IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH REGULAR FIRST APPEAL NO.418/2012 (PAR) BETWEEN:
1. SMT. SAMPANGAMMA W/O. RAJAPPA @ PAPANNA D/O. LATE SHAMANNA AGED ABOUT 43 YEARS R/AT PATEL LAYOUT NEAR OM SHAKTHI TEMPLE BALAGERE ROAD VARTHUR BENGALURU EAST TALUK BENGALURU-560 087.
2. SMT. NARIYAMMA W/O. GIRIYAPPA D/O. LATE SHAMANNA AGED ABOUT 41 YEARS R/AT C/O. RAMESH BUILDING (BILL COLLECTOR) SORAHUNASE VILLAGE AND POST VARTHUR HOBLI-560 087.
BENGALURU EAST TALUK BENGALURU-560 087.
3. SMT. NAGARATHNAMMA AGED ABOUT 37 YEARS W/O. SRI. M. RAMESH D/O. LATE SHAMANNA R/AT THIGALACHOWDADENAHALLI VILLAGE SARJAPURA HOBLI ANEKAL TALUK BENGALURU DISTRICT-562 106. ... APPELLANTS (BY SRI. D.R. RAJASHEKHARAPPA, ADV.) AND:
1. SMT. NARAYANAMMA W/O. LATE VENKATESH DAUGHTER-IN-LAW OF LATE SHAMANNA AGED ABOUT 41 YEARS.
2. SRI. GIRISH S/O. LATE VENKATESH AGED ABOUT 21 YEARS.
3. KUMARI ASHWINI D/O. LATE VENKATESH AGED ABOUT 19 YEARS.
RESPONDENT Nos.1 TO 3 ARE R/AT SORAHUNASE VILLAGE AND POST VARTHUR HOBLI-560 087.
BENGALURU EAST TALUK BENGALURU-560 087.
4. SMT. ANJINAMMA W/O. RAJAPPA @ LINGAPPA AND D/O. LATE SHAMANNA AGED ABOUT 45 YEARS R/AT KURUBARA BEEDHI GUNJUR VILLAGE AND POST VARTHUR HOBLI BENGALURU EAST TALUK BENGALURU-560 087. ... RESPONDENTS (BY SRI. ADINARAYAN, ADVOCATE FOR SRI. C.E. SHANKARAPPA, ADVOCATE FOR R1-3) THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 25.01.2012 PASSED IN O.S.NO.2134/2007 ON THE FILE OF THE PRESIDING OFFICER, FTC-III AND MACT, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE SUIT FOR PARTITION AND SEPARATAE POSSESSION.
THIS RFA COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed challenging the judgment and decree passed in O.S.NO.2134/2007 dated 25.01.2012 on the file of Fast Track Court-III, Bangalore Rural District, Bangalore.
2. The parties are referred to as per their original rankings before the Court below to avoid confusion and for the convenience of the Court.
Brief facts of the case are follows:
3. The case of the plaintiffs before the Trial Court is that the suit schedule property are the joint family properties and hence, they have sought for the relief of partition and separate possession of their 4/5th share in the suit schedule property.
4. The main contention of the plaintiffs before the Trial Court is that one Shamanna had a son by name Venkatesh and four daughters i.e., plaintiffs. Defendant Nos.2 and 3 are children of defendant No.1 and said Shamanna died intestate leaving behind themselves and said Venkatesh to succeed to his estate. The said Venkatesh died leaving behind defendants to succeed to his estate with Shamanna. It is the contention of the plaintiffs that themselves and defendants constituted undivided Hindu Joint Family. The suit property was standing in the name of said Shamanna and subsequent to his death, khatha was mutated in the name of first defendant. There is no severance of joint status of their family. Though they are residing with their family members after marriage, status of joint family is continuing till today. The first defendant started detrimental to the interest of joint family. Their demand for partition is refused. Hence, without any other alternative, they have filed the suit for the relief of partition and separate possession.
5. The defendant Nos.1 to 3 appeared through their counsel and filed written statement denying the averments made in the plaint. It is contended that father of Venkatesh had purchased the property on 12.03.1990. Shamanna died intestate is false. The plaintiffs and defendants constituted undivided Joint Hindu Family of late Shamanna is denied. It is contended that the suit schedule property is self-acquired property of Shamanna and he executed Will in favour of his only son on 12.03.1995. It is contended that his daughters have no right in the suit schedule property. In pursuance of the said Will, mutations were effected in the name of his son Venkatesh. The averments made in the plaint that the defendants made an attempt to alienate the property are false. The suit is filed with malafide intention to trouble the defendants and hence, the suit is liable to be dismissed.
6. Based on the pleadings of the plaintiffs and the defendants, the Court below has framed the following issues:
“(i) Whether the plaintiffs prove that suit schedule property is the joint family property of themselves and defendants?
(ii) Whether the defendants prove that suit schedule property was the self-acquired property of Shamanna? Whether they further prove that Shamanna bequeathed the suit schedule property under Will dtd:12.3.95 in favour of Venkatesh, the husband of 1st defendant and father of defendants Nos.2 and 3?
(iii) Whether plaintiffs are entitled for Partition and separate possession of suit schedule property? If so, to what extent? Whether plaintiffs are entitled for mesne profits?
(iv) What order or decree?
7. The plaintiffs, in order to substantiate their claim, examined two witnesses as P.Ws.1 and 2 and got marked the documents Exs.P1 to P4 i.e., vamsha vruksha, hakku badasavane and two RTCs. The defendant No.1 got herself examined as D.W.1 and one witness as D.W.2 and got marked the documents Exs.D1 to D6 i.e., original sale deed dated 12.03.1990, agreement dated 12.03.1995, RTCs and signature of the witness as Ex.D2(a).
8. The Court below, after considering both oral and documentary evidence and on hearing the arguments of respective counsels, dismissed the suit. Hence, the present appeal is filed by the plaintiffs for the relief of partition and separate possession.
9. The main grounds urged in the appeal are that the Court below has committed an error in not properly considering the document which is styled as Will. The trial Judge has committed an error in coming to the conclusion that the suit schedule property was the self-acquired property of late Shamanna and there is no legal justification for the learned Judge to hold that the suit schedule property was the self-acquired property of late Shamanna. It is also contended that the learned Judge has committed an error in not appreciating the legal rights of the plaintiffs over the plaint schedule property after the death of late Shamanna even in a case where the plaint schedule property was the self-acquired property of Shamanna, inasmuch as the Shamanna died intestate leaving behind his four daughters namely, the plaintiffs and a son by name Venkatesh to succeed to the estate of Shamanna, who are Class-I heirs under Hindu Succession Act, 1956. Hence, the Court below has committed an error in coming to the conclusion that the plaintiffs are not entitled for any share in the plaint schedule property, having regard to the fact that the alleged Will relied upon by the defendant Nos.1 to 3 is not a Will in the eye of law and it was only an agreement as indicated both by the nomenclature and the contents of the said document, dated 12.03.1995 and in the absence of registration, no right, title or interest could be said to have been conveyed in favour of late Venkatesh or his heirs. Hence, the trial Judge has committed an error in not properly appreciating the document and failed to take note of the characteristics of the document.
10. It is further contended that the trial Judge committed an error in not noticing the fact that the alleged Will, dated 12.03.1995 is described as an agreement. On perusal of the said document, it does not indicate the existence of essential characteristic required to be present in a document which can be construed as a Will as provided under Section 2(h) read with Section 63 of the Indian Succession Act, 1925. The document alleged to have been executed by late Shamanna does not disclose the intention of the maker of the document that the property referred to in the document should go to Venkatesh, after his death nor there is any indication to show that the document shall come into effect after the death of Shamanna, nor there is any indication to show that the said later Shamanna has retained the right to revoke the Will and Trial Court failed to consider these characteristics of a Will and committed an error in coming to the conclusion that the recitals of the document shows and indicates the very intention of the executant.
11. Learned counsel for the appellants would further contend that though the defendants have examined a witness as D.W.2, his evidence is not helpful to the defendants and the same is not in compliance with Section 63 of the Indian Succession Act,1925 and hence, the very judgment of the Trial Court is bad in law. The Court below, except making reference in the course of judgment has not discussed with regard to the characteristics of the document and hence, it requires interference of this Court.
12. The learned counsel appearing for the appellants in his argument also vehemently contends that the document which has been relied upon by the defendants as Will is not within the definition of Section 2(h) of the Indian Succession Act, 1925. There is no such declaration in the document which the defendants have relied upon and the same does not have the characteristics of a Will and the Trial Court has committed an error in accepting the same as Will.
13. It is also his contention that the property cannot be transferred by way of an unregistered agreement, during the life time of a person and would further contend that Section 63 (a) to (c) of the Indian Succession Act, 1925 has not been complied with. The D.W.2 categorically has admitted in the cross-examination that executant has not signed the Will in his presence. It is also the evidence of D.W.2 that executant brought the said document and obtained his signature in his house and when such being the evidence of D.W.2, the Trial Court ought not to have accepted the evidence of D.W.2. Hence, the Trial Court has not properly appreciated both oral and documentary evidence and it requires interference of this Court.
14. Learned counsel for the appellants in support of his contention relied upon the judgment reported in AIR 2004 Andhra Pradesh 525 in the case of Dr. Mandakini Naik –vs- G.K. Naik and Others and brought to my notice paragraph Nos.11, 18, 19 and 26 and discussion made in the judgment referring the judgment of the Hon’ble Apex Court in Paragraph No.23. The counsel relying upon this judgment would contend that, in order to satisfy the characteristics of a Will, the document has to be read with the recitals mentioned in the document which should satisfy two characteristics i.e., it must be intended to come into effect after the death of the testator and it must be revocable or otherwise it cannot be treated as a Will.
15. The counsel also relied upon the judgment reported in (2010) 4 SCC 161 in the case of P.K. Mohan Ram –vs- B.N. Ananthachary and Others. The counsel referring paragraph No.27 of the judgment would contend that “As to the true character of the instrument propounded by the appellant, there can be no reasonable doubt that is a reasonable Will. A Will as defined in Section 3 of the Succession Act, 1925 as the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. Section 49 provides that a Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will. The counsel also brought to my notice the characteristics of a Will and brought to my notice paragraph Nos.29, 30 and 31 with regard to the discussion made by the Hon’ble Apex Court as to the nature of the document, settlement deed and also with regard to the Will. The counsel referring this judgment would contend that the Court should carefully examine the document as a whole, look into its substance, treatment of the subject by settlor/executant, intention as appearing from the express language or by necessary implication and prohibition, if any, against revocation thereof-form or nomenclature of document, not conclusive. The counsel referring this judgment would contend that the document which has been relied upon by the defendants does not satisfy the characteristics of a Will and hence, the Court below has committed an error in accepting the document as Will and dismissing the suit. Hence, it requires interference of this Court.
16. Per contra, learned counsel appearing for the respondents/defendants in his argument vehemently contends that the defendants have examined the attesting witness as D.W.2 and he has specifically deposed before the Court that he has attested the document. Hence, the learned counsel for the appellants cannot contend that Section 63 of the Indian Succession Act, 1925 has not been complied with. The evidence of D.W.2 is clear that in his presence itself, the document was executed. Hence, the Trial Court has rightly considered the recitals of the document accepting the same as Will and there are no grounds to interference with the findings of the Trial Court and Trial Court has not committed any error in considering both oral and documentary evidence available on record.
17. The counsel for the defendants referring the judgment referred by the learned counsel for the appellants reported in (2010) 4 SCC 161 would contend that the Court has to examine the document as a whole, look into its substance, contents and nomenclature of the document is not conclusive and submits that the said judgment supports the case of the defendants. Hence, prays this Court to dismiss the appeal.
17. Having heard the arguments of learned counsel appearing for the appellants and learned counsel appearing for the respondents and keeping in view the contentions urged by respective counsels, the points that arise for consideration of this Court are:
(i) Whether the Court below has committed an error in not accepting the document, Ex.D2 as Will and whether it requires interference of this Court?
(ii) Whether the Court below has committed an error in dismissing the suit, accepting the Will and whether it requires interference of this Court?
(iii) What order?
Point Nos.(i) to (iii):
18. The main contention of the appellants/plaintiffs before this Court is that Court below has committed an error in considering the document, Ex.D2 as a Will which is styled as an agreement dated 12.03.1995 and the recitals of the document is not within the definition of Section 2(h) of the Indian Succession Act, 1925. The characteristics of the document also does not disclose the ingredients of a Will and inspite of the same, the Trial Court has committed an error in accepting the same as Will. The Court below while passing the judgment has erroneously made an observation that contents of Ex.D2 shows that it is a Will and further observed that on going through Ex.D2, though it is styled as agreement, its contents makes it very clear that it is a Will. It is further observed that the recitals in the said document shows that said Shamanna has bequeathed the suit schedule property to his only son i.e., husband of defendant No.1 as he was looking after well in his old age. The recital in the said document clearly shows that the suit schedule property is the self-acquired property. When the said Shamanna has executed the Will during his life time, the Court cannot ignore the recital of the document and these observations are very erroneous.
19. The main contention of the respondent/defendants before the Trial Court is that the suit schedule property is a self-acquired property of Shamanna and during his life time, he bequeathed his property in terms of Ex.D.2 in favour of his only son Venkatesh and plaintiffs have no right to claim any share in the suit schedule property. Though it is contended that suit schedule property is a joint family property, the plaintiffs have not placed any material to substantiate the said fact.
20. Having considered the pleadings of plaintiffs and defendants, this Court has to analyze both oral and documentary evidence available before this Court since, this Court has the jurisdiction to re-appreciate both oral and documentary evidence. This Court as a First Appellate Court can re-appreciate both the question of fact and question of law since, the scope is very unlimited.
21. Now let this Court analyze the evidence available before this Court. The first plaintiff, who has been examined as P.W.1 in her evidence reiterates the averments made in the plaint and got marked the documents Exs.P1 to P4. In the cross-examination, it is elicited that she cannot tell how much property her father was possessing at the time of her marriage. She also admits that the other plaintiffs have not given any power of attorney in her favour and other sisters have no impediment to come and give evidence before the Court. She further claims that suit schedule property is derived from her grand father, but she has not produced any document. It is also elicited that except Exs.P1 to P4, there are no other documents. It is suggested that on 12.03.1990, her father and brother have purchased the property and the said suggestion was denied. It is also suggested that on 12.03.1995, her father has bequeathed the property in favour of her brother and the same was denied. It is suggested that the suit schedule property is self-acquired property of her father and the same was denied.
22. The plaintiffs have also examined a witness as P.W.2. In her evidence, she reiterates the evidence of P.W.1 which is in consonance with the averments made in the plaint. P.W.2 was subjected to cross-examination. In the cross-examination, she admits that she cannot tell on what date, her grand father Venkatagiriappa acquired the property. She admits that her marriage was solemnized 15 years ago and she is staying along with her husband in the matrimonial home. It is elicited that her father has purchased the suit schedule property. It is suggested that her father had executed the Will in favour of her brother and the same was denied.
23. The first defendant, who was examined as D.W.1 in her evidence reiterates the averments made in the written statement contending that the suit schedule property is self-acquired property of her father-in-law late Shamanna and during his life time, he had executed the Will on 12.03.1995, which is marked as Ex.D2. She was subjected to cross-examination. In the cross-examination, she admits that she is doing coolie work and her father-in - law was also doing coolie work. It is suggested that her father-in-law was earning only Rs.50/- and the same was denied. It is elicited that she cannot state in which year her father-in-law passed away. It is suggested that her father-in-law had not executed any Will in favour of her husband and the same was denied. It is elicited that she cannot state where the stamp paper was purchased and she cannot state, who have all signed the said agreement. It is suggested that Ex.D2 is created for her convenience and the same was denied.
24. Defendants have also examined a witness as D.W.2. In his evidence, he states that late Shamanna had executed the Will in respect of the suit schedule property in favour of his son on 12.03.1995. He was called to his house and asked him to put his signature on the said Will as a witness and on the request made by him, he had put his signature on the Will. It is also his evidence that now defendant No.1 is in possession of the suit schedule property. He can identify the thumb impression of late Shamanna in the said Will. He identifies his signature as Ex.D2(a). He was subjected to cross-examination. In the cross-examination, he deposes that Shamanna called him 15 years ago to come and sign the Will, but he cannot state the date and month. However, he volunteers that he has mentioned the date in his affidavit. It is also elicited that he cannot state where the said document was prepared. He admits in the cross-examination that he has signed the document in his house and at that time, one Appajappa was present, who had come to his house for electrical work. Except the executant, Shamanna, Appajappa and himself, none were present. It is elicited that he did not put his signature in the presence of Shamanna. He cannot tell whether Shamanna or anybody else have put the thumb impression on the said document. He also does not know the scribe of the document, Ex.D2.
25. Having considered both oral and documentary evidence and also keeping in view the grounds urged in the memorandum of appeal and also the contentions urged by learned counsel for the appellants and respondents, I would like to refer the document Ex.D2 which is termed as an agreement dated 12.03.1995. There is no dispute with regard to the principles laid down in the judgment of the Andhra Pradesh High Court and the Hon’ble Apex Court that the Court should carefully examine the document as a whole, look into its substance, treatment of the subject by settlor/executant, intention as appearing from the express language or by necessary implication and prohibition, if any, against revocation thereof-form or nomenclature of document, not conclusive. On perusal of Ex.D2, it is evident that Shamanna has mentioned that his son Venkatesh and wife are taking care of him and hence, he intends to convey the suit schedule property in favour of his son and his family members. It is also recited in the document that son and his family members have no absolute right to enjoy the property and plaintiffs have no right in respect of the suit schedule property, since it is his self-acquired property and here afterwards, he has to pay the tax and get transfer the khatha in his name and the said document is executed by him voluntarily. However, nowhere in the document it is mentioned that he is bequeathing his property in favour of his son and the same should go to him after his death.
26. The learned counsel appearing for the appellants has rightly brought to my notice Section 2(h) of Indian Succession Act, 1925 which reads as follows:
“2(h) “Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”.
27. Having considered the definition of Section 2(h) of the Indian Succession Act, 1925, it is clear that there must be a legal declaration by a person to his intention with respect to his property which he desires to be carried into effect after his death. On perusal of the document Ex.D2, no doubt, the executant has mentioned the reason for giving the suit schedule property in favour of his son stating that his son has to enjoy the property and get it transfer the khatha in his name and pay the tax, nowhere in the said document it is stated that the suit schedule property goes to him after his death.
28. Having considered the principles laid down in the judgments referred (supra) and also considering the recitals of the document, Ex.D2, the same does not indicate any characteristics of a Will and instead, the said document only discloses that right was given during the life time of the executant himself and it amounts to an absolute right given to him for getting the property in the name of his son in the revenue records and to pay tax and enjoy the property and nowhere in the document it is declared that the suit schedule property is bequeathed in favour of his son. Hence, I am of the opinion that the document, Ex.D2 which is styled as an agreement is not having the characteristics of a Will within the definition of Section 2(h) of Indian Succession Act, 1925. The Court below has committed an error in relying upon the document styled as an agreement as Will and the reasons assigned in paragraph No.24 of the judgment that contents of Ex.D2 shows that it is a Will and going though Ex.D2, though it is styled as an agreement, its contents makes it very clear that it is a Will is erroneous and failed to consider the characteristics of a Will as defined under Section 2(h) of the Indian Succession Act, 1925. The recitals in the document, Ex.D2 has no characteristics of a Will, except mentioning the relationship between the parties and his intention to give the property to his son. When such being the case, the Court below has committed an error in coming to the conclusion that there is nothing to ignore the recitals in the document, Ex.D2 relying upon the evidence of D.Ws.1 and 2 stating that the evidence of D.W.2 supports the contention of the defendants that suit schedule property is the self-acquired property of Shamanna and the same was bequeathed in favour of his son during his life time. Hence, the very approach of the Trial Court is erroneous in nature.
29. The evidence of D.W.2 also not supports the case of the defendants. The evidence of D.W.2 is clear that the executant, Shamanna called him to come and attest the document, Ex.D2. In the cross-examination, he admits that he has signed the document in his house and the executant only brought the document to his house. It is further admission of D.W.2 that he does not know whether the executant has signed the document and executant has not signed the document in his presence. The Trial Court has committed an error in accepting the evidence of D.W.2, whose evidence is not in consonance with the provisions of Section 63(a) to (c) of the Indian Succession Act, 1925. Hence, I am of the opinion that the Court below has committed an error in coming to the conclusion that the defendants have proved the fact that deceased Shamanna has bequeathed the property in favour of the husband of the first defendant.
30. Now the question before this Court is with regard to whether the plaintiffs are entitled for the relief of partition. Though the plaintiffs have contended throughout in the pleadings and also in the evidence that suit schedule property is a joint family property, they have not placed any material to substantiate their claim, except relying upon the documents, Ex.D1 to D6. However, in the cross- examination, it is admitted that property is purchased by Shamanna. The plaintiffs have also produced the document of sale deed dated 12.03.1990 of said Shamanna as Ex.D1. The Court has to take note of the documentary evidence, excluding the oral evidence. Hence, it is clear that suit schedule property is the self- acquired property of Shamanna. Therefore, I am of the opinion that Ex.D2 is not having any characteristics of a Will and the defendants have not proved the very execution of the Will and this Court cannot accept the evidence of D.W.2. When such being the case, when the said Shamanna died leaving behind a son and daughters, who are the plaintiffs, all are entitled to succeed to the estate of the deceased, Shamanna. Hence, when the document, Ex.D2 is not having the legal characteristics of a Will and when this Court has come to the conclusion that the document, Ex.D2 has not been proved, the plaintiffs are also entitled for a share in respect of the suit schedule property, as claimed in the plaint.
31. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed.
(ii) The judgment and decree of the Trial Court is set aside. The plaintiffs are entitled for the relief as claimed in the plaint.
(iii) The office is directed to draw the decree accordingly and send the records to the Trial Court forthwith.
Sd/- JUDGE ST