brought to notice of this Court the documents containing interlineations, erasure or alteration and Rule 42 which has been discussed in paragraph 12. No doubt, a discussion was made regarding Rule 42 mandatorily requires that if there is any interlineations, erasure, alteration etc., it must be mentioned and described at the foot of the document and must be duly signed by the executant before the document is accepted for registration. But in the case on hand, there is no dispute with regard to the attesting of signature.
31. The main contention of the counsel is that the correction made on the top of the document at Ex.P3 in changing the date is not counter signed. No doubt, on perusal of Ex.P3, there is no any counter signature. But the fact is that the date of execution of the document is mentioned in the words and there is no any correction in the words. But there is only 36 correction in mentioning the date as '3' instead of '13' wherein it appears that earlier it is put as '3' and thereafter corrected as '13'. But the document clearly discloses the date is mentioned in words as '13' and if both are corrected, then there would have been force in the contention of the appellant counsel that there is an interlineations and alterations and same has been discussed by both the Courts regarding the date of Will is concerned and taken note of date mentioned in the words.
32. The other contention of the learned counsel for the appellant is that in the boundary description, the same is mentioned in the handwriting. But no doubt, Ex.P3 is a typed copy and the same was also got typed through the job typist and explanation is given by PW2 that at the time of preparing Ex.P3, the document was not in the hands of the scribe. Hence, the same was mentioned in hand writing. On perusal of Ex.P3, it discloses that the pen which was used for mentioning the property description is in the same ink and also with the same pen the attestor who has been examined as PW3 also signed the same. Hence, it cannot be contended that same is an insertion, 37 but description of the property is written in handwriting before signing the same. Having perused the document at Ex.P3 also, it discloses that the signatures of the testatrix are one and the same in all three pages including before the Sub-Registrar and there is no any shaky signature.
33. The other contention of the counsel for the appellant is that a witness has admitted that the photo was not that of Subbamma. It is important to note that regarding the said aspect also, very suggestion was made to PW3 during the cross- examination that Subbamma brought papers on that day and the same was got typed and all of them went to the Sub-Registrar office and photo of Subbamma was taken and she also signed the same and thereafter also all of them have signed and except that nothing was happened and the said suggestion was extracted by the Trial Court while discussing the evidence of PW3 in paragraph 19 wherein the very presence of Subbamma was admitted and defendant himself has admitted the procedure adopted on the date of registration of the alleged document before the Sub-Registrar by making such suggestion. Hence, 38 the stray admission on the part of one of the witness that photo is not of Subbamma cannot be accepted.
34. The other contention is that Ex.P3-Will is fabricated and no recital for having read the document to the executrix and subscribed her signature. PW2 and PW3 are the interested witnesses since PW2 is also a member of the Sangha and PW3 is a staff witness and the same also have been take note of by the Trial Court while discussing the evidence. No doubt, in some of the documents, PW2 is the scribe and PW3 is the witness even other than Ex.P3. At the same time, the Trial Court also taken note of other documents which have been marked by the defendant that is Exs.D7, D28, D29, D33 which are the copies of registered documents which does not bear the signatures of PW2 and PW3 either as a scribe or attesting witness.
35. It is important to note that the evidence reveals that the PW2 is a document writer who is the scribe and he also prepared the document in respect of some other property also. But in that document also, Chowdappa has signed, but the same discloses that both of them are having acquaintance with each 39 other. But in all the documents he was not the scribe and he was not the witness to the document. But it is clearly deposed by PW3 that in his presence only Subbamma had signed at Ex.P3. It is important to note that the Will was executed by Subbamma in the year 2005 and Subbamma passed away in the year 2010. It is important to note that even after execution of Ex.P3, the same was handed over to Sangha and records also reveals that Sangha is only paying the tax in respect of the said property.
36. The main contention of the appellant is that doctor who was treating the Subbamma was not examined inspite of the Will was disputed and also an allegation is made that in collusion with the doctor and PW2, document came into existence. No doubt, some of the documents are placed before the Court to show that Subbamma was taking treatment with the doctor - V S Krishnamurthy. But the same is not a serious ailment and she was having acquaintance with the doctor. Having perused the Will also, it is clear that she was having belief in him and hence, in the Will, made the provision for 40 withdrawal of the amount after her death and the same is also complied in terms of the Will. When such being the case, the very contention of the counsel that Will is surrounded with suspicious circumstances cannot be accepted.
37. It is important to note that Subbamma is a divorcee and not having any issues. I have already pointed out that the property was purchased by her and she was also working in the Government department. DW1 categorically admitted that Subbamma was actively participating in the affairs of the Sangha till her death. When such being the case, the Court has to take note of the intention of the executrix in executing the Will in favour of the Sangha and same is also for the benefit of the particular community to make use of the property and get the income and run the educational institution. Having taken note of the intention of the executrix while executing the Will in favour of the Sangha, it discloses that the same is for public use and to help the community. When such being the case, the very contention that Will is surrounded with suspicious circumstances cannot be accepted.
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38. No doubt, the counsel for the appellant relied upon the judgment in the case of JASWANT KAUR referred supra and brought to notice of this Court the proposition laid down in the judgment of THIMMAJAMMA wherein in proposition No.4, discussion was made that cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution the Will.
39. But in the case on hand, having perused Ex.P3, there is no any shaky signature and also no any feeble mind since Will was executed in the year 2005 and she was alive for a period of five years and she passed away in the year 2010. Here also there is no any unfair and unjust deposition of property and propounder himself taking a leading part and the same is executed in favour of Sangha and there is no any substantial benefit in favour of the particular person and the same is given 42 in favour of Sangha for the public cause. Hence, the very contention of the counsel for the appellant that there are suspicious circumstances and it makes the initial onus heavier on the propounder of the Will cannot be accepted. No doubt, it is a settled principle of law that if there is any such suspicious circumstances, the propounder of the Will must remove the same. I do not find any such suspicious circumstances having perused the material on record.
40. No doubt, the counsel for the appellant also relied upon the judgment in the case of J T SURAPPA referred supra delivered by this Court, wherein this Court pointed out PANCHAPADI for proving of Will. In the case on hand, with regard to the disinheritance is concerned, no question of disinheritance since testatrix is not having any legal heir and also not excluded any family members and property is the absolute property of testatrix. When she was not having any issues, the question of exclusion does not arise. The third step is also with regard to a sound mind is a dominant question in a Court of probate and whether the executrix was having a sound 43 state of mind. I have already pointed out that Will was executed in the year 2005 and she was alive a period of five years and there was no any medical evidence before the Court to show that she was seriously ill or not having sound of mind. The fourth step is with regard to suspicious when it is not normal or is not normally expected in a normal situation. Here also, Will is not unnatural or unreasonable or improper since the same is made in favour of Sangha. I have already pointed out that same is for the purpose of public cause. The fifth step is also with regard to proving of Will under Section 63 of Indian Succession Act and Section 68 of the Evidence Act. No doubt, PW2 is a scribe who is also a member of the Sangha, but that does not mean that he cannot prepare the document and document which has been produced by the defendant itself discloses that in respect of other property also he was a scribe.
41. I have already pointed out that PW3 was also a witness to some of the documents, which have been relied upon by the defendant. But here both of them have deposed before the Court that she was having mental capacity and not suffering 44 from any ill-health and all of them went to the Sub-Registrar office and affixed their signatures and photo of the executant also taken in the Sub-Registrar office. Hence, the fifth step of proving of document under Section 63 of Indian Succession Act and also Section 68 of Evidence Act is also complied. When such material is available on record, I do not find any error on the part of both the Courts in discussing in detail with regard to the suspicious circumstances is concerned. Hence, the judgment relied upon by the counsel for the appellant with regard to the proving of factum of PANCHAPADI also will not come to the aid of the appellant. Having reassessed the material on record, in view of substantive question of law framed by this Court with regard to suspicious circumstances in respect of Ex.P3 is concerned, this Court does not find any such suspicious circumstances to come to a conclusion that Ex.P3 came under suspicious circumstances. Hence, this substantive question of law is answered as negative.
Third Substantive Question of Law:
42. The third substantive question of law framed by this Court is whether the defendant had any undivided share in the 45 suit schedule property and was therefore entitled to resist the suit for declaration and possession. This substantive question of law is also interconnected with first substantive question of law and this Court in detail discussed the first substantive question of law with regard to the effect of Ex.D16 on the rights of Subbamma in respect of suit schedule property is concerned. This Court already pointed out that originally property belongs to Gowramma who had purchased the same in the year 1920 and the very Gowramma settled the property in favour of her son Venkateshaiah vide settlement deed dated 13.04.1943. There is no doubt, with regard to this aspect is concerned. But dispute is with regard to very execution of sale deed on 25.11.1969 by Venkatesahaiah. This Court already pointed out that same was not a nominal sale deed and sale deed is executed for consideration. But there was a reconveyance clause. I have already pointed out that while selling the property, a condition was put that if the same is not reconveyed within a period of five years, it would be a absolute sale deed and in terms of the reconveyance, the property also reconveyed in favour of Subbamma.
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43. It is important to note that while reconveying the property in favour of Subbamma, the very Venkateshaiah who is the father of Subbamma was a consenting party and he gave the consent to sell the property in favour of Subbamma. The said sale deed is also based on the payment of sale consideration of Rs.5,000/- and same has been paid by Subbamma. The same has been in detail discussed by this Court while considering first substantive question of law that there was a sale deed dated 05.04.1971 and there was a reference in the document of sale deed dated 05.04.1971 that earlier there was an agreement of sale to reconvey the property and accordingly, reconveyed the same for the consideration. This Court also taken note of the fact that the property become the absolute property of Subbamma having purchased the same by making sale consideration. The said Subbamma during her lifetime executed the Will which is propounded by the plaintiff and the same has been proved by examining the witnesses PW2 and PW3 and both the Courts have accepted the evidence of PW2 and PW3. Though several contentions were taken by the defendant wherein he contend 47 that he has inherited the property, but this Court having dealt with in detail that the Will is propounded in terms of Ex.P3, comes to a positive conclusion that the Will was proved in compliance of Section 63 of the Indian Succession Act also under Section 68 of Indian Evidence Act. The question of any undivided share in the suit schedule property is acquired by the defendant and he is entitled to resist the suit for declaration and possession does not arise since the very absolute owner Subbamma executed the Will in terms of Ex.P3 and the same is accepted by both the Courts and analysed in detail both question of fact and question of law. Though this Court has framed the substantive question of law regarding the defendant/appellant is having any undivided share, I do not find any such undivided share consequent upon the Will which is marked as Ex.P3. The judgments which relied upon by the counsel for the appellant would not comes to the aid of the appellant since no such any suspicious circumstances to comes to the other conclusion. Hence, this substantive question of law is also answered as negative.
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44. In view of the discussions made above, I pass the following:
ORDER The second appeal is dismissed.
Sd/-
(H.P. SANDESH) JUDGE ST/SN