Karnataka High Court
Sabu S/O Goudappa Goudappagol vs Balappa Claiming To Be Adopted on 23 April, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RSA No. 7361 of 2011
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
DATED THIS THE 23RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 7361 OF 2011 (DEC/INJ-)
BETWEEN:
SABU S/O. GOUDAPPA GOUDAPPAGOL,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O. KAKHANDAKI, TAL: BIJAPUR-586101.
...APPELLANT
(BY SRI SHIVAKUMAR KALLOOR, ADVOCATE)
AND:
BALAPPA CLAIMING TO BE ADOPTED SON OF
RAMAPPA GOUDAPPAGOL,
AGE: 24 YEARS, OCC: NIL,
R/O. KAKHANDAKI, TAL: BIJAPUR-586101.
...RESPONDENT
(BY SRI M.V.V. RAMANA, SENIOR COUNSEL FOR
SRI SANGANABASAVA B. PATIL, ADVOCATE)
THIS REGULAR SECOND APPEAL FILED UNDER SECTION 100
OF C.P.C. PRAYING TO SET ASIDE THE JUDGEMENT AND DECREE
CHANDRASHEKAR
LAXMAN
KATTIMANI PASSED IN R.A.NO.60/2010 DATED 17-9-2011 IN THE COURT OF
Digitally signed by
CHANDRASHEKAR
THE IIIRD ADDITIONAL DISTRICT JUDGE BIJAPUR IN THE INTEREST
LAXMAN KATTIMANI
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
OF JUSTICE. SUIT OF THE PLAINTIFF MAY KINDLY BE ALLOWED AS
PRAYED IN O.S.167/2000 IN THE COURT OF PRL. CIVIL JUDGE (SR.
DN) BIJAPUR; COSTS OF THE PROCEEDINGS MAY KINDLY BE
AWARDED.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 14.09.2023, AND TAKEN FOR 'FURTHER HEARING' ON
01.02.2024 AND 15.02.2024, COMING ON FOR PRONUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 7361 of 2011
JUDGMENT
Challenging judgment and decree dated 17.09.2011
passed by III Additional District Judge, Bijapur in
R.A.no.60/2010, this appeal is filed.
2. Appellant herein was plaintiff while respondent was
defendant in O.S.no.167/2000, and will hereinafter be
referred to as such. O.S.no.167/2000 was filed for declaration
of plaintiff's title over suit property, for consequential relief of
injunction and alternative prayer for partition and separate
possession of plaintiff's share in suit property. In plaint, it was
stated that plaintiff-Sabu S/o Goudappa Goudappagol was
natural brother of Ramappa Goudappagol of Kakhandaki
village, whose wife was Smt.Bhagavva. They had no issues
and died prior to suit. Said Ramappa owned land bearing
Sy.no.631/1+2B measuring 9-Acres 32-Guntas situated at
Kakhandaki village of Bijapur (suit property). After his death,
Smt.Bhagavva became absolute owner of suit property. It was
stated that defendant Balappa was claiming to have gone in
adoption to Goudappagol family under registered adoption
deed dated 17.06.1989 allegedly executed by Smt.Bhagavva,
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which would be unsustainable. Therefore, adoptee cannot
claim co-ownership or heirship on basis of alleged adoption. It
was stated that even after alleged adoption, name of
defendant entered in revenue records continued to be
associated with name of his natural father Adiveppa S/o
Basappa Saravad.
3. It was further stated, defendant claimed to have
got his name entered in record of rights in pursuance of a
Waradi allegedly given by Smt.Bhagavva resulting in
M.E.no.9825. It was stated, there could be no valid divesting
of title by mere Waradi and appearance of name did not
create any right by itself. It was also claimed that plaintiff was
nephew of Smt.Bhagavva as his father Goudappa was brother
of Ramappa, her husband. She had love and affection towards
plaintiff and therefore, executed a registered Will dated
24.08.1998 bequeathing suit property in favour of plaintiff. It
was stated that said Will was her last testament and she died
on 29.02.2000. In view of her death, plaintiff became absolute
owner in possession of suit land. He also reported same to
concerned Village Accountant appending copy of Will for
mutation.
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4. It was stated, O.S.no.318/1995 stated to be filed by
Smt.Bhagavva and another was by exploiting her innocence
and illiteracy and suit suffered from various short comings.
Filing of said suit came to knowledge of plaintiff only when he
received caveat notice issued by defendant. Only then plaintiff
realized attempts to denying his legitimate title over suit
property and gave rise to cause of action for filing suit.
5. Upon entering appearance, defendant filed written
statement denying plaint averments and specifically asserting
that Smt.Bhagavva was sister of Basappa Saravad, who was
grandfather of defendant - Balappa and father of Adiveppa
Saravad. Therefore, Smt.Bhagavva had taken her nearest
relative in adoption, which took place as per customs and rites
prevailing amongst Lingayaths and registration of deed of
adoption on same day. It was stated that during adoption
ceremony, presence of Smt.Bhagavva, deceased Yallavva D/o
Smt.Bhagavva and Laxmibai D/o Yallavva were present as
indicated in photograph taken. Waradi by Smt.Bhagavva to
enter name of defendant in respect of suit property was
admitted. It was asserted that adoption deed was valid and
acted upon. After lapse of 6 years and on instigation Mallappa
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husband of Yallavva, Smt.Bhagavva had filed
O.S.no.318/1995 before Prl.Civil Judge (Jr.Dn.), Bijapur for
declaration against adoption, by including Laxmibai as plaintiff
no.2, where, in plaint paragraph no.3, it was stated that suit
property was inherited by her husband Ramappa and her
grand-daughter Laxmibai who had become absolute owners
and therefore, it should be transferred to name of plaintiff
no.2. It was stated, Smt.Bhagavva had also challenged
M.E.no.9825 before Assistant Commissioner, who set it aside
on 21.03.1997. Said order was challenged by defendant in
W.P.no.10471/1997. In said petition, a bogus sale deed stated
to be executed by Bhagavva on 20.09.1996 in respect of VPC
no.163 of Kakhandaki village was produced. Taking note of
irregularities, this Court directed entry of names of defendant
and Smt.Bhagavva jointly in revenue records, which continued
till her death. It was stated that due to old age, Smt.Bhagavva
fell down in bathroom, fractured her leg and was bedridden.
Taking advantage of her condition, Goudappa practiced fraud
on her, took her thumb impression on blank papers and got
created Will. It was stated that Bhagavva was not in sound
state of mind as on date of alleged Will. She was also suffering
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from loss of vision and was short of hearing and as such, not
in sound state of mind for execution of Will. Further, as Will
sought to exclude her only nearest relative Laxmibai, Will was
not genuine and executed with free will. Instead of filing
petition for probate of Will, suit was filed, which was barred by
Section 213 of Indian Succession Act. It was also stated that
prayer for declaration of absolute title and for partition cannot
go together under same cause of action.
6. Based on pleadings, trial Court framed following:
ISSUES
i) Whether plaintiff proves that Smt.Bhagavva
executed a Will on 24.08.1998 in favour of
plaintiff?
ii) Whether plaintiff proves that he is owner of suit
property?
iii) Whether plaintiff proves that he is in lawful
possession of suit property as on date of suit?
iv) Whether cause of action arose to file this suit?
v) Whether plaintiff is entitled for reliefs sought
for? If so, for which relief?
vi) What order or decree?
ADDITIONAL ISSUE
i) Does the suit of plaintiff is hit by Section 123 of
Indian Succession Act?
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7. To prove his case, plaintiff examined himself and
two others as PWs.1 to 3 and got marked original WILL as
Ex.P1. On other hand, defendant examined himself and five
others as Dws.1 to 6 and got marked Exs.D1 to D37.
8. On consideration, trial Court answered issues no.1
and 5 in affirmative, issues no.2 and 6 partly in affirmative,
issue no.3 as not arising for consideration, issue no.4 and addl.
issue no.1 in negative and issue no.7 by decreeing suit.
Aggrieved thereby, defendants filed appeal on several grounds.
It was contended that impugned judgment and decree passed
by trial Court was contrary to law and evidence and
probabilities of case. Decree was perverse, capricious and
unsustainable. Though WILL was surrounded with suspicious
circumstances, there was improper consideration while
concluding that WILL was proved. Trial Court did not assign
proper reasons for rejecting claim of defendant.
9. Based on contentions urged, first appellate Court
framed followings points for consideration:
1) Whether the appellant/defendant proves that
Affirmative finding recorded by the lower Court on
Issue-1 holding that the due execution of the Will
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dated 24.08.1998 is perverse, capricious and
legally not sustainable?
2) Whether the appellant/defendant proves that the
Negative finding recorded by the lower Court on
Issue-4 holding that the execution of adoption deed
dated 17.06.1989 is perverse, capricious and
legally not sustainable?
3) Whether the interference of this Court is required?
4) What order?
10. On consideration first appellate Court answered
points no.1 to 3 in affirmative and point no.4 by allowing
appeal, setting aside judgment and decree passed by trial Court
and dismissing suit. Aggrieved by said judgment and decree,
plaintiff is in appeal.
11. Sri Shivakumar Kallur, learned counsel for plaintiff
submitted that plaintiff filed O.S. no.167/2000 for relief of
declaration and injunction along with alternative prayer for
partition and separate possession in respect of suit property
namely Sy.no.631/1+2B measuring 9 acres 32 guntas of
Kakhandi village. It was submitted that plaintiff was son of
Goudappa, brother of Ramappa. Ramappa's wife was
Smt.Bhagavva who became absolute owner of suit property
after death of Ramappa on 11.05.1968. Though defendant
claimed to have gone in adoption on 17.06.1989 as per
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Ex.D.35, he was natural son of Adiveppa and Smt.Gangavva.
Adiveppa had earlier married Smt.Yallavva daughter of
Smt.Bhagavva, and after abandoning her had married
Smt.Gangavva. Said Yallavva thereafter married Mallappa and
had a daughter Smt.Laxmibai through him.
12. When defendant illegally got his name mutated in
revenue records, Smt.Bhagavva challenged it. It was contended
that Smt.Bhagavva had executed registered WILL in favour of
plaintiff on 24.08.1998, prior to her death on 29.02.2000. It
was contended, both as legatee under WILL as well as by
operation of law i.e. Section 15(1)(b) of Hindu Succession Act,
plaintiff had right to question adoption. By virtue of Ex.P1-
WILL, he got half share of Smt.Bhagavva. It was submitted
that Smt.Bhagavva along with Smt.Laxmibai had filed
O.S.no.318/1995 challenging adoption, but died during its
pendency. Since plaintiff was not party to said suit,
compromise entered into between defendant and Smt.Laxmibai
would not bind him. It was also contended that Ex.D2-
compromise decree would be unenforceable as it was not
drawn on stamp paper and registered as held required in case
of A.P.Madanna (deceased) by Lrs., vs. A.P.Kushalappa
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and others reported in AIR 2002 KAR 439 and Sha
Champalal Oswal vs. Peralu Achanna and another
reported in 1998 (1) Kar.LJ 365.
13. It was submitted that in Ex.P1-WILL, testator had
clearly averred about filing of O.S.no.318/1995 questioning
adoption. Since defendant had attempted to interfere with
plaintiff's peaceful possession, plaintiff had filed present suit.
During trial, plaintiff produced registered WILL as Ex.P1 and
examined scribe as PW1, attesting witness as PW2. They
deposed in favour of WILL and sustained cross-examination.
Thus, Ex.P1 stood proved. Consequently, judgment and decree
passed by trial Court would be justified.
14. On other hand, defendant examined DWs1 to 6 and
got marked Exs.D1 to D37. Since original deed of adoption was
not produced and its certified copy was got marked as Ex.D35,
trial Court disbelieved adoption as no foundation was laid for
leading secondary evidence on adoption. Since testator herself
had contested O.S.no.318/1995, compromise decree passed
would not bind plaintiff. Therefore trial Court was justified in
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holding that WILL was proved and decreeing half share of
Smt.Bhagavva to plaintiff.
15. However, first appellate Court allowed appeal of
defendant stating Plaintiff cannot challenge adoption and he is
stranger, even though burden lies on defendant to prove
adoption was legal and valid. It was submitted, there must be
recitals in registered adoption deed of both parents of giving
and taking and both parents should sign document. Ex.D.35,
reveals that there are no signatures of both parents on
document of adoption. On said finding, trial Court held adoption
as invalid. First appellate Court failed to see that Bhagavva will
get half share after death of Ramappa as per Section 8 (a)
being Class-I heir, so trial Court gave half share. It was further
contended that Ex.P1 being registered WILL was duly proved by
PW-2, PW-3 evidence trial Court findings. Main ground urged
against plaintiff's challenge against adoption on ground that
said right was available only to family member would not hold
water as Hon'ble Supreme Court in Moturu Nalini Kanth v.
Gainedi Kaliprasad, reported in 2023 SCC OnLine SC 1488
and any relative could challenge it. It was contended that since
Smt.Bhagavva herself had questioned adoption, defendant
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cannot claim any right as adoptee. It was lastly contended that
first appellate Court failed to frame proper points for
consideration and meet requirements of Order 41 Rule 33 of
C.P.C. Reliance was also placed on decision of this Court in case
of Virupanna and others V/s Earanna and others in RSA
No.7282/2010 dated 31.01.2024 for a proposition that to
establish valid adoption recitals and signatures of both giver
and taker are necessary.
16. It was submitted that appeal was admitted on
09.03.2012 to consider following substantial question of law:
"Whether first appellate Court was justified in reversing
the finding of trial Court contrary to pleadings and
evidence available on record?"
17. Based on above grounds, learned counsel sought
for answering same in favour of appellant and to allow appeal.
18. On other hand, Sri M.V.V.Ramana, learned Senior
Counsel appearing for Sri Sanganabasava B.Patil, learned
counsel for defendant sought to oppose appeal.
19. It was submitted O.S.no.167/2000 was filed for
declaration and consequential injunction or in the alternative
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for partition based on an alleged WILL supposed to have been
executed in his favour. At outset, it was submitted a stranger
cannot seek for partition as plaintiff did not fall within list of
class-I heirs, especially when even according to plaintiff,
testator had a daughter, and daughter of pre-deceased
daughter would be Class-I heir. Therefore, alternative prayer
for partition was not tenable.
20. Further, defendant was adopted on 19.06.1989
under registered adoption deed and his name entered in record
of rights in respect of suit property as per waradi given by
adopted mother - Smt.Bhagavva, who was widow at time of
adoption as Ramappa her husband died on 11.05.1968.
Admittedly, suit property was ancestral property of Ramappa.
On adoption, adopted child severs all relationship with his
natural family and would be deemed born into adoptive family
from date of adoption. Hence, defendant would be deemed
coparcener and entitled to inherit coparcenary property.
21. It was submitted contention urged about non-
production of original adoption deed would be diluted as
Smt.Bhagavva had filed O.S.no.318/95 for cancelation of
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adoption deed and even in WILL on which plaintiff was staking
his claim, there was mention about adoption. It was submitted
adoption deed was registered and deposition of one of
witnesses of adoption namely photographer who took
photographs during adoption function, would confirm adoption.
22. Insofar as WILL, it was submitted that it was
allegedly executed during pendency of suit i.e. on 24.08.1998
and testator died on 29.02.2000. Thereafter, suit ended in a
compromise, whereunder, surviving plaintiff accepted
defendant as her adopted brother of her mother and said
decree has attained finality. It was contended that in alleged
WILL, there was not only reference to above suit as well as
about mutation entries in favour of defendant.
23. Thus, being aware about suit and mutation in
favour of defendant, and decree having attained finality,
plaintiff would not be entitled to seek declaration of his title. It
was submitted as per ratio laid down by this Court in
Veerabhadrayya R. Hiremath and others Vs. Irayya A.F.
Basayya Hiremath reported in ILR 2006 Kar. 1740, under
normal circumstances adoption can be challenged either by
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natural parents of boy or by adoptive parents or by child who
was given in adoption.
24. Admittedly, adopted mother and her grand-
daughter had challenged adoption, which ended in a
compromise. Since plaintiff is not among those who would be
entitled to question adoption, compromise decree would be
binding.
25. Referring to recitals in WILL wherein Testator stated
that she was executing WILL as she was confident of winning
suit, it was contended that Testator was aware that she did not
have title in respect of suit property. Therefore, WILL was
contingent on winning in O.S.no.318/95. Since suit ended in
compromise, contingent bequeathal would evaporate.
26. It was submitted this Court in Babu Ningappa
Yalgundri Vs. Arunkumar reported in AIR 1987 SCC
OnLine KAR 297, had held, adoption by widow of deceased
coparcener, even as per classic Hindu law would be on behalf of
her deceased husband and not for herself. It was submitted as
a consequence of adoption, course of succession would be
altered. It was further observed that in accordance with
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provisions of Hindu Succession Act, if she died intestate, in
regard to what constitutes her absolute estate, Section must be
read not in terms of a widow who has an interest in properties
of a Joint Hindu Family under customary law but with reference
to rights of a female hindu dehors Mithakshara Joint Hindu
Family System who may pass on her absolute estate to her
adopted child.
27. It was further submitted in Ashwani Kumar Vs.
Smt.Vidya and others reported in 2007 SCC OnLine All 20,
High Court of Allahabad, following decision of Apex Court in
Deu Vs. Laxmi Narayan, reported in 1998 (8) SCC 701, in
view of Section 16 of Hindu Adoption and Maintenance Act,
1956 ('HAMA' for short), whenever any registered document is
produced before any Court purporting to record an adoption
made and is signed by persons mentioned therein, Court shall
presume that adoption has been made in compliance with
provisions of said Act, unless and until it is disproved and there
would be no scope for collateral challenge. It was submitted,
further observation that in view of Section 16 of HAMA, it was
open to them to disprove such deed of adoption in an
independent proceeding, would render instant suit, untenable.
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28. It was lastly submitted, this Court in
Smt.Rudramma Vs. Shivamurtheppa and others in RFA
no.100102/2015 disposed of on 08.05.2020, held that as per
Article 57 of Limitation Act, 1963, suit for declaration about
invalidity of adoption has to be filed within three years from
date of adoption or knowledge. In view of above, present suit
filed about 11 years after date of adoption would be barred by
limitation. Hence, first appellate Court would be justified in
setting aside judgment and decree passed by trial Court and
dismissing suit. Consequently, it was prayed for dismissing
appeal.
29. Heard learned counsel, perused impugned
judgment and decree and records.
30. From above, it is seen plaintiff is seeking for
declaration that he is absolute owner of suit property, for
consequential permanent injunction against interference and
alternatively for partition. Nature of suit property as ancestral
joint family property of Ramappa is not in dispute. That
Smt.Bhagavva, was widow of late Ramappa is also not in
dispute. While plaintiff is claiming title over suit property under
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Ex.P.1 - registered WILL dated 24.08.1998 executed by
Smt.Bhagavva, defendant is claiming title under Ex.P.35 -
registered deed of adoption dated 17.06.1989, whereunder,
Smt.Bhagavva adopted defendant as her son. Hence, both
plaintiff and defendant are claiming title through
Smt.Bhagavva.
31. Admittedly, Ramappa and Smt.Bhagavva, had a
daughter - Yallavva. Therefore, after death of Ramappa, his
property would devolve upon his widow and daughter. In case,
adoption of defendant is held established, he would become
coparcener. Even if it is held not proved, testator
Smt.Bhagavva would not be absolute owner in presence of
daughter - Yallavva. Even if Yallavva had died, her daughter
Laxmi Bai, would be her Class-I heir. Therefore, Smt.Bhagavva,
would not be absolute owner of suit property. Consequently,
right to bequeath suit property would be limited to her share
only. Hence, even if plaintiff were to establish Ex.P.1 - WILL as
valid, his claim would be limited as above to share of testator.
32. While passing judgment and decree, trial Court
observed that defendant had not sought for any counter claim
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based on adoption deed nor plaintiff sought for declaration that
adoption deed was null and void or for its cancellation. It took
note of fact that there was failure to produce original adoption
deed. After analyzing evidence to explain reasons for its non-
production, it observed such reasons untenable and therefore,
held there would be no justification for permitting defendants to
prove adoption by secondary evidence. From admission by
DW.1 that there were no recitals in adoption deed produced
about performance of ceremony of 'giving and taking',
contradicted about date of adoption as 19.06.1989, while in
examination-in-chief by way of affidavit stating it as on
17.06.1989, in addition to fact that defendant had accepted
summons, even though it was issued in name of Balappa son of
Adiveppa Sarawad and also taking note of name of parents of
defendant in Ex.D.1 - SSLC marks card, issued much later than
date of alleged adoption as Gangamma and Adiveppa, came to
conclusion that defendant had failed to establish valid adoption.
33. Insofar as Ex.P.1 - WILL, it held that by production
of original WILL, failure of defendant to dispute LTM on Ex.P.1
was that of testatrix, examination of scribe of WILL as PW.1
and attesting witness as PW.2, who deposed consistently about
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due execution of WILL, plaintiff had established validity of
WILL. Before such finding, it examined material available to
rule out suspicious circumstances. It noted denial of
suggestions about testator being physically unfit due to
blindness, deafness and also about broken leg, by scribe and
attesting witnesses to conclude that WILL did not suffer from
suspicious circumstances.
34. Insofar as Smt.Laxmi Bai, grand-daughter of
testatrix, it observes that neither defendant had taken up
contention about non-joinder of necessary party nor plaintiff
establishing that testatrix was absolute owner of suit property.
It also noted that plaintiff had failed to file rejoinder to written
statement, denying Smt.Laxmi Bai had any right, title or
interest over suit property. Therefore, it drew adverse inference
and proceeded to hold that plaintiff would be entitled to claim
right under WILL to extent of share of testatrix in suit property.
Since, testatrix and Smt.Laxmi Bai, were both Class-I heirs, it
apportioned plaintiff's right to half share in suit properties. It
also observed that mere revenue entries would not confer title.
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35. On other hand, first appellate Court observed that
there was failure to produce original adoption deed. It observed
Ex.D.33 was letter by defendant for return of original adoption
deed submitted while requesting mutation of name of
defendant in year 1989 and reply by Tahsildar as per
endorsement at Ex.D.34, as laying down basis for leading
secondary evidence. On said reasoning, it held production of
certified copy of adoption deed as per Ex.D.35 would be
sufficient to establish adoption by referring to presumption
available to registered deed under Section 16 of HAMA. It also
holds plaintiff as a third party cannot challenge validity of
adoption by referring to decision in Veerabhadrayya
Hiremath (supra). It also noted fact that defendant had
examined photographer and attesting witnesses of deed of
adoption, in addition to acknowledgement by Smt.Bhagavva
herself in O.S.no.318/1995.
36. It further observed that as defendant was aged 2-3
years at time of adoption, admissions elicited from him would
be immaterial and therefore, inferences drawn by trial Court
based on such admissions would not be justified.
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37. Insofar as WILL, it observed that mere examination
of scribe and attestor would not be sufficient and propounder
would be required to explain away any suspicious
circumstances surrounding WILL. It held that there was no
explanation for excluding Smt.Laxmi Bai - natural heir from
bequeathal of entire joint family property.
38. Referring to deposition of PW1 - scribe that testatrix
had given record of rights for drafting WILL, but there was
reference to pending suit also in said WILL, presumed that it
was prepared based on instructions given by someone else
also. It also holds since, PW.1 did not state that he went to
Sub-Registrar's office, he could not be treated as attesting
witness. It holds deposition of PW.2 as attesting witness was
unreliable by referring to his statement that contents of WILL
were not read over to him and without enquiring about same,
he had signed WILL. Reason assigned is that testatrix had
asked him to accompany her to Bijapur, as she was executing
sale deed in respect of suit property. It also observed that PW.3
propounder of WILL had not stated anything about exclusion of
Smt.Laxmi Bai. Based on above observations, it holds that in
absence of trustworthy and unimpeachable evidence to
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establish genuineness and authenticity of WILL, it must be held
as not duly proved. It observes "Court has to sit in the
armchairs of the testator and examine the genuineness of the
WILL and appreciate the evidence on record in deciding as to
whether the WILL is duly executed by the executant or not and
in making such decision, it should repose confidence of the
Court that it is the true intention of the testator who has
executed the WILL."
39. First appellate Court also held that long time gap after
adoption would be suspicious circumstances as per decision in
Siddalingaiah (deceased by LRs) v. H.K. Kariappa reported
in AIR 2009 (NOC) 888. Further referring to decision in P
Ramachandran Nair v. Smt.Suparna Tapandas reported in
AIR 2003 Bom. 457 and B. Rajegowda & Anr. v. H.B.
Shankaregowda & Ors. reported in ILR 2005 Kar.5501, it
held failure to disclose name of attesting witnesses in plaint
would also required to be considered. Based on above
observations, it concluded that finding of trial Court on
genuineness and validity of Ex.P.1 - WILL was contrary to
material placed on record and as such, unsustainable.
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40. In instant case, plaintiff's claim under WILL is
opposed on ground that WILL is shrouded in suspicion. Law
regarding proof of WILL and suspicious circumstances has seen
substantial evolution with celebrated decision in
H. Venkatachala Iyengar v. B.N. Thimmajamma, reported
in AIR 1959 SC 443, wherein it was held propounder of WILL
must examine one or more attesting witnesses and onus would
be on propounder to remove all suspicious circumstances with
regard to execution of WILL. It clarified that as in proof of other
documents proof need not be with mathematical certainty and
standard to be applied would be satisfaction of prudent mind.
41. In Jaswant Kaur v. Amrit Kaur, reported in
(1977) 1 SCC 369, it was held when WILL is challenged as
being shrouded in suspicion lis ceases to be between plaintiff
and defendant and question which would arise for consideration
is, whether evidence led by propounder would satisfy
conscience of Court that WILL was duly executed by testator. It
was clarified that such conclusion cannot be ruled out unless
propounder offers cogent and convincing explanation with
regard to suspicious circumstances.
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42. In Bharpur Singh v. Shamsher Singh, reported
in (2009) 3 SCC 687, it was held three aspects must be
proved by propounder:
16. ... (i) that the will was signed by the testator in a
sound and disposing state of mind duly understanding
the nature and effect of disposition and he put his
signature on the document of his own free will, and
(ii) when the evidence adduced in support of the will is
disinterested, satisfactory and sufficient to prove the
sound and disposing state of the testator's mind and his
signature as required by law, courts would be justified
in making a finding in favour of propounder, and
(iii) if a will is challenged as surrounded by suspicious
circumstances, all such legitimate doubts have to be
removed by cogent, satisfactory and sufficient evidence
to dispel suspicion. In other words, the onus on the
propounder can be taken to be discharged on proof of
the essential facts indicated therein."
43. An illustrative list of suspicious circumstances was
also enumerated in above decision:
"23. Suspicious circumstances like the following may be
found to be surrounded in the execution of the will:
(i) The signature of the testator may be very shaky and
doubtful or not appear to be his usual signature.
(ii) The condition of the testator's mind may be very
feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or
unfair in the light of relevant circumstances like exclusion
of or absence of adequate provisions for the natural heirs
without any reason.
(iv) The dispositions may not appear to be the result of
the testator's free will and mind.
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(v) The propounder takes a prominent part in the
execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts."
44. In B. Venkatamuni v. C.J. Ayodhya Ram
Singh reported in (2006) 13 SCC 449, it was clarified that
there exists distinction between well founded suspicion and
bare suspicion. It was held, Court must not start with suspicion
and close its mind to find truth as resolute impenetrable
incredulity is not demanded even if there exists circumstances
of grave suspicion. As held in Anil Kak v. Sharada Raje,
reported in (2008) 7 SCC 695, Court has to adopt rational
approach to satisfy its conscience, as an order granting probate
is judgment in rem. In Leela Rajagopal v. Kamala Menon
Cocharan, reported in (2014) 15 SCC 570, weighing of
suspicious circumstances was further elucidated as under:
"13. A will may have certain features and may have
been executed in certain circumstances which may
appear to be somewhat unnatural. Such unusual
features appearing in a will or the unnatural
circumstances surrounding its execution will definitely
justify a close scrutiny before the same can be
accepted. It is the overall assessment of the court on
the basis of such scrutiny; the cumulative effect of the
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unusual features and circumstances which would weigh
with the court in the determination required to be made
by it. The judicial verdict, in the last resort, will be on
the basis of a consideration of all the unusual features
and suspicious circumstances put together and not on
the impact of any single feature that may be found in a
will or a singular circumstance that may appear from
the process leading to its execution or registration.
This, is the essence of the repeated pronouncements
made by this Court on the subject including the
decisions referred to and relied upon before us."
(emphasis supplied)
45. Thus, judicial verdict has to be on consideration of
all unusual features and suspicious circumstances put together
without being carried away on any single circumstance. In
instant case, substantial time gap after adoption for execution
of WILL; exclusion of natural heir; statement of scribe that
record of rights were handed over, but not referred in WILL;
assertion about probable result of suit; omission of scribe to
state his attendance at Sub-Registrar's Office; admission by
PW.2-attesting witness that contents of WILL were not read
over to him and he signed without enquiring about contents of
WILL rendered him unreliable witness. It also upholds
execution of WILL long after adoption as a suspicious
circumstance. Failure to disclose attesting witness in plaint was
also taken into account.
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46. This Court in RFA.no.1156/2006, disposed of on
17.06.2022 has held omission to state regarding record of
rights would not be fatal. Further, PW.1 is scribe and not
attesting witness. His attendance before Sub-Registrar is not
required by law. Though, adoption is in year 1989 and WILL is
executed on 24.08.1998, after about nine years, such
execution is a short while after testatrix had filed suit for
declaration against adoption. In any case, since WILL can be
executed at any time, time gap after date of alleged adoption
would be irrelevant.
47. There is no requirement in law that attestor is also
required to know contents of deed/document, which he attests.
Insofar as requirement to establish that testator had knowledge
of intent and purport of WILL, PW.1 has stated that contents of
WILL were read over and testatrix admitted it to be correct.
Suggestions about testatrix being deaf and blind are denied.
Only elicitation is that PW.1 did not accompany to office of Sub-
Registrar. In fact, tenor of cross-examination is total denial of
testatrix meeting PW.1 to give instructions for preparation,
execution and registration of WILL. Contrary to it, it is
suggested at time of writing WILL, only Kallappa Gonganaik,
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Hanumanth Jamkhandi and testatrix were present. PW.2 -
attestor, deposed that as per instructions of testatrix, he
accompanied her to Bijapur for acting as attesting witness. In
fact, in cross-examination of PW.2, it is elicited that scribe had
read over contents to testatrix. Only material elicitation is
about his lack of knowledge of contents of WILL. Said
circumstance cannot be considered as suspicious.
48. PW.3 - propounder of WILL has deposed that
testatrix was hale and healthy at time of execution of WILL and
died about one and half years after execution of WILL. Only
elicitation was that about four days prior to death, she was
suffering from fever. It is also elicited that about one week
earlier, testatrix had informed propounder about execution of
WILL and she had handed over WILL to him after execution.
Interestingly, there are no suggestions about propounder's
participation at time of execution of WILL or WILL suffering
from undue influence.
49. Moreover, judgment and decree passed by trial
Court was by same learned Judge, who recorded portion of
evidence. Admittedly, interference with judgment and decree of
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trial Court is not on ground of failure to consider any part of
evidence. Hon'ble Supreme Court in its celebrated decision in
Santosh Hazari v. Purushottam Tiwari, reported in (2001)
3 SCC 179, has held:
"15. ......While writing a judgment of reversal the
appellate court must remain conscious of two
principles. Firstly, the findings of fact based on
conflicting evidence arrived at by the trial court must
weigh with the appellate court, more so when the
findings are based on oral evidence recorded by
the same Presiding Judge who authors the
judgment. This certainly does not mean that when an
appeal lies on facts, the appellate court is not
competent to reverse a finding of fact arrived at by the
trial Judge. As a matter of law if the appraisal of the
evidence by the trial Court suffers from a material
irregularity or is based on inadmissible evidence or on
conjectures and surmises, the appellate court is entitled
to interfere with the finding of fact. (See Madhusudan
Das v. Narayanibai [(1983) 1 SCC 35) The rule is --
and it is nothing more than a rule of practice --
that when there is conflict of oral evidence of the
parties on any matter in issue and the decision
hinges upon the credibility of witnesses, then
unless there is some special feature about the
evidence of a particular witness which has
escaped the trial Judge's notice or there is a
sufficient balance of improbability to displace his
opinion as to where the credibility lie, the
appellate court should not interfere with the
finding of the trial Judge on a question of fact.
(See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap
Narain Singh [1950 SCC 714: AIR 1951 SC 120])
Secondly, while reversing a finding of fact the appellate
court must come into close quarters with the reasoning
assigned by the trial court and then assign its own
reasons for arriving at a different finding. This would
satisfy the court hearing a further appeal that the first
appellate court had discharged the duty expected of it.
....."
(emphasis supplied)
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50. As noted above, first appellate Court has applied
standard of arm chair of testator to know genuineness and
validity of WILL and cast burden on propounder to lead
trustworthy and unimpeachable evidence to establish
genuineness and authenticity of WILL, which would be contrary
to law. As observed above, conclusion on all circumstances by
first appellate Court would be contrary to law. In fact, except
circumstance about exclusion of natural heir, they cannot be
considered as material suspicious circumstances. In fact, said
issue was addressed by trial Court holding that testament could
not affect or alter course of natural succession and restricting
bequeathal only to extent of share of testatrix in joint family
properties. Consequently, there would be no basis for
interference with judgment and decree passed by trial Court.
Hence, substantial question of law is answered in negative.
Hence, following:
ORDER
Appeal is allowed, impugned judgment and
decree dated 17.09.2011 passed by III
Additional District Judge, Bijapur, in
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R.A.no.60/2010 is set aside. Consequently,
judgment and decree dated 26.03.2010 passed
by Principal Civil Judge (Sr.Dn.) Bijapur, in
O.S.no.167/2000 is restored.
Sd/-
JUDGE
Psg*
