Karnataka High Court
K Subba Rao vs Smt K A Lakshmidevi on 10 April, 2024
1 RSA NO.617 OF 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
R.S.A.NO.617 OF 2008
BETWEEN:
1. K SUBBA RAO
S/O ANANTHAIAH,
AGED ABOUT 58 YEARS,
OCC: AGRICULTURIST
2 K CHANDRASHEKARA
S/O ANANTHAIAH,
AGED ABOUT 56 YEARS,
OCC: AGRICULTURIST
3 K KRISHNAMURTHY
S/O ANANTHAIAH,
AGED ABOUT 53 YEARS,
OCC: AGRICULTURIST
ALL ARE RESIDENTS OF
KABBINAKODIGE,
HAMLET OF KOTE SIRUR VILLAGE,
KASABA HOBLI, HOSANAGARA TALUK.
4 K SRIDHARA
S/O ANANTHAIAH,
AGED ABOUT 51 YEARS,
OCC: AGRICULTURIST,
R/O VASAVE VILLAGE, HUMCHA HOBLI,
HOSANAGAR TALUK,
5 K GURUMURTHY
S/O ANANTHAIAH,
AGED ABOUT 49 YEARS,
OCC: AGRICULTURIST,
R/O VASAVE VILLAGE, HUMCHA HOBLI,
HOSANAGARA TALUK
2 RSA NO.617 OF 2008
6 MOHAN KUMAR
S/O PARAMESHWARAPPA,
AGED ABOUT 45 YEARS,
MANAGER OF HUF,
R/O BEDURKOPPA, SAGAR TALUK,
SHIMOGA DISTRICT.
......APPELLANTS
(BY SRI. K N MAHABALESHWARA RAO, ADVOCATE FOR
APPELLANTS)
AND:
SMT K A LAKSHMIDEVI
D/O ANANTHAIAH
SINCE DECEASED BY LRS
1 B.R.RAMACHANDRA RAO
S/O LATE RAMAKRISHNAIAH
AGED ABOUT 67 YEARS
R/O THATTEKODLU, NITTUR POST
HOSANAGAR TALUK,
SHIVAMOGGA DISTRICT - 577 452
2 B.R.MAMATHA
W/O KRISHNAMURTHY
AGED ABOUT 51 YEARS
R/O KAREMAKKI, NITTUR POST
HOSANAGAR TALUK,
SHIVAMOGGA DISTRICT - 577 452
3 B.R.MALATHI
W/O K R JAYANTH
AGED ABOUT 49 YEARS
R/O KIBBACHALU, SASARVALLI POST
THALAGUPPA HOBLI,
SAGAR TALUK,
SHIVAMOGGA DISTRICT - 577 401
4 T.R.KIRAN KUMARI
W/O SATISH L V
MAJOR
R/O LINGADAHALLI,
VARADAMOOLA POST,
SAGAR TALUK - 577 401
SHIVAMOGGA DISTRICT
3 RSA NO.617 OF 2008
5 T.R.DINESHKUMAR
S/O B.R.RAMACHANDRA RAO
AGED ABOUT 46 YEARS
R/O THATTEKODLU, NITTUR POST
HOSANAGAR TALUK,
SHIVAMOGGA DISTRICT - 577 452
6 T.R.LOKESH
S/O B.R.RAMACHANDRA RAO
AGED ABOUT 45 YEARS
R/O THATTEKODLU, NITTUR POST
HOSANAGAR TALUK,
SHIVAMOGGA DISTRICT - 577 452
RESPONDENTS
(BY SRI. S.V.PRAKASH, ADVOCATE FOR R2-R6);
R1 IS SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
06.11.2007 PASSED IN R.A.NO.13/2003 ON THE FILE OF THE
PRINCIPAL DISTRICT JUDGE, SHIMOGA CONFIRMING THE
JUDGMENT AND DECREE DATED 15.03.2003 PASSED IN
O.S.NO.20/1992 ON THE FILE OF THE CIVIL JUDGE (SR.DN),
SAGAR IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
11.01.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is by defendant Nos.1 to 5 and the son
of defendant No.6, who died during the pendency of
Regular Appeal before the First Appellate Court, but no
application was filed to bring her Legal representatives
on record. They have challenged the judgment and order
passed by the trial Court, which came to be confirmed by
the First Appellate Court by dismissing the Regular
Appeal filed by them.
2. For the sake of convenience, the parties are
referred to by their rank before the trial Court.
3. Plaintiff filed the suit, seeking partition and
separate possession of 1/7th share in all the suit schedule
properties consisting of A to E Schedule, by metes and
bounds and to put her in separate possession of the
same.
3.1 It is the case of the plaintiff that she and
defendants are siblings being the children of late
Annapoornamma and Ananthaiah. As Annapoornamma
was the only child of her parents, after his marriage,
Ananthaiah lived with Annapoornamma and her parents
in their house at Kabbinakodige, Kotesirur Hobli,
Hosanagara Taluk as 'Mane Alia' (ªÀÄ£É C½AiÀÄ) till his
death. 'A' Schedule properties are inherited by
Annapoornamma from her mother Mookamma. In fact,
Mookamma was also the only child of her parents.
Hence, they are the ancestral properties of plaintiff and
defendants.
4. Plaint 'B' Schedule properties are ancestral
lease hold properties of Annapoornamma, plaintiff and
defendants. Annapoornamma inherited the same from
her mother Mookamma. Annapoornamma filed
application in Form No.7 before the Karnataka Land
Reforms Tribunal and the Tribunal granted Occupancy
Rights on her.
5. Plaint 'C' schedule properties were purchased
by Mookamma in the name of defendant No.1 from out
of the compensation received by her for acquiring land in
Sy.No.14/2 B measuring 0.56 guntas of Bagayath land
and Sy.No.142/5 measuring 4 acres 26 guntas of
Wetland, for construction of Linganamakki Dam for
Sharavathi Valley Hydroelectric Project at Jog. Hence,
they are also ancestral properties of plaintiff and
defendants.
6. Plaint 'D' and 'E' Schedule properties are also
ancestral properties of plaintiff and defendants.
7. Plaintiff is having 1/7th share in all the suit
schedule properties. Her mother Annapoornamma and
defendant No.1 have neglected plaintiff and her children
after the marriage of defendant No.1, at the instance of
his wife and children. Fed up with the attitude of
Annapoornamma and defendant No.1 and his family
members, plaintiff demanded her share. However, they
have denied plaintiff of her legitimate share. Therefore
plaintiff got issued legal notice dated 17.01.1991
requesting her share. However, no reply was sent to the
notice and her share was also not given. Hence, the suit
for several reliefs.
8. Defendants have filed written statement,
admitting the relationship between the parties and also
the fact that Mookamma and Annapoornamma were the
only child of their respective parents. They have also
admitted that after his marriage with Annapoornamma,
their father, Ananthaiah stayed at Kabbinakodige as
Mane Alia (ªÀÄ£É C½AiÀÄ) till his death. They admitted that
plaint 'A' schedule properties were inherited by
Annapoornamma from her deceased mother Mookamma.
But it is denied that plaint 'B' schedule properties were
the ancestral lease hold properties. They were the
leasehold properties of Annapoornamma and she filed
From No.7 and they were granted to her. They were the
self acquired properties of Annapoornamma.
9. Defendants have denied that plaint 'C'
schedule properties were purchased by Mookamma in the
name of defendant No.1, by utilising compensation
received for acquisition of land in Sy.No.14/2 measuring
56 cents of Bagayth land and Sy.No.142/5 measuring 4
acres 26 guntas of Wetland, for construction of
Linganamakki Dam for Sharavathi Valley Hydroelectric
Project at Jog. They were purchased by defendant No.1,
by taking loan from PLD bank. He has discharged the
loan. They are the self acquired properties of defendant
No.1.
10. Defendants have also denied that plaint 'D'
and 'E' schedule properties are ancestral properties of
plaintiff and defendants. Plaint 'D' schedule properties
were never existed to the family. Item Nos.8 and 9 of the
inventory belong to Smt.Revathi, wife of defendant No.1.
Item Nos.10, 11 and 40 are properties of Kamalakshi,
wife of defendant No.2. Item Nos.12, 16 and 45 are
properties of Smt. Kalavathi, wife of defendant No.3.
These properties were given to them by their parents at
the time of their marriage and they are their 'Stridhana'
properties. Plaintiff has no right to claim any share in
them also.
11. Defendants have denied that plaintiff is having
1/7th share in all the suit schedule properties and
Annapoornmma and defendant No.1 have neglected her
and refused to grant her share.
12. Inter-alia defendants have pleaded that at the
time of marriage of plaintiff and defendant No.6,
Annapoornamma has given their shares in the form of
gold, silver articles, cash and in other kinds. On
05.02.1991, while enjoying good health and sound
disposing state of mind, Annapoornamma has executed a
Will bequething all the properties referred to therein, in
favour of defendant Nos.1 to 5, being her self acquired
properties. The Will was kept in safe custody of Shri
K.D.Raja Vikram and he has sent it to defendant No.1
after the death of Annapoornamma. Till then they were
not aware of the Will in question. Therefore, plaintiff has
no right to claim any share in the suit schedule
properties. Plaintiff never treated such properties as a
joint family properties. She was never paid any usufructs
of suit schedule properties. After her marriage, plaintiff
was never in possession and enjoyment of suit schedule
properties, since more than 12 years and thereby
defendant Nos.1 to 5 have perfected/acquired the title to
suit schedule properties by way of adverse possession.
Viewed from any angle, the suit is not tenable and pray
to dismiss the same.
13. Based on the pleadings, the trial Court framed
necessary issues.
14. Plaintiff has examined herself as PW-1 and
relied upon Ex.P1 to 49.
15. On the other hand, on behalf of defendants,
defendant No.1 is examined as DW-1. One Sulagodu
Vishwanath Subraya is examined as DW-2. Ex.D1 to 3
are marked.
16. Vide the impugned judgment and order dated
15.03.2003, the trial Court partly decreed the suit
granting 1/7th share only in suit 'A' and 'B' schedule
properties with mesne profits.
filed Regular Appeal No.13/2003 before the District
Court. Plaintiff filed cross objections so far as refusal to
grant relief in plaint 'C' and 'D' schedule properties.
18. Vide the impugned judgment and order dated
06.11.2007, the First Appellate Court dismissed the
appeal filed by defendant Nos.1 to 5. It allowed the cross
objections filed by plaintiff in part granting 1/7th share in
'D' schedule property. Her prayer for share in 'C'
schedule property was refused.
19. Plaintiff has not challenged the impugned
judgment and order passed by the First Appellate Court,
refusing to grant relief in respect of 'C' schedule
properties.
20. Aggrieved by the judgment and order of the
trial Court as well as the First Appellate Court, defendant
No.1 to 5 and the son of deceased defendant No.6 have
filed this appeal, contending that the impugned judgment
and orders/decree of the trial Court as well as the First
Appellate Court are contrary to law, facts and evidence
placed on record. The First Appellate Court has not re-
appreciated the oral and documentary evidence placed
on record. Without application of mind, it has simply
concurred/confirmed the judgment and order of the trial
Court.
20.1 Both Courts have in their findings opined
that defendant have failed to prove due execution of Will
dated 05.02.1991. The evidence placed on record is
sufficient to show that the testatrix was in a sound
disposing state of mind and executed the Will and
bequeathed the properties in favour of defendant No.1 to
5. There are no suspicious circumstances surrounding the
execution of the Will. The Courts below have approached
the disputed Will with a suspicious mind brushing aside
various material on record to establish the Will. As
plaintiff and defendant No.6 were married and settled in
their matrimonial home, Annapoornamma thought it fit
to settle her properties in favour of her sons and
executed the Will.
20.2 The Courts below have erred in disputing
the signature of Annapoornamma in the Will as well as
Ex.P49. The trial Court ought to have sent the disputed
signature to handwriting expert. The Courts below have
also erred in doubting the Will merely on the ground that
to the acknowledgement pertaining to the legal notice,
Annapoornamma has affixed her thumb impression.
Defendants have given valid reason for the same and it is
not properly appreciated by the trial Court. The Courts
below have erred in suspecting the Will on the ground
that Annapoornamma was suffering from diabetes and
her left toes were amputated. It no way affected her
sound disposing state of mind to execute the Will.
20.3 The attesting witness to the Will has clearly
proved the execution of the Will. The Courts below have
also erred in suspecting the genuineness of the Will only
on the ground that daughters were not given any share
in the properties. The First Appellate Court has also erred
in granting share in the suit 'D' schedule property, which
is a residential house and as per the Hindu Succession
Act, daughters are not entitled for sharing the dwelling
house. Viewed from any angle, the impugned judgments
and orders are not sustainable and pray to allow Regular
Second Appeal, set aside the same and dismiss the suit.
21. In support of his arguments, learned counsel
for defendants has relied upon the following decisions:
(i) State (Delhi Administration) Vs. Pali Ram
(Pali Ram)1
(ii) O.Bharathan Vs. K.Sudhakaran & Anr.
(O.Bharathan)2
AIR 1979 SC 14
AIR 1996 SC 1140
(iii) Ryali Kameswara Rao Vs. Bendapudi
Suryaprakash Rao & Ors.
(Ryali Kameswara Rao)3
(iv) Smt.Rajeshwari Rani Pathak Vs. Smt.Nirja
Guleri & Ors. (Smt.Rajeshwari)4
(v) Savithri and Ors. Vs. Karthyayani Amma & Ors.
(Savithri)5
(vi) Kalavati Dinakar Adsule and Ors. Vs.
Rajaram Shidu Ghatge (Kalavati)6
(vii) Smt.Leela @ Bali Devi Vs. Smt.Drumti Devi
(Smt.Leela @ Bali Devi)7
(viii) Mangat Ram and Ors. Vs. Dina Nath
(Mangat Ram)8
(ix) Dalip Singh and Ors. Vs. Pritam Kaur
(Dalip Singh)9
(x) Smt.Jito Vs. Dalip Singh and Anr. (Smt.Jito)10
(xi) Tara Singh Vs. Smt.Shanti and Ors.
(Tara Singh)11
(xii) Pentakota Satyanarayana and Ors Vs.
Pentakota Seetharatnam and Ors.
(Pentakota Satyanarayana)12
(xiii) Ligakath Ali Khan Vs. Sri.Syed Wazeed & Ors.
(Ligakath Ali Khan)13
AIR 1962 AP 178
AIR 1977 P & H 123
2007 AIR SCW 6787
1998 (1) Civil Court Cases 469 (Bombay)
AIR 2002 HP 7
1997 1 Civil Court Cases 570 (P & H)
1989 Civil Court Cases 333 (P & H)
1994 (1) Civil Court Cases 112 (P& H)
1988 Civil Court Cases 198(P & H)
AIR 2005 SC 4362
ILR 2012 KAR 2035
(xiv) B.V.Nagesh and Anr. Vs. H.V.Sreenivasa
Murthy (B.V.Nagesh)14
(xv) B.M.Narayana Gowda Vs. Shanthamma
(deceasedby LRs.) and Anr.
(B.M.Narayana Gowda)15
22. On the other hand learned counsel for plaintiff
supported the impugned judgments and orders of the
trial Court as well as the First Appellate Court and has
sought for dismissal of this appeal.
23. In support of his arguments, learned counsel
for plaintiff has relied upon the following decisions:
(i) Gurdev Kaur & Ors. Vs. Kaki & Ors.
(Gurdev Kaur)16
(ii) Dhani Ram (Died) Through LRs and Ors.
Vs. Shiv Singh (Dhani Ram)17
24. Heard arguments of both sides and perused
the record.
25. Thus, plaintiff the daughter of
Smt.Annapoornamma sought 1/7th share in all the suit
2010 AIR SCW 6184
2011 AIR SCW 2721
2006 AIR SCW 2404
AIR 2023 SC 4787
schedule properties contending that they were inherited
by Annapoornamma from her mother Mookamma.
26. On the other hand defendants claim that 'C'
schedule properties are the self acquired properties of
defendant No.1 and Annapoornamma has executed Will
dated 05.02.1991 in favour of defendant Nos.1 to 5 in
respect of 'A', 'B', 'D' schedule properties and no
properties are available as per 'E' schedule.
27. The trial Court partly decreed the suit granting
1/7th share only in 'A' and 'B' schedule properties. While
dismissing the appeal filed by defendants and allowing
the cross-objections filed by the plaintiff, the First
Appellate Court has also granted 1/7th share in 'D'
schedule property.
28. Challenging the impugned judgment and order
of the trial Court as well as the First Appellate Court,
defendants are before this Court.
29. Vide order dated 27.02.2009, the appeal is
admitted for consideration on the following substantial
questions of law:
(i) Whether the Courts below are justified in
holding that Ex.D3 the Will dated
05.02.1991 (wrongly typed as 05.02.1989
in the order sheet) is a concocted one and
is surrounded by suspicious circumstances.
(ii) Whether the lower appellate court is
justified in holding that the plaintiff is
entitled for a share in the dwelling house;
contrary to provisions Section 23 of Hindu
Succession Act?
30. However, in the light of repeal of Section 23 of
the Hindu Succession Act, substantial question No.2 does
not survive for consideration. Hence, this Court is
required to examine only the first substantial question of
law i.e., whether the Courts below justified in holding
that Ex.D3 Will dated 05.02.1991 is concocted one and it
is surrounded by suspicious circumstances.
31. In Gurdev Kaur, referred to supra the
Hon'ble Supreme Court held that the scope of Second
Appeal is limited to question of law. Findings of facts,
however wrong are grossly inexcusable are not liable to
be interfered with.
32. Thus, defendants have taken a specific
defence that while 'A', 'B' and 'D' schedule properties are
the absolute properties of Annapoornamma having
inherited from her mother, 'C' scheduled properties are
the self acquired properties of defendant No.1. They
have also claimed that while enjoying sound disposing
state of mind and physical health, Annapoornamma has
bequeathed 'A', 'B' and 'D' schedule properties in favour
of defendant Nos.1 to 5 being her sons and therefore
neither plaintiff nor defendant No.6 are having any share
in them.
33. Plaintiff has challenged the Will on the ground
that when it was allegedly executed by Annapoornamma,
she was suffering from ill health and was not in sound
disposing state of mind. Plaintiff has contended that
shortly after she sent legal notice, Annapoornamma died
and subsequent to her death, defendants more
particularly defendant No.1 has concocted the alleged
Will. In the light of challenge to the Will, heavy burden is
on defendant Nos.1 to 5 to prove the Will in question.
34. The original Will said to have been executed
by late Annapoornamma is produced and marked as
Ex.D3. It is an unregistered Will. It is said to have been
executed in the house of Shunti Thimmanna Bhatta. It is
allegedly written by K.D. Raja Vikram stated to be a
relative of Annapoornamma. It is stated to be attested by
DW-2 Sulagodu. V. Subraya and One Surya Bhatta. Out
of these, the defendants have examined DW-2
Sulagodu. V.Subraya. Defendants have claimed that
when the Will came into existence, none of them were
present. Having regard to the fact that at the time of
execution of the alleged Will, Annapoornamma was aged
about 70 years and in the light of contention taken by
the plaintiff that she was suffering from ill health, both
physically and mentally and as such was not possessing
a sound disposing state of mind, heavy burden is on the
defendants to prove the due execution of the Will and
remove all the suspicious circumstances surrounding the
Will.
35. It is an undisputed fact that before filing the
suit, as per Ex.P38 plaintiff has sent legal notice to
defendant No.1 as well as Annapoornamma. It is duly
served on them as per the acknowledgement at Ex.P39
and 40. It is not in dispute that Annapoornamma used to
affix her signature. However, defendants claimed that to
Ex.P40 Annapoornamma has affixed her LTM as at that
time she was suffering from ill health and not able to
affix her signature and therefore, she has put her LTM to
the acknowledgement. But in the Will at Ex.D38, she has
allegedly affixed her signatures. However, the plaintiff
has specifically pleaded that since about 10-12 years
prior to her death, Annapoornamma was suffering from
diabetes and in fact, the toes of her foot were amputed
and she was not able to move around independently.
During the cross-examination of DW-1, he has admitted
that since 10-12 years prior to her death,
Annapoornamma was suffering from diabetes and her
toes were amputated due to Gangrene. It is pertinent to
note that the legal notice is dated 17.01.1991 and it is
served on Annapoornamma and defendant No.1 on
21.01.1991. The Will at Ex.D3 is executed on
05.02.1991. Annapoornamma died on 27.03.1991.
Therefore, from 21.01.1991 on which date the legal
notice was served and on that day, Annapoornamma was
not even able to affix her signature, within a very short
span of time she expired.
36. It is pertinent to note that after the death of
Annapoornamma, the husband of plaintiff filed a
complaint against defendant No.1, alleging that he failed
to take care of Annapoornamma and killed her. In this
regard, the concerned police have recorded the
statement of defendant No.1 as per Ex.P43. Though
defendant No.1 has expressed ignorance that Ex.P43 is
the statement given by him before the Investigating
Officer, he admit the fact that he has given statement.
Defendants have not produced any other document
stated to be the statement given by defendant No.1
before the concerned police. Therefore, Ex.P43 is to be
accepted as the statement given by him before the
Investigating Officer.
37. In his statement, the defendant No.1 has
specifically stated that Annapoornamma was suffering
from Diabetes since 25 years. At the time of her death,
she was aged 70 years and was suffering from ill health.
She was given treatment at Government Hospital, Sagar,
Ayurvedic Vaidya by name K.N.Pai of Sagar, Dr. Sridhar
of Shivamogga, McGann Hospital, Shivamogga, Dr.
Ramakrishna Chatra of Nitturu and Dr. Srinivas. On
account of diabetes, injuries were not healing quickly and
converted into Gangrene. He has also stated that in
order to claim share in the properties, a complaint has
been lodged against him.
38. Thus, the statement of defendant No.1 given
before the Investigating Officer makes it clear that
immediately prior to her death, Annapoornamma was
suffering from ill health and was not in a position to
move around. Keeping this fact in into consideration, it is
necessary to examine whether the defendants are able to
prove that Annapoornamma has executed the Will at
Ex.D3 and whether she was in a sound disposing state of
mind and body.
39. At the outset, it is relevant to note that the
alleged Will was executed in the house of Shunti
Thimmanna Bhatta, at Mattikai Village of Hosanagara
Taluk. It has come in the evidence that it is at a distance
of about 10 to 12 Miles from Kotesiruru where she was
staying. According to the defendant and in fact, in the
Will also stated that Annapoornamma alone went to
Mattikai village and none of the defendants' nor others
accompanied her and in fact, they were not aware of the
execution of the Will till it was sent to them through post
by K.D. Raja Vikrama in whose custody it was kept.
40. Defendant No.1 has deposed that
Annapoornamma had travelled in bullock cart belonging
to him in order to go to the house of Shunti Thimanna
Bhatta and she stayed there for one week. When the
defendants were not at all aware of execution of the Will
and in the Will also, it is stated that Annapoornamma
had decided to execute the Will without the knowledge of
defendants, they may not be in a position to say with
whom she went to the house of Shunti Thimanna Bhatta.
Therefore, the testimony of the bullock cart driver who
took her to Shunti Thimanna Bhatta would be relevant
and he may be able to throw light whether any other
person accompanied her.
41. When her health condition was precarious and
in the absence of proper convenience, heavy burden is
on the defendants to prove how she travelled and what
was her health condition. When Annapoornamma was
stated to have stayed for about one week in the house of
Shunti Thimanna Bhatta and the Will in question came
into existence while she stayed in his house, he or at
least members of his family were proper persons to
speak about the same. For reasons best known to them,
defendants have not examined Shunti Thimanna Bhatta.
42. According to the defendants, K.D.Raja Vikram
is the scribe of Ex.D3 and he prepared the Will as per the
instructions given by Annapoornamma. It is pertinent to
note that DW-2 Sulagodu. V. Bhat is only an attesting
witness to the Will. The examination of scribe K.D.Raja
Vikram would have thrown sufficient light on the
circumstances in which the will came into existence. DW-
2 Sulagodu V Subraya has specifically stated that he do
not know with whom Annapoornamma came to the house
of Shunti Thimanna Bhatta. He has also stated that there
were no documents available with Annapoornamma and
the Will was prepared as per her directions. Since
Annapoornamma was a rustic villager, it is doubtful
without necessary documents, she was able to give
details of the properties, especially when her health was
precarious. Defendants have not taken any steps to
clarify these aspects.
43. In Smt. Rajeshwari, referred to supra on
facts it was held that no suspicion can be held to
emanate from the fact that details of property are not
mentioned in the Will or the Will being short was not
written in hand, but typed.
44. In the present case, the details of the
properties are forthcoming which itself is a suspicious
circumstances, as the facts indicate that
Annapoornammma was a rustic villager, aged and
suffering from ill health and at the time of execution of
the Will, the details of the properties were not available
with her so as to enable the scribe to note the details in
the Will. Therefore, this decision is not applicable to the
case on hand.
45. In Dhani Ram, referred to supra, on facts the
Hon'ble Supreme Court held that though the attesting
witness claim that he had good relations with the testator
and she used to meet him regularly for some work or the
other, but stated that the testator might have lived 2-3
years after execution of the Will, whereas in fact she died
within 1 1/2 months of execution of Will, and the witness
did not recall several crucial details - the evidence of
attesting witness did not inspire confidence.
46. In the present case also, DW-2 Sulagodu
V.Subraya is not in a position to state when
Annapoornamma died, even though he claims to be a
close friend of defendant No.1 and knowing
Annapoornamma and her family member.
47. On the other hand, it has come in the
evidence of DW-2 that defendant No.1, himself, the other
attested witness Surya Narayana and scribe K.D. Raja
Vikram are close to each other. It is also elicited that
defendant No.1 was Panchayath Member and with his
help K D Raja Vikram had become the President of the
Panchayat. Plaintiff has alleged that on account of this
acquaintance and closeness, the Will at Ex.D3 is
concocted subsequent to the death of Annapoornamma.
However, the defendants have not chosen to clarify the
suspicious circumstances surrounding the Will. Though it
is alleged that the relationship between plaintiff on one
hand and defendant No.1 and Annapoornamma on the
other hand was not cordial. However, there are no such
allegations against defendant No.6, who is the other
daughter. It has come in the evidence of defendant No.1
that the financial condition of defendant No.6 and her
children is not very well and he used to help them
financially and also spend for the education of her
children. However, there is no justification for
Annapoornamma, not giving any share in the suit
properties to defendant No.6 who was all the more
needy.
48. In Savithri, referred to supra, on facts the
Hon'ble Supreme Court held that the testator, a cancer
patient was living with his sister and he was looked after
by his sister, her son and grandson and in the said
circumstances, bequeath of property in favour of his
nephew and nieces is natural and it was not cancelled by
the testator though he lived for 7 years after its
execution by itself sufficient to uphold the Will.
49. In Kalavati, referred to supra, on facts it was
held that when testator had strained relationship
with his daughter and had not received good treatment
from her, testator executing Will in favour of a person
who had provided him and his wife food and shelter and
was cultivating his land on their behalf and therefore,
testator executing Will in his favour and excluding the
daughter is not unnatural and it is not a result of any
coercion, influence or fraud.
50. In Smt.Leela @ Bali Devi, referred to supra,
on facts it was held that the testator bequeathed
property in favour of defendant-daughter who was living
with him and looking after him. There was evidence of
witnesses regarding due execution of the Will in their
presence and the testator was possessing sound
disposing state of mind. Merely because the other
daughter was disinherited by itself is not suspicious
circumstance to doubt the genuineness of the Will.
51. In Mangat Ram, referred to supra, on facts it
was held that a validly executed Will which is proved by
proper evidence before the Court cannot be ignored
merely on the ground that some Class-I heirs are
excluded.
52. In Dalip Singh, referred to supra, on facts it
was held that it is not uncommon amongst Jats of this
part of the Country that they prefer to keep the property
in the family and when the testator was living with
nephews, who used to serve him and his wife and the
daughter was married long time back and she was given
during all this period whatever the testator wanted to
give to her and therefore, Will in favour of them cannot
be held to be obtained by undue influence.
53. In Smt.Jito, referred to supra, on facts it
was held that when the daughter married against the
wishes of the father and had not been on visiting terms
for many years, executing of Will in favour of sons
excluding the daughter and no mention of reasons for
she being excluded is not a ground to discard the Will,
when it was duly proved.
54. In Tara Singh, referred to supra, on facts it
was held that when the executant was living with a
relative and the daughters were married and living
happily in the respective houses, real daughter deprived
and Will was executed in favour of the relative and the
witnesses were not from the same village are not
suspicious circumstances.
55. In Pentakota Satyanarayana, referred to
supra, on facts it was held that the fact that natural heirs
were excluded and legally wedded wife was given lesser
share is not a suspicious circumstances. Circumstances
of depriving natural heirs should not rise any suspicion
because the whole idea behind execution of Will is to be
interfered in normal line of succession and so natural
heirs would be debarred in every case of Will.
56. However, the above decisions are not
applicable to the case on hand as the defendants have
failed to prove the Will. Had the Will was proved, the
question of exclusion of daughters to the preference of
sons would have arisen for consideration.
57. In the Will at Ex.D3, there is explanation as to
why the Testatrix affixed her LTM to the postal
acknowledgement when she received the legal notice.
There is also an averment with an intention that neither
her sons nor daughters should know the fact of she
executing the Will, she has come to the house of Shunti
Thimanna Bhatta at Matikai village. As already noted,
Annapoornamma was a rustic villager, not knowing the
significance of the beneficiary being present with her
when the Will is executed. For the same reason, it cannot
be expected that she would know the significance of
affixing LTM when she was supposed to sign and
referring to the incident wherein she has put her LTM to
the acknowledgement and now that she is going to sign
the Will. Having regard to the social status and
educational qualifications of Annapoornamma, it cannot
be expected her to know the Nuances/importance of
legal requirements.
58. While there is a specific averment that the
testricks is not taking her children with her, there is no
reference with whom she took the journey to the house
of Shunti Thimanna Bhatta, especially when her medical
condition was not very encouraging. As noted earlier, she
was also not having the documents viz., RTC and other
papers which would help to refer to the Sy.No and other
details. However, all the specific details of the properties
are forthcoming in the Will. The contents of the Will more
particularly the special reference to do's and don'ts
indicates that in all probability, the Will is prepared with
the assistance of a legally trained person.
59. Plaintiff has taken a specific contention that
the signatures in Ex.D3 are not those of Annapoornamma
and that the will is concocted subsequent to her death.
In order to compare her admitted signatures with the
disputed signatures in Ex.D3, the plaintiff has summoned
order sheet on the Re-grant proceedings before the Land
Reforms Tribunal. It is an admitted fact that
Annapoornamma applied for Re-grant of tenanted land
and she personally attended the proceedings along with
defendant No.1. The order sheet state that the petitioner
(Annapoornamma) is present and even though duly
served, respondent has not appeared and therefore
matter is decided ex-parte and the land is Re-granted to
the petitioner i.e Annapoornamma and her signature is
taken to the order sheet.
60. In this case, initially, the order sheet of Land
Reforms Tribunal was marked as Ex.D4 and the signature
of Annapoornamma is marked as Ex.D4(a). Later on
21.10.2002, the number of this exhibit is corrected as
Ex.P49 and the signature of Annapoornamma is marked
as Ex.P49 (a). In fact, during his cross-examination,
defendant No 1 has admitted that Annapoornamma
visited the Land Reforms Tribunal once and he was
present along with her and on that day, her signature
was taken to the order sheet in token of her presence.
Thereby the plaintiff has proved that Ex P49 (a) is the
signature of Annapoornamma.
61. In fact, during his cross-examination, DW-1
i.e defendant No.1 has admitted that there is difference
in the signature of Annapoornamma at Ex.D3 (a) and
Ex.P49 (a). From the perusal of these two signatures on
the face of it, one can say that there is difference in
these two signatures and they are not the signatures of
one and the same person. Thereby the plaintiff has
proved that the signatures in Ex.D3 (a) to (c) are not
signatures of Annapoornamma. It is argued by the
learned counsel for the defendants that the signatures at
Ex.D3 (a) to (c) were affixed after about 15 years of
affixing the signature at Ex.P49 (a) and there is bound to
be differences between the two. When the plaintiff has
established that there is difference in the signatures of
Annapoornamma at Ex.D3 (a) to (c) and Ex.P 49 (a), the
proper course available to the defendant was to get the
signatures examined by an expert, which they have
failed to do so and thereby defendants have failed to
establish that Ex.D3 is the Will executed by
Annapoornamma and Ex.D3 (a) to (c) are her signatures.
62. In Pali Ram, the Hon'ble Supreme Court held
that although there is no legal bar to the Judge using his
own eyes to compare the disputed writing with the
admitted writing, even without the aid of the evidence of
any handwriting expert, the Judge should, as a matter of
prudence and caution, hesitate to base his findings with
regard to the identity of handwriting which forms the
sheet-anchor of the prosecution case against a person
accused of an offence, solely on comparison made by
him.
63. In O.Bharathan, referring to Pali Ram the
Hon'ble Supreme Court held that the High Court was not
right in either brushing aside the principles laid down in
Pali Ram on the ground that it was not a criminal case
or taking upon itself the hazardous task of adjudicating
upon the genuineness and authenticity of the signatures
in question even without the assistance of a skilled and
trained persons whose services could have been easily
availed of.
64. In the present case during his cross-
examination defendant No.1 himself has deposed that
there is difference in the signature in Ex.D4(a) and
Ex.D3(a) to (c). It is sufficient for the plaintiff to
establish this fact to raise a suspicion regarding the
genuineness of the Will in question. It was for the
defendants to seek experts opinion on the disputed
signatures in comparison with the admitted signature,
which they have not opted. Therefore, at this stage the
defendants cannot rely upon the above decisions and find
fault with findings of the trial Court as well the First
Appellate Court.
65. In Ryali Kameshwara Rao, on facts it was
held that when the signature of testator was not
uncharacteristic of his admitted signature and in the light
of direct evidence of three surviving attestors that they
saw the testator executing the Will, the fact that
signature was in shaky handwriting held did not raise
suspicion as to its genuineness.
66. However in the present case, defendant No.1
himself has deposed that there is variance in the
admitted and the disputed signatures. Therefore, this
decision is not applicable to the case on hand.
67. In Ligakath Ali Khan, it was held that the
First Appellate Court is required to asses the evidence
independently and record findings on the points raised
for consideration. Being the final Court of facts, the First
Appellate Court must assign reasons for its decision on
the points formulated for consideration.
68. In B.V.Nagesh, on facts it was held that the
order of Appellate Court falls short of consideration
expected from First Appellate Court and as such liable to
be set aside.
69. In B.M.Narayana Gowda, it was held that in
First Appeal the High Court is required to decided the
question of fact and law, comprehensively by giving full
dressed hearing. Setting aside the judgment and decree
of trial Court without properly examining facts and law
was improper.
70. However, in the present case, the First
Appellate Court has re-appreciated the evidence placed
on record and given definite findings.
71. Taking into consideration the oral and
documentary evidence placed on record, both the trial
Court as well as First Appellate Court have come to a
correct conclusion that the defendants have failed to
prove the Will at Ex.D3. This Court finds no justifiable
grounds to interfere with the conclusions arrived at by
them and therefore, substantial question No.1 is
answered in the Affirmative and substantial question
No.2 is answered "as does not survival consideration". In
the result, this appeal also fails and accordingly the
following:
ORDER
(i) The Regular Second Appeal filed by
defendants is dismissed.
(ii) Consequently, the judgment and order of
the trial Court, as modified by the First
Appellate Court are hereby confirmed.
(iii) The Registry is directed to send back the
trial Court as well as First Appellate Court
records along with copy of this judgment
forthwith.
Sd/-
JUDGE
RR
