IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.2563/2006 BETWEEN:
SRI PAPAIAH @ S.R.PAPI REDDY AGED ABOUT 57 YEARS S/O. SRI RAMA REDDY AGRICULTURIST R/AT SOMANAHALLI MUTHANALLUR POST ANEKAL TALUK BANGALORE DISTRICT- 562 106 …APPELLANT (BY SRI K.V.NARASIMHAN, ADVOCATE) AND:
1. SRI P.NAGARAJA REDDY AGED ABOUT 48 YEARS S/O. LATE RAMA REDDY R/AT SOMANAHALLI MUTHANALLUR POST ANEKAL TALUK BANGALORE DISTRICT- 562 106 2. SRI RAMA REDDY SINCE DEAD BY LRS.
a) SMT.GULLAMMA W/O. LATE RAMA REDDY SINCE DEAD, HER LRS APPELLANT, R1, R2(b) & R3 ARE ALREADY ON RECORD b) SMT.SUSHEELAMMA AGED ABOUT 43 YEARS W/O. SRI VENKATARAMA REDDY R/AT DHUMMASANDRA VILLAGE ABUSONDANAHALLI POST HOSAKOTE TALUK BANGALORE DISTRICT- 562 106 3. SMT.KAMALAMMA AGED ABOUT 35 YEARS W/O. LATE VENKATESHA REDDY R/AT NAKKUNDI DOMMASANDRA VILLAGE SARJAPURA HOBLI, ANEKAL TALUK BANGALORE DISTRICT- 562 106 …RESPONDENTS (BY SRI H.SHANTHI BHUSHAN, ADVOCATE FOR R1; SRI MUNIYAPPA & SRI S.KALYAN BASAVARAJ, ADVOCATE FOR R3; R2(b) SERVED – UNREPRESENTED; APPELLANT, R1, R2(b) & R3 ARE TREATED AS LRS OF DECEASED R2(a) VIDE ORDER DATED 16.08.2017) THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 19.06.2006 PASSED BY FAST TRACK COURT-II, BANGALORE RURAL DISTRICT, BANGALORE IN R.A.NO.146/2001 AND TO CONFIRM THE JUDGMENT AND DECREE DATED 04.07.2001 PASSED BY THE COURT OF ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION) & J.M.F.C, ANEKAL IN O.S.NO.209/1989.
THIS RSA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second appeal of plaintiff arises out of judgment and decree dated 19.06.2006 in R.A.No.146/2001 passed by the Fast Track Court-II, Bangalore Rural District, Bangalore. By impugned judgment and decree, the First Appellate Court allowed the appeal of defendant No.3 and reversed the judgment and decree dated 04.07.2001 passed by Additional Civil Judge (Junior Division) & J.M.F.C., Anekal in O.S.No.209/1989 and dismissed the suit of plaintiff.
2. By the judgment and decree in O.S.No.209/1989, the trial Court decreed the suit of the plaintiff for declaration and permanent injunction.
3. Appellant was plaintiff. Respondent No.1 was defendant No.3. One Ramareddy was defendant No.1 and respondent No.3 Kamalamma was defendant No.2 in O.S.No.209/1989. During the pendency of this appeal, Ramareddy died and his wife Gullamma was brought on record as his legal heir. She also died during the pendency of this appeal. She was survived by other parties on record.
4. For the purpose of convenience, parties will be henceforth referred to with their ranks before the trial Court.
5. Subject matter of the suit was land bearing Survey No.136/2 measuring 1 acre 35 guntas situated at Bikkanahalli village, Anekal Taluk and Survey No.11/1 measuring 0.28.¼ guntas situated at Samanahalli Village, Anekal Taluk.
6. Plaintiff, defendant No.3 and Venkatesh Reddy husband of defendant No.2 were sons of defendant No.1 Ramareddy and his wife Gullamma. Suit schedule properties were properties purchased by plaintiff’s paternal grandfather Muniswamy Reddy under sale deeds Ex.P5 and Ex.P6 on 26.06.1935 and 08.06.1929. Muniswamy Reddy died in the year 1958.
7. Plaintiff filed suit claiming that Muniswamy Reddy has bequeathed suit schedule properties in his favour under Ex.P1 registered Will dated 06.10.1956. He further contended that since he was minor his mother Gullamma was appointed as his guardian in the Will and on he attaining majority, he was in exclusive possession and enjoyment of the properties. He contended that of late, defendants started to interfere in his possession and enjoyment of the properties without any right and sought decree of declaration of title and permanent injunction.
8. Defendant No.1 filed written statement conceding the case of plaintiff. Defendant Nos.2 and 3 filed written statement contesting the suit denying absolute ownership of Muniswamy Reddy and execution of the Will by him.
9. Defendant No.3 contended that there was partition in the suit schedule properties on 03.07.1987 and in that partition, plaint schedule item No.1 was allotted to the share of plaintiff and plaint schedule item No.2 was allotted to the share of defendant No.2, whereas defendant No.2 contended that properties are joint family properties and her husband had share in the properties which she succeeds as his legal heir .
10. On the basis of such pleadings, the trial Court framed the following issues:
1) Whether the plaintiff proves that his late grandfather Muniswamy Reddy executed a Will on 06.10.1956 and bequeathed the suit properties, thereby he is the owner in possession of the suit properties on the date of suit?
2) Whether the plaintiff proves interference of defendants?
3) Whether the plaintiff is entitled for Permanent Injunction?
4) Whether the defendant proves that the suit properties are the joint family properties liable for partition?
5) What Order or Decree?
11. Parties adduced evidence. Plaintiff was examined as PW.1 and got marked Ex.P1 to Ex.P6. Defendant No.2 was examined as DW.1 and defendant No.3 was examined as DW.3. Two witnesses DW.2 and DW.4 were examined. On their behalf, alleged partition deed was marked as Ex.D.1.
12. The trial Court after hearing the parties, decreed the suit on the following grounds:
(i) Defendant No.1 who is the father of plaintiff, defendant No.3 and Venkatesh Reddy conceded the case of plaintiff;
(ii) Defendant Nos.2 and 3 have failed to prove Ex.D1 alleged partition deed; & (iii) Will being registered one, examination of attesting witness was not required.
13. Defendant No.3 alone challenged the said judgment and decree before the First Appellate Court in R.A.No.146/2001, whereas defendant Nos.1 and 2 did not challenge the said judgment and decree. The First Appellate Court by impugned judgment and decree allowed the appeal and dismissed the suit on the following grounds:
(i) Plaintiff has failed to prove that suit schedule properties were self acquired properties of testator Muniswamy Reddy; & (ii) Plaintiff failed to prove the Will as required under Section 68 of Indian Evidence Act, 1872 (‘the Evidence Act’ for short) by examining one of the attesting witness.
14. Except respondent No.1-defendant No.3 other defendants-respondents did not appear to contest this appeal.
15. This Court admitted the appeal to consider the following substantial questions of law:
1) Whether the judgment and decree of the First Appellate Court is perverse in dismissing the suit without appreciating the admissions made by the defendants?
2) Whether the judgment and decree of the First Appellate Court is justified in its reasoning with regard to the validity of the registered Will?
16. Sri K.V.Narasimhan, learned Counsel for appellant-plaintiff seeks to assail the impugned judgment and decree of the First Appellate Court on the following grounds:
(i) Will being 30 years old document, it carries presumption under Section 90 of the Evidence Act regarding execution, attestation and testamentary capacity of testator; & (ii) Ex.P5 and Ex.P6 sale deeds and admission of defendant No.1 and the witnesses of defendants themselves show that properties were self acquired properties of Muniswamy Reddy.
17. In support of his contention, he relies upon the following judgments:
1. Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon [2018 SCC OnLine Ker 150] 2. Kalidindi Venkata Subbaraju & Ors v.
Chintalapati Subbaraju & Ors [AIR 1968 SC 947] 3. Munnalal and Raghunathsingh v. Kashibai [(1947) 49 BOMLR 231] 18. Per contra, Sri H.Shanthi Bhushan, learned Counsel for defendant No.3 seeks to support the impugned judgment and decree of the First Appellate Court on the following grounds:
(i) Appellant-plaintiff did not examine the attesting witness to prove the Will;
(ii) Presumption under Section 90 of the Evidence Act is not available to Wills;
(iii) In RTC extracts Ex.P2 and Ex.P3, properties were all along shown as ancestral properties, that falsifies the case of the plaintiff that plaint schedule properties were self acquired properties of Muniswamy Reddy; & (iv) Only for the first time in the year 1987, the name of plaintiff is shown in RTC.
19. In support of his contention, he relies upon the following judgments:
1. M.B.Ramesh v. K.M.Veeraje Urs [(2013) 7 SCC 490] 2. Bharpur Singh v. Shamsher Singh [(2009) 3 SCC 687] Reg. Nature of properties:
20. Defendants contend that suit schedule properties were self acquired properties of paternal grandfather Muniswamy Reddy, whereas defendant Nos.2 and 3 disputed the same. To prove that suit schedule properties were self acquired properties of Muniswamy Reddy, plaintiff produced Ex.P5 and Ex.P6 sale deeds dated 26.06.1935 and 08.06.1929 in respect of plaint schedule item Nos.1 and 2 properties which show that Muniswamy Reddy purchased those properties from one Lingareddy, Chinnappareddy and Munireddy. At that time defendant Nos.2 and 3 were not even born.
21. When defendant Nos.2 and 3 contend that they were ancestral joint family properties, burden was on them to prove the said fact. If at all they were joint family properties, firstly it was for the sons of Muniswamy Reddy to question that. They did not question that nor the Will Ex.P1. Whereas defendant No.1 who is son of Muniswamy Reddy in his written statement concedes to the acquisition of the properties by Muniswamy Reddy as absolute owner as well as execution of the Will.
22. So also DW1-defendant No.2 in her cross- examination gives clear cut admission that suit schedule properties were self acquired properties of Muniswamy Reddy. Though she was further examined in chief to clarify that, said further examination in chief in no way advanced the case of defendant Nos.1 and 3. Defendant No.2 in para 2 of her written statement also clearly admitted that suit schedule properties were absolute properties of Muniswamy Reddy.
23. In the light of such admission in the pleadings and evidence of parties, the First Appellate Court was in error in holding that plaintiff has failed to prove that suit schedule properties were self acquired properties of Muniswamy Reddy.
Reg. Proof of Will:
24. Plaintiff claimed that Muniswamy Reddy executed Ex.P1 the Will in his favour on 06.10.1956 bequeathing suit schedule properties and therefore, he is absolute owner of suit schedule properties. There is no dispute that as on 06.10.1956, plaintiff was minor. In the Will-Ex.P1, Gullamma mother of plaintiff was shown as guardian. The First Appellate Court held that Will was not proved because no attesting witness was examined and therefore Section 68 of the Evidence Act was not complied.
25. Admittedly, document Ex.P1 when produced before Court was more than 30 years old. Learned Counsel for appellant relying upon Section 90 of the Evidence Act contends that document carry statutory presumption regarding execution and attestation of the Will, whereas learned Counsel for respondent No.1 contends that presumption under Section 90 of the Evidence Act is not applicable to the Wills.
26. In Munnalal’s case referred to supra, while dealing with applicability of Section 90 of the Evidence Act to Wills, three Judges Bench of Privy Council held as follows:
“8. The Will of Bahadur was more than thirty years old and was produced from proper custody, and both the lower Courts rightly held that the actual execution and attestation of the will could be presumed under Section 90: they differed on the question whether the presumption extended to the testamentary capacity of the testator. A party setting up a will is required to prove that the testator was of sound disposing mind when he made his will, but, in the absence of any evidence as to the state of the testator's mind, proof that he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind, and understood what he was about. This presumption can be justified under the express provisions of Section 90, since a will cannot be said to be "duly" executed by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of Section 114, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about. There was no evidence whatever that Bahadur was not in a perfectly normal state. Their Lordships feel no doubt that on this point the decision of the High Court was right, and that the will must be presumed to have been duly executed. The view taken by the learned Subordinate Judge would render it impossible, in most cases, to prove ancient wills. This disposes of the first appeal.”
(Emphasis supplied) 27. In the said judgment, it was held that Section 90 of the Evidence Act is applicable to the Wills also. It was held that said presumption is available not only with regard to due execution, attestation of the document, but also with regard to testamentary capacity i.e. about sound disposable state of mind of the executor.
28. Three judge bench of the Hon’ble Supreme Court in Kalidindi Venkata Subbaraju’s case referred to supra relying on the aforesaid Privy Council’s judgment in Munnalal’s case held that presumption under Section 90 of the Evidence Act, applies to Will which is more than thirty years old regarding attestation and execution, if the Will is original document. In this case, Ex.P1 is the original Will.
29. Whereas judgment in M.B.Ramesh’s case and Bharpur Singh’s case relied upon by learned Counsel for respondents were rendered by two judges bench of the Hon’ble Supreme Court. In those two judgments, earlier larger bench judgments of the Privy Council and Hon’ble Supreme Court in Munnalal’s case and Kalidindi Venkata Subbaraju’s case were not referred to. Under such circumstances, this Court has to follow the judgment of the larger bench.
30. It is relevant to refer to Narayanan Radhakrishna Menon’s case referred to supra, wherein it was held as follows:
“50. However, there cannot be a dispute to the proposition of law that where a Bench of lesser strength did not follow an earlier binding decision, such a decision will not be a binding precedent under Article 141 of the Constitution of India. This proposition has been reiterated by a Full Bench of this Court in Raman Gopi v. Kunju Raman Uthaman (2011 (4) KLT 458) after referring to numerous precedents on the point. Full Bench held thus:
“When confronted with a like situation wherein the decisions of coequal benches are of conflicting nature on a legal issue, the law laid down by the Full Bench in Joseph’s case (2001) (1) KLT 958(F.B.)) will have to be followed. The later decision will prevail. A decision of the Apex Court on a declaration of law is binding on all High Courts and subordinate courts, in the light of Art.141 of the Constitution. Of course, what is relevant is the ratio decidendi. The judgments of the Apex Court which have followed the binding decisions of the Constitution Bench or other Benches will thus be binding on other courts. The only exception pointed out is wherein a Bench of smaller strength did not follow an earlier binding decision, in a situation wherein the binding decisions of the earlier benches of the Apex Court are not brought to its notice. It is apparent that in such cases the decision of the Bench of smaller strength will be without the colour of a binding precedent under Art.141 of the Constitution. It may not be proper for the High Courts or subordinate courts to criticize and characterize a decision of the Apex Court which has laid down a point of law as per incuriam. Such is not the function of the High Court of subordinate courts.”
31. Under those circumstances, judgment of the larger Bench of the Supreme Court and Privy Council, Kalidindi Venkata Subbaraju and Munnalal’s case have to be followed. In such event there is legal presumption with regard to execution, attestation and testamentary capacity of Muniswamy Reddy in execution of Ex.P1. That was further corroborated by admission of defendant No.1 in his written statement and the admission of DW.2 Krishnachari in his chief examination itself.
32. Having regard to the material on record and legal position, substantial question of law Nos.1 and 2 are answered in favour of appellant-plaintiff. The appeal is allowed.
The impugned judgment and decree dated 19.06.2006 in R.A.No.146/2001 passed by the Fast Track Court-II, Bangalore Rural District, Bangalore is hereby set aside. The judgment and decree dated 04.07.2001 passed by Additional Civil Judge (Junior Division) & J.M.F.C., Anekal in O.S.No.209/1989 is hereby confirmed.
Sd/- JUDGE KSR