Karnataka High Court
Prakash S/O Ramappa Halemani vs Arun S/O Ramappa Halemani on 22 June, 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR FIRST APPEAL NO. 811 OF 2006
BETWEEN:
PRAKASH S/O RAMAPPA HALEMANI
SINCE DEASED BY HIS LRS
1(A). MANISH
S/O PRAKASH HALEMANI
AGE.51 YEARS, OCC. AGRICULTURE,
R/O NO 35, 1ST MAIN ROAD,
VENKATESH COLONY,
HUNNUR, JAMKHANDI-587 119
DIST:BAGALKOT
2. SHARAD
S/O.RAMAPPA HALEMANI
AGE.56 YEARS, OCC.SERVICE
R/O."NOOR MANZIL", NAGARKAR COLONY,
KALAGHATAGI ROAD, DHARWAD 580 006
3. KISHOR
S/O.RAMAPPA HALEMANI
AGE.52 YEARS, OCC.SERVICE
2ND MAIN, SADASHIV NAGAR
BELGAUM 590 002
...APPELLANTS
(BY SRI RAVI S.BALIKAI, ADVOCATE)
2
AND:
1. ARUN S/O RAMAPPA HALEMANI
AGE.47 YEARS, OCC.SERVICE
R/O.CTS.NO.10947, 2ND MAIN,
9TH CROSS, SADASHIV NAGAR
BELGAUM 590002
2. SUDHIR S/O RAMAPPA HALEMANI
AGE.44 YEARS, OCC.BUSINESS
R/O.CTS.NO.10947, 2ND MAIN,9TH CROSS,
SADASHIVNAGARBELGAUM 590002
3. PARVATI, W/O.RAMAPPA HALEMANI
AGE.67 YEARS,
SINCE DECEASEDBY HER L.RS
4. SMT PRAMILA W/O.NINGAPPA GANIGER,
AGE.41 YEARS, OCC: HOUSEHOLD
R/O.TELEPHONE QUARTERS, NIPANI 591237
TQ.CHIKODI, DIST.BELGAUM
5. SMT PRAVINA, W/O PRAKASH HALEMANI
AGE 69 YEARS, OCC: HOUSEWIFE
R/O. NO.35, KEDAR NAGAR,
MOREWADI, R.K.NAGAR, KARVIR,
KOLHAPUR-416 013
6. SMT SHILPA, W/O MAHESH KAGALE,
AGE: 50 YEARS, OCC:HOUSEWIFE,
R/O.PLOT NO.22, RANKALA PARISAR,
COLONY, SUTAR MAL,
LAKSHTIRTH VASAHAT,
KOLHAPUR-416 010
7. SMT VIJAYA, W/O SANJAY VADGAONKAR
AGE 47 YEARS, OCC: HOUSEWIFE
R/O C/O.SANJAY VADNAONKAR,
3
NO.1999, B-WARD, KALAMBA ROAD,
NEAR SAI TEMPLE, MANGALWAR PETH,
KOLHAPUR-416 012
8. SMT YAMINI, W/O SACHIN GAUR
AGE: 45 YEARS, OCC: HOUSEWIFE
R/O.C/O.SACHIN GAUR
NO.J-291, SHIVALIK NAGAR,
NEAR CHATORI GALI,
BHEL HARIDWAR-249 403
UTTRAKHAND
...RESPONDENTS
(BY SRI SHARAD V.MAGADUM, ADVOCATE FOR R1 AND R2
R3 DECEASED
R4 AND R5 ARE SERVED
NOTICE TO R6 TO R8 IS HELD SUFFICIENT)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96
OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND
DECREE DATED 21.12.2005 PASSED IN OS NO.5 OF 1996 ON
THE FILE OF THE II ADDITIONAL DISTRICT JUDGE, BELGAUM,
DECREEING THE SUIT FOR ISSUE OF LETTERS OF
ADMINISTRATION.
IN THIS APPEAL ARGUMENTS BEING HEARD, RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular First Appeal is filed by defendant Nos.1 to 3, challenging the judgment and decree dated 21.12.2005 passed in OS.No.5 of 1996 on the file of II Additional District Judge, Belgaum, decreeing the suit of the plaintiffs. 4
2. For the sake of convenience, the parties to this appeal shall be referred to in terms of their status and ranking before the trial Court.
3. The relevant facts for adjudication of this appeal are that, the plaintiffs have filed petition in P&SC No.2 of 1989 before the trial Court under Part II of Section 222 of Indian Succession Act, 1925, seeking grant of letters of administration in respect of the Will dated 25.02.1987, executed by Sri Ramappa Ramalingappa Halemani. The plaint averments are that, the plaintiffs and the defendants are the children of Ramappa Ramalingappa Halemani, and Smt Parvathi (defendant No.4) is the wife of Ramappa Ramalingappa Halemani. The said Ramappa Ramalingappa Halemani died on 22.02.1989 leaving behind Will dated 25.02.1987. Plaintiffs are residing in the schedule property. Defendants Nos.1 to 3 are working as Government Servants and residing separately from their parent's house and defendants are well placed. Defendant No.5 is the daughter of Ramappa Ramalingappa Halemani, is married and settled at Nippani. It is further stated that the 5 schedule property is the self acquired property of late Ramappa Ramalingappa Halemani and he was a retired Educational Officer in Government of Karnataka. It is the case of the plaintiffs that the said Ramappa Ramalingappa Halemani had executed a Will in respect of the suit schedule property and bequeathed the same to the plaintiffs, in the presence of the witnesses and the said suit schedule property is purchased by the late Ramappa Ramalingappa Halemani out of his own income and therefore, as the plaintiffs were taking care of him during his life time, aforementioned Will was executed by the testator, bequeathing the same in respect of the plaintiffs and as such, the plaintiffs have filed suit for grant of letters of administration in respect of Will executed by their father- Ramappa Ramalingappa Halemani.
4. After service of summons, defendant Nos.1 and 3 to 5 entered appearance, however, defendant No.1, alone has filed detailed written statement denying the averments made in the plaint and same was adopted by other defendants. Defendant No.2, remained absent and he was placed ex-parte, 6 however defendant No.4-wife of Ramappa Ramalingappa Halemani died during the pendency of the proceedings. It is the specific case of defendant No.1 that, alleged Will dated 25.02.1987 is a created one as the late Ramappa Ramalingappa Halemani was in the state of unsound mind and lost rationality of thinking. It is further stated that as the suit schedule property is the joint family properties of late Ramappa Ramalingappa Halemani and his legal heirs are entitled for share in the said property and therefore, defendant No.1 sought for dismissal of the suit. It is further urged that deceased Ramappa Ramalingappa Halemani was not competent to execute the Will and therefore, plaintiffs have no locus-standi to claim their right through testamentary disposition of property in question, of in the suit. Accordingly, defendants sought for dismissal of the suit.
5. On the basis of the rival pleadings, the trial Court has formulated following issues for its consideration:
1. Whether plaintiffs prove that deceased Ramappa has executed a Will dated 25.02.1987 in their favour in respect of schedule property ?7
2. Whether plaintiffs prove that deceased Ramappa was in sound disposing state of mind while executing the said Will and it is a free Will of the testator ?
3. Whether defendants prove that suit property is not the self-acquired property of deceased Ramappa, but it is a joint family properties ?
4. Whether valuation of the schedule property and Court fee paid thereon is not proper ?
5. Whether plaintiffs are entitled to the reliefs as prayed for ?
6. What decree or order ?
6. In order to establish their case, plaintiffs have examined two witnesses as PW1 and PW2 and got marked 17 documents as Exs.P1 to P17. On the other hand, defendants examined two witnesses as DW1 and DW2 and produced 6 documents as Exs.D1 to D6.
7. The trial Court, after considering the material on record, by its judgment and decree dated 21.12.2005, decreed the suit of the plaintiffs and being aggrieved by the same, the 8 defendant Nos.1 to 3 have preferred this Regular First Appeal under Section 96 of Code of Civil Procedure
8. I have heard Sri Ravi S. Balikai, learned counsel for the appellants and Sri Sharad V.Magadum, learned counsel appearing for the respondent Nos.1 and 2.
9. Sri Ravi S.Balikai, learned counsel for the appellants disputed the existence of the Will dated 25.02.1987 and argued that the propounder of the Will have not proved the validity of the Will as the testator-late Ramappa Ramalingappa Halemani was bed ridden and was suffering from paralysis and also, he was physically and mentally incapacitated to execute the Will and therefore, he contended that said aspect has not been considered by the trial Court. He further contended that excluding the three sons and daughter from the Will, there are no reasons assigned in the Will and therefore, the suit filed by the plaintiffs ought to have been dismissed by the trial Court. Emphasizing on the letters produced at Exs.D1 to D4 and D6, Sri Ravi S.Balikai, learned counsel appearing for the appellants submitted that the said letters would indicate that the deceased 9 Ramappa Ramalingappa Halemani, had no confidence with the plaintiffs and was under the impression that plaintiffs were irresponsible persons and therefore, he submitted that the said aspect has been over-looked by the trial Court. He further contended that the suit schedule property is not the self acquired property of late Ramappa Ramalingappa Halemani and the said property was acquired out of the joint family income and therefore, all the children of late Ramappa Ramalingappa Halemani are entitled for share in the suit schedule property. To buttress is arguments learned counsel appearing for the appellant, places reliance of judgment of the Hon'ble Apex Court in the case of B.Venkatamuni v. Ayodya Rama singh and others reported in AIR 2007 SC 311 and the Division Bench of this Court in the case of W.E. Sambhandam vs. W.E.Satyanarayana and others reported in ILR 2007 KAR 1484. Hence, he sought for interference in this appeal.
10. Per contra, Sri Sharad V. Magadum, learned counsel for the respondent Nos.1 and 2 submits that the finding recorded by the trial Court is based on the oral and 10 documentary evidence on record and therefore, he argued that, the impugned judgment and decree passed by the trial Court cannot be disturbed in this appeal.
11. Having heard the learned counsel appearing for both the parties and on careful perusal of the material on record, the points for determination in this appeal are as follows:
i) Whether the Will dated 25.02.1987 executed by the testator late Ramappa Ramalingappa Halemani (Ex.P6) is valid and legal ?
ii) Whether the judgment and decree dated 21.12.2005 in OS No. 5 of 1996 on the file of the trial Court is just and proper ?
iii) What order ?
12. On careful perusal of the finding recorded by the trial Court, the undisputed facts of the case are that, Ramappa Ramalingappa Halemani had six children. Plaintiff Nos.1 and 2 are the 4th and 5th sons and defendant Nos.1 to 3 and 5 are the remaining children of late Ramappa Ramalingappa Halemani. 11 Defendant No.4-Parvati is the wife of Ramappa Ramalingappa Halemani and she died during the pendency of the proceedings and the legal representatives were brought on record. It is also forthcoming from the records that the plaintiffs have filed P&SC No.2 of 1989, seeking grant of letters of administration with regard to Will in question and pursuant to the objection raised by the defendants, the petition was converted into original suit. It is the case of the plaintiffs that plaintiff No.1 was residing in the suit schedule property along with his father and plaintiff No.2 was the student at the relevant point of time. Defendant Nos.1 to 3 are Government servants and were residing separately from their parents. The defendant No.4-mother of the plaintiffs and defendant Nos.1 to 3 and 5, residing along with her husband Ramappa Ramalingappa Halemani, with the plaintiffs. Defendant No.5 is the married daughter and residing at Nippani at matrimonial home. It is also forthcoming from the records that the late Ramappa Ramalingappa Halemani was a retired Educational Officer in Government of Karnataka and died on 22.02.1989 (Ex.P5-Death certificate), leaving behind the Will (Ex.P6) dated 25.02.1987. It is the case of the 12 plaintiffs that the schedule property referred to in the Will is the self acquired property of late Ramappa Ramalingappa Halemani and he had given shares to all the children however, he bequeathed suit schedule property in favor of plaintiffs as the plaintiffs have taken care of late Ramappa Ramalingappa Halemani during his life time as he was suffering from ill- health. On the other hand, it is the case of the defendants that alleged Will dated 25.02.1987 is concocted, and therefore, disputed the execution and validity of the same. In order to prove the Will, the declaration of the law by the Hon'ble Apex Court in the case of H VENKATACHALA IYENGAR v. B.N. THIMMAJAMMA AND OTHERS reported in AIR 1959 SC 443 is relevant at this juncture. The Hon'ble Supreme Court has laid down the guidelines for validating testamentary disposition. It has been held thus:
"What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we 13 must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law.
Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested 14 by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the, prudent mind in such matters."
Further, at paragraph 22 of the said judgment the Hon'ble Supreme Court has observed thus:
"22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that it there are any suspicious circumstances surrounding the execution of the will the propounder 15 must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties."
13. With the backdrop of the law enunciated by the Hon'ble Apex Court, I have carefully examined the Will (Ex.P6) dated 25.02.1987 executed by late Ramappa Ramalingappa Halemani. Perusal of the evidence of PW1 would indicate that the said Will was executed by late Ramappa Ramalingappa Halemani in favour of the plaintiffs on account of their service rendered during his ill-health. The plaintiffs have examined one of the witness to the Will-Shiddagouda Goudappa Asangi as PW2. He deposed about the execution of the Will by late Ramappa Ramalingappa Halemani in his presence and is a witness to the said document (Ex.P6). He further deposed that the late Ramappa Ramalingappa Halemani was capable of understanding the contents of the Will and same was read over to him by the scribe-Patil, and during the said period, one 16 Chitagi, the close associate of the testator and an advocate by profession, was present. PW2 further deposed that the late Ramappa Ramalingappa Halemani was in sound disposing of mind and capable of understanding the consequence of execution of the Will and therefore, the propounder of the Will has proved the execution of the Will as required under law and same is within the purview of the law declared by the Hon'ble Apex Court and in this regard, finding recorded by the trial Court on Issues Nos.1 and 2 is just and proper and does not call for interference as the schedule property bequeathed by late Ramappa Ramalingappa Halemani in favor of plaintiffs is his self acquired property and purchased from his own earnings on 14.07.1961 (Ex.P1), as the defendants fail to prove that the said property was purchased through the income derived from the joint family nucleus and therefore, the argument advanced by the appellants cannot be accepted on this aspect. I have also carefully re-appreciated the evidence of DW1, however, on examination of the same, defendants fail to prove that the schedule property was purchased by the testator through the income derived from the joint family nucleus and no iota of 17 evidence was produced by the defendants to prove that, they have contributed towards the same.
14. Nextly, Sri Ravi S. Balikai, learned counsel appearing for the appellants invited the attention of the court to the letters addressed by the late Ramappa Ramalingappa Halemani to defendant No.1 as per Exs.D1 to D4 and D6 relating to the irresponsibility of the plaintiffs to take care of the family needs. However, the same cannot be a basis for disputing the Will as the said defendant No.1 was the first son of late Ramappa Ramalingappa Halemani and was employed in Government services and staying away from his father- Ramappa Ramalingappa Halemani. It could be inferred that the testator has addressed those letters to defendant No.1 to express his concern that the plaintiffs have to be given strength to lead their life independently and, therefore, same would reflect that the plaintiffs have shown love and affection to their father during his ill-health and it is also forthcoming from the evidence on record that the late Ramappa Ramalingappa Halemani was paralytic patient and therefore, the reasons 18 assigned by late Ramappa Ramalingappa Halemani in the Will dated 25.02.1987 as per Ex.P6, to bequeath the suit schedule property in respect of the plaintiffs is just and proper. The plaintiffs have examined PW2-witness to the said Will to prove due execution of the Will as required under Section 63 and 67 of the Indian Evidence Act. Though the learned counsel appearing for the appellant argued that excluding the other legal representatives while bequeathing the property to the plaintiffs is contrary to law as no reasons assigned and in this regard, it is well established principle in law that the deprivation of the share by a testator through Will itself is not a sole factor which would lead to the conclusion that there exist suspicious circumstances (See. AIR 2008 SC 300). In the present case, testator was living with the plaintiffs during his last days and plaintiffs were taking care of his health, which is forthcoming in the letters addressed to defendant No.1 and the contents of the Will and that apart, defendant Nos.1 to 3 were Government servants and the plaintiffs are not settled yet in the life and that could be the reasons for bequeathing the suit schedule property in favour of plaintiffs excluding the defendants and 19 therefore, the plaintiffs have removed the suspicious circumstances, being propounder of the Will, and therefore, the judgments referred to by the learned counsel appearing for the appellant in B.Venkatamuni supra, is not applicable to the facts on record. Accordingly, impugned judgment and decree passed by the trial Court is based on the oral and documentary evidence on record and same is in accordance with the law, as declared by the Hon'ble Apex Court referred to above and the plaintiffs, being propounder of the Will have proved the due execution of the Will (Ex.P6) dated 25.02.1987 by late Ramappa Ramalingappa Halemani and therefore, I am of the view that, the there is no perversity or illegality in the impugned judgment and decree passed by the trial Court and accordingly, the points for consideration made above favor the plaintiffs and the appellants herein have not made out a case for interference with the impugned judgment and decree passed by the trial Court as the plaintiffs, being propounder of the Will dated 25.02.1987 as per Ex.P6 has been proved by the plaintiffs beyond the suspicious circumstances and for the reasons stated above, the impugned judgment and decree is to 20 be confirmed. In that view of the matter, I proceed to pass the following:
ORDER
i) The Regular First appeal filed by defendants/appellants is dismissed.
ii) Judgment and decree dated 21.12.2002 passed by the II Additional District Judge, Belagavi in OS No.5 of 1996 is confirmed.
Sd/-
JUDGE SB