IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI R.F.A. No.1375/2018 (PAR) BETWEEN:
M S KESHAVA GOWDA SINCE DEAD BY LRS 1. SMT. M K PUSHPAVATHI W/O LATE M.S. KESHAVA GOWDA AGED ABOUT 65 YEARS R/O. MADTHILA HOUSE AIVERNADU VILLAGE AND POST SULLILA TALUK, D.K.
2. SMT. PRATHIBHA HARIPARAD W/O P.B. HARIPRASAD AGED ABOUT 45 YEARS R/O PANEDKA HOUSE MELCHEMBU VILLAGE BALEMBI POST, MADIKERI TALUK KODAGU DISTRICT.
3. SMT. JYOTHI NANDA KUMAR W/O NANDA KUMAR AGED ABOUT 43 YEARS R/O. ULUVARU HOUSE ATANTHODU VILLAGE AND POST SULLIA TALUK, D.K 4. M.K. MANOJ S/O LATE M.S. KESHAVA GOWDA R/O. MADTHILA HOUSE ALVERNADU VILLAGE AND POST SULLIA TALUK, D.K.
5. SMT. AMITHA JAYA KUMAR W/O JAYAKUMAR, AGED ABOUT 38 YEARS R/O. MOOLEMAJALU HOUSE AIGOORU POST, YADAVARA VILLAGE SOMAVARA VILLAGE, KODAGU DISTRICT.
ALL ARE REP. BY THEIR GPA HOLDER SRI. N.M. VENKATRAMANA GOWDA S/O LATE MUTHAPPA GOWDA AGED ABOUT 65 YEARS R/AT MANIKARA POST, KOLTHIGE VILLAGE PUTTUR TALUK, D.K. DISTRICT.
(By SRI. SHIVARUDRA., ADVOCATE) AND 1. SMT REVATHI A P W/O A. PURUSHOTHAMA AGED ABOUT 60 YEARS R/AT. ADKAR HOUSE CHEMBU VILLAGE BALEMBI POST MADIKERI TALUK KODAGU DISTRICT.
...APPELLANTS …RESPONDENT (BY SRI. A. SHIVARAM., ADVOCATE FOR RESPONDENT) THIS RFA IS FILED UNDER ORDER 41 RULE 1 OF CPC., AGAIANST THE JUDGMENT AND DECREE DATED 20.04.2018 PASSED INOS NO.07/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., SULLTA DECREEING THE SUIT FOR PARTITION AND MESNE PROFIT.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T There is a delay of eleven days in filing the appeal. We have, nevertheless, heard learned counsel for the appellants and learned counsel for the respondent on the merits of the matter for admission.
2. The appellants herein were the defendants in O.S.No.07/2016. The said suit was filed by the respondent herein before the Court of Senior Civil Judge & JMFC, Sullia, D.K., seeking the relief of partition and separate possession of plaint ‘B’ schedule property to an extent of half share and for mesne profit. By judgment and decree dated 20/04/2018, the said suit was dismissed. Being aggrieved, the defendants in the said suit have preferred this appeal.
3. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the trial Court.
4. It is the case of the respondent/plaintiff that the suit ‘B’ schedule property bearing Sy.No.88/4P2, measuring 1.92 acres is situated at Aivernadu Village, Sullia Taluk, Dakshina Kannada District. That plaintiff and defendant by name M.S.Keshava Gowda are the children of Madthila late Subbayya gowda and late Puttamma. Puttamma was the daughter of one late Alengara Honnappa Gowda and his wife late Akku @ Akkamma. The said Alengara Honnappa Gowda (Honnappa Gowda) i.e., the maternal grandfather of plaintiff and defendants had purchased the suit schedule property from N.M.Balakrishna Gowda under a registered sale deed dated 21/04/1959, registered in the Sub-Registrar’s Office, Sullia, as document No.223/1959 for a valuable consideration. That Honnappa Gowda was the absolute owner of the plaint ‘B’ schedule property. Honnappa Gowda and his wife Smt.Akku @ Akkamma died intestate leaving behind their daughter Puttamma as their legal heir to succeed to their entire properties including the plaint ‘B’ schedule property. Puttamma died intestate on 26/09/2003 leaving behind plaintiff and defendant as the only legal heirs to succeed to her entire properties including plaint ‘B’ schedule property. That plaint ‘B’ schedule property consists of areca, cocoa and rubber plantations with banana inter crops yielding more than 20 quintals of arecanut, 5,000 coconuts per year including 750 yielding/ tapping rubber trees. That the annual income was more than Rs.5,00,000/-. Plaintiff contended that she has half share in the plaint ‘B’ schedule property and its income. That defendant alone has been enjoying the entire income from the plaint ‘B’ schedule property. The plaintiff demanded her half share in the properties several times, but the defendant did not accede to the request of the plaintiff. As a result, plaintiff got issued legal notice to the defendant demanding her half share as per legal notice dated 23/06/2015, but the defendant issued a false and untenable reply notice dated 11/08/2015 alleging that Akku @ Akkamma had executed a Will dated 27/01/1977 registered before the Sub- registrar Office, Sullia, as document No.897/76-77. According to the plaintiff, on verification before the Sub- registrar’s Office, Sullia, no such Will was executed as averred. That Smt.Akku @ Akkamma had no right to execute the Will. The said Will is a created, fabricated and illegal document. Hence, the plaintiff sought for decreeing the suit.
5. In response to the suit summons and Court notices, defendant appeared and filed his written statement admitting his relationship with the plaintiff and also his relationship with his grandfather who purchased the suit property from Balakrishna, but he denied the other averments in the plaint. He contended that Smt. Akku @ Akkamma was enjoying plaint ‘B’ schedule property as her absolute properties and she had executed a registered Will on 27/01/1977 in respect of ‘B’ schedule property in his favour and that on her death he had succeeded to the said properties. The contention of plaintiff that Akkamma had died intestate was incorrect and therefore, sought for dismissal of the suit. During the pendency of the suit, defendant died and his legal representatives were brought on record. They did not file any written statement, but have adopted the written statement filed by the original defendant.
6. On the basis of the aforesaid rival pleadings, the trial Court framed the following issues and additional issue for its consideration:
(i) Whether the plaintiff proves that she and defendant are the joint owners of suit schedule ‘B’ property?
(ii) Whether the defendant proves that Akku @ Akkamma had executed a Will on 27/01/1977 bequeathing the suit ‘B’ property in his favour when she was in sound state of mind?
(iii) Whether the plaintiff is entitled for ½ share in the suit schedule property?
(iv) Whether the plaintiff is entitled for partition and separate possession?
(v) What order or decree?
ADDITIONAL ISSUE (i) Whether the plaintiff is entitled for mesne profit?
7. In order to substantiate his case, plaintiff was examined as PW.1 and she got marked the documents produced by her as Exs.P-1 to P-6, while N.M.Venkataramana Gowda was examined as DW.1 and he got marked his documents as Exs.D-1 to D-4. On the basis of the said evidence, the trial Court answered issue Nos.1, 3 and 4 in the affirmative and additional issue No.1 partly in the affirmative and issue No.2 in the negative and decreed the suit granting the plaintiff half share in the plaint ‘B’ schedule property and ordered that the plaintiff was entitled to separate possession of the said property and the trial Court also ordered that the plaintiff was entitled to mesne profit from the date of filing of the suit till the date of delivery of possession and a direction was issued to draw up a preliminary decree accordingly.
8. Being aggrieved by the judgment and decree of the trial Court, the legal representatives of the deceased M.S.Keshava Gowda, the original defendant have preferred this appeal.
9. We have heard learned counsel, Sri Shivarudra, for the appellants/defendants and learned counsel, Sri A.Shivarama, for the respondent/plaintiff and perused the material on record.
10. Appellants’ counsel drew our attention to the genealogy appended to the memorandum of plaint and particularly the relationship between the parties and contended that the plaintiff and the original defendant are siblings. They are the children of late Subbayya Gowda and late Puttamma. That Puttamma was the daughter of Akku @ Akkamma, who was the absolute owner of plaint ‘B’ schedule property. That Akku @ Akkamma had executed a registered Will dated 27/01/1977 in favour of M.S.Keshava Gowda. Thereafter, she died. As per the said testament, M.S.Keshava Gowda was the sole legatee under the said Will and he had succeeded to the same and therefore, was enjoying the plaint ‘B’ schedule property as his absolute property. That the plaintiff had no right, title or interest under the said testament. That the suit of the plaintiff ought to be dismissed, but the suit has been decreed. In this context, he submitted that the defendants had produced certified copy of the Will, but it was not marked in the evidence. However, having regard to the fact that there was a testament of Smt. Akku @ Akkamma, the same ought to have been given effect to and the suit filed by the respondent/plaintiff had to be dismissed. He submitted that the appellants have a good case on lmerits and therefore, the short delay of eleven days may be condoned and the appeal may be admitted for final hearing on merits.
11. Per contra, learned counsel for the respondent/plaintiff supported the impugned judgment and decree and contended that there is no dispute with regard to the relationship between the parties. He submitted that plaint ‘B’ schedule property was originally, the absolute property of Honnappa Gowda, husband of Smt. Akku @ Akkamma. That on his demise not only Akku @ Akkamma, her daughter, Smt. Puttamma, the mother of the plaintiff and the defendant were also entitled to seek a share in the ‘B’ schedule property. That Akku @ Akkamma had no right to make a testament in respect of the entire ‘B’ schedule property. Further, the Will of Smt. Akku @ Akkamma on which reliance has been placed by the appellants herein was not marked in evidence, was not proved in accordance with law and hence, the trial Court was justified in ignoring such testament and decreeing the suit on the basis of the provisions of the Hindu Succession Act, 1956. He contended that the plaintiff and defendants are entitled to half share in the suit schedule properties, but the original defendant, M.S.Keshava Gowda and his family were enjoying the suit properties without rendering any account, share or income from the said property to the plaintiff. Keeping in mind the said aspect of the matter, the trial Court has rightly decreed the suit and granted half share to the plaintiff and also a direction for mesne profit has been issued. That there is no merit in the appeal.
12. The detailed narration of facts and contentions would not call for reiteration. It is noted that the dispute in the instant case is with regard to ‘B’ schedule property. There is also no dispute that the plaintiff has sought a share only in respect of that property. The controversy however is, as to, whether, the respondent/plaintiff is entitled to a share in that property. In this regard, it is the case of the respondent that the said property originally belonged to Honnappa Gowda, husband of Smt. Akku @ Akkamma and on the demise of Honnappa Gowda, Smt.Akku @ Akkamma and her daughter Puttamma had an equal share in the property and that Akku @ Akkamma could not have made a testament in respect of the said property in favour of her grand-son M.S.Keshava Gowda. It is further contended by learned counsel for the respondent that even if for a moment it is to be assumed that Akku @ Akkamma had a right to make a testament or Will and bequeath the suit schedule property in favour of M.S.Keshava Gowda, her grand-son, the said document has not been proved in accordance with law. The Will dated 27/01/1977 was a registered instrument. The same was relied upon by the defendants, but the defendants/appellants herein did not take any step to get the said document marked in the evidence and proved in accordance with law. The document being not marked, obviously there is no evidence let-in so as to prove the Will in accordance with Section 68 of the Indian Evidence Act, 1872. In this context, it would be useful refer to the following dicta:
(a) One of the celebrated decisions of the Hon’ble Supreme Court on proof of a Will, reported in AIR 1959 SC 443 is in the case of H.Venkatachala Iyenger vs. B.N.Thimmajamma, wherein, Hon’ble Supreme Court has clearly distinguished the nature of proof required for a testament as opposed to any other document. 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 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 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.”
In fact, the legal principles with regard to the proof of the Will are no longer res integra. Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872, are relevant in this regard. The propounder of the Will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the Will. In the above noted case, the Hon’ble Supreme Court has stated that the following three aspects must be proved by a propounder:-
“(i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and (ii) when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, courts would be justified in making a finding in favour of propounder, and (iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounded can be taken to be discharged on proof of the essential facts indicated therein.”
(b) In Jaswant Kaur v. Amrit Kaur and others [1977 1 SCC 369], the Hon’ble Supreme Court pointed out that when a Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court’s conscience and then, the true question which arises for consideration is, whether, the evidence let in by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such a satisfaction unless the party which sets up the will offers cogent and convincing explanation with regard to any suspicious circumstances surrounding the making of the will.
(c) In Bharpur Singh and others v. Shamsher Singh [2009 (3) SCC 687], at para 23, Hon’ble Supreme Court has narrated a few suspicious circumstance as being illustrative but not exhaustive in the following manner:-
“23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will:
(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the testator’s mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
(iv) The dispositions may not appear to be the result of the testator’s free will and mind.
(v) The propounder takes a prominent part in the execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts.”
The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with.
13. Therefore, in light of the aforesaid dicta of the Hon’ble Supreme Court, the appreciation of the evidence of the Courts below on the validity of the Will would have to be considered.
14. Therefore, firstly it was necessary for the defendants/appellants herein to have marked the original Will/testament in evidence and in the absence of securing the said document as per Section 65 read with 66 of the Evidence Act, if the certified copy of the same was available, steps would have been taken by the defendants in the Court below. As a result of the Will not being marked in evidence obviously there was no evidence let-in by any of the attestors to the Will as required under Section 68 read with Section 69 as the case may be of the Evidence Act read with Section 63 of the Indian Succession Act, 1925. In the absence of Will of Smt. Akku @ Akkamma being produced or proved in accordance with law, in our view, the trial Court was justified in not giving any credence to the said document. Thus, considering the case of the respondent/plaintiff and having regard to the provisions of the Hindu Succession Act, since the respondent/plaintiff was the only sibling of the original defendant M.S.Keshava Gowda the trial Court has rightly partitioned the ‘B’ schedule property between the two siblings to an extent of half share and have also issued a direction with regard to calculation of mesne profits and directed that a preliminary decree be drawn. We do not find any infirmity in the judgment and decree of the trial Court. There is no merit in the appeal. The appeal is hence dismissed.
Parties to bear their respective costs.
Consequently, all pending applications are dismissed.
Sd/- JUDGE Sd/- JUDGE S*