IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI REGULAR SECOND APPEAL NO.1851 OF 2008 BETWEEN:
1. VENKATESHAPPA S/O NARAYANAPPA AGED ABOUT 50 YEARS 2. SMT PADMAMMA W/O VENKATESHAPPA AGED ABOUT 35 YEARS BOTH ARE RESIDING AT GADDE KANNUR VILLAGE KASABA HOBLI, KOLAR TALUK-563 101.
...APPELLANTS (BY SRI. G A SRIKANTE GOWDA, ADVOCATE) AND:
MUNILAKSHMAMMA W/O LATE G N RAMAIAH 43 YEARS, R/A GADDE KANNUR VILLAGE KASABA HOBLI, KOLAR TALUK-563 101. ….RESPONDENT (BY SRI.G.V. NARASIMHA MURTHY, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 26.6.2008 PASSED IN R.A.NO.38 OF 2008 ON THE FILE OF THE II ADDL. DISTRICT AND SESSIONS JUDGE, KOLAR ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 20.2.2008 PASSED IN O.S.NO.184 OF 2006 ON THE FILE OF THE I ADDL. CIVIL JUDGE (SR. DVN) KOLAR.
THIS RSA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the defendants challenging the judgment and decree passed in R.A.No.38/2008 dated 26.6.2008, the second appeal is filed.
2. Parties are referred to as per the rank of the parties in the trial Court.
3. The appellants herein are the defendants and the respondent herein is the plaintiff before the trial Court. The plaintiff filed a suit for declaration and injunction against the defendants in respect of the suit schedule property stating that the plaintiff is the absolute owner of the suit schedule property and the suit schedule property was earlier owned and possessed by Venkatamma w/o late Narayanappa. She is the mother-in-law of the plaintiff and the said suit schedule property is the self-acquired property of Venkatamma. The said Venkatamma had two sons. They were divided long back. Defendant No.1 is also one of the son of the said Venkatamma. Venkatamma during her life time had executed an unregistered will deed bequeathing the suit schedule property in favour of the plaintiff on 14.11.2005. Venkatamma died on 2.5.2006 and the plaintiff stepped into the shoes of late Venkatamma and plaintiff is in peaceful possession and enjoyment of the suit schedule property and the katha of the suit property is standing in the name of the deceased Venkatamma.
Thereafter, the plaintiff gave an application to the concerned authorities to change the katha in her name on the basis of the will executed by deceased Venkatamma. The application is still pending. The defendants have no right, title or interest in the suit property. Defendants were making hectic attempts to commit the act of trespass, waste and damage thereon concerning to the suit schedule property. Hence cause of action arose for the plaintiff to file the suit for declaration and injunction.
The defendants appeared and filed written statement admitting that deceased Venkatamma had two sons i.e. G.Ramaiah, husband of the plaintiff, and defendant No.1 and denied that during the life time of Venkatamma, she lived along with her son G.Ramaiah and his wife i.e. the plaintiff. They were looking after the welfare of the said Venkatamma and the plaintiff has spent huge amount for medical treatment of the deceased Venkatamma and Venkatamma had executed a will on 24.2.2006 in favour of defendant No.1 bequeathing half share in the suit schedule properties.
Further defendant pleads that the suit schedule property originally owned and possessed by one Muniyamma wife of Hanumappa and the said Muniyamma had no male issues and had only three daughters and all were married and she had executed registered will in favour of all three daughters Venkatamma, Akkamma and Lakshmamma and allotted entire suit schedule property to them and dispute arose between the eldest daughter Venkatamam and two other daughters- Akkamma and Lakshmamma and they filed a suit before the learned Munsiff, Kolar, against the mother of defendant No.1 in O.S.No.160/81 for declaration and suit for possession which had been decreed on 10.12.1985. Against the judgment and decree passed in the said suit, the mother of defendant No.1 filed appeal- R.A.No.13/1986 which came to be dismissed and finally Akkamma and Lakshmamma succeeded to their legitimate share and the mother of defendant No.1 also got her share. The deceased Venkatamma, her two sons i.e. Ramaiah, husband of plaintiff and defendant No.1 were continuing as joint family and enjoying the suit schedule property without any disturbance among the brothers. During the life time of Venkatamma, both sons were looking after the welfare of their mother i.e. Venkatamma. Deceased Venkatamma after getting her legitimate share approached the revenue authorities to change the katha as per the court decree. The revenue authorities after verifying the records changed the katha in the name of Venkatamma in the month of January,2006. Further, defendant contended that the plaintiff had not acquired subsisting interest in the suit schedule properties on the alleged unregistered Will dated 14.11.2005 and sought for dismissal of the suit.
The trial Court on the basis of the pleadings, framed the following issues :-
1. Whether the plaintiff proves that she is the absolute owner of the suit schedule properties by virtue of a Will dt.14.11.2006 executed by deceased Smt.Venkatamma, the mother-in-law of the plaintiff?
2. Whether the plaintiff proves that she is in exclusive and lawful possession over the suit schedule properties?
3. Whether the plaintiff proves that the defendant interfere with her possession and enjoyment of the suit schedule properties?
4. Whether the defendant proves that he too has got equal right over the plaint schedule properties by virtue of a Will dt.24.7.2008 executed by his mother that is deceased Smt. Venkatamma?
5. What decree or order ?
The plaintiff in support of her case examined herself as PW1 and three witnesses PWs 2 to 4 and got marked documents Exhibits- P1 to P7. Defendant No.1 was examined as DW1 and defendant No.2 was examined as DW2 and three witnesses were examined as DWs 3 to 5 and got marked documents exhibits D1 to D5. The trial Court answered issue Nos.1 to 4 in negative and dismissed the suit of the plaintiff holding that the plaintiff has failed to prove that she is the absolute owner of the suit schedule property by virtue of the Will dated 14.11.2005 alleged to have executed by Venkatamma in favour of the plaintiff and also further failed to prove the exclusive and lawful possession over the suit schedule property and also failed to prove interference by the defendants in the suit schedule property and also held that the defendant have failed to prove that he has got equal right over the plaint schedule properties by virtue of the Will dated 24.2.2006 executed by deceased Venkatamma and dismissed the suit. The plaintiff aggrieved by the judgment and decree in O.S.No.184/2005 dated 28.2.2008, filed R.A.No.38/2008 before the II Additional District and Sessions Judge, Kolar. The Appellate Court has framed the following point for consideration :-
“Whether the judgment of the lower court on issue Nos.1 to 3 is perverse, capricious and contrary to law?”
and held that the judgment of the trial Court is perverse and capricious and contrary to law and further held that the plaintiff has proved the Will dated 14.11.2005 executed by deceased Venkatamma and allowed the appeal and decreed the suit of the plaintiff.
The defendants aggrieved by the judgment and decree passed in R.A.No.38/2008 dated 26.6.2008 filed this second appeal.
This Court has admitted the appeal on the following substantial questions of law :-
“1) Whether the plaintiff has removed all suspicious circumstances to prove that the property was testamentary disposed of by the testator vide Will Ex.P1?
2) Whether the judgment of the Appellate Court is sustainable in the absence of specific finding that Ex.P1 will was proved to be the genuine last Will of testator Venkatamma Executed on 14.11.2005?
3) Whether the Appellate Court was justified in reversing the finding of the Trial Court without recording its finding as to whether plaintiff has established testator had reasons to non-suit his legal heirs to bequeath property to him.
4. Heard the arguments of the learned counsel for the parties.
5. It is not in dispute that originally the suit property was owned and possessed by deceased Venkatamma i.e. the mother of defendant No.1 and mother-in-law of plaintiff and it is also not in dispute that deceased Venkatamma had two sons by name G.Ramaiah i.e. the husband of the plaintiff and defendant No.1. The plaintiff contends that during the life time of Venkatamma, she was taking care of Venkatamma and she was looking after Venkatamma and she had spent huge amount for her medical treatment and thereafter, Venkatamma executed an unregistered will deed in her favour on 14.11.2005 and the said Venkatamma died on 2.5.2006 and thereafter, the plaintiff gave an application for change of katha based on the alleged Will deed.
6. The plaintiff has not placed any material before this Court to show that whether subsequently katha was changed based on the Will. Further, the plaintiff in order to prove the execution of the will got examined two attesting witness i.e. PWs 2 and 3 and also a scribe as PW4. PW4, who is the scribe of the will-Ex.P1, has deposed in his examination-in-chief that based on the records i.e. ROR he has drafted the will i.e. as on the date of execution of the will, property was standing in the name of Venkatamma. But the records speak that as on the date of the execution of the will, property was not in the name of Venkatamma. Further, PW1 in the course of cross-examination has clearly admitted that she has participated at the time of execution of will. She has taken a prominent part in the execution of the will. The plaintiff has to establish the execution of the Will by removing all suspicious circumstances. The plaintiff, who is the propounder of the will, firstly has to establish 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 she has to put her signature on the document upon her free will; secondly, 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 the propounder; and thirdly if a Will is surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion.
7. In the present case, first of all the plaintiff has clearly admitted that she has taken a prominent role in the execution of the will. Secondly, the plaintiff has not placed any material to show that she was looking after deceased Venkatamma and spent lot of money towards her medical expenses. The plaintiff has also not explained the reason for disinheriting/excluding the other legal heirs i.e. defendant No.1.
8. The Supreme Court in the case of Bharpur Singh & Ors. V. Shamsher Singh reported in AIR 2009 Supreme Court 1766 at paragraph 17 has held as follows :
“17. 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 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.
9. So, as per the aforesaid judgment, exclusion of other legal/natural heirs without any reason and propounder taking a prominent part in execution of a will are surrounded by the suspicious circumstances.
10. So, in the present case, the plaintiff has not explained why defendant No.1 was not given any property in the suit schedule properties. Except the suit schedule property, family does not own any other properties. Further, PW4, who is the scribe of the will i.e. Ex.P1, without looking into the revenue records has drafted the will. So, that also creates suspicious circumstance that as on the date of drafting the will, the said properties were not standing in the name of Venkatamma.
11. The plaintiff has not placed any material to show that deceased Venkatamma disliked defendant No.1 or had any reason to deprive him of the property. When there is one property on which the executant has any claim, absolute right based on the will, the burden is on such a person to establish that the executant had definite reason to deprive the other heirs of the shares in the property. In the absence of the same, as observed above it is considered as suspicious circumstance.
12. The Appellate Court merely relying on the alleged admission and evidence of DW2 i.e. the attestor, held that the plaintiff has proved the will and decreed the suit without considering that the will is surrounded by suspicious circumstances. The said observation is contrary to the guidelines framed by the Hon’ble Apex Court in the aforesaid judgment.
13. In view of the aforesaid discussion, I hold that the plaintiff has failed to remove all the suspicious circumstances to prove the will and further the Appellate Court has not properly appreciated the evidence of the parties. Hence, the Appellate Court has committed an error in reversing the judgment and decree of the trial Court and I hold substantial question No.1 against the plaintiff, as the plaintiff has failed to remove all the suspicious circumstances to prove the Will-Ex.P-1. In view of answer to substantial question No.1 against the plaintiff, substantial question Nos.2 and 3 are answered in favour of the defendants. Accordingly, I proceed to pass the following :
ORDER The appeal is allowed. The judgment and decree dated 26.6.2008 passed by the II Additional District and Sessions Judge at Kolar in R.A.No.38/2008 is set aside.
The judgment of the trial Court i.e. the judgment and decree dated 20.2.2008 passed by the I Additional Civil Judge (Sr.Dn.) Kolar in O.S.No.184/2006 is maintained.
SD/- JUDGE rs