Karnataka High Court
Kum Harshada S vs Sri Mariyappa on 5 April, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2024
R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.760/2018 (DEC/INJ)
BETWEEN:
1. KUM. HARSHADA S.,
D/O SHIVALINGEGOWDA
AGED ABOUT 26 YEARS
R/AT NO.153, 2ND CROSS
K.S.R.T.C.LAYOUT
UTTARAHALLI MAIN ROAD
BENGALURU-560061. ... APPELLANT
(BY SRI NISHANTH A.V., ADVOCATE)
AND:
1. SRI MARIYAPPA
S/O LATE HONNEGOWDA
AGED ABOUT 60 YEARS
R/AT NUNNUR VILLAGE
VIRUPAKSHIPURA HOBLI
CHANNAPATNA TALUK
RAMANAGARA DISTRICT-562160. ... RESPONDENT
(BY SRI M.C. JAYAKIRTHI, ADVOCATE)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 10.1.2018
PASSED IN R.A.NO.2/2015 ON THE FILE OF THE I ADDL.
DISTRICT AND SESSIONS JUDGE, RAMANAGARA, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 2.12.2014 PASSED IN O.S.NO.217/2012 ON THE FILE OF
2
THE SENIOR CIVIL JUDGE AND JMFC, CHANNAPATTANA,
RAMANAGAR DISTRICT.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.03.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the appellant
and also the counsel appearing for the respondent.
2. This appeal is filed challenging the judgment and
decree dated 10.01.2018 passed in R.A.No.2/2015 on the
file of the I Additional District and Sessions Judge,
Ramanagara.
3. The factual matrix of the case of the appellant-
plaintiff before the Trial Court is that the suit schedule
property was originally belonged to her grandfather by
name Nunnuru Honnegowda who had acquired the same
under registered sale deed dated 01.05.1974. Thereafter,
her grandfather executed a registered Will in her favour on
22.09.2010 and her grandfather died on 28.02.2011. It is
contended that after the death of her grandfather, she
became an absolute owner of the suit schedule property as
per the Will. The defendant being her paternal uncle
acquired wrongful possession of the suit schedule property
by illegal means and forcibly put up construction of a
building and that the defendant has refused to accept her
title and handover the possession of the suit schedule
property. Hence, the suit is filed for the relief of
declaration, possession and for mandatory injunction.
4. In pursuance of suit summons, the defendant
appeared and filed the written statement contending that
the suit schedule property though was purchased in the
name of his father Honnegowda, the same has been joint
family property and as such his father had no absolute right
to bequeath the same in favour of the plaintiff by executing
any Will and that he has raised 40 coconut trees and put up
pump-shed and that he has been in a possession and
enjoyment of the suit schedule property since his childhood
and that his father has suffered from paralytic stroke on his
right side of the body and he was not able to speak and was
not having good eye sight and hearing since from 16 years
prior to his death and that the father of the plaintiff by
inducing his father Honnegowda to taking him to the
hospital might have taken to the Sub-Registrar office and
fraudulently got executed the Will to grab the suit schedule
property and that he has put up the construction about
eight years back and hence, the suit is not maintainable.
5. Based on the pleadings of the parties, the Trial
Court framed the Issues Nos.1 and 2 shifting the burden on
the plaintiff to prove that whether she is the absolute owner
of the suit schedule property and whether the defendant
has illegally constructed a building in the suit schedule
property without her consent and the Trial Court has
framed Issue No.3 shifting the burden on the defendant to
prove that the suit schedule property is an ancestral
property. The plaintiff in order to prove her case, examined
herself as PW1 and two attesting witnesses as PW2 and
PW3 and got marked the documents at Ex.P1 to P24. On
the other hand, the defendant examined himself as DW1
and also examined three more witnesses as DW2 to DW4
and got marked the documents at Ex.D1 to D40. The Trial
Court after considering both the oral and documentary
evidence answered Issue Nos.1 and 2 as affirmative in
coming to the conclusion that the plaintiff has proved that
she is the absolute owner of the suit schedule property and
the defendant has illegally constructed the building in the
said property without her consent and answered Issue No.3
as negative in coming to the conclusion that the suit
schedule property is not an ancestral property as contended
by the defendant and granted the relief of declaration
declaring that the plaintiff is the absolute owner of the suit
schedule property and she is entitled for the possession of
the same and directed the defendant to handover the
vacant possession of the suit schedule property within one
month and also directed the defendant to get the building
situated in the suit schedule property demolished by way of
mandatory injunction.
6. Being aggrieved by the judgment and decree of
the Trial Court, an appeal was filed before the First
Appellate Court in R.A.No.2/2015. The grounds urged in the
appeal that the Trial Court has committed an error in
coming to the conclusion that the suit schedule property is
not an ancestral property and also fails to take note of the
material contradictions found in the evidence of the plaintiff
witnesses and the Trial Court fails to take note of the
admission of the plaintiff and the findings of the Trial Court
is erroneous. Based on these grounds, the First Appellate
Court also formulated the point that whether the appellant
proves that the impugned judgment and decree passed by
the Trial Court is contrary to the law, facts, evidence and
committed an error in evaluating the evidence of the parties
and whether it requires interference. Having reconsidered
the material on record found that the Trial Court has
committed an error and answered Point No.1 as affirmative
and reversed the finding of the Trial Court by allowing the
appeal and set aside the judgment and decree of the Trial
Court. Hence, the present appeal is filed before this Court.
7. This Court, having considered the grounds urged
in the second appeal and also on perusal of the material
available on record, framed the following substantial
questions of law:
(i) Whether the Lower Appellate Court was justified in
holding that the suit schedule property is joint family
property of Late Honnegowda on the ground that the
Plaintiff has not proved that the suit schedule
property is self acquired property of Late
Honnegowda?
(ii) Whether the Lower Appellate Court was justified in
holding that the suit schedule property is the joint
family property in spite of the Defendant having not
discharged his burden to prove as required under
law?
(iii) Whether the Lower Appellate Court was justified in
holding that the Plaintiff has failed to establish the
due execution of the Will (Ex.P4) by Honnegowda
and further, failed to prove due attestation of the
same as contemplated under Section 68 of the
Indian Evidence act?
(iv) Whether the Lower Appellate Court was justified in
allowing the appeal of the Defendant and thereby
setting aside the judgment and decree of the Hon'ble
Trial Court and consequently, dismissing the suit of
the Plaintiff in spite of admission of the D.W.1
(Defendant) in his cross examination that the suit
schedule property is the self acquired property of
Honnegowda?
8. This Court having considered the grounds urged
in the appeal as well as the substantial questions of law
framed by this Court has to consider the material available
on record since there is a divergent finding.
9. The counsel for the appellant in his arguments
vehemently contend that suit is filed for the relief of
declaration, possession and for mandatory injunction. The
Trial Court granted the relief of declaration, possession and
for mandatory injunction. The First Appellate Court reversed
the finding of the Trial Court without looking into the
material available on record. The counsel would vehemently
contend that suit schedule property belongs to Honnegowda
who is the grand father of plaintiff and the same was
acquired vide sale deed dated 01.05.1974 and grand father
had executed the Will in favour of the plaintiff vide
registered Will dated 20.09.2010. The counsel also would
vehemently contend that the said Honnegowda passed
away on 28.02.2011 i.e., after 5 ½ months after the
execution of the Will. It is contended that suit is also filed
contending that suit schedule property is a self acquired
property of grand father and he had executed the Will. In
order to prove the Will, plaintiff also examined two
witnesses PW2 and PW3 are the attesting witnesses. It is
the contention of the defendant in the said suit that suit
schedule property is joint family property. The counsel
would vehemently contend that the First Appellate Court
reversed the judgment of the Trial Court only on the ground
that the plaintiff has not established the same as self
acquired property. The counsel would vehemently contend
that when the defendant took the specific defense that the
same is a joint family property burden is on the defendant
to prove the same as joint family property. The counsel
would vehemently contend that Ex.P5 - sale deed of
Honnegowda is produced and Ex.P4 - Will is also produced
and the same is a registered Will. The evidence of PW2 and
PW3 is very clear that both of them have attested the Will
and the executant has signed the document in their
presence. The defendant has categorically admitted in the
cross-examination that suit schedule property is a self
acquired property of the said Honnegowda in his evidence,
the same has been taken note of by the Trial Court. There
is a clear admission on the part of DW1 and the reasoning
given by the Appellate Court is erroneous. The First
Appellate Court even not discussed the admission as it is a
self acquired property. The counsel also would vehemently
contend that the First Appellate Court while reversing the
finding of the Trial Court even not touched upon the
evidence of defendant witnesses and without looking into
the evidence of defendant witnesses and only by
considering the evidences of PW1 to PW3 passed the
judgment, the same is one sided discussion. The counsel in
his argument, vehemently contend that sale deed clearly
discloses that it is a property of Honnegowda and the said
sale deed has not been challenged and though denied the
very execution of the Will by DW1 and DW2 who are
interested witnesses and denied the photograph of their
father in the Will, but the other witness who has been
examined as PW3 categorically admitted that the said
photograph belongs to the Honnegowda. It is contended
that registered Will though disputed and when there is an
admission on the part of DW1 that it is a self acquired
property and though sister has been examined as DW2 and
she has not challenged the Will and only challenge is made
by the defendant.
10. The counsel also in support of his argument he
relied upon the judgment reported in (2003) 10 Supreme
Court Cases 310 in case of D.S.Lakshmaiah and
another V/s Balasubramanyam and another and
brought to notice of this Court the principles laid down in
the judgment that burden to prove the property to be joint
lies on the person who asserts but if he proves that the
family possess sufficient nucleus with the aid of which joint
family property could be acquired, then presumption would
be that the property is joint and onus would shift on the
person claiming to be self acquired. The counsel also would
vehemently contend that no material placed before the
Court. Though burden is on him, he has not proved the
same. On the other hand, there is a clear admission on the
part of the DW1 that the property is a self acquired
property. The counsel also brought to notice of this Court
paragraph No.9 wherein discussion was made where it is
established that family having other joint family property
and nucleus from which all his further acquisitions, then
only presumption will lies. In order to prove the said factum
of joint nucleus and other properties are concerned, not
placed any material. The counsel also brought to notice of
this Court paragraph No. 18 wherein held that the legal
principle, therefore, is that there is no presumption of a
property being joint family property only on account of
existence of a joint Hindu family. The one who asserts has
to prove that the property is a joint family property. If,
however, the person so asserting proves that there was
nucleus with which the joint family property could be
acquired, there would be presumption of the property being
joint and the onus would shift on the person who claims it
to be self-acquired property to prove that he purchased the
property with his own funds and not out of joint family
nucleus that was available.
11. Per Contra, the counsel appearing for respondent
would vehemently contend that the signature of
Honnegowda i.e., LTM has not attested by witnesses. The
counsel would vehemently contend that signature of
Hanumesh is not found and his signature is different in the
deposition. The counsel would vehemently contend that
other witnesses also not attested the signature of
executant. The counsel would contend that Ex.D14 which is
produced before the Court is of the year 2010, it was
mentioned as 80 years old and he would be 95 years at the
time of execution of Will. The counsel also would
vehemently contend that defendant only taken care of the
executant. The counsel also would vehemently contend that
no reason for excluding other family members while
executing the Will, the recitals in the Will is against the
chief evidence of PW1. The PW1 categorically in the
affidavit itself stated that the executant was not residing
along with them. The counsel also brought to notice of this
Court that name of one Puttaraju was mentioned in the
document, but PW2 surprisingly has signed the document
registered Will and no explanation. The counsel also would
vehemently contend that how Will comes to their
possession has not been stated in the plaint, but only in the
chief evidence an improvement is made that the same is
found in the trunk. The counsel would vehemently contend
that the very execution of registered Will is in a suspicious
circumstances, the same has not been explained by the
plaintiff. It is also clear that no difference between the
grand father and the defendant and the same is admitted
and joint family having the property is also not in dispute.
The said executant Honnegowda is not having any other
income other than the agriculture and having the property
in the family is not in dispute. When such being the
material available on record, the First Appellate Court
rightly appreciated the material available on record and
rightly comes to the conclusion that property is not a self
acquired property and also rightly comes to the conclusion
that the document Will came into existence in a suspicious
circumstances.
12. The counsel in support of his argument he relied
upon the judgment reported in AIR 1959 SC 443 in case
of H.Venkatachala Iyengar V/s B.N.Thimmajamma
and others and counsel brought to notice of this Court
paragraph No.19 wherein an observation is made that there
is one important feature which distinguishes Wills from
other documents. Unlike other documents the Will speaks
form the death of the testator, and so, when it is
propounded or produced before the Court, the testator who
has already departed the world cannot say whether it is his
Will or not; and this aspect naturally introduces an element
of solemnity in the decision of the question as to whether
the document propounded is proved to be the last Will and
testament of the departed testator. Even so, in dealing with
the proof of Wills the Court will start on the same enquiry
as in the case of the proof of documents. The propounder
would be called upon to show by satisfactory evidence that
Will was signed by the testator, that the testator at the
relevant time was in as sound and disposing state of mind,
that he understood the nature and effect of the dispositions
and put his signature to the document of his own free Will.
Ordinarily when the evidence adduced in support of the Will
is disinterested, satisfactory and sufficient to prove the
sound and disposing state of the testator's mind and his
signature as required by law, Courts would be justified in
making a finding in favour of the propounder. In other
words, the onus on the propounder can be taken to be
discharged on proof of the essential facts just indicated.
13. The counsel also relied upon the judgment
reported in (2021) 11 SCC 209 in case of Kavita
Kanwar V/s Pamela Mehta and others and brought to
notice of this Court paragraph Nos.19 to 26 wherein
discussion made with regard to the contentions made in the
said appeal by the respondent Nos.1 and 2 and proof and
satisfaction of the Court and proving of the Will and
extrinsic evidence inadmissible in case of patent ambiguity
and deficiency and proof of execution of document required
by the law to be attested under Section 68 of the Act. The
counsel also brought to notice of this Court paragraph
Nos.36, 37 and 39 wherein discussed with regard to
answering suspicious circumstances when there is thick
cloud of suspicious circumstances.
14. The counsel also relied upon the judgment in
Civil Appeal No.3351/2014 dated 21.09.2023 of the
Apex Court in case of Meena Pradhan and others V/s
Kamla Pradhan and another, the counsel brought to
notice of this Court paragraph No.8 wherein also discussion
was made that whenever there exists any suspicion as to
the execution of Will, it is the responsibility of the
propounder to remove all legitimate suspicions before it can
be accepted as the testator's last Will. In such cases, the
initial onus on the propounder becomes heavier and also in
paragraph No.9 the test of judicial conscience has been
evolved for dealing with those cases where the execution of
the Will is surrounded by suspicious circumstances.
15. The counsel also in support his contention relied
upon the judgment reported in (2012) 8 Supreme Court
Cases 148 in case of Union of India V/s Ibrahim
Uddin and another with regard to evidence without
pleadings and brought to notice of this Court paragraph
No.77 and 85.6 wherein an observation is made that a
decision of a case cannot be based on grounds outside the
pleadings of the parties. No evidence is permissible to be
taken on record in absence of pleadings in that respect. The
Court cannot travel beyond pleadings as no party can lead
the evidence on an issue/point not raised in the pleadings
and in case, such evidence has been adduced or a finding of
fact has been recorded by the Court, it is just to be ignored.
16. The counsel also relied upon the judgment
reported in (1996) 2 Supreme Court Cases 491 in case
of Surendra Kumar V/s Phoolchand (Dead) Through
LRS' and Another and brought to notice of this Court
paragraph No.6 wherein discussion is made that there is no
material to establish that consideration money for the
property was paid by the appellant from out of his separate
funds. It is no doubt true that there is no presumption that
a family because it is joint possessed joint property and
therefore the person alleging the property to be joint has to
establish that the family was possessed of some property
with the income of which the property could have been
acquired. But such a presumption is a presumption of fact
which can be rebutted. But where it is established or
admitted that the family which possessed joint property
which from its nature and relative value may have formed
sufficient nucleus from which the property in question may
have been acquired, the presumption arises that it was the
joint property and the burden shifts to the party alleging
self-acquisition to establish affirmatively that he property
was acquired without the aid of the joint family.
17. The counsel appearing for the appellant in reply
to the arguments of respondent's counsel, he vehemently
contend that the very contention that attesting witness
Hanumesh has not signed cannot be accepted and his
signature has been marked as Ex.P4(a) and even not
denied the same in the cross-examination of PW2 and
attesting witnesses signatures are marked as Ex.P4(a) as
well as Ex.P4(b). Hence, the contention of the counsel
cannot be accepted. The counsel also would submits that
the finding of the appellate Court is not based on the
material available on record and while re-appreciating the
evidence available on record, even not considered the
evidence of DW1 to DW4 and without reference of DW1 to
DW4 and the First Appellate Court exercised its powers
without looking into the both oral and documentary
evidence available on record. Hence, it requires
interference.
18. Having heard the arguments of appellant's
counsel and also the counsel appearing for the respondent,
this Court has to consider the material available on record,
whether the First Appellate Court committed an error in
appreciating both oral and documentary evidence available
on record. The 1st substantial question of law is with regard
to whether the lower appellate Court was justified in
holding that the suit schedule property is joint family
property of late Honnegowda on the ground that the
plaintiff has not proved that the suit schedule property is
self acquired property of late Honnegowda and whether the
lower appellate Court was justified in holding that the suit
schedule property is the joint family property inspite of the
defendant having not discharging his burden to prove as
required under law as framed the 2nd substantial question of
law by this Court and so also the 4th substantial question of
law framed by this Court is whether the appellate Court is
justified in allowing the appeal of the defendant and
thereby setting aside the judgment and decree of Trial
Court and consequently dismissing the suit of the plaintiff
inspite of admission of the DW1 in his cross-examination
that the suit schedule property is a self acquired property of
Honnegowda. These 3 substantial question of law i.e., 1, 2
and 4 revolves upon the respective contentions of the
plaintiff and defendant in terms of the pleadings of the
parties. This Court has to consider the pleading of the plaint
in O.S.No.217/2012 wherein the plaintiff claims that
Honnegowda who is the grand father of the plaintiff had
executed the Will on 20.09.2010 in respect of land bearing
Sy.No.7/1 of Nannur village, measuring 2 acres 30 guntas.
19. It is also important to note that specific pleading
is made in the plaint in paragraph No.3 that her grand
father Honnegowda has purchased the suit schedule
property on 01.05.1974 and the same is a self acquired
property of Honnegowda. It is also contended that said
Honnegowda assigned all other properties to his sons and
daughters and bequeathed his suit schedule property to his
grand daughter that is plaintiff and also specific pleading is
made that since the defendant residing in the village
wanted to take away all the properties of Honnegowda as
plaintiff's father who resides at Bengaluru and working in
KSRTC department and knowing the intention of the
defendant, plaintiff's grand father bequeathed the suit
schedule property in her favour. Having perused this
averment, it is clear that a Will is executed and property is
a self acquired property of Honnegowda and also an
allegation is made against the defendant that he had
constructed a temporary house in the suit schedule
property without permission of the plaintiff after the death
of Honnegowda and the same is also liable to be
demolished issuing mandatory injunction, this averment
made in the plaint is resisted by the defendant by filing
written statement wherein he took the specific contention
denying the very execution of the Will and contend that Will
is fraudulently got up in collusion, misrepresentation and
undue influence by the plaintiff, her father and with their
henchmen and the executant was aged about more than 90
years and not having good health and understanding and
with an ulterior motive, the same is not binding on the
defendant. It is contended in the paragraph No.3 of the
written statement that the said property is the ancestral
joint family property of this defendant and his father
Honnegowda acquired by the nucleus of ancestral property
and hard earning of the defendant and other properties,
sites and house properties at Bengaluru. The plaintiff is not
the absolute owner and not having any right or title. The
defendant has been in continuous possession of the same.
The written statement is also amended in paragraph
Nos.9(a) and 9(b). The Trial Court has also framed the
issues that whether the plaintiff proves that she is the
owner of the suit schedule property and whether the illegal
construction by the defendants in the suit schedule property
without her consent and whether the defendant proves that
he suit schedule property is an ancestral property and he is
also having right. The Trial Court while considering these
issues considered the issue Nos.1 and 3 together since
plaintiff claims that she is the absolute owner in pursuance
of the Will and defendant also claims that it is an ancestral
property. It is the contention of the plaintiff that the same
is a self acquired property of said Honnegowda and he had
executed the Will. The Trial Court while considering issue
Nos.1 and 3 together taken note of the evidence available
on record i.e., Ex.P5 - sale deed and Ex.P5 is very clear that
the said property is purchased by the Honnegowda and also
taken note of the contention of the defendant that the same
is a joint family property. In order to prove that the same is
a joint family property, defendant has not produced any
documentary evidence and also Trial Court taken note of
admission on the part of DW1, in his cross-examination he
has categorically admitted that the suit schedule property is
his father's self acquired property and taken note of the
said admission and comes to the conclusion that it is clear
that defendant has admitted that the suit schedule property
is self acquired property of his father. The Trial Court also
taken note of Section 58 of the Indian Evidence Act and any
fact admitted by the other side need not be proved. When
there is a clear admission on the part of DW1, he himself
stated that it is a self acquired property and his very
contention that the said property is acquired out of joint
family nucleus and in order to rebut the said admission
also, no material is placed before the Trial Court that joint
family having joint nucleus and out of that joint nucleus
only, purchased the property. No doubt the respondent's
counsel would vehemently contend that Honnegowda was
not having any other income other than the agricultural
income. When the admission was given that it was a self
acquired property of his father, the said contention cannot
be accepted. Once an admission is given and the same is a
self acquired property, it cannot be considered as it is a
joint family property. No doubt principles laid down in the
judgments referred supra by the respondent's counsel in
case of Union of India V/s Ibrahim Uddin and another
counsel relied upon without pleading, if any evidence is
considered, the same cannot be relied. The very same
judgment also the Apex Court held that under Section 58
applicability, admission of fact must be during trial, before
or at the hearing, procedure under Order 12 of CPC must
also be followed wherein also discussed with regard to
admission and evidentiary value, particularly admission,
held is substantive evidence and though not conclusive can
be decisive, it may operate as estoppel in certain
circumstances, the admission must be clear, unambiguous
and relevant, maker of admission should be given
opportunity under cross-examination to tender his
explanation, failure of a party to prove his defense does not
amount to admission. No doubt in the pleading, not pleaded
with regard to how they comes to know about the Will, but
in the evidence it is stated that they found the Will in the
trunk. But, in the case on hand when clear admission is
found and admission is unequivocal and the same is found
in the cross-examination of DW1 that suit schedule property
is the self acquired property of his father, now he cannot
contend that the said admission is only a stray admission
and admission is unequivocal and he categorically admitted
in the end of his cross-examination that suit schedule
property is a self acquired property of his father and also he
categorically admits that when the property was purchased
by his father he was aged about 15 years and this
admission also takes away the very contention of the
defendant that family was having joint nucleus but he
contend that he took the responsibility of the house when
he was aged about 10 years and this admission is very
clear that with an intention to create this property as joint
family property, he has deposed that at the age of 8 years
he was doing agriculture and at the age of 10 years he took
the responsibility of the family and also even he did not
identify the photograph of his father in Ex.P4 and when
specific suggestion was made that the said photograph
belongs to his father, but he says that the same does not
appears as his father and the Court has to take note of
conduct of the defendant.
20. It is the case of the plaintiff that the suit
schedule property is self acquired property of the said
Honnegowda and the Appellate Court also while considering
whether it is a self acquired property or joint family
property and inspite of admission on the part of defendant
has not discussed the evidence of DW1 and DW2 though
they denies the photograph of their father Honnegowda as
well as the admission on the part of the DW1 and the
discussion of the Appellate Court is very silent about the
evidence of DW1 to DW4 and without any discussion and
also even not touched upon the admission on the part of
DW1 who has given that the property is the self acquired
property of the father, the same is also extracted in the
judgment of the Trial Court in paragraph No.7. Inspite of
Trial Court has discussed the same in paragraph No.7, the
First Appellate Court not taken note of the same. In
paragraph No.7(e) also Trial Court comes to the conclusion
that no need to prove the admitted fact in view of Section
58 of Indian Evidence Act but, the First Appellate Court has
committed an error in going beyond the admission of DW1
and the same is a futile exercise made by the First
Appellate Court while reversing the finding of the Trial Court
in coming to the conclusion that the same is a joint family
property. When there is a clear admission on the part of the
DW1 that it is a self acquired property, it cannot be
considered as it is joint family property and the First
Appellate Court not justified in holding that suit schedule
property is a joint family property inspite of defendant
having not discharging his burden to prove as required
under law. No doubt when there is an admission, the same
has to be rebutted. In order to rebut the same also, no
material is placed before the Trial Court to show that it is a
joint family property and hence, the First Appellate Court
committed an error in reversing the finding of well reasoned
order passed by the Trial Court in coming to the conclusion
that the said property is a joint family property. No doubt
the First Appellate Court discussed in extracting Section 258
of Hindu Law and also Section 231 of Hindu Law, the same
is against the admitted fact. Hence, substantial question of
law Nos.1, 2 and 4 answered as affirmative that the First
Appellate Court committed an error.
21. The 3rd substantial question of law is whether the
Lower Appellate Court was justified in holding that the
plaintiff has failed to establish the due execution of the Will
(Ex.P4) by Honnegowda and further, failed to prove due
attestation of the same as contemplated under Section 68
of the Indian Evidence Act. In order to prove the Will, the
plaintiff mainly relied upon document of Ex.P4-Will and
relied upon the two attesting witnesses who have been
examined as PW2 and PW3. The main contention of the
counsel appearing for the respondent that LTM was not
attested by any of the witnesses and signature of
Hanumesh is not found and signature is different in
deposition as well as in the Will and other witnesses are
also not attested signature of executant.
22. In support of his contention also he relied upon
the judgment of B.N.Thimmajamma's case which is
referred above and so also the case of Kavita Kanwar
referred above and also the Civil Appeal No.3351/2014.
No doubt the principles are very clear that if any suspicious
circumstances, the same has to be explained by the
propounder of the Will and also the propounder will be
called upon to show by the satisfactory evidence that Will
was signed by the testator, that the testator at the relevant
time was in a sound and disposing state of mind and that
he understood the nature and effect of depositions and put
his signature to the document of his own free will. The
recent judgment of the Apex Court in Civil Appeal also it is
very clear in paragraph Nos.8 and 9, it is the responsibility
of the propounder to remove the all suspicious
circumstances, so also in case of Kavita Kanwar with
regard to proving of Will, necessity of removing legitimate
suspicion.
23. Having considered the principles laid down in the
judgment this Court has to consider the evidence of PW2
and PW3 who are the attesting witnesses. No doubt PW2 in
his evidence he categorically says that the other attesting
witness called him to attest the document and also his
evidence is very clear that when he went there, the very
executant was instructing the scribe of the document and
after having comes to know about the contents of the Will
only, he had put his signature and he also requested him to
put his signature and at his request only, he signed the
same and also he categorically admits that PW3 also
attested the said document. In the cross-examination,
nothing is elicited and even though counsel disputes he has
not signed the document, but he categorically admits his
signature as Ex.P1(a). During the cross-examination even
did not suggests that he did not sign the document of Ex.P4
and though contend that his signature is not found and the
same is marked as Ex.P1(a) on Ex.P4. When he identifies
the signature, the same has not been denied during the
course of cross-examination. Now, he cannot contend that
he has not signed the document. The counsel would
vehemently contend that signature of executant has not
been attested. No doubt on perusal of Ex.P4, but executant
has put his thumb impression on the Will and specific
evidence of PW3 before the Court also that he requested
the PW2 to come and attest the document and his evidence
also very clear that executant had signed the document in
his presence and also executant categorically stated that he
is going to Will away the property to his grand daughter,
the same is also a self acquired property and his signature
is also marked as Ex.P4(b) and in the cross-examination of
Ex.P4(b) also not denied as like the signature of PW2. Now,
they cannot contend that they are not the attesting
witnesses. No doubt PW3 admits that the executant is an
illiterate and the fact that he was illiterate is also not in
dispute that he had put the thumb impression. It is also
important to note that when the defendant examined
himself as DW1 even he had gone to the extent of denying
the photographs of his father and he gives a reply that the
same not appears to be his father photograph and the
document is registered document. It is also important to
note that other witness is also PW2 who is also the sister of
DW1 and his daughter also given to the DW1. Both are
interested witnesses and also daughter was also gone to
the extent of denying the photograph of their father in the
cross-examination but, the other witness who has been
examined as DW3 in support of case of the defendant he
categorically admits that the said photographs were found
in the Ex.P4 belongs to Honnegowda and when such
admission on the part of which DW3 that the same is the
photograph of executant and also Court has to take note of
conduct of the DW1 and DW2 only with an intention to deny
the document of Ex.P4, gone to the extent of denying the
photograph of their own father. Nothing is elicited in the
cross-examination of PW2 and PW3 to disbelieve the case of
the plaintiff and no contradiction in their evidence. When
such material is available before the Court, the very
observation made by the First Appellate Court that Section
63 and Section 68 has not been complied is an erroneous
approach. I have already pointed out that the evidence of
DW1 to DW3 has not been touched upon by the First
Appellate Court while reversing the judgment of the Trial
Court. No doubt the Trial Court taken note of Section 68
and when the attesting witnesses have been examined and
the document is also registered document and with regard
to the due execution of the Will is concerned, propounder
has examined two attesting witnesses before the Court.
Merely the contention of the defendant's counsel that he
has aged about 90 years, cannot be a ground to disbelieve
the case of plaintiff.
24. I have already pointed out that DW2 is none
other than the elder daughter of Honnegowda. It is clear
that she got married her daughter with the defendant and
hence, DW2 is an interested witness. But she claims that
her father also had suffered Paralytic stroke but she
categorically admits that her father was not taken to the
Government hospital for treatment and no document is
placed before the Court either by the defendant or by the
witnesses that treatment was provided to their father as he
was suffering from paralytic stroke. I have already pointed
out that DW3 categorically deposed that Honnegowda was
talking even three to four months prior to his death and the
Will was executed in the month of September 2010 itself
and he died in the month of February 2011 and suit was
filed in the year 2012 and hence, the very contention of the
defendant that he was not having good health and he had
suffered stroke was not been substantiated by the
defendant and the same has been considered by the Trial
Court while appreciating both oral and documentary
evidence placed on record. The Trial Court in detail
discussed the evidence available on record. No doubt, in the
evidence of PW1 she claims that the executant was not
staying along with her. But reason given in the Will that the
executant was having love and affection towards her and
also says that she is taking care of him and except the
same, nothing is found in the evidence of PW1 and to take
care of him need not be residing along with him. But the
First Appellate Court committed an error in not believing
the evidence of PW2 while considering the minor
contradictions with regard to presence of the beneficiary.
PW2 categorically says that except the attesting witnesses
and said Honnegowda, no other were found in the Sub-
Registrar office and the First Appellate Court given more
credence to the evidence of PW3 considering the minor
contradictions and the very finding of the First Appellate
Court is erroneous and even not discussed the evidence of
defendant witnesses except discussing the evidence of PW1
to PW3 and First Appellate Court without analyzing the
evidence of witnesses of defendant and without considering
the admission given by DW1, DW2, DW3, reversed the
finding of the Trial Court and one sided appreciation of
evidence exclusively PW1 to PW3.
25. The DW3 has categorically admits in the cross-
examination that prior to his death even 4-5 months, the
executant was having sound state of health and also though
defendant contend that he was not having sound state of
mind and also he was suffering from paralytic stroke. In
order to substantiate the same, nothing is placed on record
before the Court that he was not having sound state of
mind. Hence, the very approach of the First Appellate Court
is erroneous and erroneously comes to the conclusion that
plaintiff fail to establish that it was duly attested as
contemplated under Section 63 of Indian Succession Act
and regarding granting of mandatory injunction is
concerned, it is the contention of the defendant that he had
put up the construction of the house even prior to 8 years
of the death of his father. In proof of the same he has
adduced the oral evidence of DW2 and DW4. But on perusal
of Ex.P21 and Ex.P22, it gets clear that the building in
question was under construction as on 20.11.2011 and it
was roofed on 11.08.2013 as per Ex.P23 and plastering was
made subsequent to 20.11.2011 and 11.08.2013. There is
no contrary document evidencing the part of the defendant
to show that the same was constructed prior to 8 years of
death of Honnegowda. Under the circumstances the
contentions of the defendant in this regard cannot be
accepted and his contentions are falsified in view of Ex.P21
to Ex.P23. Since the plaintiff is the absolute owner of the
suit schedule property in terms of the Will and hence the
plaintiff is entitled for possession of the suit schedule
property. The alleged construction of the house is illegal
and without the permission of the plaintiff as contended,
the said building requires to be demolished and the
possession of the suit schedule property requires to be
handed over to the plaintiff apart from order of declaration
of title of the plaintiff over the suit schedule property by
virtue of Will. The same is considered by the Trial Court
while answering the issue No.4 on considering the material
available on record. There is no any suspicious
circumstances as contended and the evidence of DW3 is
against the defendant even to the sound state of mind. The
document is also registered document and hence the
judgment relied upon by the defendant's counsel regarding
suspicions also not applicable to the facts of the case as
there is no suspicious circumstances. Hence, the First
Appellate Court committed an error and hence I answered
substantial question of law as affirmative that the appellate
Court committed an error that the attestation not proved
without looking into the evidence of PW1 to PW3 and DW1
to DW3 and the evidence of DW3 supports the case of
plaintiff.
14. In view of the discussions made above, I pass
the following:
ORDER
(i) The Second Appeal is allowed.
(ii) The judgment and decree passed by the
First Appellate Court in R.A.No.2/2015
dated 10.01.2018 is hereby set aside.
Consequently, the judgment and decree of
the Trial Court passed in O.S.No.217/2012
is restored.
(iii) The defendant is directed to demolish the
constructed portion made in the suit
schedule property and handover the vacant
possession of the same in favour of the
plaintiff within a period of two months from
the date of this order. If the respondent-
defendant failed to do so within a period of
two months, the plaintiff is at liberty to
take possession in accordance with law.
Sd/-
JUDGE
RHS
