Laxmibai W/O. Muttappa Dasar vs Manjula W/O. Ramesh Dasar
2022 Latest Caselaw 2636 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 17TH DAY OF FEBRUARY 2022

                             BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

       REGULAR SECOND APPEAL NO.100344 OF 2014 (PAR)

BETWEEN
LAXMIBAI W/O. MUTTAPPA DASAR
AGE: 37 YEARS, OCC: SERVICE,
R/O. HUNGUND-581126,
TQ:HUNGUND, DIST: BAGALKOT
                                                ...APPELLANT
(BY SRI.SHIVAKUMAR S BADAWADAGI, ADVOCATE)

AND
MANJULA W/O. RAMESH DASAR
AGE: 26 YEARS, OCC:HOUSEHOLD WORK
R/O. RAMAWADAGI, TQ: HUNGUND
DIST: BAGALKOT-581126.
                                               ...RESPONDENT

      THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 15.03.2014
PASSED BY THE LEARNED SENIOR CIVIL JUDGE HUNGUND IN
R.A.NO.27/2013   AND   THE   JUDGMENT   AND   DECREE   DATED
02.07.2013 PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC
AT HUNGUND IN O.S.NO.320/2011 AND DISMISS THE SUIT FILED
BY THE RESPONDENT IN O.S.NO.320/2011 ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE AND JMFC., HUNGUND.


      THIS RSA COMING ON FOR ORDERS THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
                               2




                         JUDGMENT

The captioned regular second appeal is filed by the

unsuccessful defendant, who is questioning the

concurrent judgment and decree of the Courts below

wherein suit filed by the respondent-plaintiff was decreed

granting half share in the suit schedule property.

2. The facts leading to the case are as under:

The appellant-plaintiff and respondent are full

sisters. The suit properties were admittedly owned by

their father Basappa. The present appellant-defendant is

claiming absolute right over the suit property by placing

reliance on Will dated 14.10.2009 executed by her father

Basappa, whereas respondent-plaintiff is claiming her

right as a daughter and seeking half share in the suit

property.

3. The Trial Court having examined the oral and

documentary evidence has answered issue No.4 in the

negative. While answering issue No.4 in the negative in

regard to due execution of the Will, the Trial Court has

meticulously examined the evidence of scribe as well as

contesting witnesses who are examined as DW2 and

DW3. The Trial Court having examined the oral and

documentary evidence on record, has come to the

conclusion that the Will is shrouded with suspicious

circumstances and the preponderant of the Will has not

succeeded in removing all suspicious circumstances. The

Trial Court has found that the present appellant-

defendant is an employee, who is working as a typist in

the office of Assistant Public Prosecutor. PW2, who is

attesting witness was instantly present on the date when

the alleged Will was executed by propositus-Basappa. The

Trial Court having examined the cross-examination of

DW1 has drawn adverse inference against appellant-

defendant in respect of statement made by her that she

was not at all aware of the Will executed by her father in

her favour. The Trial Court was of the view that if really

the appellant-defendant was looking after her father and

was taking care of him, then the Court was of the view

that it was impossible for ailing old-man to travel alone

all the way from Amaravati village to Hungund and

thereafter secure two witnesses and prepare the alleged

Will on a stamp paper, that too without the knowledge of

appellant-defendant. The Trial Court has also come to the

conclusion that the Will is shrouded with suspicious

circumstances having examined the evidence of DW2 and

DW3. DW2 is from Hungund. It has also taken note of the

fact that the appellant-defendant has admitted in her

evidence that her father was not keeping good health. It

is in this background, the Trial Court has come to the

conclusion that the Will has not come into existence in

normal circumstances and therefore, has proceeded to

answer issue No.4 in the negative thereby holding that

the appellant-defendant has failed to prove the due

execution of the Will. The testamentary succession being

negatived by the Court below, the Court below has

proceeded to decree the suit filed by the respondent-

plaintiff and awarded half share in the suit property.

4. The First Appellate Court having independently

assessed the oral and documentary evidence on record

has also taken judicial note of the fact that though the

father of plaintiff and defendant died on 14.01.2010 and

suit was filed on 28.11.2011, the Will was not produced

by the appellant-defendant and she has not taken any

steps to get her name mutated on the basis of Will. It is

in this background, the First Appellate Court has also

drawn adverse inference against the appellant-defendant

and has doubted due execution of the Will in favour of

the appellant-defendant. The First Appellate Court has

also taken note of the fact that the appellant-defendant is

serving as a typist-cum-clerk in the office of Public

Prosecutor at Hungund and therefore, the Will which was

not produced at the earliest point of time by the

appellant-defendant and the fact that she has not

asserted her right on the basis of alleged Will, has come

to the conclusion that the Will is shrouded with suspicious

circumstances.

5. The First Appellate Court has also recorded a

finding of fact that both DW2-attesting witness and DW3-

scribe were unknown to Basappa. The First Appellate

Court was also of the view that the it was impossible for

Basappa, who was aged and ailing could have traveled all

the way to Hungund. The Appellate Court has recorded a

categorical finding that the testator was suffering from

TB, Asthma and was addicted to vices. It is in this

background, the First Appellate Court has also concurred

with the findings and conclusion of the Trial Court and

has negative the contentions and the defence set up by

the appellant-defendant in regard to Will. On these set of

reasons, the First Appellate Court has also proceeded to

dismiss the appeal.

6. Heard the learned counsel appearing for the

appellant-defendant. Perused the judgment under

challenge. Admittedly, the suit property was owned by

the father of appellant-defendant and respondent-

plaintiff. The appellant and respondent are full sisters.

The alleged Will is dated 14.10.2009, whereas testator

died on 14.01.2010, within a span of two and half

months. Coupled with this material aspect, it has come

on record that the testator was not keeping good health

and suffering from TB and Asthma. It is also elicited

during the trial that the testator was addicted to vices.

The nature of dispositions made in the Will has to be

taken along with other circumstances to find out as to

whether there is unimpeachable evidence as to the

testamentary capacity. Both the Courts have adopted a

realistic approach with due regard to conduct of scribe,

attesting witness and conduct of propounder. If

cumulative effect of ocular evidence of legatee, attesting

witness and scribe is examined, both the Courts were

justified in holding that Will is not genuine and

propounder has failed to remove suspicious features.

7. If this clinching evidence on record is taken

into consideration, I am of the view that both the Courts

below were justified in negativing the claim of the

appellant-defendant that her father has bequeathed the

suit property in her favour under a Will dated

14.10.2009. Both the Courts below have concurrently

held that the Will is shrouded with suspicious

circumstances and therefore, not inclined to accept the

claim of the appellant-defendant that she has succeeded

to the suit property based on testamentary succession on

account of her father executing a Will in her favour. This

concurrent findings recorded by both the Courts below

which are based on material on record cannot be

reassessed and revaluated by this Court in an appeal filed

under section 100 of CPC. No substantial question of law

is involved in the present appeal. Accordingly, the appeal

being devoid of merits is hereby dismissed.

8. In view of disposal of the appeals, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

Sd/-

JUDGE YAN