Karnataka High Court
Smt.Malutai W/O.Tukaram Kumbar vs Shri. Shrikant S/O.Bhima Kumbar on 28 June, 2023
Bench: Rajendra Badamikar
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RSA No. 5851 of 2010
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO. 5851 OF 2010
BETWEEN
1. SMT.MALUTAI W/O.TUKARAM KUMBAR,
AGE:51 YEARS, OCC:HOUSEWIFE,
R/O: SANGAVADE,
TAL: KARVIR, DIST: KOLHAPUR
...APPELLANT
(BY SRI. SHIVARAJ S BALLOLI, ADVOCATE)
AND
1 . SHRI. SHRIKANT S/O.BHIMA KUMBAR,
AGE:48 YEARS, OCC: AGRICULTURE,
R/O: BHAT NANGNUR,
TAL: CHIKODI-591 201, DIST: BELGAUM
Digitally
signed by
YASHAVANT
2. SRI.MADHUKAR S/O.BHIMA KUMBAR
YASHAVANT NARAYANKAR
NARAYANKAR Date:
2023.06.30
AGE:48 YEARS, OCC: AGRICULTURE,
12:45:54 -
0700
R/O: BHAT NANGNUR,
TAL: CHIKODI-591 201DIST: BELGAUM
...RESPONDENTS
(BY SRI. B. S. KAMATE, ADVOCATE FOR R1;
R2- NOTICE SERVED)
THIS RSA IS FILED U/S. 100 CPC., AGAINST THE
JUDGEMENT & DECREE DTD:05.06.2010 PASSED IN R.A.NO.58/
2005 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK
COURT-I, CHIKODI, DISMISSING THE APPEAL, FILED AGAINST
THE JUDGMENT DTD:10.03.2005 AND THE DECREE PASSED IN
O.S.NO.116/1997 ON THE FILE OF THE ADDL. CIVIL JUDGE
(JR.DN.), NIPANI AT NIPANI, DISMISSING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
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RSA No. 5851 of 2010
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
14.06.2023, COMING ON FOR PRONOUNCEMENT, THIS DAY
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This regular second appeal is filed by the plaintiff under
section 100 of the Code of Civil Procedure, 1908 (for short
"CPC") challenging the judgment and decree passed by the
Additional Civil Judge (Jr.Dn), Nipani in O.S.No.116/1997
and the judgment and decree passed by the Fast Track
Court-I, Chikodi in R.A.No.58/2005 dated 05.06.2010.
2. For the sake of convenience, parties herein are
referred with the original ranks occupied by them before the
Trial Court.
3. The brief factual matrix leading to the case are as
under.
4. The plaintiff-appellant has filed a suit for partition
and separate possession of her 1/3rd share in the suit
property against the defendants. It is the contention of the
plaintiff that the suit properties are agricultural lands and
house properties. It is the further contention of the plaintiff
RSA No. 5851 of 2010
that the suit properties are ancestral joint family properties
of plaintiff and defendants. That one Bheema Nana Kumbar
is the father of plaintiff and defendants. That defendants are
brothers of the plaintiff and after the death of their father,
the plaintiff and defendants succeeded to the suit properties
and their name came be mutated jointly. It is further
asserted that they are in joint cultivation and enjoyment of
the suit property. It is alleged that after the death of
Bheema, the defendants have neglected to take care of the
plaintiff and as such, the plaintiff demanded her legitimate
share in the suit properties. The defendants did not heed to
her request and hence, she filed a suit.
5. Defendant No.1 filed written statement denying
the allegations and assertions made in the plaint. However,
he admitted the relationship between the parties. But the
defendant No.1 has denied that the suit properties are joint
family properties. It is asserted that suit lands were
purchased by the father of plaintiff and defendants on
01.03.1973 and 21.05.1975 under registered sale deeds and
they are his self-acquired properties. He would also contend
that the grandfather of the plaintiff was not possessing any
RSA No. 5851 of 2010
property and the house property was also self-acquired by
the father and hence, all these properties were self-acquired
properties. It is alleged that the father of the plaintiff and
defendants was suffering from cancer and the plaintiff is
residing in her husband's house at Bombay while defendant
No.2 is also residing in Bombay and as such, the defendant
No.1 after retirement returned to the village and was staying
along with his father in the suit house itself. It is further
asserted that he had served his father during his last days,
who was suffering from cancer and provided all treatments.
He has also asserted that the liability of his father to the
extent of Rs.95,000/- was discharged by defendant No.1 and
he has also improved the suit lands by investing huge
amount. It is asserted that the plaintiff illegally got mutated
her name to the suit properties, which is challenged and the
deceased father had bequeathed all the suit properties out of
love and affection in favour of defendant No.1. Hence, he has
sought for dismissal of the suit.
6. Defendant No.2 did not contest the claim but he
sailed along with defendant No.1.
RSA No. 5851 of 2010
7. On the basis of the pleadings, following issues
were framed by the Trial Court.
1. Whether the plaintiff proves that she has got 1/3rd
share in the suit property?
2. Whether the defendant No.1 proves that the
property bearing Sy.No.125/3 and Sy.No.125/3A are
the self-acquired property of the father of the
defendant No.1?
3. Whether defendant No.1 proves that the father of
the defendant No.1 out of love and affection has
bequeathed the land purchased by him in his favour
under last Will dated 28.02.1995?
4. Whether the defendant No.1 proves that after the
Will dated 28.02.1995 he has made development in
the land by spending more than Rs.1,50,000/-?
5. Whether the plaintiff is entitle for the decree as
prayed for?
6. What order or decree?
8. The plaintiff was examined as PW1 and placed
reliance on 22 documents marked at Ex.P1 to Ex.P22.
Defendant No.1 was examined himself as DW1 and two
witnesses were examined on his behalf as DW2 and DW2. He
has also placed reliance on 8 documents marked at Ex.D1 to
RSA No. 5851 of 2010
Ex.D8. After hearing the arguments, the learned Civil Judge
has answered issue No.1 and 5 in the negative, while issue
No.2 to 4 were answered in the affirmative and ultimately
dismissed the suit of the plaintiff. Being aggrieved by this
judgment and decree, the plaintiff approached the Fast Track
Court-I, Chikodi in R.A.No.58/2005. The learned District
Judge, after re-appreciating the oral and documentary
evidence, has dismissed the appeal vide judgment dated
05.06.2010 by confirming the judgment and decree of the
Trial Court. Being aggrieved by these concurrent findings,
the plaintiff is before this Court.
9. This Court while admitting the appeal on
15.04.2014 has framed the following substantial question of
law:
"Whether both the Courts have committed a
serious error in holding that the will relied upon
by the defendants stated to have been executed
by the deceased Bhima has been proved in
accordance with law holding that it was executed
while Bhima was in sound disposing state of
mind by ignoring material evidence placed on
record?"
RSA No. 5851 of 2010
10. Heard the arguments advanced by the learned
counsel for the appellant and the learned counsel appearing
for respondents. Perused the records.
11. The learned counsel for the appellant would
contend that the defendants are step-brothers of the plaintiff
and status of parties is undisputed. Defendant No.1 has set
up a Will but the said Will was not placed before the revenue
authorities. He would also contend that the propositus
admittedly died on 29.04.1995 and the alleged Will is said to
have been executed on 28.02.1995 itself. It is further
asserted that the deceased was not having good health as he
was suffering from cancer. Hence, he was not in sound
disposing state of mind. He would also contend that the
revenue documents disclose that the name of the plaintiff is
mutated to the suit lands and hence, the plaintiff is in joint
possession of the suit properties. Hence, he would contend
that both the Courts below have failed to appreciate these
facts and circumstances and failed to appreciate that the Will
is surrounded by suspicious circumstances. Hence, he would
seek for setting aside the impugned judgments and decrees
of both the Courts below by allowing the appeal and
RSA No. 5851 of 2010
decreeing her suit by granting her 1/3rd share in the suit
properties.
12. Per contra, the learned counsel for respondents
supported the impugned judgment and decree. He would
contend that the Will is proved as per provisions of Section
63 of the Indian Succession Act and Section 68 of the
Evidence Act by examining the attesting witness DW2. He
would also contend that since the scribe is dead, his son is
also examined as DW3 and admittedly suit properties are not
ancestral properties and PW1 in her evidence itself admitted
the status of the properties as self-acquired of her father. He
would also contend that admittedly the plaintiff and
defendant No.2 are residing in Bombay and defendant No.1
who was all along served his father, who was suffering from
cancer and both plaintiff and defendant No.2 were well
settled and as such, out of love and affection his father
bequeathed the suit properties in favour of defendant No.1
and he has specifically given a reason in the Will itself for
disinheriting other Class-I heirs. Hence, he would contend
that Will is beyond all suspicious circumstances and plaintiff
without serving her father, now she has come forward to get
RSA No. 5851 of 2010
her share in the property of father, which discloses her
mindset. Hence, he would seek for dismissal of the appeal.
13. Having heard the arguments and perusing the
records, it is evident that the plaintiff and defendants 1 and
2 are children of deceased-Bheema. It is also an admitted
fact that the plaintiff was married long back and she is
settled in Bombay in the house of her husband, while
defendant No.2 is also settled in Bombay. It is further
evident from the records that defendant No.1 alone was
residing with his father and admittedly his father-Bheema
was suffering from cancer. It has come in evidence that he
has taken treatment in Belagavi, Hubli as well as in Bombay
for cancer and all along defendant No.1 has assisted him.
14. All along it is claimed by the plaintiff that suit
properties are ancestral joint family properties, but her
cross-examination reveals that her grandfather was not
possessing any property. She has also admitted that the suit
house was purchased by her father. From Ex.D2 and Ex.D3 it
is evident that the deceased father has purchased the suit
lands in 1973 and 1975, respectively. Admittedly family was
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RSA No. 5851 of 2010
not possessing any ancestral properties and house property
was also admitted to be purchased by the father of the
plaintiff and defendants. Hence, admittedly, no nucleus of
joint family is established by the plaintiff to show that the
properties were ancestral joint family properties. When there
is no nucleus, then all the properties which were acquired by
the father of the plaintiff and defendants are his self-
acquired properties. This fact is also admitted by the plaintiff
during her cross-examination. Hence, the nature of the
properties is undisputed that they are the self-acquired
properties of deceased father of plaintiff and defendants
byname Bheema.
15. The plaintiff claims partition to the extent of 1/3rd
share by way of succession. In the normal course, the
plaintiff would have succeeded to the extent of 1/3rd share
in the suit properties as she is a Class-I heir, but the
defendant No.1 has set up his title through Will. The
testamentary succession under the Will deviates the right of
inheritance.
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RSA No. 5851 of 2010
16. It is an admitted fact that the father of plaintiff
and defendants, Bheema, was suffering from cancer. It has
also come in evidence that he has taken treatment at various
places. Admittedly, the plaintiff is residing with her husband
in Bombay while defendant No.2 is also settled in Bombay.
They did not serve their father at any point of time. Further,
defendant No.2 acquired his own properties at Bombay and
they are his self-acquired properties. Defendant No.1 has set
up the Will in his favour. The Will is produced at Ex.P1. The
Will deviates the original succession. On perusal of the Will,
it is evident that deceased-Bheema has specifically referred
that plaintiff and defendant No.2 are also his children but he
asserted that they are well placed and they are in no need of
anything and further defendant No.1 has served him all
along by staying with him and as such, out of love and
affection, he is bequeathing those properties in his favour.
17. The learned counsel for the plaintiff contended
that the deceased was admittedly suffering from cancer and
within two months of execution of the alleged Will, he
expired and hence, he was not having any sound disposing
state of mind. However, no evidence is led by the plaintiff
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RSA No. 5851 of 2010
regarding mental status of her father. The evidence led was
in respect deceased father suffering from cancer but no
evidence is forthcoming to show that the cancer has affected
his mental status of mind. Further, the testator of the Will
has given sound reasons that plaintiff and defendant No.2
are well settled and therefore he disinherited them. Much
arguments have been advanced that in the revenue
proceedings Will was not set up but the name of the plaintiff
was entered on her Varadi and same was objected by
defendants. Since the plaintiff has filed a suit in between, the
revenue proceedings were stalled with a direction to settle
the dispute before the competent Civil Court. Under such
circumstances, the question of producing the Will before the
revenue courts does not arise at all. Further, the revenue
courts have no jurisdiction to give any finding on the
genuineness of the Will.
18. Further, to prove the Will, defendant No.1 has
examined the attesting witness as DW2. Though the plaintiff
has disputed execution of the Will during the course of the
evidence, she did not dispute the signature of her father on
Ex.D1, which is marked as Ex.D1(c). When the plaintiff has
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RSA No. 5851 of 2010
not challenged the signature of her father, then the question
of she disputing the Will does not arise at all. It is also come
in evidence that defendant No.1 has developed the suit
lands. It has also come in the evidence that deceased-
Bheema and defendant No.1 were residing together in the
suit house. Even during the course of PW1 the signature of
the testator of the Will was not disputed.
19. DW2, who is attesting witness to the Will, has
specifically deposed that deceased father of plaintiff and
defendants has executed a Will as per Ex.D1 in his presence
and he signed it at the request of deceased-Bheema.
Further, the scribe was reported to be dead and his son is
also examined as DW3, who identified the handwriting of his
father and asserted that it is in the handwriting of his father,
who scribed the document. Hence, prima facie there is
sufficient material evidence placed by the defendant No.1 to
prove that the deceased has bequeathed the suit properties
by executing Ex.D1-Will. The Will is proved by examining
attesting witness DW2 and the signature of the scribe by
DW3 as per Section 63 of the Indian Succession Act and
Section 68 of the Evidence Act.
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RSA No. 5851 of 2010
20. Further, the only suspicious circumstance raised
is regarding disinheritance of plaintiff and defendant No.2
and ill-health of the father. But in the Will itself there is
specific reference that both the plaintiff and defendant No.2
are well settled. Apart from that, no evidence is placed to
show that cancer had affected the mental health of deceased
father. Under such circumstances, defendant No.1 has
successfully proved that the deceased father has bequeathed
the suit properties in his favour by excluding plaintiff and
defendant No.2 for specific reasons.
21. Defendant No.2 did not contest and he is sailing
with defendant No.1. No suspicious circumstances are
brought to the notice to the Court so as to discard the Will.
No doubt, defendant No.1 is the propounder of the Will and
initial burden is on him to discharge all the suspicious
circumstances surrounding the Will and to prove the Will. He
has proved the Will by examining DW2 and DW3 and further
suspicious circumstances are properly explained by the
testator in the Will itself. Further, deceased was attended by
defendant No.1 alone and the suit properties are also self-
acquired properties.
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RSA No. 5851 of 2010
22. In this context, the learned counsel for
respondent has placed reliance on an unreported decision of
this Court in RFA No.488 and 489 of 2008 dated 06.03.2023
(Between S. Krishna Rao Vs. M. J. Vittal and others).
By relying on this decision he would submit that defendant
No.1 being propounder of the Will has led evidence to
establish that the Will was proved in accordance with law as
per Section 63 of the Indian Succession Act as well as
Section 68 of the Evidence Act. This Court in paragraph 93 of
the above cited decision, relying on various decisions of this
Court as well as Hon'ble Apex Court, has laid down certain
criteria's referred as under:
"93. Gist of the legal principles enunciated in above
decisions is that to succeed in proving the Will, the
propounder of the Will is required to place
satisfactory evidence that:
(i) the Will was duly signed by the testator;
(ii) the testator at the time of signing the Will
in a sound and disposing state of mind.
(iii) the testator understood the nature and
effect of the dispositions; and
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RSA No. 5851 of 2010
(iv) that the will is free from suspicious
circumstances surrounding the execution of
the Will."
23. Admittedly, in the instant case, there is no
serious dispute that Will was signed by the testator as his
signature was not challenged. The evidence led by the
defendant No.1 establish that the testator at the time of
signing the Will was in sound disposing state of mind. The
evidence of DW2 further establish that the testator
understood the nature of dispositions and it is also evident
from the contents of the Will itself. It is also evident that he
voluntarily put his signature and has given specific reasons
for disinheritance of plaintiff and defendant No.2. Hence, the
Will is free from all the suspicious circumstances and all the
criteria's referred above are met by the defendant No.1.
Under such circumstances, the defendant No.1 is able to
succeed in proving that the suit properties were bequeathed
in his favour by his deceased father.
24. Admittedly, the suit properties are self-acquired
properties. Hence, the testator has got every right to dispose
of his properties as per his will and considering the services
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RSA No. 5851 of 2010
rendered by defendant No.1, he bequeathed the properties
in favour of defendant No.1. Looking to these facts and
circumstances, it is evident that the plaintiff has failed to
substantiate her contention. Accordingly, the substantial
question of law is answered in the negative and as such, the
appeal being devoid of any merits does not survive for
consideration and needs to be rejected. Accordingly, I
proceed to pass the following:
ORDER
The appeal is dismissed.
In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive
for consideration and are disposed of
accordingly.
Sd/-
JUDGE
YAN
