Karnataka High Court
Shivprasad S/O. Prakash Sabnis vs Aparna W/O. Umesh Sant on 6 July, 2023
Bench: M.G.Umaj
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RFA No. 4205 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M.G.UMA
REGULAR FIRST APPEAL NO.4205/2013 (PAR/POS)
BETWEEN:
1. SHIVPRASAD S/O. PRAKASH SABNIS,
AGE: 29 YEARS, OCC: SERVICE,
R/O. H NO. 14,
SUBHASHCHANDRA NAGAR,
3RD CROSS, TILAKWADI,
BELGAUM 590 006.
2. MANDAR S/O. PRAKASH SABNIS,
AGE: 28 YEARS, OCC: STUDENT,
R/O. H NO. 14,
SUBHASHCHANDRA NAGAR,
3RD CROSS, TILAKWADI, BELGAUM,
BELGAUM 590 006.
3. SMT. SHAYAMAL D/O. PRAKASH SABNIS,
AGE: 30 YEARS, OCC: SERVICE
R/O: H NO.14,
Digitally SUBHASHCHANDRA NAGAR,
signed by
ROHAN 3RD CROSS, TILAKWADI, BELGAUM,
HADIMANI BELGAUM 590 006.
T
4. SMT. VAISHALI D/O. PRAKASH SABNIS,
AGE: 32 YEARS, OCC: SERVICE
R/O: H NO. 14,
SUBHASHCHANDRA NAGAR,
3RD CROSS, TILAKWADI, BELGAUM,
BELGAUM 590 006.
...APPELLANTS
(BY SRI V. P. KULKARNI, ADVOCATE)
AND:
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RFA No. 4205 of 2013
1. SMT. APARNA W/O. UMESH SANT,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: 38/3, TABBU APARTMENT,
RAJYOPADHYA NAGAR,
RADHA NAGARI RAOD,
KOLHAPUR - 416 012.
2. BANK OF MAHARASHTRA,
REPRESENTED BY ITS
SENIOR MANAGER,
PERSONNEL DEPARTMENT,
1501, LOKMANGAL,
SHIVAJI NAGAR,
PUNE (MAHARASHTRA) 411 001.
3. BRANCH MANAGER,
BANK OF MAHARASHTRA,
TILAKWADI BRANCH,
TILAKWADI, BELGAUM - 590 006.
...RESPONDENTS
(BY NOTICE TO R1 TO R3 IS SERVED)
THIS RFA IS FILED UNDERE SECTION 96 OF CODE OF CIVIL
PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED
28.06.2013 PASSED IN O.S.NO.468/2006 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL, BELGAUM, DECREEING THE SUIT FILED
FOR PARTITION AND SEPARATE POSSESSION & ETC.
THIS RFA, COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RFA No. 4205 of 2013
JUDGMENT
The defendants in O.S. No. 468/2006 on the file of the
learned Civil Judge (Sr. Dn.), Belgaum (hereinafter referred to
as the trial Court), are impugning the judgment and decree
dated 28.06.2013 decreeing the suit of the plaintiff with costs,
declaring that plaintiff No.2 is entitled for 1/3rd share in the
suit house property and also in the gratuity and provident fund
left behind by late Sri Prakash Sabnis.
Parties shall be referred to as per their ranking before the
trial Court.
2. Brief facts of the case are that plaintiff nos.1 and 2 filed
the O.S. No. 468/2006 against defendant nos.1 to 6 seeking
partition and separate possession of the schedule properties by
allotting their 1/3rd share by metes and bounds. It is the
contention of the plaintiffs that the house property bearing No.
14 in R.S. No. 678/1/2/3 situated at Subhashchandra Nagar,
Angol, Belgaum and the amount of Rs.11,26,264.84 which is in
Maharashtra Bank, Tilakwadi branch, Belgaum, were the
properties of Prakash Sabnis who is the propositor of the family
of plaintiffs and defendants. Plaintiff No.1 is the legally wedded
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wife of the propositor Prakash Sabnis, while plaintiff No.2 is her
daughter. Later the said Prakash Sabnis married another lady
during the subsistence of the first marriage and begotten
defendant nos.1 to 4 through the second wife. The propositor
Prakash Sabnis died on 15.12.2005, leaving behind the
plaintiffs and defendant nos.1 to 4 as his legal heirs. The
house in question was constructed by him and he is the
absolute owner of the properties. The deceased was an
employee of Maharashtra Bank and was working as a Cashier in
Tilakwadi branch at the time of his death. He opted for his
terminal benefits. He was having the account and the fixed
deposits in the said bank. Defendant nos.5 and 6 were not
ready to furnish the details of the amount in the account of
deceased Prakash Sabnis. Therefore, they are also arrayed as
defendants.
The plaintiffs also stated that they got information
through Right To Information Act from defendant Nos.5 and 6
about the amount that is lying in Maharashtra Bank, Belgaum
and amended the plaint in which they are entitled for 1/3rd
share. Accordingly, prayed for decreeing the suit. During the
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pendency of the suit, plaintiff No.1 died leaving behind plaintiff
No.2 as her only legal representative.
3. Defendant Nos.1 to 4 have filed their written statement
denying the contentions taken by the plaintiffs in the plaint.
The description of the properties in the plaint are also denied.
It is contended that late Prakash Sabnis was never the owner of
the property at any point of time. The description of the
property described in para no. 1(b) is vague and the same
cannot be taken into consideration. The marriage of Prakash
Sabnis with plaintiff No.1 and that he begotten the plaintiff
No.2 are denied. It is contended that late Prakash Sabnis
never constructed any house as contended by the plaintiff and
therefore there is no question of the plaintiffs inheriting the
same. It is admitted that Prakash Sabnis was working as
Cashier in Maharashtra Bank, Belgaum but denied the other
contention of the plaintiffs. It is also denied that plaintiffs are
in joint possession and enjoyment of the property. It is stated
that there is no cause of action for the plaintiff to file and
maintain the suit. It is contended that Prakash Sabnis died on
11.12.2005. He had executed the Will dated 10.01.2005
bequeathing the house he had constructed by availing loan
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from his bank in favour of his wife Shubhangi during her
lifetime and thereafter to the absolute share of defendant nos.1
and 2. It is defendant No.1 alone who is entitled for the
gratuity and Provident Fund as per the recitals found in the
Will. Therefore, the defendants prayed for dismissal of the suit.
4. The additional written statement was also filed by
defendant nos.1 to 4 stating about availing of the loan by
Prakash Sabnis from various banks, financial institutions and
also from individuals and contended that the same is also to be
taken into consideration while deciding the suit.
5. On the basis of these pleadings, the following issues were
framed.
1. Whether plaintiffs prove that along with defendants No.1
to 4 they are the legal heirs of late Prakash Ganapat
Sabnis?
2. Whether the plaintiffs prove the existence and identity of
the suit properties described in para no. 1 (1)(b) of the
plaint?
3. Whether plaintiffs prove that late Prakash Ganapat
Sabnis was the owner of the suit properties?
4. Whether plaintiffs prove that they have share in the suit
properties? If so, to what extent?
5. Whether valuation of the suit for the purpose of Court
fee is incorrect?
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6. Whether plaintiffs are entitled to future mesne profits?
7. Whether plaintiffs are entitled to the shares in suit
immovable property by effecting divisions by metes and
bounds?
8. Whether plaintiffs prove cause of action for the suit?
9. What order or decree?
Addl. Issues:
1. Whether the defendants 1 to 4 prove that deceased
Prakash Ganapat Sabnis had executed a Will on 10.01.2005
bequeathing his properties to defendants No.1 and 2 and
their mother?
2. Whether the defendants No.1 to 4 prove that deceased
Prakash Sabnis had availed loan and liabilities as contended
in para 3 of the written statement dated 20.11.2009?
6. Plaintiff No.2 is examined as PW1 and she got marked
Exs.P.1 to P.5 in support of her contention. The defendant
examined DWs.1 to 3 and got marked Exs.D.1 to D9 in support
of their defence. The trial Court after taking into consideration
all these materials on record answered issue Nos.1 to 4, 7, 8
and additional issue no.1 in the affirmative; issue nos.5, 6 and
additional issue no.1 in the negative and decreed the suit of the
plaintiffs with costs holding that plaintiff No.2 is entitled for
1/3rd share in the house property, as well as in the total
amount of gratuity and Provident Fund left behind by Prakash
Sabnis.
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7. Being aggrieved by the same, defendant nos.1 to 4 have
preferred this appeal.
8. Heard Sri V.P. Kulkarni, learned counsel for the appellant.
Respondents through served remained absent.
9. Learned counsel for the appellant contended that even
though the relationship was seriously disputed while filing the
written statement, the fact remains that after leading evidence,
the relationship between the parties is almost proved and also
admitted. Moreover, the defendants are relying on the will-
Ex.D.2 executed by Prakash Sabnis bequeathing the house and
the deposits in favour of his wife and children as stated therein.
In proof of the Will the defendants examined DW2 who is one
of the attesting witnesses. DW3 is the son of the other
attesting witness who identified the signature of his father.
Both the attesting witnesses are respectable persons in the
Society as DW2 was working as an employee in the Post Office
and the father of DW3 was working as an employee in City
Corporation, Belgaum. During their cross examination nothing
has been elicited to disbelieve the Will in question. When the
Will-Ex.D.2 is proved, the plaintiff is not entitled for any relief.
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10. Learned counsel submitted that plaintiff No.1 was married
to the testator but immediately after marriage she left the
matrimonial house and started residing in her parental house at
Pune. Plaintiff no.2 was brought up at Pune and her marriage
was arranged and performed by Prakash Sabnis. She is now
settled in her matrimonial house. Plaintiff No.1 is already dead.
He further submit that there was matrimonial dispute between
the testator Prakash and plaintiff no.1 and even plaintiff no.1
had filed a petition seeking divorce. She had also sought for
maintenance from her husband and therefore there was series
of litigation between the two. The schedule properties are the
self acquired properties of the testator and he bequeathed the
same in favour of his second wife and the defendants. The
testator has assigned valid reasons for denying a share to the
plaintiffs and bequeathing the same in favour of his second wife
and her sons. The testator was working as an employee in
Maharashtra Bank, Belgaum, till his death. Therefore, he was
fit both physically and mentally even though diagnosed with
Cancer, few days earlier to execution of the Will. That was the
one compelling circumstance for the testator to execute the Will
bequeathing his property in favour of the defendants. There
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are absolutely no suspicious circumstances surrounding the will
in question.
11. It is further submitted that Ex.P.4 is the deposition of the
testator in Crl. Misc. No. 56/1984 before the Court at III Addl.
Chief Judicial Magistrate, Belgaum, which was recorded on
08.10.1985. The testator has explained as to how his first
wife, i.e., plaintiff no.1 deserted him and also filed a petition
seeking divorce. He also spoke about the mental agony he
suffered from plaintiff no.1. Under such circumstances, it is
quite natural to exclude the plaintiffs from inheriting the
properties. Learned counsel further submitted that PW1 during
cross examination categorically admitted that testator was
mentally sound and was working in the bank till his death.
More-so, when attesting witnesses are the respectable persons
who are the public servants, who subscribed their signatures on
the Will, supports the contention of the defendants in the
matter of executing the Will in question.
12. Learned counsel submitted that the trial Court has formed
an opinion that there are suspicious circumstances surrounding
the Will in question. The trial Court referred to such
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circumstances that the Will in question is an unregistered
document; the attesting witnesses were not known to the
defendants in the present suit; the signature of the attesting
witnesses are found above the signature of the testator in the
last page; Ex.D.2 is the stamp paper purchased for writing the
Will on 19.11.2004 but the Will was written on 10.01.2005 and
signed by the testator. All these observations are flimsy in
nature and if the documents are taken into consideration in
light of the facts and circumstances of the case, they are not
suspicious circumstances at all. The defendants have proved
the execution of the Will in question in accordance with law.
Under such circumstances, plaintiff no.2 is not entitled for any
share. Therefore, the impugned judgment and decree passed
by the trial Court is liable to be set aside by allowing the
appeal. Hence, he prays for allowing the appeal in the interest
of justice.
13. The respondents though served remained unrepresented.
14. From the above, the following point arises for
consideration:
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Whether the impugned judgment and decree
passed by the trial Court requires interference by
this Court?
15. My answer to the above point is in the affirmative for the
following:
REASONS
16. Plaintiff nos.1 and 2 being the wife and daughter of Sri
Prakash Sabnis, are claiming partition and separate possession
of the suit house. They have also sought for share in the
gratuity and provident fund payable to the legal representatives
of deceased Sri Prakash Sabnis by defendant nos.5 and 6.
17. During the pendency of the suit, the plaintiff No.1 died
leaving behind her plaintiff no.2 as her only legal
representative. Even though defendant nos.1 to 4 initially
denied the relationship of plaintiffs with deceased Sri Prakash
Sabnis, the materials on record disclose that plaintiff no.1
claimed to be the first wife while defendant nos.1 to 4 are the
sons through his second wife. It is not in dispute that the
schedule properties are acquired by deceased Sri Prakash
Sabnis on which he was having absolute right during his
lifetime. It is also not in dispute that deceased was working
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with defendant nos.5 and 6, i.e., Bank of Maharashtra at
Tilakwadi Branch.
18. It is the specific contention of the defendant nos.1 to 4
that deceased Sri Prakash Sabnis executed the Will
bequeathing the suit house in favour of his second wife
Shubhangi for her lifetime and thereafter absolutely in favour of
defendant nos.1 and 2. It is stated that the second wife
Smt.Shubhangi is also no more and therefore it is defendant
nos.1 and 2 who are entitled for the suit house while defendant
no.1 is entitled for the gratuity and provident fund as per the
recitals found in the Will.
19. To prove this contention the defendants have produced
the original Will as per Ex.D.2. It is an unregistered document.
The defendants have examined DW2, the attesting witness and
DW3, the son of other attesting witness to prove his signatures.
Ex.D.2 is in Marathi language typed on a stamp paper. The
English translation of Ex.D.2 is produced as per Ex.D.2(a).
20. The Will is dated 10.01.2005 wherein the testator has
stated that he is not keeping good health. He refers to raising
of the loan from the Bank and constructing of the house in plot
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no. 14 in S. No. 678, Subhashchandra Nagar, Angol, Belgaum.
He refers to Mrs.Shubhangi as his wife and also names of his
children Vaishali, Shivaprasad, Mandar and daughter Smt.
Shymala.
21. The testator states that his children Vaishali, Shivaprasad
and Mandar are residing in the house while the eldest daughter
Shymala is married and residing in her matrimonial house. He
also refers to plaintiff No.1 Bhagyarekha and states that he had
begotten a daughter, i.e., plaintiff no. 2, through her, but
explains his ordeal when he led matrimonial life with plaintiff
no.1. The testator also states that plaintiff no.1 used to pick up
quarrel very frequently when they were residing together and
she used to stay in her father's house at Pune. He also states
that plaintiff No.2 Aparna is married and leading her
matrimonial life with her husband and in laws.
22. The testator specifically states that during 2004 he came
to know that he is suffering from throat cancer. Since his life is
uncertain, he had plan to execute the Will. He further states
that plaintiff No.1 had received lot of amount and he is not
interested to give anything more to her. Plaintiff No.2 is also
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married and she is settled in her life. His second wife
Smt.Shubhangi and defendant nos.1 to 4 being the children are
taking care of him. Therefore, it is stated that his wife
Smt.Shubhangi to enjoy the house property during her lifetime
and after her death the same would devolve on his two sons,
Shivaprasad and Mandar/ defendant nos.1 and 2. The testator
has also referred to gratuity and provident fund receivable from
Maharashtra Bank appointing his eldest son Shivaprasad as
nominee who is entitled to receive the entire amount, out of
which he has to take care of maintenance of the house and also
the education and marriage of defendant No.4. He also states
that the shares of Maharashtra Bank held by him is to be
transferred in the name of his eldest son Shivaprasad.
23. Defendant No.1-Shivaprasad examined himself as DW1
and deposed about the documents relied on by him, especially
Ex.D.2 the Will executed by his father. It is suggested during
cross-examination that plaintiff no.1 instituted a Miscellaneous
Case No. 58/1984 against the deceased Sri Prakash Sabnis
before the JMFC Court at Belagavi, claiming maintenance and
the same was ended in a compromise. He pleaded his
ignorance that plaintiff no.1 had instituted Miscellaneous Case
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No. 500/2001 seeking enhancement of the maintenance
amount. Witness state that his father died on 11.12.2005 and
pleaded ignorance as to whether the Miscellaneous Petition
instituted by plaintiff No.1 was still pending on that day and on
01.02.2006 there was an agreement between plaintiff no.1 and
defendant nos.1 to 4. He denied the suggestion that a cheque
for Rs.2 lakhs was given in favour of plaintiff no.1 in terms of
the agreement entered into between the parties. It is pertinent
to note that learned counsel representing the plaintiff
suggested to DW1 that in Ex.D.2 the testator has referred to
plaintiff no.1 as his wife and plaintiff no.2 as his daughter
through plaintiff no1.
24. Witness stated that the attesting witness to the Will was
residing at Shahapur Galli in Belgaum and was working in the
Post Office. Witness stated that the testator was admitted to
the Hospital as inpatient for about 4-5 days earlier to his death.
He was suffering from throat cancer and died due to the same.
Witness denied the suggestion that even prior to the date of
Ex.D.2 the testator was bed-ridden, his condition was very
serious during January 2005 and the defendants have
concocted the Will.
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25. DW2 is Sri Digambar Nandanikar, the attesting witness to
the Will-Ex.D.2. Witness stated about execution of the Will by
the testator and attesting the same by him and the other
attesting witness Sri Sham Rao Hukkerikar. He identified the
Will-Ex.D.2, signature of the testator, attesting witness and
also of the scribe. During cross-examination witness stated
that he was working in Post Office and retired during 2003.
The deceased Sri Prakash Sabnis was not related to him but he
was knowing him very well, since for about 10-15 years.
26. Witness stated that he was not having financial
transaction with the testator. He was also knowing the other
attesting witness Sri Sham Rao Hukkerikar, who was working in
Belagavi Municipal Corporation. Witness stated that Sri
Prakash Sabnis was suffering from throat cancer and was
taking treatment for the same. He denied the suggestion that
during December, 2004 and January, 2005 he was completely
bed ridden due to his illness. Even though the witness was
cross-examined at length nothing has been elicited from him to
disbelieve his version.
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27. DW3 is Sri Amit Sham Rao Hukkerikar son of the second
attesting witness. He identified signature of his father found on
Ex.D.2. and stated that his father was working in Municipal
Corporation, Belagavi.
28. The materials on record disclose that Sri Prakash Sabnis
had married plaintiff No.1 and had begotten plaintiff no.2 from
the wedlock. There was marital discard between the testator
and plaintiff no.1 and they were residing separately since for a
long period. There were litigations between the two as plaintiff
no.1 claimed maintenance and enhancement of the same. The
tenor of cross-examination to DW1 discloses that even plaintiffs
admit that Sri Prakash Sabnis married one Shubhangi and
defendant nos.1 to 4 are the children of Sri Prakash Sabnis
through Shubhangi. If Ex.D.2 is considered under the facts and
circumstances of the case that Sri Prakash Sabnis had strained
relationship with plaintiff no.1, the plaintiff no.2 is also married
and he was suffering from throat cancer, thinking of
bequeathing the properties in favour of his sons, defendant
nos.1 and 2 reserving life interest with his second wife
Smt.Shubhangi is quite natural and the same cannot be a
suspicious circumstances. It is pertinent to note that the
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testator was an employee in Maharashtra Bank and admittedly
he was still in service when he died due to Cancer. There is
nothing on record to show that the testator was bed ridden or
he was not in a position to execute Ex.D.2.
29. It is also pertinent to note that the attesting witness-DW2
was an employee in the Post Office at Belagaiv and the second
witness was also serving in Municipal Corporation, Belagavi.
The Testator is not a rustic villager but he is a Banker. Under
these circumstances, it cannot be concluded that defendants
could easily concoct Ex.D.2 just before or after the death of Sri
Prakash Sabnis. It is pertinent to note that the testator died on
15.12.2005. Ex.D.2 the Will is dated 10.01.2005. The
executant of the Will expressed his apprehension that he may
not survive for long in view of the throat cancer from which he
was suffering. The Will-Ex.D.2 refers to the life of the testator
with plaintiff no.1 and with his second wife and begotting
plaintiff no.2 and defendant nos.1 to 4. He assigned valid
reasons for executing the Will reserving life interest to his
second wife and absolute right in favour of defendant nos.1 and
2 in respect of the suit house. He also refers to the gratuity
and provident fund which is due to him from the Bank in which
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he was serving and referred to the name of defendant no.1 as
his nominee. The signature of the testator was found on two
sides of the Will on the second page. Even though it is stated
that the signature of the attesting witness appears before the
signature of the testator, on careful perusal of the document it
is clear that the document was typewritten on the stamp paper
on which the testator subscribed his signature and on the left
side the attesting witness and the scribe have signed the
document. The Stamp paper to prepare the Will was purchased
on 19.11.2004 whereas the Will was prepared on 10.01.2005.
That itself cannot be a suspicious circumstance when the
testator is well educated person having worldly knowledge.
Therefore, I am of the opinion that the defendants have proved
due execution of Ex.D.2 bequeathing the suit house in favour of
defendant nos.1 and 2 reserving life interest with
Smt.Shubhangi, the second wife of the testator.
30. He had valid reasons to exclude plaintiff nos.1 and 2 from
succeeding to his property. The Will Ex.D.2 is not surrounded
with suspicious circumstances. hence, the plaintiff is not
entitled for any relief in the suit.
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31. I have gone through the impugned judgment and decree
passed by the trial Court. It found several suspicious
circumstances in executing the Will-Ex.D.2 since the Will is
unregistered one and since DWs.2 and 3 were not known to
defendant no.1, it was considered to be a suspicious
circumstance. DW2 and the other attesting witness, i.e., father
of DW3, may be unknown to defendant no.1 but the evidence
of these witnesses disclose that they were having close
acquaintance with the testator and therefore they were chosen
as attesting witnesses to the Will. There is nothing on record to
suspect their credibility. In view of the same, the reasoning
assigned by the trial Court to avoid the Will-Ex.D.2, is not
sustainable. Therefore, the impugned judgment and decree
passed by the trial Court calls for interference. Accordingly, I
answer the above point in the affirmative and proceed to pass
the following order.
ORDER
The appeal is allowed with costs.
The impugned judgment and decree dated 28.06.2013 in
O.S. No. 468/2006 by the learned Civil Judge (Sr. Dn.),
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Belgaum, is set aside. As a result, the suit of the plaintiffs is
dismissed with costs.
Office to draw decree accordingly.
Send back the trial Court records along with a copy of the
judgment and decree.
SD/-
JUDGE
BVV
