Karnataka High Court
Gurulingawwa @ Sarojini vs Sharanappa Ningappa @ Lingappa Sajjan on 12 June, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JUNE 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
REGULAR SECOND APPEAL NO.200244 OF 2014
BETWEEN:
Gurulingawwa @ Sarojini
D/o Ningappa @ Lingappa Sajjan,
Aged about 48 years, Occ. Nil,
R/o Bastidevar Galli, Mull Agasi,
Bijapur - 586 101.
...Appellant
(By Sri Ashok S Kinagi, Advocate)
AND:
Sharanappa
S/o Ningappa @ Lingappa Sajjan,
Aged about 58 years,
Occ Driver,
R/o Hageri House, Mull Agasi,
Bijapur - 586 101.
...Respondent
This Regular Second Appeal is filed under Section 100 of
CPC against the judgment and decree dated 18.07.2013 passed
in R.A.No.13/2010 on the file of I Addl. Dist Judge at Bijapur,
dismissing the appeal and confirming the judgment and decree
2
dated 29.10.2009 passed in O.S.No.210/2002 on the file of
I Addl. Senior Civil Judge at Bijapur.
This appeal coming on for orders this day, Court delivered
the following:
JUDGMENT
Though there is a delay of 292 days in filing the appeal, I have nevertheless heard learned counsel for appellant on merits.
2. Defendant No.2 in O.S.No.210/2002 has filed this second appeal assailing the judgment and decree passed in R.A.No.13/2010, dated 18.07.2013, by the I Addl. District Judge, Bijapur, by which, the judgment and decree passed in O.S.No.210/2012, dated 29.10.2009, by the I Addl. Senior Civil Judge, Bijapur, has been confirmed.
3. At this stage, it may be noted that defendant No.1 died during the pendency of the suit and her legal representatives were brought on record as appellant and respondent No.1, who are her daughter and son 3 respectively, being the children of Ningappa, husband of deceased defendant No.1.
4. For the sake of convenience, parties herein shall be referred to, in terms of their status before the trial court.
5. First respondent/plaintiff filed the suit seeking the relief of partition and separate possession and permanent injunction against defendants in respect of suit schedule property. The suit schedule property is a house bearing CTS No.21, measuring 136-29 square meters, situated at Ward No.II of Bijapur City. According to the plaintiff, he is the son of defendant No.1, who is his mother and defendant No.2 is his sister. The suit property is the ancestral property of plaintiff and defendant Nos.1 and 2. Originally the property was standing in the name of plaintiff's father, he died on 26.01.2001. After his death, plaintiff filed an application for bringing legal representatives of his father, deceased Ningappa, before the office of respondent No.3. As per the 'waradi', the 4 names of plaintiff and defendant Nos.1 and 2 were entered in the property extract card. But defendant Nos.1 and 2 created a bogus and fabricated Will, said to have been executed by Ningappa in respect of suit property. On that basis, they filed an application before City Survey Officer to delete the name of plaintiff, whereas the names of defendant Nos.1 and 2 continued. The same was contested by the plaintiff. The City Survey Officer noted the dispute and sent the papers to the office of defendant No.3 and by giving a number to the dispute as CTS/RTS/SR No.6/2001-
02. Defendant No.3 rejected the application filed by defendant No.1 and disposed off the dispute on 13.02.2002. Against that order, defendant Nos.1 and 2 preferred an appeal before defendant No.4. Defendant No.4 set aside the mutation entry and mutated the names of defendant Nos.1 and 2 only in respect of suit property. According to the plaintiff, defendant Nos.1 and 2 have created the Will so as to knock off the suit property and harass the plaintiff. Plaintiff has contended that his father during his lifetime had not executed any Will in favour of 5 defendant Nos.1 and 2. That the suit house is an ancestral and joint Hindu undivided family property. That plaintiff and defendant Nos.1 and 2 constituted a joint Hindu Family, as there is no partition between them. But defendant Nos.1 and 2 have denied plaintiff's share in the suit property. That defendant No.4 had no jurisdiction to decide on the Will and pass an order. It is only the Civil Court, which has the jurisdiction to decide on the validity of the Will. Plaintiff has contended that his father had not executed any Will in favour of defendant Nos.1 and 2 and that they have relied upon a bogus Will. Hence, plaintiff filed a suit in February 2002, seeking the aforesaid reliefs.
6. In response to the suit summons and court notices, defendant Nos.1 to 5 appeared through their respective counsel, but only defendant Nos.1 and 2 filed their written statement. They denied the plaint averments and contended that plaintiff has inherited only one property i.e., agricultural land bearing R.S.No.50, measuring 14 Acres 06 Guntas of Katijapur Village. Plaintiff 6 was insisting for partition of said land with the intention that the plaintiff wanted to do business in transport by purchasing a vehicle by selling the said land. In 1988, father of plaintiff sold the said land for Rs.1,50,000/- and gave the entire amount to the plaintiff to purchase the said vehicle, which is in excess of plaintiff's share in the joint family. That plaintiff sustained a loss in his business and sold the said vehicle. The suit property was initially owned by the paternal aunt of father of plaintiff i.e., Bangarewwa Basappa Sajjan. She had gifted the suit property to plaintiff's father under a registered gift deed dated 03.01.1940, since then plaintiff's father was in exclusive possession and enjoyment of suit property, as an absolute owner till his death. His name was mutated in CTS records of the suit property. That plaintiff was living separately along with his family. That father of plaintiff had special love and affection towards defendant Nos.1 and 2 and he was also depending upon them. Hence, in December 2000, having an apprehension about his life and due to sickness and old age and in order to avoid any future quarrels 7 between his heirs after his death, decided to execute a Will in respect of suit property. Hence, he called Ravi N Goundi and Moulali S/o Chandsab Momin on 13.12.2000, as witnesses for bequeathing the suit property under the Will. The said persons readily agreed to attest the Will. Father of plaintiff along with said persons and defendant Nos.1 and 2 went to the office of Sub-Registrar, Bijapur and father of plaintiff approached the bond writer to write the Will. As per his instruction, the Will was written in the presence of witnesses and defendant Nos.1 and 2. After preparing the said Will, the Bond Writer read over the contents of the Will to the father of plaintiff along with other persons. That, father of plaintiff agreed to the said Will and he put his signature and attesting witnesses have also signed the Will along with the bond writer. The deceased father of plaintiff was in a sound disposing state of mind at the time of execution of Will and also out of his free volition the Will was prepared. The said Will was the last Will of the father of plaintiff. It was neither altered nor cancelled by the father of plaintiff during his lifetime. The 8 father of plaintiff died on 26.01.2001. Thereafter, defendant Nos.1 and 2 came into exclusive possession and enjoyment of suit property. Hence, they sought for dismissal of the suit.
7. On the basis of the aforesaid pleadings, the trial court famed the following issues for its consideration:-
1. Whether the plaintiff proves that, the suit properties are the joint family properties, liable for partition ?
2. Whether the plaintiff is entitled for 1/3rd share in the suit properties ?
3. Whether the plaintiff proves that, the Will executed by late Lingappa in favour of defendant Nos.1 and 2 is created, illegal and bogus ?
4. What order or decree ?
8. In support of his case, the plaintiff examined himself as PW1 and another witness was examined as PW.2. Significantly, PW.2 is one of the attesting witnesses 9 of the Will dated 30.12.2000, which has been propounded by defendant Nos.1 and 2. Plaintiff produced three documents, which were marked as Exs.P.1 to P.3. Defendant No.2 examined herself as DW1. One Revanasiddappa was examined as DW2 Moulali who is said to be the other attesting witness of Ex.D5, the Will dated 30.12.2000, was examined as DW.3. Defendant Nos.1 and 2 produced six documents, which were marked as Exs.D.1 to D.6.
9. On the basis of the said evidence, the trial court answered Issue Nos.1 to 3 in the affirmative and decreed the suit holding that plaintiff was entitled to half share in the suit property. It declared that Will dated 30.12.2000, said to have been executed by Ningappa was created, bogus and hence, null and void. A decree for permanent injunction was granted against defendant Nos.3 and 4 restraining them from changing the names in the property extract card of the suit property. 10
10. Being aggrieved by the judgment and decree of the trial court dated 29.10.2009, defendant Nos.1 and 2 preferred R.A.No.13/2010, before the first appellate court, which, on hearing the learned counsel for respective parties, framed the following points for its consideration :-
1. Whether the defendant No.1proves that deceased Ningappa has executed Ex.D.5 will deed in her favour in respect of suit property ?
2. Whether the plaintiff proves that he is entitled to share in the suit property ? If so to what extent ?
3. Whether the impugned judgment and decree under appeal passed by the lower court are capricious or illegal or perverse or incorrect and thereby requires the interference by this court ?
4. What order ?
It answered Point Nos.1 and 3 in the negative and Point No.2 in the affirmative and dismissed the appeal by confirming the judgment of the trial court. 11
11. Being aggrieved by the dismissal of the appeal, only defendant No.2 has preferred this regular second appeal, as defendant No.1 died during the pendency of suit.
12. I have heard the learned counsel for appellant. Sri Ashok S Kinagi, learned counsel for appellant submitted that the courts below have not appreciated the case of defendant/appellant and have erroneously decreed the suit filed by first respondent/plaintiff. Drawing my attention to the fact that the suit property is a house property, which was gifted to the father of plaintiff and defendant No.2 under a registered gift deed dated 03.01.1940, learned counsel for appellant contended that the said property was the self acquired property of Ningappa, deceased's father of plaintiff. That he had executed a Will in favour of defendant No.2 the appellant herein on 30.12.2000, bequeathing the suit property to her. The reason being that the ancestral land was sold by him and the proceeds were given to the plaintiff. Therefore, the father Ningappa 12 prior to his death, executed the Will, Ex.D5 in favour of defendant No.2, so that she could enjoy the said property as the plaintiff being the son had the benefit of the ancestral land. He contended that Ex.D5 is the testament of father of plaintiff and defendant No.2, dated 30.12.2000, was executed in the Sub-Registrar's Office, in the presence of witnesses and that PW.2 and DW.3 are the attesting witnesses to the said Will, they had both deposed in the suit, however, P.W.2 had resiled from the attestation. He contended that in terms of requirement of law, defendant No.2, who propounded Ex.D5 testament had let in the evidence of at least one of the attesting witnesses i.e., DW.3 in support of the Will. That there was no suspicious circumstance in the execution of the Will. However, the trial court had wrongly placed the burden of proving the Will on the plaintiff whereas defendant No.2 appellant herein had taken all steps to prove the Will. In the circumstances, the courts below ought to have given effect to Ex.D5 by holding that the said testament of Ningappa was valid and thereby dismissing plaintiff's suit. 13 On the other hand, courts below have erroneously held that Ex.D5 has not been proved and further, it is a bogus and fabricated Will, which is null and void and that plaintiff's suit has been decreed.
13. He further contended that plaintiff has been doubly benefited, firstly, from the proceeds of agricultural land bearing R.S.No.50, which was sold by plaintiff's father during his lifetime and proceeds of which were given to the plaintiff for the purpose of supporting transport business and secondly by the plaintiff claiming a share in the suit property for which he is not entitled to. He submitted that as a result the last Will and testament of Ningappa has not been given effect to which has caused injustice to the appellant herein.
14. Learned counsel for the appellant submitted that substantial questions of law would arise in this appeal and hence, the same may be admitted for a detailed hearing.
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15. Having heard learned counsel for appellant and on perusal of material on record it is noted that there is no dispute with regard to the relationship between the parties. Ningappa and Kallawwa, were husband and wife and their children are the plaintiff and defendant No.2. The dispute between parties arose on the death of Ningappa. The plaintiff being the son of Ningappa, sought partition and separate possession of suit property, which is a house property in Bijapur. Defendant Nos.1 and 2, being the wife and daughter of Ningappa, resisted the suit by placing reliance on Ex.D5 testament dated 30.12.2000, said to have been executed by Ningappa, in favour of defendant No.2 - Gurulingawwa, appellant herein. The said Will was marked as Ex.D5. PW.2 and DW.3 are stated to be the attesting witnesses to the Will. However, PW.2 who according to the appellant was one of the attesting witnesses of the Will, deposed in favour of plaintiff by denying his signature on Ex.D5. DW.3 who is the other witness was only examined.
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16. Then the question which would arise assigned in the instant case, is as, to whether, Ex.D5 has been proved in accordance with law. In this context, reliance can be placed on Section 63(c) of the Indian Succession Act, 1925. The same reads as under :-
"63. Execution of unprivileged wills - Every testator, not being a soldier employed in an expedition nor engaged in actual warfare [or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules :
(a) The testator shall sign or shall affix his marks to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature of mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witness, each of whom has seen the testator sign or affix his mark to the will or 16 has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
Under that section, what is stated is the testator shall first sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction, the signature or mark of the testator, or the signature of the person signing for him, must appear, that it was intended to give effect to the writing as a Will. Thirdly, and more importantly, the Will has to be attested by two or more witnesses, each of whom have seen the testator sign or affix his mark to the Will or have seen some other person sign the Will, in the presence and by the direction of the 17 testator or has received from the testator a personal acknowledgment of his signature or mark or the signature of such other person and each of the witnesses must sign the Will in the presence of testator, but it shall not be necessary that more than one witness be present at the same time. Further, no particular form of attestation shall be necessary.
17. With regard to proof of Wills the most celebrated decision of the Hon'ble Supreme Court in the case of H.Venkatachala Iyenger vs. B.N. Thimmajamma (AIR 1959 SC 443), could be relied upon. The relevant portion of the said judgment reads as under:
"18. 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 must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, 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 18 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 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 19 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."
On a reading of the same, it becomes clear that the onus of proving the Will is on the propounder of the Will. While doing so, Sections 67, 68 as well as Sections 45 and 47 of the Evidence Act, would have to be applied as also, Section 64 of the Indian Succession Act, 1925. Section 67 of the Indian Evidence Act, states place that while proving a Will at least one of the attesting witnesses must be examined. No doubt, in the instant case, two attesting 20 witnesses have been examined. But the question, is as to, whether, there is compliance of Section 63 of Indian Succession Act, 1925, that Will must be attested by atleast two witnesses.
18. In the instant case, there is a dispute as to whether PW.2 had attested the Will as he deposed in favour of plaintiff and against the propounder of the Will and has denied his signature on the Will. In the circumstances, it was necessary for defendant No.2 appellant herein to prove the signature of PW.2 on Ex.D5, that could not have been done by referring the Will and the admitted signature of PW.2 to a hand writing expert as per Section 45 and 47 of the Evidence Act. The same not having been done in the instant case by defendant No.2, there is no proof of the Will being attested by two persons. In the circumstances, there is non compliance with Section 63(C) of the Indian Succession Act, 1925. Thus, the appellant who is a propounder of the Will has failed to prove the Will in accordance with law. Therefore, the 21 courts below were justified in not placing reliance on Ex.D5 Will and thereby, decreeing the suit filed by the plaintiff and granting the consequential injunction by directing defendant Nos.3 and 4 not to change the names in the property extract by deleting the name of plaintiff from the said extract. Both the courts have concurrently declared that Will dated 30.12.2000 is null and void.
19. I do not find any infirmity in the judgment of the first appellate court, which has confirmed the judgment of the trial court, which has decreed the suit. In my view, no substantial question of law would arise in this appeal. Hence, the appeal is dismissed.
In view of dismissal of the appeal, I.A.No.1/2014 also stands dismissed.
Sd/-
JUDGE sn