Karnataka High Court
Sou. Channawwa @ Bhuvaneshwari vs Sri. Channamallappa S/O. ... on 25 February, 2021
Author: Sreenivas Harish P.N.Desai
1
IN THE HIGH COU RT OF KARNAT AKA
DHARWAD B ENCH
DAT ED THIS THE 25 T H DAY OF FEB RUARY, 202 1
PRESENT
THE HON'B LE MR. JU ST ICE SREENIV AS HARISH KUMAR
AND
THE HON'B LE MR. JU ST ICE P.N.DESAI
RFA NO.4206/ 2013
C/W.
RFA CROB.NO.100014/20 14
IN RF A NO.4206/2013
B ETWEEN:
1. CHANNAMALLAPPA
S/O. MAHADEVAPPA KIT TUR
AGE: 64 YEARS, O CC: B USINESS
R/O. H NO. 2157, KORE GALLI
SHAHAPU R, B ELAGAVI
2. SHIVA LIN GAPPA
S/O. MAHADEVAPPA KIT TUR
AGE: 60 YEARS, O CC: B USINESS
R/O. H NO. 2157, KORE GALLI
SHAHAPU R, B ELAGAVI
3. REKHA W/O. CHIDANAND HEBB ALLI
(D/O. LATE MAHADEVAPPA KIT TUR)
AGE: 49 YEARS,
OCC: HOUSEHOLD WORK
R/O. H NO. 2157, KORE GALLI
SHAHAPU R, B ELAGAVI.
...APPELLANT S.
(B Y SHRI MRU TYUNJAY T AT A B ANGI, ADVOCATE.)
2
AND:
1. SOU .CHANNAWWA @ B HUVANESHWARI
W/O. SUBHASH HALAB HAVI
AGE: 55 YEARS,
OCC: HOUSEHOLD WORK
R/O. NEELAKANTH NIWAS,
SHRI HARI NAGAR ,
AT POST : CHIKKODI
DIST: B ELAGAVI
2. SAROJINI
W/O. MALLIKARJUN SHETT AR
AGE: 53 YEARS,
OCC: HOUSEHOLD WORK
R/O. JUNI PETH, AT POST: RAMDU RG
DIST: B ELAGAVI
3. SOU .MAHANANDA
W/O. SHRISHA IL B ANDI
AGE: 51 YEARS,
OCC: HOUSEHOLD WORK
R/O. PEERAJ I PET H,
AT POST : GADAHINGLAJ
DIST: KOLHA PU R
4. SOU . ASHA
W/O. RAVINDRA HAMPANNAVAR
AGE: 47 YEARS,
OCC: HOUSEHOLD WORK
R/O. GU RU WAR PETH,
AT POST : CHIKKODI
DIST: B ELAGAVI
5. SOU .GEETA
W/O. JAMB ANNA NAGALIKAR
AGE: 44 YEARS,
OCC: HOUSEHOLD WORK
R/O. GANESH PARK APARTMENT
'A ' WIN G B HAGYA NAGAR, B ELAGAVI
....RESP ONDENT S.
(B Y SHRI A D SHILLEDAR, ADVOCATE.)
3
THIS REGU LAR F IRST A PP EAL IS FILED UNDER
SECTION 9 6 OF CODE OF CIV IL P RO CEDU RE, PRAYING TO
SET AS IDE TH E JU DGMENT AND DECREE DAT ED
05. 09.2 013, PASS ED IN O.S.NO.1 43/2009, ON THE FILE
OF THE III ADDL. SENIOR C IVIL JUDGE & ADDL. MACT,
B ELAGAVI, ETC.,.
IN RF A CROB. NO.100014/2014
B ETWEEN:
1. SOU . CHANNAWWA @ B HU VANESHWARI
W/O. SUBHASH HALAB HAVI,
AGE: 56 YEARS,
OCC: HOUSE HOLD WORK,
R/O: NEELAKANAT H NIWAS,
SHRI HARI NAGAR ,
AT/POST: CHIKKODI,
DIST: B ELAGAVI- 591 201.
2. SMT. SAROJINI
W/O. MALLIKARJUN SHETT AR,
AGE: 54 YEARS,
OCC: HOUSEHOLD WORK,
R/O. JUNI PETH,
AT/POST: RAMDURG,
DIST: B ELAGAVI- 591 123
3. SOU . MAHANANDA
W/O. SHRISHA IL B ANDI,
AGE: 52 YEARS,
OCC: HOUSEHOLD WORK,
R/O. PEERAJ I PET H,
AT/POST: GADAH INGALAJ,
DIST: KOLHA PU R 416 502
4. SOU . ASHA
W/O. RAVINDRA HAMANNAVAR,
AGE: 48 YEARS,
OCC: HOUSEHOLD WORK,
R/O. GU RU WAR PETH,
AT/POST: CHIKKODI,
DIST: B ELAGAVI- 591 201.
4
5. SOU . GEETA
W/O. JAMB ANNA NAGALIKAR,
AGE: 44 YEARS,
OCC: HOUSEHOLD WORK,
R/O. GANESH PARK APARTMENT A WING,
B HAGYA NAGAR, BELAGAV I- 590 001.
...CROSS OBJECT ORS.
(B Y SHRI A.D.SHILLEDAR, ADVOCATE, FOR SHRI
SANTOSH B RAWOOT, ADVOCATE.)
AND:
1. CHANNAMALLAPPA
S/O. MAHADEVAPPA KIT TUR,
AGE: 65 YEARS, O CC: B USINESS,
R/O. H.NO. 2157, KORE GALLI,
SHAHAPU R, DIST: B ELAGAVI- 590 001.
2. SHIVA LIN GAPPA
S/O. MAHADEVAPPA KIT TUR,
AGE: 61 YEARS, O CC: B USINESS,
R/O. H.NO. 2157,
KORE GALLI, SHA HAPUR,
DIST: B ELAGAVI- 590 001.
3. SOU . REKHA W/O. CHIDANAND HEB BALL I,
(D/O. LATE. MAHADEVAPPA KITTU R)
AGE: 50 YEARS,
OCC: HOUSEHOLD WORK
R/O. H.NO.2157, KORE GALLI,
SHAHAPU R, DIST: B ELAGAVI.
....RESP ONDENT S.
(B Y SHRI MRU TYUNJAY T AT A B ANGI, ADVOCATE, FOR
SHRI NINAD T KWATIHALL I, ADVOCATE.)
THIS CROSS OB JECTION IN RE GU LAR FIRST A PPEA L
IS FILED UNDER ORDER X LI RULE 22( 1) OF CODE OF
CIVIL PROCEDU RE, PRAYING TO MODIFY THE JUDGMENT
AND DECREE, DATED 05.09.2013, PASSED IN
O.S.NO.143/2009, ON THE FILE OF THE III AD DL.
SENIOR CIVIL JUDGE & ADDL. MACT, B ELAGAVI, ETC.,.
5
RESERVED FOR JU DGMENT ON : 01.02.2021.
JU DGMENT PRONOU NCED ON : 25.02.2021.
THIS APPEAL AND CROSS OB JECTION HAVIN G B EEN
HEARD AND RES ERVED FOR JU DGM ENT, COMING ON FOR
PRON OU NCEMENT OF JU DGMENT THIS DAY ,
SHRI P.N.DESA I, J , DELIVERED THE FOLLOWING:
JUDGMENT
These appeal and cross objection arise out of
the judgment and decree d ated 5.9.2013, passed by
the III Addl. Senior Civil Judge, Belag avi, in
O.S.No.143/2009, d ecreeing the suit in p art.
2. In RFA No.4206/2013, the appellants are
the d efend ants and the respondents are the
plaintiffs. In RFA CROB No.100014/2014, cross
objectors are the plaintiffs and the respondents are
the defend ants. They will b e referred as p er their
resp ective ranks before the trial Court.
3. The b rief averments of the plaint are as
follows:
a) That one Mahad evapp a, propositus of the
family of the p arties to the suit died on 8.9.2007.
The wife of p ropositus by name Smt.Taramati d ied
on 26.11.2008, leaving behind p laintiffs No.1 to 5
and defendant No.3 being the d aug hters, and
defend ants No.1 and 2, being the sons.
b) It is averred that the plaintiffs and the
defend ants constituted a Hindu Undivided Family.
Late Mahad evap pa was the karta of the family. The
suit p roperties are the joint family prop erties of the
plaintiffs and the defend ants. After the d eath of said
Mahad evapp a Kittur, the plaintiffs gave a wardi to
the Tahasild ar to enter the names of plaintiffs and
defend ants in respect of the suit prop erties as no
partition had taken p lace b etween them. The
defend ants No.1 and 2 prod uced copy of the Will
dated 25.5.2001 before the Tahasild ar and got their
name entered in the records of rights illeg ally. The
plaintiffs have disputed the g enuineness of the Will.
City Survey Authorities, Belagavi, rejected the claim
of defend ants No.1 and 2 on the ground that the so
called Will is seriously d isp uted and it requires to be
proved in accord ance with law before the Civil Court.
Accordingly the names of the plaintiffs and the
defend ants came to be entered in the p roperty
register card .
c) It is further plead ed that the deceased
Mahad evapp a was not competent to execute the Will.
He was suffering from acute diab etes, hig h blood
pressure and also cancer since 1995. The d eceased
Mahad evapp a was not in a sound disposing state of
mind. Defend ants No.1 and 2 have created the Will
just to g rab the suit p roperties and defeat the rights
and interest of the plaintiffs. The deceased
Mahad evapp a was not the ab solute and exclusive
owner of the suit p rop erty. Therefore, the
defend ants will not get any rig hts und er the said
Will. Therefore the alleg ed Will is not binding on the
plaintiffs.
d) It is further p leaded that, after the d eath
of their father, the plaintiffs demand ed their share in
the suit p roperties and requested defendants No.1
and 2 to effect p artition. But the defend ants did not
come forward to effect p artition. Hence the p resent
suit for p artition and sep arate p ossession claiming
5/8 t h share in the suit p rop erty.
4. Defend ants No.1 and 2 filed written
statement and a memo came to be filed on b ehalf
defend ant No.3 that she would adopt the written
statement filed by d efend ants No.1 and 2.
5. The defend ants admitted their relationship
with the plaintiffs. They have denied the other
averments of the plaint. The d efend ants contended
that the plea of the plaintiffs that suit prop erties are
the joint family properties of the plaintiffs and the
defend ants and deceased was the karta of the
und ivid ed family are all false. They denied the plea
of the plaintiffs reg arding the Will. They denied the
cause of action. It is the defence of the defend ants
that the p laintiffs are well aware that defend ants
No.1 and 2 acq uired absolute right and ownership
over the suit property as legatees under the
registered Will dated 25.5.2001 executed by
propositus Mahadevapp a. It is further their d efence
that the p arents of Mahad evappa died long back and
he did not possess any movable or immovable
properties. Late Mahad evappa in ord er to earn
livelihood commenced a cloth business and started
earning . He was a freedom fighter. One Laxman
Narayan Anantbhat, who was a close friend of late
Mahad evapp a, gifted the lands bearing Sy.Nos.284,
319/1, 319/2 and 319/3 situated at Sambra in
Belag avi through a registered gift d eed d ated
12.2.1947. So these lands were self acquired
properties of late Mahad evap pa. The prop erty
bearing CTS No.2157 was purchased by late
Mahad evapp a through a reg istered sale deed dated
27.6.1946 for a sale consideration of Rs.5,000/-
from one Veerappa Malleshap pa Kurali. He has
performed the marriag e of p laintiffs by spending
hug e amount and had given gold ornaments, silver
articles and other valuables to the plaintiffs, so as to
see that plaintiffs lead a comfortab le life in their
matrimonial house. Since the date of marriag e, all
the p laintiffs are resid ing in their matrimonial house
comfortab ly. The said Mahad evapp a and Taramati
used to stay with d efend ants No.1 and 2 and they
looked after the welfare of their p arents. Late
Mahad evapp a had maintained a very good health till
his death. The said Mahadevappa died on 8.9.2007.
6. It is further the defence of the d efendants
that while cleaning the house, they came across the
registered Will dated 25.5.2001, whereunder the
southern portion of the house bearing CTS No.2157
and 2157/1 came to be bequeathed in favour of
defend ant No.1. Likewise, front portion of the said
house bearing the above said CTS number was
bequeathed in favour of defend ant No.2, excep t 10
feet area in both the p roperties. The lands situated
at Samb arag i villag e were bequeathed in favour of
defend ants No.1 and 2 jointly. All the movable and
immovable p roperties were also bequeathed in their
favour. They also came to know that the said Will
was reg istered in the office of Sub-Registrar,
Belag avi, on 25.5.2001. They have further contended
that, they app roached the attesting witnesses and
enquired them about the execution of the Will and
came to know that their father had executed a
registered Will in resp ect of the self acquired
properties. Therefore, the defend ants No.1 and 2
alone are entitled to rig ht, title and interest over the
said prop erties. Therefore the plaintiffs have no
cause of action to file the suit. With these main
contentions the defend ants prayed to dismiss the
suit.
7. On the b asis of the above p leadings, the
trial Court framed as many as five issues after
recasting the earlier issues.
8. On behalf of the plaintiffs, plaintiff No.1
got examined herself as PW.1 and got marked 20
documents as Exs.P.1 to P.20. Defend ant No.2 got
examined himself as DW.1 and got examined one
witness as DW.2. They also got marked 16
documents as Exs.D.1 to D.16.
9. After hearing the arguments, the trial
Court decreed the suit in p art holding that the
plaintiffs are entitled to partition and sep arate
possession of their 5/8 t h share in suit house bearing
CTS No.2157 and 5/8 t h share in 1 acre 27 guntas of
land in Sy.No.319/1 of Samb ra village. Aggrieved by
the decree, d efend ants have preferred appeal in RFA
No.4206/2013 for allotting share only in 1 acre, out
of 2 acres 27 guntas of land in Sy.No.319/1,
plaintiffs have preferred cross objection in RFA
CROB. No.100014/2014.
10. We have heard the arg uments advanced by
Shri Mrutyunjay Tata Bangi, learned counsel for the
defend ants and Shri A.T.Shilled ar, learned counsel
for the plaintiffs.
11. The learned counsel for the d efendants
arg ued that the suit prop erties are the self acquired
properties of d eceased Mahad evapp a. The said
Mahad evapp a d uring his lifetime had sold some of
the prop erties and only Sy.No.319 remained with
him. The plaintiffs very well knew that the properties
are self acquired prop erties and only after filing the
written statement, the plaintiffs changed their stand
and contended that it is the joint family property.
The learned counsel further argued that the
deceased Mahad evapp a b eing absolute owner and as
it is the self acquired prop erty, was comp etent to
execute the Will in resp ect of his p roperties.
Accordingly he executed a registered Will d eed d ated
25.5.2001 in favour of defend ants No.1 and 2. The
defend ants also examined one of the attesting
witnesses, DW.2, who was also an ad vocate and
their neighbourer. The Will was registered b efore the
Sub-Reg istrar's office. Therefore, when the
defend ants came to know about the Will after the
death of their father, they filed application before
the revenue and city survey authorities to enter
their names to the suit p rop erties.
12. The learned counsel further argued that
the suspicious circumstances as argued by the
plaintiffs were also not p roved and not tenab le. The
learned counsel pointed out that the suspicious
circumstances are - (i) the deceased Mahad evap pa
was suffering from diabetes, blood pressure and
cancer. He was not keep ing good health. No
documents are produced by the plaintiffs to show
that Mahad evap pa had any such d isease. Even
nothing was elicited in the cross-examination of the
defend ants in this regard. On the other hand , in the
year 2002-03, the d eceased Mahad evapp a went to
Goa to p articip ate in a felicitation function org anized
in his honour as he was a freedom fig hter.
Therefore, the first circumstance that the deceased
was not in a sound state of mind has no basis. (ii)
Attesting witness DW.2 is an advocate. That cannot
be a suspicious circumstance. In fact, the said
ad vocate has practiced for 40 years. He is
neighbourer of d eceased Mahad evapp a's house. So,
he being a neighbourer and ad vocate, it is quite
natural and normal for Mahad evapp a to consult or
contact DW.2 for making the Will. So, the said
Ex.D.12 first Will came to b e executed. There is no
dispute about the said Will. The said defend ant DW.2
has stated that he has seen Mahad evapp a signing
the Will, and then he attested it. The other witness
Sattig eri also stated that, after knowing
Mahad evapp a signed the Will, he attested after
seeing it. So requirement of the Ind ian Succession
Act are complied. (iii) The third suspicion is
reg arding purchase of the stamp paper, name of the
typ ist and no reference to earlier Will. The learned
counsel submits that if Ex.D.12, the Will is perused,
it is also in resp ect of d efend ants No.1 and 2 only.
Ex.D.13 is also in respect of two children. Simp ly the
name of the typist is not mentioned or the stamp
pap er is purchased earlier is not a suspicious
circumstance. (iv) The other suspicious circumstance
is that the Will is not a natural Will. Such a
contention is also not tenab le. The intention of
deceased Mahadevapp a was to bequeath the
properties to his sons. He never intended that any of
the prop erty should go to the daughters. He has
made averments as to why d aug hters are not given
any property. The properties being the self acquired
properties, the testator had capacity and right to
bequeath the Will as per his own wish.
13. The learned counsel argued that Ex.P.7 is
the family arrang ement made by the said
Mahad evapp a. He has retained 1 acre 25 guntas in
Sy.No.319 totally measuring 2 acres 25 guntas and
gave 20 guntas each i.e., half acre to each of the
defend ants No.1 and 2. Accordingly the names of
defend ants No.1 and 2 were entered in revenue
records. Therefore, the plaintiffs cannot seek any
share in the said prop erty. The learned counsel
arg ued that the trial Court without app reciating the
evid ence in a proper perspective, without
considering the nature of prop erties, wrongly
decreed the suit.
14. The learned counsel for the d efendants
relied upon the decision of Hon'b le Sup reme Court of
India reported in AIR 2020 Supreme Court 3102,
in Shivakumar and others vs. Sharanabasappa
and others wherein the Hon'b le Supreme Court
dealt with appreciation of evidence reg ard ing p roof
of Will and b road ly summarized the relevant
princip les governing the p roof of Will.
15. The learned counsel for the d efendants
arg ued that, there is no p lead ing reg ard ing any
suspicious circumstances in the Will. The plaintiffs
cannot urg e such contention without stating
suspicious circumstances. On the other hand, the
defend ants evidence has proved due execution of the
Will and disp elled the susp icious circumstances, if
any. With these main arg uments, the learned
counsel p rayed to set aside the judgment by allowing
the appeal and d ismissing the cross objections.
16. Ag ainst this, Shri A.D.Shilled ar, learned
counsel for the plaintiffs argued that, the
documentary evidence prod uced by the plaintiffs
clearly indicate that the suit properties are not the
self acquired properties of the father of plaintiffs. On
the other hand, Ex.P.5, the sale deed ind icates that
the father of the plaintiffs along with the d efendants
No.1 and 2 as their minor g uardian, sold the
property in Sy.No.319 to one Bhairapp a. This itself
indicates that the said prop erty was not self acquired
property of Mahad evapp a. It is treated as joint
family prop erty. Ex.P.14 mortg ag e d eed executed by
defend ants No.1 and 2 in respect of suit house
bearing CTS Nos.2157 and 2157/1 ind icate that
defend ants No.1 and 2 mortg ag ed the prop erty even
during lifetime of their father. So the finding of the
trial Court that the suit prop erties are self acquired
properties of deceased Mahad evapp a needs
interference.
17. The learned counsel for plaintiffs further
arg ued that Ex.P.6 wardi and Ex.P.7 family
arrang ement, will not create any right in favour of
defend ants in respect of 1 acre of land. There is no
plead ing by the defendants in this reg ard in their
written statement. Ex.D.13 the alleged Will also
makes no reference about the family arrang ement.
The learned counsel further argued that the said
Ex.P.7 is an unregistered document. Mere ward i will
not create any right or title in immovab le p roperties.
Ex.P.7 document is written on a bond paper. The
said bond p ap er is purchased by the 1 s t defend ant in
the name of his father. In fact, Ex.D.13 is also
purchased by S.M.Kittur, but not by late
Mahad evapp a. This creates doubt about the
genuinity of those documents.
18. The learned counsel relied upon a decision
of the Hon'ble Supreme Court reported in AIR 2014
Supreme Court 1290 in Arikala Narasa R eddy vs.
Venakata Ram Reddy Reddygari and another and
relied on p arag rap h No.9 and argued that in this
case there is no plead ing by the d efendants
reg arding the said Ex.P.7 family arrang ement or
reg arding Ex.P.6 wardi. No issue was framed in this
reg ard. The learned counsel argued that the finding
of the trial Court that 20 guntas of land each fell to
the share of defend ants No.1 and 2 and denying the
share to the plaintiffs is a perverse find ing and
need s interference.
19. The learned counsel further argued that
the Will relied on by the defend ants clearly indicates
that it is not a Will executed by Mahad evap pa
voluntarily and the Will is not proved in accord ance
with law. Reg ard ing the sound state of mind of the
testator and his health, all the medical records were
in the custod y of these defend ants. So, the plaintiffs
could not p rod uce any documents. The learned
counsel submits that the trial Court has prop erly
considered the susp icious circumstances and the
evid ence which indicate that the Will is not a natural
Will and the trial Court has rightly answered issue
No.3 ag ainst the d efendants. The learned counsel
supported the reasoning given by the trial Court for
disbelieving the Will Ex.D.13. With these arg uments
he has prayed to dismiss the appeal and to allow the
cross objections.
20. Now, the points that would arise for our
consideration are as und er:
i) Whether the trial Court's finding
that suit properties are self acquired
properties of propositus Mahadevapp a is
correct?
ii) Whether the finding arrived at
by the trial Court that Ex.D.13 Will is not
genuine, and not p roved , is based on
settled principles reg ard ing proof of Will?
iii) Whether the learned trial Court
Judge erred in allotting share to the
plaintiffs only in 1 acre 27 guntas out of
total extent of 2 acres 27 guntas of land in
Sy.No.391/1?
iv) Whether the judgment of the
trial Court is capricious and p erverse, and
need s interference by this Court? If so, to
what extent?
21. We have perused the judgment of the trial
Court. The learned trial Judge consid ering the
documentary evidence prod uced by both the sid es,
held that the suit prop erties are the self acquired
properties of propositus Mahadevapp a. The learned
trial Judge held that the plaintiffs have not pleaded
the source of income to purchase these p roperties.
On the other hand, it is evid ent that one of the
properties was gifted by Laxman Anantbhat through
a reg istered gift deed. So, Sy.No.319/1 is the self
acquired prop erty of late Mahad evappa. It is only the
heirs of Laxman Anantbhat, who can challeng e the
gift, but plaintiffs cannot challenge the said gift as it
is alread y acted upon. The trial Court also held that
PW.1 ad mitted that her father commenced cloth
business for his livelihood. CTS No.2157 was
purchased by Mahad evapp a through a registered sale
deed . Simp ly b ecause it was resold to Mahad evappa,
that does not amount to ancestral property. The trial
Court held that plaintiffs have failed to p rove that
the suit prop erties are the joint family p roperties of
the plaintiffs and the defend ants, on the other hand,
they are self acq uired p roperties of Mahad evapp a.
22. Reg arding proof of Will, the trial Court has
referred to the princip les stated in the d ecisions of
Hig h Court and the Hon'b le Supreme Court as to
leg al req uirements for proof of Will. The trial Court
found material discrep ancies in the evid ence of DW.2
one of the attesting witnesses to the Will. The trial
Court found that the Will is not natural Will as it
disinherited the natural heirs. Regarding the mental
cond ition of the testator, the trial Court held that
Mahad evapp a was in a sound disposing state of
mind. The trial Court held that the very execution of
the Will is doubtful and not p roved . Accordingly
answered issued No.3 in negative. The trial Court
while calculating the share, relied on family
arrang ement Ex.P.7 and held that it is acted upon.
Therefore, as 20 guntas of land is allotted to each of
the d efendants No.1 and 2, the plaintiffs are not
entitled to the relief sought in the entire extent of 2
acres 27 guntas in Sy.No.319/1. Accordingly it
decreed the suit in p art.
23. We have reassessed the evid ence on
record in the light of arguments advanced by learned
counsel for both the sid es.
POINT No.1:
24. The contention of the plaintiffs is that the
suit schedule properties are the joint family
properties of the plaintiffs and the defend ants. The
oral and documentary evidence produced by the
plaintiff clearly shows that suit sched ule properties
are self acq uired prop erties of the d eceased
Mahad evapp a. The suit land was g ifted to said
Mahad evapp a by one Mr. Laxman Narayan Anantb hat
through a registered gift d eed dated 12.2.1947 as
per Ex.D.7. The same is also admitted by the
plaintiff. The house property was acquired by
deceased Mahad evapp a through registered sale d eed
which is at Ex.D.8 from one Veerappa Malleshap pa
Kurali which is not d enied by PW.1. The deceased
Mahad evapp a was a cloth merchant. He had no other
income or any ancestral properties. Therefore, in
view of the evidence placed on record , if the find ings
of the trial Court is consid ered, it is evid ent that the
learned trial Judge has rightly come to the
conclusion that the suit prop erties are the self
acquired p roperties of late Mahad evapp a.
POINT No.2:
25. The arg ument of the learned counsel for
the app ellants that, late Mahadevappa being an
absolute owner of the said p roperties, bequeathed
the suit schedule properties in favour of defend ants
No.1 and 2 by way of registered Will d ated
25.5.2001 Ex.D.13, hence, the plaintiffs cannot
claim any share in it, will stand the test of proof of
Will or not is to be examined.
26. It is settled p rincip le of law that one who
claims property through Will has to prove the Will.
The p ropound er of the Will has to show b efore the
Court that the Will is not shrouded with suspicious
circumstances and it is a natural Will. The
propounder has to prove the capacity of the testator
and its due execution. If there are any material
suspicious circumstances, he must dispel those
suspicious circumstances by cogent, convincing and
leg ally reliable evidence. The onus is on the
propounder to explain them to the satisfaction of the
Court, before the Court accepts the Will as genuine.
27. The relevant principles governing the p roof
of Will are summarized by Hon'ble Supreme Court in
parag rap h No.11 of the decision Shivakumar and
others (supra) relied by the defend ants, as und er:
11. For what has been noticed
hereinabove, the relevant principles
governing the adjudicatory process
concerning proof of a Will could be
broadly summarised as follows:-
1. Ordinarily, a Will has to be
proved like any other document; the test
to be applied being the usual test of the
satisfaction of the prud ent mind. Alike
the p rinciples governing the proof of
other documents, in the case of Will too,
the proof with mathematical accuracy is
not to b e insisted upon.
2. Since as per Section 63 of the
Succession Act, a Will is req uired to be
attested, it cannot be used as evidence
until at least one attesting witness has
been called for the purpose of p roving its
execution, if there be an attesting
witness alive and cap able of giving
evid ence.
3. The uniq ue feature of a Will is
that it sp eaks from the d eath of the
testator and, therefore, the maker
thereof is not available for deposing
about the circumstances in which the
same was executed. This introd uces an
element of solemnity in the decision of
the question as to whether the d ocument
propounded is the last Will of the
testator. The initial onus, naturally, lies
on the p ropounder b ut the same can b e
taken to have b een p rimarily discharged
on proof of the essential facts which go
into the making of a Will.
4. The case in which the execution
of the Will is surrounded by suspicious
circumstances stands on a different
footing. The presence of suspicious
circumstances makes the onus heavier on
the propounder and, therefore, in cases
where the circumstances attend ant upon
the execution of the document give rise
to suspicion, the propound er must
remove all legitimate suspicions before
the document can be accepted as the last
Will of the testator.
5. If a person challenging the Will
alleges fab rication or alleges fraud,
und ue influence, coercion etcetera in
regard to the execution of the Will, such
pleas have to b e proved by him, but even
in the ab sence of such pleas, the very
circumstances surrounding the execution
of the Will may give rise to the doubt or
as to whether the Will had indeed b een
executed by the testator and/or as to
whether the testator was acting of his
own free will. I n such ev entuality, it is
again a p art of the initial onus of the
propounder to remove all reasonable
doubts in the matter.
6. A circumstance is "suspicious"
when it is not normal or is 'not normally
exp ected in a normal situation or is not
exp ected of a normal p erson'. As put by
this Court, the suspicious features must
be 'real, germane and valid' and not
merely the 'fantasy of the doubting
mind.'
7. As to whether any particular
feature or a set of features q ualify as
"suspicious" would depend on the facts
and circumstances of each case. A shaky
or doubtful signature; a feeble or
uncertain mind of the testator; an unfair
disposition of property; an unjust
exclusion of the legal heirs and
particularly the depend ants; an active or
leading part in making of the Will by the
beneficiary thereund er etcetera are some
of the circumstances which may give rise
to suspicion. The circumstances above-
noted are only illustrative and by no
means exhaustive b ecause there could be
any circumstance or set of circumstances
which may give rise to legitimate
suspicion about the execution of the Will.
On the other hand, any of the
circumstance qualifying as being
suspicious could be legitimately explained
by the p ropound er. However, such
suspicion or suspicions cannot be
removed by mere proof of sound and
disposing state of mind of the testator
and his signature coupled with the proof
of attestation.
8. The test of satisfaction of the
judicial conscience comes into operation
when a document propounded as the Will
of the testator is surrounded by
suspicious circumstance/s. While applying
such test, the Court would address itself
to the solemn questions as to whether the
testator had signed the Will while being
aware of its contents and after
und erstanding the nature and effect of
the dispositions in the Will?
9. In the ultimate analysis, where
the execution of a Will is shrouded in
suspicion, it is a matter essentially of the
judicial conscience of the Court and the
party which sets up the Will has to offer
cogent and convincing explanation of the
suspicious circumstances surrounding the
Will.
28. We have gone through the contents of
Ex.D.13 Will meticulously. It reflects the following
doubtful circumstances which are not exp lained by
the d efend ants and which are not natural, not
exp ected of an ordinary p rudent man in a normal
situation.
a) The contention of the defendants is that
after the death of propositus, while cleaning the
house, they came across the registered Will Ex.D.13.
Then they approached the attesting witness,
enquired about the execution of the Will and came to
know about the Will. Thereafter they g ave
application to revenue authorities to enter their
names. This contention of the d efendants may not be
true as evident from Ex.D.13 Will itself. Because the
stamp p ap er on which the Will is written was
purchased by d efend ant No.2 on 21.12.2000. His
name appears in all the three pag es of stamp
pap ers, as a purchaser of the said stamp pap ers on
behalf of M.C.Kittur. The same is admitted by him in
the cross-examination. The Will does not b ear any
date on which it was written. Therefore, there is no
date of execution of Will by the p ropositus
Mahad evapp a. DW.1 ad mitted in his evidence that
son of the 1 s t defend ant by name Somanath C. Kittur
signed the said Will as an id entifying witness b efore
the sub-registrar. The other attesting witness
Sattig eri, was working in their saree shop since 30
years. Thus, when the d efend ants No.1 and 2, who
are beneficiaries under the Will have taken active
part in purchasing the stamp paper. Son of
defend ant No.1 identified the testator and one of
their shop workers attested it. This indicates that
they have taken a false contention that while
cleaning the house they found the Will and came to
know about it.
b) According to defend ants, DW.2 Virup ax
Bemb alag i, one of the attesting witnesses and who
accord ing to them prep ared Ex.D.13, informed the
testator in the month of May 2001, when the
testator had come to his office and gave him copy of
Will dated 9.11.1998 (Ex.D.12) and other documents
to prep are the Will, then DW.2 told Mahad evapp a to
arrang e for stamp papers. Accord ing ly on 24.5.2001
the said Sattigeri and Mahad evap pa hand ed over the
stamp p apers to DW.2. But as already stated above,
the stamp pap ers bear the date of purchase as
21.12.2000, nearly six months prior to the d ate of
registration of the Will and also long prior to DW.2
asking propositus to b ring the stamp p apers. How
the p ropositus anticip ated that DW.2 will one day
ask him to bring the stamp papers and purchased
those stamp p ap ers through one of the defendants
six months p rior to registration? This circumstance
indicates the role p layed by d efendants No.1 and 2
to grab the suit properties.
c) At p ag e No.2 of the said Will certain words
are inserted by writing in black ink. But rest of the
contents in the Will are typ ed in Kannada language.
Who has made such corrections or insertions, is not
forthcoming . No initials are found for having mad e
correction. DW.2 stated that Mr.Sattigeri had carried
out corrections. He had not advised Mahad evapp a to
make initials to the corrections. It is in the evidence
of defend ants that the deceased was not knowing
Kannad a languag e. It is also p ertinent to note the
signature of Sattigeri on the last page of the Will is
in Kannad a lang uag e. But on 2 n d p age b efore the
sub-reg istrar, his signature as identifying witness is
totally different and it is in Eng lish languag e. The
same is marked as Ex.P.20. These circumstances are
not a normal course of conduct of a human b eing in
a given situation. One cannot sign on the same
document on the same day in two d ifferent
languag es using two different inks. DW.2 further
ad mitted in the cross-examination that he does not
remember whether Sattigeri put his signature first as
a witness or he put his sig nature first on the Will.
This doubtful circumstance is not exp lained.
d) DW.2 the attesting witness has admitted in
the cross-examination that he is close family friend
of the defend ant and late Mahadevapp a was a
resp ectab le person and also a freedom fighter. DW.1
in his cross-examination states that Mahad evappa
was looking after his wife with love and affection. He
has also admitted that his mother had no income of
her own and was suffering from blood pressure,
sug ar and other ailments. DW.2 has also ad mitted
that the 3 r d defend ant left her matrimonial house
and was residing in their house. She was totally
depend ant on the income of her father. She had no
children and no ind epend ent source of income. In
view of this admitted evidence of DW.1 if the present
Will is considered, it is evident that no p rovision is
made for his wife or the 3 r d d efend ant who is the
daughter of the testator. On the other hand, it is
mentioned, even after the d eath of his wife, her
ornaments would also go to the defend ants No.1 and
2. Even it is mentioned that, a property which was
stand ing his name, the wife of the 1 s t defendant by
name Roop a was the only owner. Nothing is g iven
either to the wife or to the daughters. It is
mentioned that they are all married and living
happily and they have no share in the said property.
This appears to be totally unnatural one. The
reasons assigned for exclusion of wife and defend ant
No.3 and other daughters create a doubt about the
genuineness of the said Will.
(e) In the last paragrap h of Ex.D.13 it is
mentioned that it is the 'first' and the 'last' Will of
the testator. The d ate is kept blank. Defendants
have p roduced Ex.D.12 which is dated 9.11.1998.
How the d efend ant came into possession of Ex.D.12
is not exp lained. The attesting witnesses shown to
Ex.D.13 are the same attesting witnesses to
Ex.D.12. There is no name of scribe on Ex.D.12.
There is also no mention on Ex.D.13 as to who has
typ ed it. DW.2 has not signed as a scribe of the Will
but he has signed as a witness. According to DW.2,
the said Ex.D.12 Will was written by deceased
Mahad evapp a. He asked him to prep arer another Will
as the earlier Will was not leg ible. But, on perusing
Ex.P.12, it is clearly legible. As already stated ab ove
the said Mahadevapp a was not at all knowing
Kannad a lang uag e. Then who has written the earlier
Will is not forthcoming . If there is already a Will
dated 9.11.1998, why there is no mention about the
same in subsequent Will Ex.D.13. On the other hand
it is stated that it is the first and the last Will of the
testator. That circumstance is not exp lained by the
defend ants so as to clear the suspicious surrounding
the Will.
29. The plaintiffs have denied the execution
and genuinity of the said Ex.D.13. On the other
hand, evidence of defend ants failed to clear the
suspicious circumstances surrounding the said Will.
The possibility of fabrication of the Will by the
defend ants cannot be ruled out. Whether the
testator was acting on his own will in signing the
document is to be proved, if there app ears to be
doubt in that matter. But here in the circumstances
narrated above, unjust exclusion of leg al heirs and
particularly the wife and 3rd defend ant, the
suppression mad e by beneficiaries of the Will, and
their taking active p art in reg istration of the Will,
give rise to suspicious circumstance in the light of
the evid ence placed before the Court. The said
circumstances are not exp lained by the d efend ants.
If the evidence of plaintiffs and defend ants are
tested with the touch stone of the principles stated
in the decision Shivakumar and others (supra), it
is evident that the trial Court's finding that
genuineness of Ex.D.13 is not estab lished , is
supported by p roper reasons. Therefore, d efendants
do not d erive any rig ht or title over the suit
properties under the said Will Ex.D.13.
POINT No s.3 and 4:
30. The learned trial Judge p artly d ecreed the
suit by allotting share in only 1 acre 27 guntas out
of total extent of 2 acres 27 guntas land in
Sy.No.319/1. The reasons assigned by the learned
trial Judge are that, Mahad evappa during his lifetime
gave 20 guntas each to defend ants No.1 and 2 as
per family arrangement Ex.P.7, the same is acted
upon as per Ex.P.8 and P.9. The same is ad mitted by
PW.1. Therefore, only 1 acre 27 guntas was left out
to the plaintiffs to claim their share. Accordingly
they were allotted share in 1 acre 27 guntas in
Sy.No.319/1 situated at Sambra village excluding
one acre.
31. The learned counsel for the cross objectors
is justified in his arg ument that such a finding has
no leg al b asis at all. Neither it is the p leading of the
parties nor it is contend ed by the defendants that
there was any family arrangement made by d eceased
Mahad evapp a as per Ex.P.7. The same is not
mentioned in Ex.D.13-Will. The d efend ants have not
stated anything about family arrang ement Ex.P.7 in
their evidence. There is no issue framed on that
point. It is the plaintiffs who have p roduced that
document while adducing their oral evidence. Even
PW.1, nowhere in the examination-in-chief has
referred to such a family arrangement. Without there
being pleading, issues or evid ence, the learned trial
Judge has p artly decreed the suit, rejecting the
claim of the plaintiffs over 1 acre of land . In the
decision relied by counsel for plaintiffs in Arikala
Narasa R eddy (supra), at parag raph No.9 the
Hon'b le Supreme Court has reiterated the principles
stated by it earlier, that the Court cannot go beyond
the plead ings of the p arties. The parties have to take
proper plead ings and establish their case by
adducing evid ence in support of their p lead ing.
Relief not founded on the plead ings should not be
granted . The d ecision of a case should not be b ased
on grounds outside the plead ings of the p arties. In
the ab sence of plead ings, the evid ence if any
produced b y the parties, cannot b e considered .
32. We have p erused the evidence in this
reg ard. Ex.P.6 d ated 18.2.1997 is a copy of wardi
stated to have been given by deceased Mahad evappa
to enter the names of defend ants No.1 and 2 to the
extent of half acre to each in resp ect of
Sy.No.319/1. But the said document bears the
signature of Mahad evapp a in Eng lish languag e.
Admitted ly he was not knowing Kannada languag e.
Who has written that Ex.P.6 document is not
forthcoming . No reasons are assigned for such a
transfer. There is no reference about any family
arrang ement Ex.P.7 or p artition, in Ex.P.6. No
reasons are assigned as to why and under what
circumstance, propositus Mahad evapp a gave such a
wardi to transfer one acre of agricultural land in the
name of d efend ants No.1 and 2.
33. It is settled p rincip le of law that the rig ht
and title in an immovab le p roperty worth more than
Rs.100/- cannot be transferred without a registered
document as required under section 17 of the
Registration Act, 1908. It is also settled princip le
that mere entry in a mutation would not create any
right or title in an immovab le p rop erty. Therefore,
this document Ex.P.6 would not convey any transfer
of title to the d efend ants to the extent of 20 guntas
each. Ex.P.7 is an unreg istered document styled as
'Kutumb a Vyavastha Patra'. The contents of the said
document also indicate that it is a transfer. The
reason mentioned is that, as Mahad evapp a was ag ed
and unab le to perform ag ricultural work, he gave 20
guntas each to his sons and retained 1 acre 26
guntas. There is neither a partition nor a distribution
of all the family properties. It is a type of a transfer
or relinquishment of right in the immovable
property. There was no reason for him to make
arrang ement only in respect of 20 guntas. The
contents of the said document creates a doub t, as
ag ain the stamp papers of the said document were
purchased by defendant No.2 in the name of
M.C.Kittur. It is evid ent that the said document was
not at all acted upon. It is not the contention of the
defend ants No.1 and 2 that they were in possession
of 20 guntas each. On the other hand , it is their
defence statement that Mahad evappa was the owner
in possession of the entire 2 acres 26 guntas and he
has b equeathed the said entire property by way of
Will Ex.D.13. There is no mention of the said family
arrang ement in both alleg ed Will i.e., either in
Ex.D.12 or in Ex.D.13. On the contrary it is shown,
Mahad evapp a was the owner in possession of entire
2 acres 26 guntas. Even before revenue authorities
also no such contention was taken by the
defend ants. Name of defend ants No.1 and 2 were not
entered on the basis of either wardi or on the b asis
of family arran gement. Not a single RTC or any
document was produced to show that the name of
these defend ants No.1 and 2 came to b e entered in
revenue records subsequent to the year 1997. The
defend ants have not prod uced any documents to
show that they were in possession of the said
properties. They have not add uced oral evid ence of
any person to show the possession. On the other
hand, they claim that the entire prop erty was
bequeathed to them throug h Will. Now they cannot
take shelter under the observation of the learned
trial Judge about Ex.P.7 which is not p roved by the
defend ants. Ex.P.8 is a document signed by the 2 n d
defend ant to enter the name. It is not signed by
Mahad evapp a. Ex.P.9 is a 'U form'. It is mentioned in
it that late Mahadevapp a Kittur had 'relinquished' 20
guntas in favour of his son which is not true.
Therefore such a mutation entry will not create any
right or title in respect of said land in favour of
defend ants No.1 and 2. It is also settled princip le of
law that mutation entries are not the documents of
title. There is no evid ence to show that d efendants
No.1 and 2 were in possession of said 20 guntas at
any point of time. It is not their p leading or
evid ence. Therefore, the find ing of the trial Judge at
parag rap h No.43 is perverse and not based on any
plead ing or evidence and needs interference b y us.
34. In view of the discussions made above, we
find no merit in the appeal and the same is liab le to
be dismissed . The cross objection is to be allowed.
The plaintiffs are entitled to p artition and sep arate
possession of their share of p rop erty in entire 2
acres 27 guntas of land in Sy.No.319/1 of Sambra
village. To that extent the decree of the trial Court
need s mod ification. In the result, we p ass the
following:
ORDER
i) The appeal in RFA No.4206/2013 is
dismissed.
ii) The cross objection in RFA CROB
No.100014/2014 is allowed.
iii) The judgment and decree of the trial Court
is mod ified only to the extent that plaintiffs are
entitled to 5/8 t h share in entire 2 acres 27 guntas of
land in Sy.No.319/1 of Samb ra villag e instead of 1
acre 27 guntas only. Rest of the find ings remain
unaltered.
iv) In view of the facts and circumstances of
the case and relationship of the parties, we direct to
both the p arties to b ear their own costs.
Sd/-
JUDGE
Sd/-
JUDGE
Mrk/-
