Karnataka High Court
Sri Bassappa S/O Yenkappa Meti vs Smt Laxmawwa W/O Irappa Gaddi on 9 March, 2022
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 9 t h DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
R.F.A. NO.3030/2010 (P & SC)
BETWEEN
SRI.BASSAPPA S/O. YENKAPPA METI ,
AGED ABOUT 32 YEARS,
R/O. SIRUR, TELBURGA TALUK ,
KOPPAL DISTRICT.
...APPELLANTS
(BY SRI. SRIHARSH A. NEELOPANT, ADV.)
AND
1. SMT.LAXMAWWA W/O. IRAPPA GADDI,
AGED ABOUT MAJOR 67 YEARS,
OCC. HOUSEHOLD,
R/O. SIRUR, YELBURGA TALUK ,
KOPPAL DISTRICT 582103.
2. SMT. IRAWWA W/O. BALAPPA GADDI,
MAJOR, OCC. HOUSEHOLD,
R/O. SIRUR, YELBURGA TALUK ,
KOPPAL DISTRICT 582103.
3. ALL CONCERNED.
...RESPONDENTS
(BY SRI.SABEEL AHMED, ADV. FOR
SRI.A.S.PATIL, ADV.)
THIS RFA IS FILED UNDER SECTI ON 96 READ WI TH
ORDER 41 RULES 1 AND 2 OF CPC AGAINST THE JUDGMENT
AND DECREE DAT ED 10.06.2009 PASSED IN O.S. NO.01/2006
ON THE FILE OF THE DISTRICT JUDGE, KOPPAL, DI SMISSING
THE SUIT FILED FOR PROBAT E PROCEEDINGS.
THIS RFA COMING ON FOR FINAL HEARING THIS DAY,
THE COURT , DELIVERED THE FOLLOWING:
2
JUDGMENT
Challenging the judgment and decree dated
10.06.2009 passed by District Judge, Koppal in O.S.
No.1/2006, this appeal is filed.
2. Appellant herein was plaintiff in suit while
respondents herein were defendants respectively.
3. Appellant herein had filed a petition under
Section 276 of the Indian Succession Act, 1925 seeking
for grant of probate in respect of registered Will dated
03.06.1997 executed by Irawwa, W/o. Bagappa Gaddi
bequeathing an extent of 8 acres 27 guntas of land in Sy.
No.150/A situated at Sirur Village, Yelburga Taluk in
favour of appellant herein.
4. Upon citation, respondents herein entered
appearance and opposed petition. Petition was converted
into a suit. Respondents herein filed written statement
stating that boundaries of demised property were not
correctly mentioned and respondents No.1 and 2 were
legal heirs of testator and stated that respondents had
been taking care of testator and Will was executed when
she was not in sound mind by yielding to pressure of
plaintiff.
5. Based on pleadings, trial Court framed following
issues:
1. Whether petitioner proves that
Smt.Irawwa w/o Bagappa Gaddi
has executed will dated 03-6-1997?
2. If so, whether petitioner further
proves that at the execution the
testator was in sound disposing
state of mind?
3. Whether petitioner is entitled for
grant of probate?
4. What order?
6. Plaintiff examined himself as PW.1. Attestors of
the Will namely Hanumappa Ujjappa Yadiyapur and
Hanumappa Kanakappa Shirur were examined as PWs.2
and 3. Exhibits P.1 and P.2 were marked. Thereafter,
defendant No.2 was examined as DW.1. Another witness
Devappa Bharamappa Shirur was examined as DW.2.
Exhibits D.1 to D.10 were marked.
7. On consideration, trial Court answered issues in
negative and dismissed the suit. Aggrieved thereby,
plaintiff is in appeal.
8. Sri. Shriharsh A. Neelopant, learned counsel for
appellant submitted that Will in question was a registered
Will. The original registered Will was produced before
Court. Plaintiff had also examined attestors to Will, who in
unequivocal terms deposed that testator had signed Will
in their presence and therefore requirement of Section 68
of the Indian Evidence Act, 1872 were complied. However,
trial Court on a perverse appreciation of evidence and on
capricious reasons dismissed suit. It was also submitted
that judgment passed by trial Court was cryptic without
appreciation of evidence. Learned counsel submitted that
trial Court extracted only cross-examination portion of
PWs.2 and 3 to come to conclusion that execution of Will
was not established. Learned counsel submitted that both
PWs.2 and 3 had deposed that they had seen testator sign
the Will after it was written as per her instructions.
During cross-examination, no suggestion is made to
dispute said assertion. Though there were minor
discrepancies in deposition of PWs.2 and 3, the same were
not material to constitute suspicious circumstances.
9. Learned counsel also drew attention of this
Court to one of reasons assigned by trial Court that
plaintiff was claiming that property as bequeathed to him
by testator was not entitled for grant of probate to submit
that very purpose of petition was misunderstood by trial
Court.
10. On the other hand, Sri.Sabeel Ahmed, learned
counsel appearing for Sri.A.S.Patil, learned counsel for
respondents submitted that trial Court had noted
contradiction between deposition of PWs.2 and 3 -
attestors. While PW.2 stated that Will was written by
scribe outside Sub-Registrar's office and after execution
and attestation, testators went inside Sub-Registrar's
Office; PW.3 stated that Will was written inside Sub-
Registrar's office and was executed there. This was one of
discrepancies which would cast doubt about place of
execution of Will. Learned counsel further submitted that
while PW.2 stated that time of writing of Will was 12:00
p.m. to 01.00 p.m., PW.3 stated the time was between
11:00 a.m. to 12:00 p.m.
11. Learned counsel further submitted there was
discrepancy even in mentioning age of testator. While
PW.2 stated that age of testator was 40 years, PW.3
stated that her age was 60 years. It was submitted that
these circumstances sufficiently justified conclusion
arrived at by trial Court and sought dismissal of appeal.
12. From above submission, it is undisputed fact
that Smt.Irawwa, the testator, was owner of demised land
measuring 8 acres 27 guntas of Sy. No.150/A of Sirur
Village, Yelburga Taluk. While plaintiff contends that he
was taking care of Irawwa and out of love and affection
she bequeathed property in his favour under Ex.P.2 -
registered Will; defendants oppose said claim. The trial
Court dismissed suit. Plaintiff is in appeal against said
finding. Therefore, only point that arises for consideration
is:
"Whether plaintiff will establishes that
the registered Will dated 03.06.1997 Ex.P2 is
executed in accordance with law and whether
trial Court is justified in dismissing the suit?"
13. The settled principles of law regarding claims
based on Will are that the propounder is required to
produce the same and examine atleast one of the
attesting witnesses to the Will to establish due execution
and attestation. In case of registered Will, presumption is
to a greater degree. (Refer Rani Purnima Devi Vs.
Khagendra Narayan Dev reported in AIR 1962
Supreme Court 567).
14. Admittedly, suit claim is based on registered
Will Ex.P-2. As per Section 63 of the Indian Evidence Act,
1872, propounder is required to show that the Will was
signed by the testator, that he was at the relevant time in
a sound disposing mind, that he understood the nature
and effect of the dispositions, that he put his signature to
the testament of his own free Will and that he has signed
it in the presence of two witnesses who attested it in his
presence and in the presence of each other. Section 68 of
the Act mandates that the propounder to examine any one
of the attestors to establish due execution of Will. In the
instance case, plaintiff has examined both attestors as
PWs.2 and 3 respectively. PW.2 deposed that he is
acquainted with plaintiff and defendants that Smt.Irawwa
W/o. Bagappa Gaddi had executed a registered Will dated
03.06.1997 in favour of plaintiff Basappa. He alongwith
Hanumappa S/o. Kanakappa Boodagumpi were witnesses
to execution of Will. That testator Smt.Irawwa affixed her
left hand thumb impression on Will in front of them and at
the time of executing Will, she was in sound mind and
body and was fully fit to take decision about her welfare
and that plaintiff was taking care of her. The said witness
is cross-examined. His cross-examination is directed
towards eliciting subject matter of Will, date of Will, time
of execution of Will and even age of testator etc. No
suggestions were made disputing attestor witnessing due
execution of Will.
15. PW.3 is other attestor. In his examination-in-
chief, he replicates assertion of PW.2. In his cross-
examination, however, it is elicited that Will was executed
inside the Sub-Registrar's office. It is also elicited that he
is illiterate and does not know contents of Will, that Will
was executed between 11:00 a.m. and 12:00 p.m. PW.3
further states that at the time of execution of Will, age of
Irawwa was 60 years.
16. Though there is discrepancy between deposition
of PWs.2 and 3 regarding age of testator, whether 40
years as stated by PW.2 or 60 years as stated by PW.3 or
whether Will was executed between 11:00 a.m. and 12:00
p.m. as stated by PW.2 or between 12:00 p.m. and 01:00
p.m. as stated by PW.3 and whether Will was executed
outside Sub-Registrar's office as stated by PW.2 or inside
Sub-Registrar's office as stated by PW.3. The same would
not be material in establishing suspicious circumstances
shrouding the Will. The requirements of Section 68 of the
Act would be met, if one of the witnesses deposes that
testator signed the Will in his presence and he affixed his
signature in attesting of the same. The above
discrepancies are minor in nature attributable to illiteracy
of witness. The trial Court has misdirected itself in
extracting only cross-examination portion of depositions
of PWs.2 and 3 and based on its findings only on cross-
examination portion arrived at its conclusion. This would
be a material irregularity. Further it has also lost site of
the fact that there was no suggestion put to PWs.2 and 3
disputing attestation. When attestation is not disputed
and Will being registered, merely on ground of some
discrepancy regarding age of testator or exact time or
place of execution, would not constitute suspicious
circumstances.
17. Indeed, parties in the instant case are Hindus
and there would be no need to obtain probate of Will but
the reason and conclusion of Trial Court as in para 11 to
deny grant of probate to plaintiff would be capricious.
18. In addition to oral evidence, plaintiff produced
following documentary evidence. Copy of death extract of
testator is produced as Ex.P1. The registered Will is
produced as Ex.P2. In Ex.P2, testator stated that the
demised property was inherited by her late husband, from
his ancestors. That she does not have any children and
after death of her husband about 22 years ago, she is
being taken care of by plaintiff even during her old age.
She further stated that she believed that plaintiff would
continue to take care of testator. On the said
consideration, she bequeathed suit property in favour of
plaintiff.
19. The 2 n d defendant is examined as DW.1. She is
the elder sister of defendant No.1. She deposed that the
plaintiff is not concerned with the suit properties in any
manner. She stated that the testator was her aunt. That
Balappa, father of Bagappa (husband of the testator) and
Kanakappa were brothers and children of Shirurappa. As
per above, she claimed to be descendant of testator. She
denied execution of Will by testator. She stated that the
demised property did not lay in a single block but was
split in two strips but it is mentioned as a single block in
the Will and therefore, the Will was fabricated. She also
claimed to have taken care of Iramma and her husband
during their life time and performed their last rites. In her
cross-examination, it is elicited that Irawwa's husband
Bagappa succeeded to an extent of 8 acres 27 guntas from
his father.
20. One Sri.Devappa Dasar is examined as DW.2.
He deposed that he is acquainted with plaintiff and
defendants. He stated that testator was aunt of defendant
and died on 28.05.2001 while in the care and custody of
defendant. He also deposed that the demise land was
under cultivation of defendants even during the life time
of the testator and continued as such. He also stated that
demise land was comprised in two strips. In his cross-
examination, he admits that he is unaware of the survey
number of the land, that he has not seen the documents
pertaining to the land and that he is not aware of Will
executed by her in favour of plaintiff. He denies
suggestion that testator died in the house of the plaintiff.
21. Defendant also led documentary evidence.
Exs.D.1 and D.2 are the certified copies of order sheet
and plaint in O.S. No.4/2005. Ex.D.3 is certified copy of
the tonch map. Ex.D.4 is Form No.10, while Exs.D.5, D.6
and D.7 are copies of record of rights. Ex.D.8 is the order
passed by Deputy Commissioner in the revenue appeal.
Ex.D.9 is the order of Tahasildar, Yalburga while Ex.D.10
is death extract of Shirurappa.
22. For the foregoing reasons, it is held that
plaintiff has proved due execution of Will dated
03.06.1997 executed by Smt.Irawwa W/o Basappa Gaddi
in his favour. Hence, point for consideration has to be
answered in favour of plaintiff. In view of the above, I
pass the following:
ORDER
Appeal is allowed.
The impugned judgment and decree dated
10.06.2009 passed by trial Court is set aside, O.S.
No.1/2006 is decreed, plaintiff-appellant is granted
probate in respect of Will (Ex.P.2) dated 03.06.1997 in
respect of land bearing Sy.No.150/A measuring 8 acres 27
guntas situated at Shirur village, Yelburga taluk.
Registry to draw decree after payment of requisite
Court-fee by appellant.
Sd/-
JUDGE
BVK /R sh
