Karnataka High Court
Neelavva W/O Shrimanth Patil vs Mallappa S/O Fakeergouda Patil on 19 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
1 RFA No. 100108/2017
c/w RFA No. 100109/2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100108 OF 2017
C/W
REGULAR FIRST APPEAL NO. 100109 OF 2017
IN RFA NO. 100108/2017
BETWEEN:
1. NEELAVVA W/O. SRIMANT PATIL,
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O: KOLUR VILLAGE, TQ: BILAGI,
DIST: BAGALKOT-587301.
2. PRATIBHA D/O. SRIMANT PATIL,
AGE: MINOR, OCC: STUDENT,
R/O: KOLUR VILLAGE, TQ: BILAGI,
DIST: BAGALKOT-587301.
SAMREEN
AYUB SINCE MINOR REPRESENTED BY GUARDIAN MOTHER
DESHNUR i.e., APPELLANT NO.1 NEELAVVA W/O. SRIMANT PATIL.
...APPELLANTS
Digitally signed
by SAMREEN
AYUB
(BY SRI. MANJUNATH A. KARIGANNAVAR, ADVOCATE)
DESHNUR
Date:
2023.12.20 AND:
11:09:38 +0530
MALLAPPA S/O. FAKEERGOUDA PATIL,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: KOLUR VILLAGE, TQ: BILAGI,
DIST: BAGALKOT-587301.
...RESPONDENT
(BY SMT. CHITRA GOUDALKAR AND
SRI. S.B. HEBBALLI, ADVOCATES FOR SOLE RESPONDENT)
THIS REGULAR FIRST APPEAL FILED UNDER SEC. 96 OF CODE OF
CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND
2 RFA No. 100108/2017
c/w RFA No. 100109/2017
DECREE DATED: 02.12.2016 PASSED BY THE SENIOR CIVIL JUDGE AND
JMFC, BILAGI IN O.S.NO. 211/2005, AND DISMISS THE SUIT FILED BY
THE RESPONDENT, IN THE INTEREST OF JUSTICE AND EQUITY.
IN RFA NO. 100109/2017
BETWEEN:
1. NEELAVVA W/O. SRIMANT PATIL,
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O: KOLUR VILLAGE, TQ: BILAGI,
DIST: BAGALKOT-587101.
2. PRATIBHA D/O. SRIMANT PATIL,
AGE: MINOR, OCC: STUDENT,
R/O: KOLUR VILLAGE, TQ: BILAGI,
DIST: BAGALKOT-587101.
SINCE MINOR REPRESENTED BY GUARDIAN MOTHER
I.E., APPELLANT NO.1 NEELAVVA W/O. SRIMANT PATIL.
3. SOMMAVVA W/O. SRIMANT PATIL,
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O: KOLUR VILLAGE, TQ: BILAGI,
DIST: BAGALKOT-587101.
...APPELLANTS
(BY SRI. HARSH DESAI, ADVOCATE)
AND:
MALLAPPA S/O. FAKEERGOUDA PATIL,
AGE: 31YEARS, OCC: AGRICULTURE,
R/O: KOLUR VILLAGE, TQ: BILAGI,
DIST: BAGALKOT-587101.
...RESPONDENT
(BY SMT. CHITRA GOUDALKAR AND
SRI. S.B. HEBBALLI, ADVOCATES FOR SOLE RESPONDENT)
THIS REGULAR FIRST APPEAL FILED UNDER SEC. 96 OF CODE OF
CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE DATED: 02.12.2016 PASSED BY THE SENIOR CIVIL JUDGE AND
3 RFA No. 100108/2017
c/w RFA No. 100109/2017
JMFC, BILAGI IN O.S.NO. 211/2005, AND DISMISS THE SUIT FILED BY
THE RESPONDENT, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS HAVING BEEN HEARD AND RESERVED ON
06.12.2023 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, RAMACHANDRA D. HUDDAR, J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellants i.e., defendants 1(a) and 1(b) being aggrieved
by the common judgment passed in O.S.No.211/2005 clubbed with
O.S.No.90/2017 and O.S.No.91/2017 dated 02.12.2016 on the file
of the Senior Civil Judge and JMFC, Bilagi (for short "Trial Court")
have preferred these appeals.
2. For the purpose of convenience, the parties to these
appeals are referred to as per their ranks before the Trial Court in
O.S.No.211/2005.
3. In the impugned common judgment, the learned Trial
Court has decreed the O.S.No.211/2005 and declared that, the
plaintiff is the absolute owner of the suit schedule property to the
extent of his half share by virtue of registered Will stated to have
been executed by deceased Basalingawwa dated 07.02.2002. The
said suit filed by the plaintiffs in O.S.No.90/2007 was decreed and
O.S.No.91/2007 was dismissed by the Trial Court.
4. The facts leading to passing of the common judgment
by the Trial Court are as under:
a) That, O.S.No.221/2005 was filed by the plaintiff
against original defendant seeking the relief of declaration to
declare that he is the absolute owner of the suit schedule
properties described in the plaint by virtue of the Will said to have
been executed by Basalingawwa on 07.02.2002. During the
pendency of the suit, Srimant Bhimappa Patil, who was arrayed as
defendant No.1 died and his legal representatives were brought on
record in the shape of defendants 1(a) to 1(c). Accordingly, the
cause title came to be amended.
b) In the said plaint, the plaintiff alleged that, he is the
sister's son of Basalingavva. The said Basalingawwa was owning
and possessing the landed properties in Koluru village, Bilagi Taluk.
She was having half share in the schedule properties. About 40-50
years prior to filing of the suit, the husband of Basalingawwa died.
In the wedlock between Basalingawwa and her husband, there
were no issues. After the demise of her husband, it was the
plaintiff who started to live with Basalingavva. He used to look
after her. On account of too much love and affection towards
plaintiff, during her lifetime, due to her age old, she thought of
bequeathing her half share in the schedule properties in favour of
the plaintiff.
c) It is further pleaded that, the propositus Mallappa had
two sons by name Siddagondappa and Bhimappa. This
Siddagondappa was the husband of Basalingavva. Bhimappa had a
son by name Shrimant, who was arrayed as defendant No.1. Now
he is no more. Both Siddagondappa and Bhimappa had half share
each in the schedule properties. After demise of the husband of
Basalingawwa and Bhimappa, his son Srimant was entitled to half
share in the schedule properties.
d) It is alleged by the plaintiff that, to deprive the share of
Basalingavva, when she was alive, said Shriman tried to dupe her
share. Therefore, she filed a suit in O.S.No.244/2001 on the file of
the Principal Senior Civil Judge, Jamakhandi seeking partition and
separate possession of her half share. The said suit was decreed on
12.11.2002 in favour of Basalingavva. During the pendency of the
suit, Basalingawwa thought of disposing of her entire properties in
favour of this plaintiff. Therefore, she bequeathed her properties by
virtue of a Will dated 07.02.2002 in favour of the plaintiff.
e) It is alleged that, by virtue of the said Will, on demise
of Basalingavva, plaintiff succeeded to the schedule properties to
the extent of her half share owned and possessed by Basalingavva.
He is cultivating the said half share. When plaintiff approached the
revenue authorities to get his name entered in the revenue
records, the authorities have denied. The defendants have no right,
title or interest over the half share of Basalingawwa which was
bequeathed in favour of the plaintiff.
f) It is alleged by the plaintiff that, these defendants
without any right, title or interest over the schedule properties
started obstructing the peaceful possession and enjoyment of half
share of the plaintiff. Therefore, the plaintiff was constrained to file
the suit in O.S.No.211/2005.
5. Pursuant to the suit summons, the original defendant
appeared before the Trial Court but he did not file any written
statement and died. His legal representatives i.e. defendants 1(a)
to 1(c) appeared before the Trial Court and defendant No.1(a) filed
written statement and same was adopted by defendant No.1(b).
Brief contents of the written statement are as under:
a) The entire assertions made in the plaint have been
denied by these defendants. So far as relationship is concerned,
they admit the same. They also admit that Basalingawwa and her
husband died issueless. It is contended that Basalingawwa during
her lifetime filed a suit in O.S.No.57/1964 for partition and
separate possession of movable and immovable properties before
the Court at Bagalkot. In the said suit, Basalingawwa had given up
her share. Accordingly, decree came to be passed in
O.S.No.57/1964. Based upon that, mutation entry came to be
certified with Mutation Entry No.1342 in respect of schedule
properties. Thereafter, Basalingawwa started residing separately.
Therefore, the plaintiff cannot maintain the present suit as
deceased Basalingawwa had already given up her right in the
schedule properties in favour of grandfather of these defendants.
b) Whatever, the decree passed in O.S.No.57/1964
amounts to res-judicata to the suit filed by Basalingawwa in
O.S.No.244/2011, so also to the present suit. The plaintiff cannot
maintain the present suit. The defendants came to know about the
fraud being committed on their family. Though Basalingawwa had
no right in the schedule properties has bequeathed the properties
in favour of the plaintiff. The suit is designed to harass the family
of the defendants.
c) So far as O.S.No.90/07 is concerned, the suit was filed
on 22.11.2007 by the plaintiff therein. In the said suit, plaintiff
prayed to declare that the decree passed in O.S.No.57/1964
decided on 28.08.1965 be set aside as decree is obtained by
playing fraud and misrepresentation. It is not at all binding on
deceased-Basalingavva. The compromise decree was obtained by
fraud by Srimant. He has reiterated the plaint averments made in
O.S.No.211/2005 in this suit. The said assertions are nothing but
duplication of averments made in the plaint in O.S.No.211/2005. It
is further stated by the plaintiff that as the said decree passed in
1965 was obtained by fraud, the plaintiff by virtue of said Will has
become the owner of half share of deceased-Basalingavva. The
said suit was contested by the father of Srimant i.e. son of
Bhimappa. But he has not at all put forth his case in the said suit.
It is further contended that deceased-Basalingawwa had filed suit
in O.S.No.241/2001 for partition and separate possession. But in
the said suit, Srimant has not defended the suit by filing written
statement. The decree so passed in O.S.No.57/1964 establishes
that, the said decree was obtained by practicing fraud on
Basalingavva.
d) It is asserted by the plaintiff in O.S.No.90/2007 that,
whatever the decree passed in O.S.No.244/2001 is not challenged
by these defendants, though the deceased-Shirmant had
knowledge about the same. Other averments are nothing but
repetition of plaint averments in O.S.No.211/2005.
e) By appearing before the Court, defendant in
O.S.No.90/2007 contended that, decree so obtained in
O.S.No.244/2001 was in the absence of original defendant-
Srimant. He had suffered paralysis and was not keeping well and
hence, he did not contest the suit in O.S.No.244/2001. The said
decree is not binding on these defendants as the said decree was
passed without any counter by these defendants.
f) The appellants have filed O.S.No.91/2007 contending
that, they are the absolute owners of the suit schedule properties
in its entirety. They filed a suit for declaration as well as injunction.
They have described the property as 'A' in the schedule appended
to the plaint. The averments are nothing but replica to the written
statement filed in O.S.No.211/2005. It is contended that as there
was compromise entered into O.S.No.57/1964, the said
Basalingawwa had lost her right and she has given up her right in
the schedule properties. She has relinquished her right by taking
Rs.3,500/-. Therefore, now the plaintiff cannot maintain the suit.
g) In the said suit, the defendant i.e. plaintiff in O.S.No.
211/2005 appeared and filed his written statement inter alia
reiterating the plaint averments in O.S.No.211/2005.
6. Based upon the rival pleadings of both the parties, the
Trial Court framed the following issues in these suits.
1. Whether plaintiff proves that as per the decree
passed in O.S.No.244/01 dated 12.11.2002
deceased Basalingawwa was having ½ share in the
suit schedule properties?
2. Whether plaintiff proves that deceased since,
defendant No.1B is minor written statement is filed
by defendant No.1A on his behalf and on behalf of
defendant No.1B out of love and affection has
bequeathed her ½ share in schedule properties by
execution registered Will in favour of plaintiff on
07.02.2002?
3. Whether plaintiff further proves that he has become
owner of suit property by virtue of will dated
07.02.2002 executed by Basalingawwa?
4. Whether defendants prove that deceased
Basalingawwa had lost her rights over suit
schedule properties in view of decree passed in
O.S.No.57/1964 as contended in Para No.3 of
written statement?
5. Whether plaintiff is entitled for the reliefs sought
for?
6. What order or decree?
1. Whether the plaintiff proves that the decree passed
in O.S.No.57/64 on the file of Munsiff Court
Bagalkot dated:28.08.1965 is obtained by fraud
and misrepresentation?
2. Whether the plaintiff is entitled to the relief sought
for?
3. What order or decree?
1. Whether plaintiffs prove that one Basalingawwa had
filed O.S.No.57/1964 before Munsiff Court Bagalkot for
partition and separate possession of her 5/12th share
in joint family properties and said suit ended in
compromise decree the father in law of plaintiff No.1
i.e. Bhimappa became the absolute owner of suit
properties?
2. Whether plaintiffs prove that after the death of
Bhimappa and Srimant they have become absolute
owner and in possession of suit property?
3. Whether defendant proves that in view of decree
passed in O.S.No.244/2001 suit of plaintiffs is not
maintainable?
4. Whether defendant proves that suit of plaintiffs is
barred by limitation?
5. Whether plaintiffs are entitled for the reliefs of
declaration and injunction as sought for?
6. What order or decree?
7. In all the aforesaid suits, common evidence was
recorded, common documents are marked.
8. To substantiate the case of the plaintiff in
O.S.No.211/2005, he himself was examined as PW1. He also
examined three witnesses in the share of PW2 to PW4 and got
marked Ex.P1 to Ex.P21 and closed the plaintiff's evidence. To
rebut the evidence of the plaintiff, defendant No.1(a) entered the
witness box as DW1, one witness by name Laxman Lakkappa Naik
was examined as DW2 on behalf of the defendants. Ex.D1 to Ex.D9
were marked.
9. On hearing the arguments and on evaluation of the
evidence placed by both the sides, the Trial Court answered issue
No.1 to 3 in O.S.No.211/2005 in affirmative and issue No.4 in
negative and granted relief to the plaintiff as prayed for. The Trial
Court answered the issues in O.S.No.90/2007 and 91/2007 as do
not survive for consideration in view of the findings given by the
Trial Court in O.S.No.211/2005.
10. We have heard the arguments of both sides at length
and meticulously perused the records.
11. In view of the rival submission of both the sides and on
evaluation of the evidence placed on record, both oral and
documentary, the following point would arise for consideration in
these appeals.
"Whether the findings of the Trial Court granting the relief
of declaration, partition and separate possession to the
plaintiff in O.S.No.211/2005 suffers from infirmity, illegality
and require interference by this Court"
12. It is argued by the counsel Sri. Harsh Desai for the
appellants 1 and 2 that, the facts of these cases do demonstrate
that though the plaintiff in O.S.no.211/2005 is stated to be the
sister's son of Basalingawwa, after the demise of Siddagondappa,
her husband, she went away to her parental house. She had filed a
suit in O.S.No.57/1964 against Bhimappa in the year 1964 on the
file of the Civil Court, Bagalkote. The said fact of judgment and
decree passed in O.S.No.57/1964 was not brought on record by
the plaintiff. There is suppression of material facts by the plaintiff.
He submits that as Basalingawwa took Rs.3,500/- towards her
share in the properties left by her husband being legal heir of
Mallappa and Lakkawwa, she has relinquished her rights in the
properties in favour of Bheemappa. Therefore, it is his submission
that Basalingawwa had given up her right over the properties of
her husband. But surprisingly in the year 2001, she filed a suit and
in the said suit defendant did not contest. By suppressing the
material fact, the plaintiff obtained decree. During the pendency of
the suit, she executed Will in favour of the plaintiff. Based upon
that, now the plaintiff is claiming his right over the properties.
13. It is his submission that, the Trial Court has lost sight
of earlier decree passed in O.S.No.57/1964 wherein Basalingawwa
had relinquished her right over the suit schedule properties by
taking Rs.3,500/-. It is observed by the Trial Court that whatever
decree so passed in O.S.No.57/1964 came to be merged in the
decree passed in the year 2002. On that count, the Trial Court has
come to the conclusion that, the plaintiff was able to prove the Will
in his favour bequeathing half share of schedule properties of
Basalingawwa. He submits that, the Trial Court has committed an
error in decreeing the suit of the plaintiff.
14. He submits that the merger of decree passed in
O.S.No.57/1964 in the decree passed in O.S.no.244/2001 is
against the provisions of law laid down by the Constitutional
Courts. The Trial Court has wrongly decreed the suit of the plaintiff
in O.S.No.211/2005. He submits that, fraud has been committed
by Basalingawwa, so also by the plaintiff by suppressing the
material facts. He submits with all force that, interference is very
much required in the judgment of the Trial Court. He submits that,
the so called Will set up by the plaintiff is not duly proved in
accordance with law. There was active participation of plaintiff in
the execution of the Will along with his father. Will so set up by the
plaintiff is surrounded with suspicious circumstances. Hence, he
submits that, Will so set up by the plaintiff is not proved as the
suspicious circumstances are not dispelled by him.
15. He also brought to the notice of this Court that this
Court while passing the judgments in RFA No.3027/2010, RFA
No.3028/2010 and RFA No.3029/2010 dated 22.11.2002 has set
aside the judgments so passed and remanded the matter to the
Trial Court with direction to give finding on the Will propounded by
the appellant i.e. the present plaintiff in O.S.No.211/2005 and
based on the said findings, the Trial Court was directed to decide
the rights of the plaintiff in accordance with law.
16. It is his further submission that even the matter also
went up to the Supreme Court by filing SLP No.9179/2017 by the
appellants and said SLP was withdrawn by the appellants by
keeping open all contentions. The photocopies of the said order are
made available passed by this Court as well as by the Hon'ble Apex
Court. In support of his submission, he relied upon the following
judgments.
i) Union of India and others v. Ramesh Gandhi1
ii) S.P.Chengalavaray Naidu (dead) by LRs v.
Jagannath (dead) by Lrs and others2
iii) Vijay Syal and another v. State of Punjab and
others3
17. As against this submission, the counsels for the
respondents with all vehemence submit that, the Trial Court is
(2012) 1 SCC 476
(1994) 1 SCC 1
(2003) 9 SCC 401
right in decreeing the suit of the plaintiff in O.S.no.211/2005. It is
his submission that the plaintiff is a legatee under the Will having
looked after Basalingawwa during her lifetime and out of her love
and affection, she has executed the Will in favour of the plaintiff
during the pendency of the suit. She was in sound disposing state
of mind. The Will was executed by her in the presence of attesting
witnesses. She being the owner of half share in the schedule
properties owned by her husband, having inherited the same after
his demise, in that capacity, she has executed Will as a owner.
None of the defendants had taken care of Basalingawwa. After the
demise of Siddagondappa, it was the plaintiff, who looked after
Basalingawwa (the testatrix). It is his submission that considering
all these aspects, the Trial Court has come to the conclusion that
there was valid Will in favour of the plaintiff. Therefore, the Trial
Court is right in decreeing the suit of the plaintiff. It is prayed by
the respondents to dismiss the appeal.
18. We have given our anxious consideration to the
arguments of both the sides and perused the records.
19. Before adverting to other aspects of the case, let us
analyse certain factual features which are necessary to be
incorporated in this judgment. So far as genealogy so stated by the
plaintiff and defendants is concerned, one Mallappa was the
propositus. He had a wife by bame Lakkawwa. In the wedlock of
Mallappa and Lakkawwa there were two sons by name
Siddagondappa and Bhimappa. Siddagondappa had a wife by name
Basalingawwa under whom now the plaintiff is claiming right in the
property as legatee under the Will. Bhimappa has a son by name
Srimant. Now he is no more. These appellants are the wife and
daughter of Bhimappa and second wife is Somawwa. This
genealogy so stated in the appeal memo by the appellants is not
denied.
20. The events that taken place in between the family of
Siddagondappa and defendants is that, after several years of death
of Siddagondappa, as per the records available, Basalingawwa filed
a suit in O.S.No.57/1964 seeking partition and separate possession
against her mother-in-law i.e. Lakkawwa and brother-in-law and
his wife i.e. Bhimappa and Bourawwa i.e. the parents of deceased
defendant No.1. As per the records available, on 28.08.1965, in
the said O.S.no.57/1964 there was compromise. In that
compromise, Basalingawwa received Rs.3,500/- in lieu of her
share. Accordingly, the said suit came to be decreed by the Munsiff
Court, Bagalakote. Such a compromise decree was reported to the
revenue authorities.
21. It is a defence of the defendants that by virtue of the
said compromise decree, names of Bhimappa came to be entered
in the revenue records by certification of M.E.No.1342 which is
produced at Ex.D13 in O.S.No.211/2005. Bhimappa died on
27.11.1980. His son Srimant i.e. deceased defendant No.1 during
his lifetime inherited the properties.
22. It is the case of the plaintiffs that, on 12.09.2001
Basalingawwa again filed a suit in O.S.No. 244/2001 claiming half
share in the schedule properties. In the said suit, Srimant, the
defendant No.1, though appeared, has not contested the suit.
During the pendency of the said suit, on 07.02.2002 Basalingawwa
said to have been executed a Will in favour of the present plaintiff
bequeathing her half share in favour of the plaintiff. The said suit in
O.S.No.244/2001 was decreed. It is alleged by the appellants-
defendants that, the Court has mechanically decreed the said suit.
Basalingawwa died on 04.05.2003. The preliminary decree was
drawn. On getting knowledge of the said fact of passing the
decree, the review petition was filed on 14.11.2003. Thereafter,
the suit in O.S.No.211/2005 was filed by the present plaintiff
before the Senior Civil Judge and JMFC, Bilagi seeking declaration
of his half share based upon the said Will. The review petition was
dismissed on 30.01.2004. Defendant No.1, Srimant, died on
10.04.2006. Thereafter, these defendants being appellants filed a
suit in O.S.no.90/2007 before the Senior Civil Judge, Bilagi
disputing the compromise decree passed in O.S.No.57/1964 on the
ground of fraud and misrepresentation. Likewise appellants also
filed a suit in O.S.No.91/2007 in the Court of Civil Judge and JMFC,
Bilagi seeking declaration and injunction.
23. One more fact that is to be noticed by this Court is that
the aforesaid suits were once decided by way of common judgment
dated 22.11.2009. Being aggrieved and dissatisfied by the same,
the legatee i.e. Mallappa S/o. Fakeerappa Patil, preferred appeals
in RFA Nos.3027/2010, 3028/2010 and 3029/2010 before this
Court. In the said appeals, the contesting defendants appeared.
This Court vide judgment dated 22.11.2012 allowed the aforesaid
appeals by setting aside the common judgment passed in the
aforesaid suits and the matter was remanded to the Trial Court to
give its findings on the Will propounded by the appellant in
O.S.No.211/2005. It was also directed that, based on the said
finding the Trial Court shall decide the rights of the parties in
accordance with law. It was observed by this Court at paragraph
23 of the judgment, which reads as under:
"23. When the plaintiff filed O.S.No.211/2005, the
defendant could not file the suit in O.S.No.91/2007 for
declaration of title and for injunction, in O.S.No.57/1964
because judgment in O.S.No.57/1964 was merged in the
decree passed in O.S.No.244/2001. Even otherwise, if the
will propounded in O.S.No.211/2005 is not proved, the
respondents are to be considered the absolute owners of the
properties as reversionaries since the Basalingavva was
enjoying the properties of her husband as the same was not
the properties of her parents side. Therefore, the Trial Court
was required to consider whether the appellant who
propounded the Will of Basalingavva dated 7.2.2007 has
been proved or not."
24. With this observation, all the suits were remanded to
the Trial Court by allowing the aforesaid appeals.
25. Considering the directions of this Court in the aforesaid
appeals, the Trial Court decided the aforesaid suits by common
judgment dated 02.12.2016 decreeing the suit in
O.S.No.211/2005, disposed of the suit in O.S.No.90/2007 and the
suit filed by the defendants' ancestors came to be dismissed as do
not survive for consideration.
26. On 11.12.2023, after hearing the arguments and
reserving the present appeals for judgment, one more fact is
brought to the notice of this Court by the learned counsel for
respondent by filing a memo stating that, even the present
appellants filed Regular Appeal No.91/2002 (Old No.29/2016) on
the file of District and Sessions Judge, Bagalkote and same was
transferred to the Court of Principal Judge, Family Court, Bagalkote
for disposal. The Presiding Officer, Family Court, after considering
the arguments of both sides passed the judgment dismissing the
appeal filed by the appellants on the ground of limitation vide
judgment dated 15.06.2023. Appeal was preferred by the
appellants i.e. legal representatives of Srimant Bhimappa Patil
being aggrieved by the judgment in O.S.No.244/2001 dated
24.07.2003 by the Senior Civil Judge, Jamakhandi. The fact of
preferring of the said appeals was not brought to the notice of this
Court by the appellants. After hearing the arguments and reserving
the appeals for judgment, now the respondent brought to the
notice of this Court by filing memo.
27. It is observed by the Appellate Court in
R.A.No.91/2022 that when there is an observation of the Court in
the aforesaid Regular First Appeal with regard to merger of the
decree passed in O.S.No.57/1964 with the decree passed in
O.S.No.244/2001, the said Court cannot sit over the said judgment
of the High Court and pass an order. Even on the question of
limitation the said appeal filed by the appellants therein came to be
dismissed with costs of Rs. 5,000/-.
28. These are all calendar of events. In view of merger of
decree passed in O.S.No.57/1964 with a decree passed in
O.S.No.244/2001, now this Court has to consider that whether the
plaintiff is able to prove the Will in the manner stated by him and
by virtue of the said Will he has become owner of the schedule
properties to the extent of half share held by Basalingawwa.
29. While deciding these appeals, the aforesaid calendar of
events that have been brought on record play an important role.
So far as oral and documentary evidence is concerned, plaintiff-
Mallappa Fakeerappa Patil in O.S.No.211/2005 has reiterated the
plaint averments in his evidence on oath. According to him,
Basalingawwa still had half share in the suit schedule properties by
virtue of decree passed in the suit so filed by her in
O.S.No.244/2001.
30. During the pendency of the said suit Basalingawwa had
executed Will in favour of plaintiff bequeathing her half share right
in the properties. Therefore, now he is entitled for half share in the
suit schedule properties. PW1 was directed to severe cross-
examination by the counsel for the defendants. He denied the
suggestions that, Basalingawwa during her lifetime filed a suit in
the year 1964 in O.S.No.57/1964 and received Rs.3,500/- and
relinquished her share in the suit schedule properties. This PW1 is
consistent that by virtue of the decree passed in O.S.No.244/2001,
Basalingawwa became owner of half share in the schedule
properties. He speaks with regard to the mutation entries etc. He
also speaks about the genealogical tree mentioned and admits the
said genealogical tree stated supra throughout his cross-
examination. He has deposed that, he does not know that in
respect of which properties Basalingawwa had executed the Will. It
is his evidence that, about 45 years prior to undergoing his cross-
examination on 14.11.2003, Basalingawwa's husband
Siddagondappa died. She used to reside in her parents house. But
he says that she was residing in his family. This PW1 is none else
than sister's son of Basalingawwa. According to him, he used to
look after the affairs of Basalingawwa during her lifetime. He
admits that in a suit so filed by Basalingawwa in the year 1964, he
was not a party. Thus, he admits that in the year 1964 there was a
suit filed by Basalingawwa against her mother-in-law and brother-
in-law and others. But denies that Basalingawwa had received
Rs.3,500/- in the said suit and compromised and she relinquished
her share in the suit schedule properties of her husband. Further
he states that, when Basalingawwa executed the Will, he was very
much present with her. Even his father was also present. Further,
it has come in his cross-examination that when the said Will was
being executed, he, Subhas Hulikatti, Siddalingappa Matte,
Basalingappa Guggari were present along with Basalingawwa. With
regard to her physical and mental condition he states that she was
mentally and physically sound.
31. On reading the evidence of PW1, though it is
specifically stated by him that by virtue of the Will alleged to have
been executed by Basalingawwa, he became owner to the extent of
half share in the suit schedule properties. But he has not stated
about earlier suit filed in O.S.No.57/1964 throughout his pleadings.
He concentrates his evidence with regard to suit in
O.S.No.244/2001 in which a decree was passed awarding half
share to Basalingawwa.
32. PW2-Basalingappa Basappa Guggari is attesting
witness to the said Will relied upon by the plaintiff. He admits that
Basalingawwa used to reside at the house situated in Koluru
village. The father of the plaintiff Fakeerappa used to reside in a
farm house. He admits that whatever the property Srimant i.e.
defendant No.1 was possessing and owning, he used to cultivate
his property till his lifetime. According to him, he and Matti and
Ullagaddi were together when the said document was executed by
Basalingawwa. This PW2 was cross-examined at length.
33. PW3-Subhash Ullagaddi is also one of the attesting
witnesses. He too speaks before the Court about he was also
present and put his signature on Ex.P8-Will said to have been
executed by Basalingawwa in favour of plaintiff and plaintiff was
present at the time of execution of the Will by Basalingawwa. He
admits that about eight years prior to 26.10.2008 Srimant i.e.
defendant No.1 has suffered paralysis attack. He was unable to
move. He deposed ignorance about the family history of Srimant.
34. PW4-G.M.Teggi bond writer of the Will examined before
the Trial Court deposed that he is the scribe of Ex.P8. He identifies
Ex.P8 and his signature on the same as Ex.P8(c). According to him,
he wrote the said Will. He had seen only the RTC extract and he
has not seen other documents.
35. So far as documentary evidence are concerned, Ex.P1
to Ex.P7 are the RTC extracts of the schedule properties so
mentioned in the plaint obtained by the plaintiff in the year 2005.
The material documents so produced by the plaintiff is a Will-
Ex.P8. It is recited in the said Will that the schedule properties so
mentioned in the Will, the deceased Basalingawwa has half share
and according to her, a suit in O.S.No.244/2001 is pending on the
file of Senior Civil Judge, Jamakhandi and during the pendency of
the said suit, she executed the Will in favour of this plaintiff-
Mallappa Fakeerappa Patil. The other documents are also produced
by the plaintiff to show about the revenue proceedings in respect of
suit schedule properties which are marked in evidence right from
Ex.P9 to Ex.P20. By virtue of the said revenue proceedings, there
was certification of mutation entries so produced. Ex.P21 is
certified copy of the gift deed.
36. To rebut the evidence of plaintiff, Smt.Neelavva
Srimant Patil i.e. defendant No.1(a) has entered the witness box
and specifically stated that Siddagondappa died in the year 1953.
Bhimappa had a son by name Srimant and he is her husband. Her
husband-Srimant also died. She admits that Siddagondappa had a
wife by name Basalingawwa. It is her specific evidence that during
her lifetime Basalingawwa filed suit in O.S.No.57/1964 seeking
partition. Said suit was compromised on 28.08.1965 before the
Munsiff Court Bagalakote. In that compromise, deceased-
Basalingawwa received Rs.3,500/- towards her share in the family
properties of Siddagondappa and relinquished her all rights in the
family properties in favour of Bhimappa and other defendants. The
other defendants were her mother-in-law and others. After
compromise was entered in the said suit, it was Bhimappa, her
father-in-law became the absolute owner of the entire family
properties. There is suppression of material fact by Basalingawwa
while filing the suit in O.S.No.244/2001 and again she got the
decree. At that time, Srimant was suffering from paralysis and
could not contest the suit. Taking advantage of the same, said
Basalingawwa got decree awarding half share to her.
37. This DW1 has been thoroughly cross-examined by the
plaintiff's counsel. She has denied all the suggestions directed to
her. It is suggested to her that, when the said Will was executed
by Basalingawwa, whether her mental and physical condition was
good or not? DW1 has deposed ignorance about the same. With
regard to the revenue proceedings so initiated between both the
sides she admits.
38. DW2-Laxman Naik being resident of Kolur village
specifically says that there was a suit in O.S.No.57/1964 filed by
Basalingawwa wherein a dispute was compromised. By receiving
Rs.3,500/- from Bhimappa, Basalingawwa has relinquished all her
rights in the family properties. The schedule properties so
mentioned in the suit were partitioned and three shares were
allotted to different persons. Though these DW1 and DW2 were
intensively cross-examined, but they are consistent in their
evidence.
39. Likewise the defendants also produced RTC extracts as
per Ex.D1 to Ex.D6, which are not in dispute. Amongst the
documents so produced by the defendants, Ex.D7 is the decree
passed in O.S.No.244/2001 wherein the Principal Civil Judge
(Sr.Dn) Jamakhandi has decreed the suit on 12.01.2002 awarding
half share to the plaintiff i.e. respondent No.1 in these appeals,
who was plaintiff in suit O.S.No.211/2005. This is a main document
relied upon by the plaintiff to show that deceased Basalingawwa
still had half share in the suit schedule properties.
40. Will is a solemn document known to law. The Hon'ble
Apex Court in catena of decisions has repeatedly held that it is the
duty of the propounder of the Will to dispel the suspicious
circumstances. Unless the propounder of the Will dispels or
removes the suspicious circumstances, he/she cannot claim any
right in the properties so stated in the Will.
41. In a judgment of the Hon'ble Supreme Court of India,
in the case of Raj Kumari and others v. Surinder Pal Sharma4
the Hon'ble Supreme Court in paragraphs 11, 12 and 13 of the said
judgment has laid down principle with regard to the Will and its
proof. It reads as under;
"11. The need and necessity for stringent
requirements of clause (c) to Section 63 of the
Succession Act has been elucidated and explained in
several decisions. In H.Venkatachala Iyengar v. B.N.
Thimmajamma5, dilating on the statutory and
mandatory requisites for validating the execution of
the will, this Court had highlighted the dissimilarities
between the will which is a testamentary instrument
vis-à-vis other documents of conveyancing, by
emphasising that the will is produced before the
court after the testator who has departed from the
world, cannot say that the will is his own or it is not
the same. This factum introduces an element of
(2021) 14 SCC 500
AIR 1959 SC 443
solemnity to the decision on the question where the
will propounded is proved as the last will or
testament of the departed testator. Therefore, the
propounder to succeed and prove the will is required
to prove by satisfactory evidence that (i) the will was
signed by the testator; (ii) the testator at the time
was in a sound and disposing state of mind; (iii) the
testator understood the nature and effect of the
dispositions; and (iv) that the testator had put his
signature on 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 mind of the
testator and his signature as required by law, courts
would be justified in making a finding in favour of the
propounder. Such evidence would discharge the onus
on the propounder to prove the essential facts. At the
same time, this Court observed that it is necessary to
remove suspicious circumstances surrounding the
execution of the will and therefore no hard and fast
or inflexible rules can be laid down for the
appreciation of the evidence to this effect.
12. In Jaswant Kaur v. Amrit Kaur6, it was held that
suspicion generated by disinheritance is not removed
by mere assertion of the propounder that the will bears
the signature of the testator or that the testator was in
sound and disposing state of mind when the will
disinherits those like the wife and children of the
testator who would have normally received their due
share in the estate. At the same time, the testator may
have his own reasons for excluding them. Therefore, it
is obligatory for the propounder to remove all the
(1977) 1 SCC 369
legitimate suspicions before a will is accepted as a
valid last will of the testator. Earlier, in Surendra
Pal v. Saraswati Arora7, this Court had observed that
the propounder should demonstrate that the will was
signed by the testator and at the relevant time, the
testator was in a sound and disposing state of mind
and had understood the nature and effect of the
dispositions, that he had put his signature on the
testimony of his own free will and at least two
witnesses have attested the will in his presence.
However, suspicion may arise where the signature is
doubtful or when the testator is of feeble mind or is
overawed by powerful minds interested in getting his
property or where the disposition appears to be
unnatural, improbable and unfair or where there are
other reasons to doubt the testator's free will and
mind. The nature and quality of proof must
commensurate with such essentiality so as to remove
any suspicion which a reasonable or prudent man may,
in the prevailing circumstances, entertain. Where
coercion and fraud are alleged by an objector, the onus
is on him to prove the same and on his failure, probate
of the will must necessarily be granted when it is
established that the testator had full testamentary
capacity and had in fact executed the will with a free
will and mind. In Rabindra Nath
Mukherjee v. Panchanan Banerjee , this Court had
observed that the doubt would be less significant if the
will is registered and the Sub-Registrar certifies that
the same was read over to the executor who, on doing
so, had admitted the contents. In each case, the court
(1974) 2 SCC 600
(1995) 4 SCC 459
must be satisfied as to the mandate and requirements
of clause (c) to Section 63 of the Succession Act.
13. In Jagdish Chand Sharma v. Narain Singh Saini9,
this Court referring to Section 63 of the Succession Act
had illustrated that the provisions contemplate that in
order to validly execute the will, the testator would
have to sign or affix his mark to it or the same has to
be signed by some other person in his presence and on
his direction. Further, the signature or mark of the
testator or signature of the person signing for him has
to be so placed that it was intended to give effect to
the writing as a will. Section 63 mandates that the will
should be attested by two or more witnesses each of
whom has seen the testator sign or affix his mark to it
or has seen some other person sign it in the presence
and on the direction of the testator, or has received
from the testator a personal acknowledgment of his
signature or mark, or the signature of such other
person and each of the witnesses has signed the will in
the presence of the testator, though it is not necessary
that more than one witness be present at the same
time and that no particular form of attestation is
necessary. The execution and attestation of the will are
mandatory in nature and any failure and deficiency in
adhering to the essential requirements would result in
invalidation of the instrument of disposition of the
property."
(2015) 8 SCC 615
42. In another judgment of the Hon'ble Apex Court in the
case of Murthy and others v. C.Saradambal and others10 the
Hon'ble Apex Court has summarised with regard to the intention of
testator to make testament and it must be proved. It is the duty of
the propounder of the Will to remove all the suspicious
circumstances with regard to execution of the Will.
43. To substantiate the said fact, as discussed above, he
himself has stated in his evidence on oath about he looking after
deceased-Basalingawwa during her lifetime. It is submitted by the
counsel for the plaintiff that right from the death of the husband of
Basalingawwa, she used to reside in her parental house at Koluru.
But his family used to take care of her needs and her health. Even
PW1 states that it is he who used to take care of the affairs of
Basalingawwa during her lifetime. DW1, being the wife of Srimant,
never denied this aspect either in her examination in chief or in the
cross-examination.
44. It is the case of the plaintiff that Basalingawwa had half
share in the schedule properties by virtue of decree passed in
O.S.No.244/2001. The said decree was though challenged by the
present appellants-defendants by preferring the appeal in
(2022) 3 SCC 209
R.A.No.91/2022 (Old R.A.No.29/2016). The said appeal has been
dismissed by the Appellate Court i.e. Principal Judge, Family Court,
Bagalakote to whom the said case was transferred. The said
judgment was passed on 15.06.2023. Till date the dismissal was
not brought to the notice of the appellants. It is respondent, who
brought to the notice of this Court about dismissal of the said
appeal for the first time on 11.12.2023. That means, whatever the
judgment so passed in O.S.No.244/2001 in favour of Basalingawwa
had become final and has attained finality.
45. Further, though this PW1 has been directed to severe
cross-examination by the counsel for the defendants, but he is
consistent through is cross-examination that it is his family, who
took care of Basalingawwa throughout her life and it was PW1-
plaintiff who used to take care of personal needs and requirements
of Basalingawwa. She had love and affection towards the plaintiff
and because of that, she executed Will as per Ex.P8 in his favour.
46. No doubt, it is brought on record that in a suit filed in
O.S.No.57/1964, his father was not a party. Throughout the cross-
examination, questions are directed with regard to proceedings in
O.S.No.57/1964. When decree passed in O.S.No.57/1964 is
merged in decree passed in O.S.No.244/2001 as per the
observation in Regular First Appeals stated supra by this Court.
Now once again these defendants cannot agitate their rights
stating that already a decree was passed giving Rs.3,500/- to
Basalingawwa and thereby they have become the owners.
Whatever the decree was passed in O.S.No.244/2001 has attained
finality because of dismissal of their appeal by the Appellate Court
in R.A.No.91/2022 vide Judgment dated 15.06.2023.
47. No effective cross-examination is directed to this PW1.
Even not even a single suggestion is directed to this PW1 stating
that he has forced Basalingawwa to execute the Will. No fraud has
been elicited from the mouth of any of the witnesses so examined
by the plaintiff, so also no cheating. But it is elicited that PW1 and
his father were very much present along with the friends of his
father. Mere presence of PW1 and friends of his father at the time
of execution of Will by Basalingawwa does not mean that, she was
cheated by PW1 or force or fraud has been practiced on
Basalingawwa to execute the Will. No such averments have been
made in the written statement by the defendant.
48. It is the evidence of PW1 that Basalingawwa was
having good health and she was capable to execute the Will and
she was mentally and physically sound. It is suggested that
Basalingawwa was suffering from Asthama and has no eyesight
and she was dumb. But these suggestions are denied. When
suggestions are denied, they have no evidentiary value.
49. It is his evidence that when the said Will was being
scribed by PW4, it was she who gave instructions to write the Will.
It is denied that by force she was brought to Bilagi and said Will
was being got executed. This suggestion is denied.
50. PW2 and PW3 are the independent attesting witnesses
to the said Will by name Basalingappa Basappa Guggari and
Subhash Huchappa Ulligaddi. As per the contents of the Will as well
as the evidence spoken to by these witnesses, it was Basalingawwa
who executed the Will marked at Ex.P8 in their presence. She was
in sound state of mind. She was physically fit. She dictated the
terms of the Will. It is brought on record that the father of PW2
was elder member in Koluru village. At one breath these witnesses
have admitted that when the said Will came into existence whether
they enquired with regard to right in the properties, PW2 has
stated that the matter was pending before the Civil Court at that
time. No doubt, some ignorance have been spoken to by this PW2,
but the basic evidence by PW2 and PW3 with regard to mental and
physical soundness and capability of Basalingawwa is not denied
throughout the cross-examination directed to these witnesses.
PW2 and PW3 are consistent in their evidence with regard to
execution of the Will by Basalingawwa during her lifetime in favour
of the plaintiff bequeathing her half share in the schedule
properties.
51. PW4-Scribe of the Will though states that the plaintiff
and his father were not present, but with regard to writing of the
said Will at the instructions of Basalingawwa he has deposed to
that effect. This evidence spoken to by PW4 i.e. G.M.Teggi, Bond
Writer is not denied in the cross-examination. He being a Bond
Writer and experienced person to avoid any suspicion, stated that
the plaintiff and his father were not present but throughout his
cross-examination, he has maintained that on going through the
RTC extracts placed by Basalingawwa, he wrote the Will as per her
instructions. With regard to the proof of the Will requirement to be
satisfied by the propounder of the Will, The Hon'ble Apex Court in
catena of judgments has categorically held with regard to proof of
Will. So also the High Court in Division Bench of Kerala in the case
of Jose S/o. Immatty Anthony v. Ouseph and others11 has
held that when a Will was executed by mother of the plaintiff,
AIR 2007 Kerala 77
which was challenged by the defendants, the plaintiff being legatee
under the Will has to discharge the various obligations cast on him
and has to remove all the suspicious circumstances. So, the
legatee under the Will as per the provisions of the Indian
Succession Act as well as under the provisions of Indian Evidence
Act, has to remove all the suspicious circumstances. The object is
evidently to avoid the chances of possible collusion. Explanation 67
to the Indian Evidence Act states that legatee under the Will does
not lose his legacy. In this case, it is the evidence of PW2 and PW3
that the plaintiff was very much present when the said Will was
executed by deceased-Basalingawwa.
52. By applying the principles laid down in the aforesaid
judgments, now by examining the attesting witness, as a Will is
compulsorily attestable document as required under the provisions
of Section 68 of the Indian Evidence Act so also under Section 63
of the Indian Succession Act, the plaintiff has complied the
provisions of law. By examining these three witnesses i.e. PW2 to
PW4, he has dispelled all the suspicious circumstances and also
evidently he has avoided chances of possible collusion in between
himself and other witnesses so examined. That means, explanation
to Section 67 of the Indian Evidence Act specifically states that
legatee under the Will do not lose his legacy. It is the evidence of
PW2 and PW3 that deceased-Basalingawwa was sound state of
mind at the time of execution of the Will. Thus, the propounder i.e.
plaintiff has succeeded in proving the Will satisfactorily through the
evidence of PW2 to PW4 who have stated in their evidence that the
said Will was signed by testator and at the time of execution of the
Will, the testator was sound state of mind, she understood the
nature and fact of dispositions and then put signatures on the
document under free will.
53. To this effect, as discussed above, the plaintiff has led
evidence satisfactorily. The evidence of PW2 to PW4 coupled with
the evidence of PW1 is sufficient to prove the sound and disposing
state of mind of Basalingawwa. Her signatures as required by law,
if taken into consideration, it can be said that the plaintiff has
discharged the onus being a propounder of the Will to prove the
essential facts. None of the suspicious circumstances surrounding
the Will have been proved by the defendants. Whatever suspicious
circumstances suggested to the witnesses about the health
condition of Basalingawwa have been removed by the propounder
of the Will by examining PW2 to PW4. Therefore, the propounder of
the Will has demonstrated that the Will was executed by testator
(Basalingawwa) and at the relevant time, she was sound disposing
state of mind and after understanding the nature and fact of the
dispositions, she has executed a very will in his favour. Therefore,
now the defendants cannot contend that fraud has been practiced
on the Srimant or Basappa etc., by obtaining decree in
O.S.No.244/2001 cannot be accepted. No doubt, learned counsel
for the defendants relied upon the judgment S.P.Chengalavaray
Naidu referred to supra, because of directions given in the
aforesaid Regular First Appeal filed by the plaintiff and allowing of
those appeals and remanding the matter with an observation that
whatever decree so passed in O.S.No.57/1964 is merged in
O.S.No.244/2001, the allegations of the present defendants cannot
be accepted. Therefore, in the considered view of this Court, the
appeal filed by the appellants being aggrieved by the judgment
passed in O.S.No.244/2001 has to be dismissed. The learned Trial
Court in view of findings given in O.S.No.244/2001 has rightly
considered the pleadings in O.S.No.90/2017 and O.S.No.91/2017
and has held that the suits in O.S.No.90/2017 and 91/2017 does
not survive for consideration and dismissed the same. Therefore,
we do not find any factual error or illegality being committed by
the Trial Court in decreeing the suit of the plaintiff in
O.S.No.211/2005. Hence, we record the findings in favour of the
plaintiff. In view of our above discussions, the appeals are
deserved to be dismissed. Resultantly we pass the following:
ORDER
The appeals are dismissed. No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
YAN
