Karnataka High Court

Smt R Rajamani vs Sri Ramaswamy on 18 December, 2023

Author: V Srishananda

Bench: V Srishananda

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                                                     RFA No. 941 of 2009




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                     DATED THIS THE 18TH DAY OF DECEMBER, 2023
                                      BEFORE
                       THE HON'BLE MR JUSTICE V SRISHANANDA
                   REGULAR FIRST APPEAL NO. 941 OF 2009 (PAR/POS)

              BETWEEN:

              SMT R RAJAMANI
              W/O SRI M. RAJU
              AGED ABOUT 53 YEARS
              NO.692, 8TH MAIN, BHUVANESHWARINAGAR
              DASARAHALLI, WARD NO.5
              BANGALORE - 560 057.
                                                              ...APPELLANT
              (BY SRI. L S CHIKKANNAGOUDAR, ADVOCATE) (P/H)

              AND:

              1.   SRI. RAMASWAMY
Digitally          S/O LATE SRI. KUNJAN
signed by R        AGED ABOUT 78 YEARS
MANJUNATHA
Location:          SINCE DEAD, REPRESENTED BY HIS
HIGH COURT         LR'S - THE APPELLANT AND
OF
KARNATAKA          RESPONDENT NO.2 HEREIN

                   (AMENDED AS PER ORDER DATED 17-11-2015)

              2.   SRI. NATARAJ
                   S/O SRI. RAMASWAMY
                   AGED ABOUT 49 YEARS
                   NO.1665, T. DASARAHALLI
                   MAIN ROAD, T. DASARAHALLI
                   BANGALORE - 560 057.
                                                             ...RESPONDENTS
              (BY SRI. MANJUNATH HEGDE, ADVOCATE FOR
                  SRI. T, SESHAGIRI RAO, ADVOCATE FOR C/R2) (P/H)
              (R1 - DECEASED, REP. BY APPELLANT AND R2 ARE LR'S OF
              DECEASED R1, V/O DATED 17/11/2015)

                    THIS RFA IS FILED U/S 41, RULES 1 AND 2 READ WITH,
              SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED
              06.07.2009 ANNEXURE "A" PASSED IN O.S.NO.10038/2006 BY THE
              XVIII ADDITIONAL CITY CIVIL JUDGE (CCH NO.10), BANGALORE
              CITY AND ETC.,
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                                           RFA No. 941 of 2009




    THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                             JUDGMENT

The present appeal is filed challenging the validity of the

judgment and decree passed in O.S.No.10038/2006 dated

06.07.2009 on the file of the XVIII Additional City Civil Judge

Bangalore City (CCH No.10).

2. The parties are referred to as plaintiff and defendant, for

the sake of the convenience, as per their original ranking in the

court below.

3. The facts in brief which are utmost necessary for the

disposal of the present appeal are as under:-

A suit came to be filed by the plaintiff for partition and

the separate possession against the defendants in respect of

the property which is sites bearing Nos. 14 and 15, carved

out of the lands in Sy.Nos.10/2A, situated at T.Dasarahalli

village, Yeshwanathpura Hobli, Bangalore North Taluk,

presently called as Kaliyamma temple road, Kalahasti nagar,

T.Dasarahalli, Bangalore -560057. Both aforesaid sites

together measures East to West 30 Feet and North to South 80

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Feet (each site measuring 30 Feet x 40 Feet) with the

buildings and the constructions existing thereon bounded on

East by Anthony's property, West side by Doreswamy's

property, North by Road and South by Kaliyamma Temple Road

(hereinafter referred to as 'suit property').

4. In plaint, it is contended that the suit property belonged

to the mother of the Plaintiff namely Smt.Ammanniamma.

According to the plaintiff, she died intestate leaving behind the

plaintiff and defendants as successors. It is further contended

that the Ammanniamma got the property at a partition from

her mother and her uncle on 14.01.1987.

5. The mother of the Plaintiff was given the said suit

schedule properties in the said partition. Plaintiff is the married

daughter and taking undue advantage of the old age of

defendant No.1, defendant No.2 has started putting up a

structure over the suit property and therefore the suit came to

be filed in the O.S.No.2825/2006 by the husband of the plaintiff

against the second defendant. In the said suit, the second

defendant filed written statement disclosing that there is a Will

executed by the mother of the plaintiff on 01.12.1997.

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6. The mother of the plaintiff died on 11.02.1998. Second

defendant concocted the said Will for the purpose of claiming

the suit property in toto denying 1/3rd share of the plaintiff

necessitating the plaintiff to file the suit.

7. Upon the service of the suit summons, defendants

entered appearance and contended that the suit properties

were no doubt properties that had been fallen to the share of

Ammanniamma, who is the mother of the 2nd defendant and

wife of the 1st defendant at a partition.

8. It is also contended that the property that was given to

Ammanniamma through her parents' side. As such, suit

property was treated as absolute property of Ammanniamma as

Sthridhana property. Therefore she had every right to deal with

the suit property as per her own will and wish.

9. It is further contended that during the lifetime of

Ammanniamma, she executed a registered Will on 01.12.1997

bequeathing the suit property in favour to the second

defendant exclusively and therefore, the suit of the plaintiff was

sought to be dismissed.

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10. Learned Trial Judge on considering the rival contentions

of the parties, raised the following issues:-

"1) Whether defendants prove that deceased

Ammaniamma has executed a will dated 1.12.1997 bequeathing the suit schedule property to the 2nd defendant?

2) Whether plaintiff is entitle for share in the suit schedule property? If so, what is the quantum of her share?

3) To what relief or order the parties entitled to ?"

11. In the order to prove the case of the plaintiff, plaintiff got

examined herself as PW.1. She relied on four documents which

were exhibited and marked as Exhibits P1 to P4, comprising of

death certificate, certified copy of written statement filed by the

second defendant in O.S.No.2825/2006, certified copy of

affidavit filed by the second defendant in the said suit and

certified copy of Commissioner's report in the said suit.

12. As against the said evidence placed on record by the

plaintiff, defendant No.2 - Nataraj got examined himself as

DW.1 and two attesting witnesses to the Will by name

Smt.Thulaseemani as DW.2 and Sri Lakkanna as DW.3. The

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documentary evidence that was placed on record on behalf of

the defendants comprised of Will, Death certificate, Assessment

Water bills and bills regarding construction of building, in all

marked as Exhibits D1 to D54.

13. On conclusion of recording of the evidence, learned Trial

Judge heard the parties in detail and on cumulative

consideration of the oral and documentary evidence placed on

record by the parties, learned Trial Judge dismissed the suit of

the plaintiff holding that the second defendant is successful in

proving the Ex.D1 - Will whereby the second defendant

became the absolute owner of the suit property.

14. Being aggrieved by the same, the unsuccessful plaintiff

has filed the present appeal on the following grounds:-

"GROUNDS

• The Judgement and Decree dt.6.7.2009 passed in O.S.No. 10038/2006 by the learned Judge of the Trial Court which are impeached herein are illegal, unjust and arbitrary besides being most unequitable.

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• The learned Judge of the Trial Court has committed gross error of law in not noticing that the suit schedule property is the ancestral property of Hindu Undivided Joint Family property of her father and the same having been allotted to her in the partition that took place on 14.1.1987. It was her separate property and though the same was streedhan but at the same time having the character of ancestral joint family property which has been given to her in the family partition, she had no absolute power to deal with the same and to bequeath entirely to Respondent No.2 since the appellant and both the respondents being class-1 heirs and each got 1/3nd share in the same and as such she could have bequeathed to the extent of 1/4 undivided share by the partition that took place during her life time in respect of the said premises. Therefore the WILL stated to have been executed by her aged mother bequeathing the entire suit schedule property is illegal, unjust and arbitrary and the same is not binding to the extent of the appellant's 1/3rd share.

• The learned Judge of the Trial Court has committed gross error of law in holding that Respondent No.2 has proved the WILL which reasoning of the learned Judge of the Trial Court is opposed to the provisions of Section 68 of Indian Evidence Act, 1872.

• The learned Judge of the Trial Court has committed gross error in not noticing the surrounding circumstances under which the alleged

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WILL stated to have been executed and in that the learned Judge of the Trial Court has failed to note that the date of execution of WILL is 1.12.1997 and the date of death of the testator is 11.2.1998 and she was 60 years old at the time of her death and she was not in a sound mind and disposing state of mind and was totally bed-ridden due to various ailments. The learned Judge of the Trial Court has committed gross error in blindly and mechanically accepting the evidence of DW2 and DW3 who claims to be the attesting witnesses according to whom it was stated by them that late Smt. Ammanniamma signed the WILL and whereas admittedly the alleged WILL discloses the LTM and that the learned Judge of the Trial Court has failed to note that the sign and giving the LTM and further the reading of the entire evidence and DW2 and DW3 discloses that they have not attested the WILL in the presence of each other. Under those circumstances the learned Judge of the Trial Court ought to have held that the WILL has not been proved. Non appreciation of the evidence in this perspective has resulted in passing the impugned Judgment and Decree and consequently resulting in great miscarriage of justice.

• The reasonings assigned and finding returned are based on conjunctures and surmises • The impugned Judgement and Decree of the Trial Court is otherwise opposed to law, facts and circumstances of the case"

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15. Sri L.S.Chikkannagoudar, learned counsel for the

appellant, reiterating the grounds urged in the appeal

memorandum, vehemently contended that the learned Trial

Judge has failed to appreciate that Ammanniamma has not

executed the Will in favour of the second defendant and the

same is concocted by the second defendant in active collusion

with DWs.2 and 3 only with an intention to deny the share of

the plaintiff resulting in miscarriage of justice and sought for

allowing the appeal.

16. He further contended that Ammanniamma did not

possess any right, title or interest to execute the Will in favour

of the second defendant thereby bequeathing the entire

property in favour of the second defendant and exclusion of the

kith and kin has resulted in suspicious circumstance in

appreciating the Will propounded by the second defendant.

17. He also contended that the attesting witnesses have not

properly deposed before the Court to prove the Will, as is

contemplated under Section 68 of the Evidence Act and Section

63 of the Indian Succession Act and this aspect of the matter

has not been properly appreciated by the learned Trial Judge

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while dismissing the suit of the plaintiff and sought for allowing

the appeal.

18. Per contra, Sri. Manjunath Hedge, learned counsel

representing the contesting respondent No.2, contended that

admittedly the suit property was acquired by

Smt.Ammanniamma at a partition from her parents' side.

Therefore, she enjoyed the suit property as absolute owner as

per Section 14 of the Hindu Succession Act. As such,

Smt.Ammanniamma had every right to bequeath the property

in favour of the second defendant.

19. He further contended that Ex.D1 - Will has been proved

by the propounder by placing necessary oral and documentary

evidence on record. He pointed out that the oral testimony of

DWs.2 and 3 amply establish that all required legal procedures

have been followed while drafting the Will and by proving the

same before the Court which has been rightly appreciated by

the learned Trial Judge in the impugned judgment and sought

for dismissal of the appeal with cost.

20. In view of the rival contentions of the parties, this Court

perused the material on record meticulously. On such perusal

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of the material on record, the following points would arise for

consideration:-

(i) Whether the plaintiff / respondent No.1 has

successfully established that she is entitled to 1/3rd

share in the suit property as heir of

Smt.Ammanniamma?

(ii) Whether the material on record especially the Will

marked at Ex.D1 is properly appreciated by the

learned Trial Judge and dismissal of the suit is thus

just and proper?

(iii) Whether the impugned judgment is suffering from

any legal infirmity or perversity?

(iv) What Order?

Regarding Point Nos.(i) to (iii):

21. In the case on hand, there is no dispute as to the

relationship of the parties. Admittedly, even according to the

plaint averments, Ammanniamma got the suit property at a

partition in her parents' family. The suit property had fallen to

the share of Ammanniamma in the said partition and she

enjoyed the suit property as absolute owner by exercising her

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right, title and interest over the suit property as is

contemplated under Section 14 of the Hindu Succession Act.

Therefore, she had every right and competence to dispose of

the suit property according to her will and wish.

22. The plaint averments would go to show that

Ammanniamma died intestate. However, again in the plaint

averments, it is mentioned that when the second defendant

was putting up the construction, the husband of the plaintiff

filed a suit in O.S.No.2825/2006 wherein the written statement

filed by the second defendant as a defendant in the said suit

disclosed execution of Will by Ammanniamma on 01.12.1997.

If plaintiff came to know about the execution of the Will as per

the written statement in O.S.No.2825/2006, plaintiff should not

have contended that Ammanniamma died intestate. Be that as

it may. The fact remains that in the present suit also, the

written statement of the defendants contain an averment with

regard to Ammanniamma executing the Will in favour of the

second defendant bequeathing the entire suit property in

favour of the second defendant. Therefore, the case now

surrounds about the proof of Ex.D1 - Will executed by by

Ammanniamma.

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23. In order to prove the Ex.D1, the second defendant as

propounder of the Ex.D1 got examined himself as DW.1. He

has also examined two of the attesting witnesses to Will by

name Smt. Thulasimani and Sri Lakkanna as DWs.2 and 3.

24. The oral evidence placed on record by the propounder of

the Will - DW.1 and the attesting witnesses - DWs.2 and 3

would clearly show that Ammanniamma had been to the Sub-

Registrar's Office and had executed the registered Will in favour

of DW.1 on 01.12.1997. The material on record, especially the

cross-examination of DWs.2 and 3, did not yield any material

whereby the Court can deduce or infer that Ex.D1 was

surrounded by suspicious circumstances.

25. Following the dictum of the Hon'ble Apex Court in the

case of H Venkatachala Iyengar v. B.N.Thimmajamma1,

the Will is to be held proved if it passes the five important test

which is celebrately termed as 'Panchapadi'. Relevant portion of

the said judgment is culled out here as under for ready

reference,

"18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills

AIR 1959 SC 443

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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

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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.

19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an

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element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated."

26. The Trial Judge has discussed in detail about the said

proof placed in record in the impugned judgment in paragraph

No.8. Learned Trial Judge while so discussing the legal position,

has bestowed his attention on the number of judgments

relied on by the parties. The legal principles enunciated by the

Hon'ble Apex Court and this Court has been rightly applied by

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the learned Trial Judge while appreciating the proof of the Will,

marked at Ex.D1.

27. Even after re-appreciation of the material evidence on

record, this Court is satisfied that the second defendant who is