Prakash S/O Ramappa Halemani vs Arun S/O Ramappa Halemani
2022 Latest Caselaw 9289 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

         DATED THIS THE 22ND DAY OF JUNE, 2022

                        BEFORE

         THE HON'BLE MR. JUSTICE E.S. INDIRESH

       REGULAR FIRST APPEAL NO. 811 OF 2006

BETWEEN:

     PRAKASH S/O RAMAPPA HALEMANI
     SINCE DEASED BY HIS LRS

1(A). MANISH
      S/O PRAKASH HALEMANI
      AGE.51 YEARS, OCC. AGRICULTURE,
      R/O NO 35, 1ST MAIN ROAD,
      VENKATESH COLONY,
      HUNNUR, JAMKHANDI-587 119
      DIST:BAGALKOT
2.    SHARAD
      S/O.RAMAPPA HALEMANI
      AGE.56 YEARS, OCC.SERVICE
      R/O."NOOR MANZIL", NAGARKAR COLONY,
      KALAGHATAGI ROAD, DHARWAD 580 006
3.    KISHOR
      S/O.RAMAPPA HALEMANI
      AGE.52 YEARS, OCC.SERVICE
      2ND MAIN, SADASHIV NAGAR
      BELGAUM 590 002

                                            ...APPELLANTS

(BY SRI RAVI S.BALIKAI, ADVOCATE)
                            2




AND:

1.     ARUN S/O RAMAPPA HALEMANI
       AGE.47 YEARS, OCC.SERVICE
       R/O.CTS.NO.10947, 2ND MAIN,
       9TH CROSS, SADASHIV NAGAR
       BELGAUM 590002

2.     SUDHIR S/O RAMAPPA HALEMANI
       AGE.44 YEARS, OCC.BUSINESS
       R/O.CTS.NO.10947, 2ND MAIN,9TH CROSS,
       SADASHIVNAGARBELGAUM 590002

3.     PARVATI, W/O.RAMAPPA HALEMANI
       AGE.67 YEARS,
       SINCE DECEASEDBY HER L.RS

4.     SMT PRAMILA W/O.NINGAPPA GANIGER,
       AGE.41 YEARS, OCC: HOUSEHOLD
       R/O.TELEPHONE QUARTERS, NIPANI 591237
       TQ.CHIKODI, DIST.BELGAUM

5.     SMT PRAVINA, W/O PRAKASH HALEMANI
       AGE 69 YEARS, OCC: HOUSEWIFE
       R/O. NO.35, KEDAR NAGAR,
       MOREWADI, R.K.NAGAR, KARVIR,
       KOLHAPUR-416 013

6.     SMT SHILPA, W/O MAHESH KAGALE,
       AGE: 50 YEARS, OCC:HOUSEWIFE,
       R/O.PLOT NO.22, RANKALA PARISAR,
       COLONY, SUTAR MAL,
       LAKSHTIRTH VASAHAT,
       KOLHAPUR-416 010

7.     SMT VIJAYA, W/O SANJAY VADGAONKAR
       AGE 47 YEARS, OCC: HOUSEWIFE
       R/O C/O.SANJAY VADNAONKAR,
                                 3




       NO.1999, B-WARD, KALAMBA ROAD,
       NEAR SAI TEMPLE, MANGALWAR PETH,
       KOLHAPUR-416 012

8.     SMT YAMINI, W/O SACHIN GAUR
       AGE: 45 YEARS, OCC: HOUSEWIFE
       R/O.C/O.SACHIN GAUR
       NO.J-291, SHIVALIK NAGAR,
       NEAR CHATORI GALI,
       BHEL HARIDWAR-249 403
       UTTRAKHAND

                                                 ...RESPONDENTS

(BY SRI SHARAD V.MAGADUM, ADVOCATE FOR R1 AND R2
     R3 DECEASED
     R4 AND R5 ARE SERVED
     NOTICE TO R6 TO R8 IS HELD SUFFICIENT)

     THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96
OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND
DECREE DATED 21.12.2005 PASSED IN OS NO.5 OF 1996 ON
THE FILE OF THE II ADDITIONAL DISTRICT JUDGE, BELGAUM,
DECREEING THE SUIT FOR ISSUE OF LETTERS OF
ADMINISTRATION.

     IN THIS APPEAL ARGUMENTS BEING HEARD, RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

This Regular First Appeal is filed by defendant Nos.1 to 3,

challenging the judgment and decree dated 21.12.2005 passed

in OS.No.5 of 1996 on the file of II Additional District Judge,

Belgaum, decreeing the suit of the plaintiffs.

2. For the sake of convenience, the parties to this

appeal shall be referred to in terms of their status and ranking

before the trial Court.

3. The relevant facts for adjudication of this appeal are

that, the plaintiffs have filed petition in P&SC No.2 of 1989

before the trial Court under Part II of Section 222 of Indian

Succession Act, 1925, seeking grant of letters of administration

in respect of the Will dated 25.02.1987, executed by Sri

Ramappa Ramalingappa Halemani. The plaint averments are

that, the plaintiffs and the defendants are the children of

Ramappa Ramalingappa Halemani, and Smt Parvathi

(defendant No.4) is the wife of Ramappa Ramalingappa

Halemani. The said Ramappa Ramalingappa Halemani died on

22.02.1989 leaving behind Will dated 25.02.1987. Plaintiffs are

residing in the schedule property. Defendants Nos.1 to 3 are

working as Government Servants and residing separately from

their parent's house and defendants are well placed. Defendant

No.5 is the daughter of Ramappa Ramalingappa Halemani, is

married and settled at Nippani. It is further stated that the

schedule property is the self acquired property of late Ramappa

Ramalingappa Halemani and he was a retired Educational

Officer in Government of Karnataka. It is the case of the

plaintiffs that the said Ramappa Ramalingappa Halemani had

executed a Will in respect of the suit schedule property and

bequeathed the same to the plaintiffs, in the presence of the

witnesses and the said suit schedule property is purchased by

the late Ramappa Ramalingappa Halemani out of his own

income and therefore, as the plaintiffs were taking care of him

during his life time, aforementioned Will was executed by the

testator, bequeathing the same in respect of the plaintiffs and

as such, the plaintiffs have filed suit for grant of letters of

administration in respect of Will executed by their father-

Ramappa Ramalingappa Halemani.

4. After service of summons, defendant Nos.1 and 3 to

5 entered appearance, however, defendant No.1, alone has

filed detailed written statement denying the averments made in

the plaint and same was adopted by other defendants.

Defendant No.2, remained absent and he was placed ex-parte,

however defendant No.4-wife of Ramappa Ramalingappa

Halemani died during the pendency of the proceedings. It is the

specific case of defendant No.1 that, alleged Will dated

25.02.1987 is a created one as the late Ramappa

Ramalingappa Halemani was in the state of unsound mind and

lost rationality of thinking. It is further stated that as the suit

schedule property is the joint family properties of late Ramappa

Ramalingappa Halemani and his legal heirs are entitled for

share in the said property and therefore, defendant No.1

sought for dismissal of the suit. It is further urged that

deceased Ramappa Ramalingappa Halemani was not competent

to execute the Will and therefore, plaintiffs have no locus-standi

to claim their right through testamentary disposition of

property in question, of in the suit. Accordingly, defendants

sought for dismissal of the suit.

5. On the basis of the rival pleadings, the trial Court

has formulated following issues for its consideration:

1. Whether plaintiffs prove that deceased Ramappa has executed a Will dated 25.02.1987 in their favour in respect of schedule property ?

2. Whether plaintiffs prove that deceased Ramappa was in sound disposing state of mind while executing the said Will and it is a free Will of the testator ?

3. Whether defendants prove that suit property is not the self-acquired property of deceased Ramappa, but it is a joint family properties ?

4. Whether valuation of the schedule property and Court fee paid thereon is not proper ?

5. Whether plaintiffs are entitled to the reliefs as prayed for ?

6. What decree or order ?

6. In order to establish their case, plaintiffs have

examined two witnesses as PW1 and PW2 and got marked 17

documents as Exs.P1 to P17. On the other hand, defendants

examined two witnesses as DW1 and DW2 and produced 6

documents as Exs.D1 to D6.

7. The trial Court, after considering the material on

record, by its judgment and decree dated 21.12.2005, decreed

the suit of the plaintiffs and being aggrieved by the same, the

defendant Nos.1 to 3 have preferred this Regular First Appeal

under Section 96 of Code of Civil Procedure

8. I have heard Sri Ravi S. Balikai, learned counsel for

the appellants and Sri Sharad V.Magadum, learned counsel

appearing for the respondent Nos.1 and 2.

9. Sri Ravi S.Balikai, learned counsel for the

appellants disputed the existence of the Will dated 25.02.1987

and argued that the propounder of the Will have not proved the

validity of the Will as the testator-late Ramappa Ramalingappa

Halemani was bed ridden and was suffering from paralysis and

also, he was physically and mentally incapacitated to execute

the Will and therefore, he contended that said aspect has not

been considered by the trial Court. He further contended that

excluding the three sons and daughter from the Will, there are

no reasons assigned in the Will and therefore, the suit filed by

the plaintiffs ought to have been dismissed by the trial Court.

Emphasizing on the letters produced at Exs.D1 to D4 and D6,

Sri Ravi S.Balikai, learned counsel appearing for the appellants

submitted that the said letters would indicate that the deceased

Ramappa Ramalingappa Halemani, had no confidence with the

plaintiffs and was under the impression that plaintiffs were

irresponsible persons and therefore, he submitted that the said

aspect has been over-looked by the trial Court. He further

contended that the suit schedule property is not the self

acquired property of late Ramappa Ramalingappa Halemani and

the said property was acquired out of the joint family income

and therefore, all the children of late Ramappa Ramalingappa

Halemani are entitled for share in the suit schedule property.

To buttress is arguments learned counsel appearing for the

appellant, places reliance of judgment of the Hon'ble Apex

Court in the case of B.Venkatamuni v. Ayodya Rama singh

and others reported in AIR 2007 SC 311 and the Division

Bench of this Court in the case of W.E. Sambhandam vs.

W.E.Satyanarayana and others reported in ILR 2007 KAR

1484. Hence, he sought for interference in this appeal.

10. Per contra, Sri Sharad V. Magadum, learned

counsel for the respondent Nos.1 and 2 submits that the finding

recorded by the trial Court is based on the oral and

documentary evidence on record and therefore, he argued that,

the impugned judgment and decree passed by the trial Court

cannot be disturbed in this appeal.

11. Having heard the learned counsel appearing for

both the parties and on careful perusal of the material on

record, the points for determination in this appeal are as

follows:

i) Whether the Will dated 25.02.1987 executed by the testator late Ramappa Ramalingappa Halemani (Ex.P6) is valid and legal ?

ii) Whether the judgment and decree dated 21.12.2005 in OS No. 5 of 1996 on the file of the trial Court is just and proper ?

iii) What order ?

12. On careful perusal of the finding recorded by the

trial Court, the undisputed facts of the case are that, Ramappa

Ramalingappa Halemani had six children. Plaintiff Nos.1 and 2

are the 4th and 5th sons and defendant Nos.1 to 3 and 5 are the

remaining children of late Ramappa Ramalingappa Halemani.

Defendant No.4-Parvati is the wife of Ramappa Ramalingappa

Halemani and she died during the pendency of the proceedings

and the legal representatives were brought on record. It is also

forthcoming from the records that the plaintiffs have filed P&SC

No.2 of 1989, seeking grant of letters of administration with

regard to Will in question and pursuant to the objection raised

by the defendants, the petition was converted into original suit.

It is the case of the plaintiffs that plaintiff No.1 was residing in

the suit schedule property along with his father and plaintiff

No.2 was the student at the relevant point of time. Defendant

Nos.1 to 3 are Government servants and were residing

separately from their parents. The defendant No.4-mother of

the plaintiffs and defendant Nos.1 to 3 and 5, residing along

with her husband Ramappa Ramalingappa Halemani, with the

plaintiffs. Defendant No.5 is the married daughter and residing

at Nippani at matrimonial home. It is also forthcoming from the

records that the late Ramappa Ramalingappa Halemani was a

retired Educational Officer in Government of Karnataka and

died on 22.02.1989 (Ex.P5-Death certificate), leaving behind

the Will (Ex.P6) dated 25.02.1987. It is the case of the

plaintiffs that the schedule property referred to in the Will is the

self acquired property of late Ramappa Ramalingappa Halemani

and he had given shares to all the children however, he

bequeathed suit schedule property in favor of plaintiffs as the

plaintiffs have taken care of late Ramappa Ramalingappa

Halemani during his life time as he was suffering from ill-

health. On the other hand, it is the case of the defendants that

alleged Will dated 25.02.1987 is concocted, and therefore,

disputed the execution and validity of the same. In order to

prove the Will, the declaration of the law by the Hon'ble Apex

Court in the case of H VENKATACHALA IYENGAR v. B.N.

THIMMAJAMMA AND OTHERS reported in AIR 1959 SC 443

is relevant at this juncture. The Hon'ble Supreme Court has

laid down the guidelines for validating testamentary disposition.

It has been held thus:

"What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject.

The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we

must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law.

Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested

by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the, prudent mind in such matters."

Further, at paragraph 22 of the said judgment the Hon'ble Supreme Court has observed thus:

"22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that it there are any suspicious circumstances surrounding the execution of the will the propounder

must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties."

13. With the backdrop of the law enunciated by the

Hon'ble Apex Court, I have carefully examined the Will (Ex.P6)

dated 25.02.1987 executed by late Ramappa Ramalingappa

Halemani. Perusal of the evidence of PW1 would indicate that

the said Will was executed by late Ramappa Ramalingappa

Halemani in favour of the plaintiffs on account of their service

rendered during his ill-health. The plaintiffs have examined one

of the witness to the Will-Shiddagouda Goudappa Asangi as

PW2. He deposed about the execution of the Will by late

Ramappa Ramalingappa Halemani in his presence and is a

witness to the said document (Ex.P6). He further deposed that

the late Ramappa Ramalingappa Halemani was capable of

understanding the contents of the Will and same was read over

to him by the scribe-Patil, and during the said period, one

Chitagi, the close associate of the testator and an advocate by

profession, was present. PW2 further deposed that the late

Ramappa Ramalingappa Halemani was in sound disposing of

mind and capable of understanding the consequence of

execution of the Will and therefore, the propounder of the Will

has proved the execution of the Will as required under law and

same is within the purview of the law declared by the Hon'ble

Apex Court and in this regard, finding recorded by the trial

Court on Issues Nos.1 and 2 is just and proper and does not

call for interference as the schedule property bequeathed by

late Ramappa Ramalingappa Halemani in favor of plaintiffs is

his self acquired property and purchased from his own earnings

on 14.07.1961 (Ex.P1), as the defendants fail to prove that the

said property was purchased through the income derived from

the joint family nucleus and therefore, the argument advanced

by the appellants cannot be accepted on this aspect. I have

also carefully re-appreciated the evidence of DW1, however, on

examination of the same, defendants fail to prove that the

schedule property was purchased by the testator through the

income derived from the joint family nucleus and no iota of

evidence was produced by the defendants to prove that, they

have contributed towards the same.

14. Nextly, Sri Ravi S. Balikai, learned counsel

appearing for the appellants invited the attention of the court to

the letters addressed by the late Ramappa Ramalingappa

Halemani to defendant No.1 as per Exs.D1 to D4 and D6

relating to the irresponsibility of the plaintiffs to take care of

the family needs. However, the same cannot be a basis for

disputing the Will as the said defendant No.1 was the first son

of late Ramappa Ramalingappa Halemani and was employed in

Government services and staying away from his father-

Ramappa Ramalingappa Halemani. It could be inferred that the

testator has addressed those letters to defendant No.1 to

express his concern that the plaintiffs have to be given strength

to lead their life independently and, therefore, same would

reflect that the plaintiffs have shown love and affection to their

father during his ill-health and it is also forthcoming from the

evidence on record that the late Ramappa Ramalingappa

Halemani was paralytic patient and therefore, the reasons

assigned by late Ramappa Ramalingappa Halemani in the Will

dated 25.02.1987 as per Ex.P6, to bequeath the suit schedule

property in respect of the plaintiffs is just and proper. The

plaintiffs have examined PW2-witness to the said Will to prove

due execution of the Will as required under Section 63 and 67

of the Indian Evidence Act. Though the learned counsel

appearing for the appellant argued that excluding the other

legal representatives while bequeathing the property to the

plaintiffs is contrary to law as no reasons assigned and in this

regard, it is well established principle in law that the deprivation

of the share by a testator through Will itself is not a sole factor

which would lead to the conclusion that there exist suspicious

circumstances (See. AIR 2008 SC 300). In the present case,

testator was living with the plaintiffs during his last days and

plaintiffs were taking care of his health, which is forthcoming in

the letters addressed to defendant No.1 and the contents of the

Will and that apart, defendant Nos.1 to 3 were Government

servants and the plaintiffs are not settled yet in the life and

that could be the reasons for bequeathing the suit schedule

property in favour of plaintiffs excluding the defendants and

therefore, the plaintiffs have removed the suspicious

circumstances, being propounder of the Will, and therefore,

the judgments referred to by the learned counsel appearing for

the appellant in B.Venkatamuni supra, is not applicable to the

facts on record. Accordingly, impugned judgment and decree

passed by the trial Court is based on the oral and documentary

evidence on record and same is in accordance with the law, as

declared by the Hon'ble Apex Court referred to above and the

plaintiffs, being propounder of the Will have proved the due

execution of the Will (Ex.P6) dated 25.02.1987 by late

Ramappa Ramalingappa Halemani and therefore, I am of the

view that, the there is no perversity or illegality in the

impugned judgment and decree passed by the trial Court and

accordingly, the points for consideration made above favor the

plaintiffs and the appellants herein have not made out a case

for interference with the impugned judgment and decree

passed by the trial Court as the plaintiffs, being propounder of

the Will dated 25.02.1987 as per Ex.P6 has been proved by the

plaintiffs beyond the suspicious circumstances and for the

reasons stated above, the impugned judgment and decree is to

be confirmed. In that view of the matter, I proceed to pass the

following:

ORDER

i) The Regular First appeal filed by defendants/appellants is dismissed.

ii) Judgment and decree dated 21.12.2002 passed by the II Additional District Judge, Belagavi in OS No.5 of 1996 is confirmed.

Sd/-

JUDGE

SB