Karnataka High Court
Basayya S/O. Ishwarayya Hiremath vs Renavva W/O. Shivjappa Angadi on 9 February, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 09TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.5137/2012 (DEC/INJ)
BETWEEN
SHRI BASAYYA
S/O ISHWARAYYA HIREMATH,
AGE : 54 YEARS, OCC: AGRICULTURE,
R/AT. HANAMINAL S.B.,
HUNAGUND TALUK, BAGALKOT DISTRICT,
PIN: 587 118.
...APPELLANT
(BY SRI S.B.HEBBALLI
SRI S.C.HIREMATH, ADVOCATES.)
AND
SMT.RENAVVA
W/O SHIVAPPA ANGADI,
AGE : 42 YEARS, OCC: AGRICULTURE,
R/AT. MARATAGERI,
TAL: HUNGUND,
DIST: BAGALKOT, PIN 587 118.
.... RESPONDENT
(BY SRI SHIVAKUMAR S.BADAWADAGI, ADV.)
THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 19.10.2011 PASSED
IN R.A.NO.35/2006 BY THE SENIOR CIVIL JUDGE, HUNGUND
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 01.07.2005 PASSED IN O.S.NO.54/1998
BY THE CIVIL JUDGE (JR.DN.), HUNGUND AND DECREE THE
SUIT, IN THE INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
2
: JUDGMENT :
The captioned regular second appeal is filed by
unsuccessful plaintiff who claims that he has
succeeded to the suit properties pursuant to the Will
executed by one Shankravva on 28.02.1998 which is
negatived by both the Courts below and suit is
dismissed.
2. The facts leading to the above said case
are as under:
Appellant-plaintiff filed a suit for declaration and
injunction in O.S.No.54/1998 by claiming right and
title over the suit schedule property on the basis of
the Will dated 28.02.1998 executed by Shankravva
Sharanayya Ilal.
3. To substantiate his claim, the appellant-
plaintiff examined himself as PW.1 and examined the
attesting witnesses to the Will and produced the Will
deed at Ex.P.2, mutations and record of rights.
4. Respondent-defendant No.2 to repel the
contentions of appellant-plaintiff examined the 2nd
defendant DW.1 and two independent witnesses as
DWs.2 & 3 and by way of rebuttal evidence and
adduced documentary evidence vide Exs.D.1 to D.6.
5. The Trial Court having assessed oral and
documentary evidence has answered Issue No.1 in the
negative. The Trial Court having examined the Will at
Ex.P.2 found that the alleged 'LTM' signature of
Shankravva i.e., the testator is not at all identified.
The attesting witness who is examined as PW.2 is
none other than father-in-law of appellant-plaintiff
legatee.
6. The Trial Court having meticulously
examined the evidence of PW.2 has come to the
conclusion that he has virtually pleaded his ignorance
and his evidence is quite contrary to the pleadings
averred in the plaint by appellant-plaintiff. The Trial
Court has also taken note of contradictory statements
made by PW.2, who at one breath has submitted that
the testator while bequeathing the suit schedule
properties has signed Ex.P.2 at Hanumanal Village and
at the second breath he has stated that the Will was
signed at Ilkal village. The Trial Court has also taken
note of the fact that, PW.2 has admitted in
unequivocal terms in cross-examination expressing his
ignorance as to whose instruction the Will was drafted.
The Trial Court having examined evidence of PW.2 has
come to conclusion that the evidence of attesting
witness is not in terms of Section 63 of Indian
Evidence Act read with Section 68 of Indian
Succession Act. On these set of reasonings, the Trial
Court has proceeded to dismiss the suit by recording a
categorical finding that the appellant-plaintiff has
failed to prove due execution of Will and has also
failed to remove the suspicious circumstances
surrounding the Will.
7. The First Appellate Court having
independently assessed oral and documentary
evidence has concurred with the findings and
conclusions arrived at by the Trial Court. The First
Appellate Court was also of the view that the
appellant-plaintiff has failed to prove the due
execution of Will at Ex.P.2 and the same is surrounded
by suspicious circumstances.
8. The reason for calling an attesting witness
is not, as is sometimes supposed, that proof by the
attesting witness is the best evidence, but that he is
the witness appointed or agreed upon by the parties
to speak to the circumstances of its execution, an
agreement which may be waived for the purpose of
dispensing with proof at the trial, but cannot be
broken. Examining the attesting witness is not on the
ground that he is the best evidence, but because he is
the witness agreed upon between the parties. It is
well established that in a case in which a Will is
prepared under circumstance which raise the suspicion
of the Court that he does not express the mind of the
testator, it is for those who propound the Will to
remove that suspicion. The finding of fact recorded by
the Courts below is based on lack of evidence on the
part of legatee and their opinions not having been
demonstrated to be vitiated in law cannot be reviewed
in second appeal. Both the Courts have concurrently
held that suspicious circumstances surrounding its
execution, the proof of testamentary capacity and
testator's sound disposing state of mind are not
proved by the legatee as required by law.
9. The reason for calling an attesting witness
is not, as is sometimes supposed, that proof by the
attesting witness is the best evidence, but that he is
the witness appointed or agreed upon by the parties
to speak to the circumstances of its execution, an
agreement which may be waived for the purpose of
dispensing with proof at the trial, but cannot be
broken. Examining the attesting witness is not on the
ground that he is the best evidence, but because he is
the witness agreed upon between the parties. It is
well established that in a case in which a Will is
prepared under circumstance which raise the suspicion
of the Court that he does not express the mind of the
testator, it is for those who propound the Will to
remove that suspicion. The finding of fact recorded by
the Courts below is based on lack of evidence on the
part of legatee and their opinions not having been
demonstrated to be vitiated in law cannot be reviewed
in second appeal. Both the Courts have concurrently
held that suspicious circumstances surrounding its
execution, the proof of testamentary capacity and
testator's sound disposing state of mind are not
proved by the legatee as required by law.
10. It is this concurrent finding, which are
under challenge. Both the Courts have concurrently
held that the appellant-plaintiff has failed to prove the
due execution of Will, then the genuineness of Will
cannot be re-examined by this Court under Section
100 of the Code of Civil Procedure, 1908. The
concurrent findings recorded on Will, which is based
on material on record cannot be interfered with. More
particularly, when the grounds urged in the appeal
memo does not indicate any substantial question of
law. The judgment and decree of the Courts below are
in accordance with law and does not suffer from any
infirmity and illegality. The appeal is devoid of merits.
Accordingly, the same stands dismissed.
Sd/-
JUDGE
EM
