Karnataka High Court
Sri Jayaramegowda vs Smt Kumari on 4 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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RSA No. 147 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 147 OF 2013 (DEC/INJ)
BETWEEN:
SRI JAYARAMEGOWDA
AGED 45 YEARS
S/O NINGEGOWDA
R/O KAGGERE VILLAGE
NUGGEHALLI HOBLI
CHANNARAYAPATNA TALUK
HASSAN DISTRICT-573116.
...APPELLANT
(BY SRI. VENKATESH R BHAGAT.,ADVOCATE)
AND:
SMT KUMARI
AGED ABOUT 41 YEARS
D/O NINGEGOWDA
R/O H HONNENAHALLI VILLAGE
Digitally signed HIRISAVE HOBLI
by CHANNARAYAPATNA TALUK-573116.
NARAYANAPPA
LAKSHMAMMA
Location: HIGH ...RESPONDENT
COURT OF (BY SRI. BALAJI PRASAD.R., ADVOCATE FOR
KARNATAKA SRI. MAHESH C M.,ADVOCATE)
THIS RSA FILED U/S. 100 OF CPC., PRAYING TO CALL FOR
RECORDS IN R.A.NO.111/2011 ON THE FILE OF THE FAST TRACK
COURT, CHANNARAYAPATNA AND CONSEQUENTLY IN
O.S.NO.53/2005 IN THE FILE OF THE LEARNED SENIOR CIVIL JUDGE,
CHANNARAYAPATNA AND ETC.
THIS RSA, COMING ON FOR FURTHER HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 147 of 2013
JUDGMENT
1. The appellant is before this Court seeking for the
following reliefs:
a. Call for the records in R.A.No.111/2011 on
the file of the Fast Track Court,
Channarayapatna and Consequently in
O.S.No.53/2005 the file of the learned Senior
Civil Judge, Channarayapatna and
b. To set aside the judgment and decree dated
25.9.2012 passed by the Fast Track Court,
Channarayapatna in R.A.No.111/2011
reversing the judgment and decree dated
13.7.2011 in O.S.No. 53/2005 passed by the
learned Senior Civil Judge, Channarayapatna
and to dismiss the appeal and the suit of the
plaintiff as prayed by restoring the Judgment
of the Trail Court.
c. Grant such other relief/reliefs as this Hon'ble
Court deems fit and proper in the
circumstances of the case in the interest of
justice and equity.
2. The appellant who was the defendant in O.S. No.
53/2005 and the respondent in R.A. No. 111/2011 is
before this court challenging the divergent finding of
the first Appellate Court.
3. A suit in O.S. No. 53 of 2005 had been filed by the
plaintiff, who is the respondent herein seeking for
declaration of title of the suit property and permanent
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injunction restraining the defendant from interfering
with his peaceful possession of the plaintiff. The trial
court dismissed the suit by way of its Judgment and
decree dated 13.07.2011.
4. The first Appellate Court set aside the said judgment
of the trial court and decreed the suit in part declaring
the plaintiff to be the absolute owner of item No. 1 to
6 of the suit Schedule properties and northern half
portion of the house property mentioned in Sl. No. 7
of the plaint schedule and restrained the defendant
from interfering with the possession. It is challenging
the said judgment that the defendant is before this
court.
5. The case of the plaintiff in O.S. No. 53/2005 was that
the property belonged to one Nanjegowda, son of late
Puri Ningegowda, who is the grandfather of the
plaintiff and defendant. The said Nanjegowda had
only one son, namely Ningegowda, who was married
to Boramma @ Jayamma, who had three children i.e.
1) Jayaramegowda, defendant, 2)Kalle Gowda @
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Chandra and 3)Boregowda @ Raju apart from the
plaintiff being the daughter.
6. The grandfather Nanjegowda had executed a
registered Will bequeathing the properties in favour of
Smt.Rajamma, wife of the defendant, Kalle Gowda @
Chandra and Boregowda @ Raju.
7. Ningegowda having expired on 18.06.1987, the
properties were divided among the three legatees and
the katha in respect of the properties was got changed
in their respective names. The aforesaid Kalle Gowda
@ Chandra expired as a bachelor on 27.09.1991,
leaving his mother Boramma @ Jayamma as his sole
legal heir and as such, the properties devolving on
Kalle Gowda @ Chandra under the Will of Nanjegowda
was succeeded to by Smt. Boramma @ Jayamma.
8. The plaintiff claimed that her mother had executed a
Will on 10.12.2001 bequeathing her properties which
are described in the schedule to the plaint and
subsequently expired on 21.03.2004 after which the
plaintiff became the absolute owner of the suit
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schedule properties and it is in that background,
contending that the defendant was seeking to
interfere with the possession of the plaintiff that the
plaintiff had sought for relief of declaration of title and
consequential permanent injunction.
9. The defendant had entered appearance, filed his
written statement though belatedly, the relationship
between the parties was admitted. However, the Will
dated 10.12.2001 was disputed. The defendant also
set up one other Will in favour of the grandchildren
and contended that it is the Will propounded by the
defendant which was genuine and valid and not the
Will propounded by the plaintiff.
10. The Trial Court, after evidence being led, disbelieved
both the Wills mainly on the ground that the thumb
impression found on Exhibit-P1, i.e. the Will
propounded by the plaintiff and Exhibit-D1 i.e. the Will
propounded by the defendant were different and as
such, being of the opinion that neither the plaintiff nor
defendant had placed on record an admitted thumb
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impression of Boramma @ Jayamma, the trial court
could not assess as to which thumb impression was a
genuine one, disbelieved both the Wills set up and
dismissed the suit of the plaintiff filed for declaration
of title.
11. The plaintiff filed an appeal in R.A. No.111/2011
before the first Appellate Court, the defendant did not
file any appeal challenging the finding of the trial court
in respect of the Will propounded by the defendant.
12. The first Appellate Court in R.A. No. 111 of 2011 filed
by the plaintiff upon reappreciation of the evidence on
record, delivered a divergent judgment by upholding
the Will propounded by the plaintiff at Exhibit-P1 and
thereby decreed the suit in part declaring the plaintiff
to be the owner of suit Schedule Properties at item
Nos.1 to 6. It is challenging this judgment that the
appellant is before this court.
13. The above appeal was admitted on 15-06-2016 to
answer the following substantial questions of law:
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1. Whether the Lower Appellate Court is
justified in reversing the judgment and decree of
the Trial Court in disbelieving the right, title of
the plaintiff over the suit schedule property
accrued under the oral partition between the
members of the family which has been reflected
in the revenue records ?
2. Whether the Lower Appellate Court is
justified in reversing the judgment and decree of
the Trial Court holding that Ex.P1 - Will dated
10.12.2001 is proved in the absence of any
proof under the provisions of Section 63 of the
Indian Succession Act and Section 68 of the
Indian Evidence Act ?
3. Whether the Lower Appellate Court is
justified in reversing the judgment and decree of
the Trial Court in the facts and circumstances of
the present case ?
14. Sri Venkatesh R. Bagat, Learned Counsel for the
appellant would submit that
14.1. The first Appellate Court has completely
misapplied itself. The first Appellate Court ought
to have taken into consideration the suspicious
circumstances in which Exhibit-P1 was executed
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in as much as the defendant being the elder son
of the family had been completely excluded
under the Will executed by his mother. The
reason for such exclusion not having been made
out, the exclusion would lead to a necessary
conclusion that the Will is a got up document and
not a genuine document. Secondly, he submits
that Nanjegowda was inimically disposed
towards him. From the evidence, it is clear that
it was his father Nanjegowda who had retained
the Will in his safe custody and he had handed
over the Will to the plaintiff. Therefore, he goes
to the extent of making an allegation against the
father that the father has set up the Will to
favour his daughter-in-law and to disfavour the
defendant.
14.2. He submits that Ningegowda who was examined
as PW-3 has categorically indicated in his cross
examination that the other attesting witness
namely Boregowda @ Raju, the other brother,
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was not aware of the execution of the Will. On
that basis, he submits that if Boregowda @ Raju
was not aware of execution of the Will, his
signature could not have been found on the Will
as attesting witness. This is a suspicious
circumstance which goes to the root of the
matter and on that basis, he submits that the
Will is a false and fabricated document and
cannot be relied upon.
14.3. In so far as custody of the Will is concerned, he
submits that PW-3 has not stated anything about
the custody it is only PW-1, the plaintiff, who has
stated that the Will is in the custody of the father
and subsequent to the death was handed over to
her.
14.4. His further submission is that even PW-2
attesting witness Sonne Gowda, in his
examination-in-chief has indicated that himself
Boregowda @ Raja and Ningegowda have
attested the Will, whereas an examination of the
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Will would indicate that the first attestor who has
signed is Ningegowda, followed by Boregowda @
Raja, then followed by PW-2. Therefore, the
sequence narrated by PW-2 is not in terms of
exhibit-P1, which also gives rise to a suspicious
circumstance.
14.5. Lastly, he submits that the RTC stands in the
name of the grandchildren, they not being made
parties to the suit, the suit is bad for non-joinder
of parties and as such, the suit was liable to be
dismissed. His submission is also that in terms
of Section 34 of the Specific Relief Act, the RTC
standing in the name of the grandchildren, they
are deemed to be in possession of the properties
and as such, the plaintiff could not seek for the
relief sought for without making them a party
and without seeking for possession.
14.6. On all the above grounds, he submits that the
first Appellate Court ought not to have accepted
the validity and veracity of the Will at exhibit-
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P1, but ought to have confirmed the Judgment
of the trial court.
15. The learned counsel for the respondent would submit
that,
15.1. The first Appellate Court has rightly accepted the
veracity and validity of the Will. PW-2 who is an
attestor has confirmed the signature of
Boramma @ Jayamma on the Will. His
submission is that the order of signing is not
stated in this evidence. What is stated is only
that three of them have signed the Will.
15.2. The defendant having chosen not to file his
written statement on time, the evidence of PW-
2 having been led, by the time the written
statement was taken on record, PW2 had
expired. Therefore, the evidence continues to be
on record which could be considered by the trial
court and the first Appellate Court as also this
court.
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15.3. In so far as the statement in the evidence of PW3
that Boregowda @ Raju was not aware of the
execution of the Will, his submission is that it is
a stray statement made and by itself will not
enure to the benefit of the defendant. All the
surrounding circumstances have been taken into
consideration which would categorically
establish that the Will had been executed by
Boramma @ Jayamma which the first Appellate
Court has accepted to be valid and genuine and
the judgment passed by the first Appellate Court
is proper and correct.
16. Heard Sri.Venkatesh R.Bhagat, learned counsel for the
petitioner, Sri.Balaji Prasad, learned counsel for
Sri.Mahesh.C.M., learned counsel for respondents.
Perused papers.
17. Substantial question No.2 is the primary question
which is required to be answered and substantial
question No. 1 would flow from and out of substantial
question No. 2.
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18. It is not in dispute that the property belonged to
Nanjegowda and Nanjegowda had executed a Will in
favour of the wife of the defendant and two other sons
of Boramma and Ningegowda, Ningegowda being the
only son of Nanjegowda. Though no reasons are
stated and no issue has been raised about the Will, it
is clear that Nanjegowda chose not to bequeath any
property to the defendant but chose to bequeath a
portion of the property to the defendant's wife. The
reason for the same is not far to be seen. Exhibit P1
being the disputed Will in the present matter, the
mother Boramma @ Jayamma has categorically stated
that defendant was leading a wayward life, was not
taking care of her and her husband and furthermore
was not taking care of his own wife and children and
therefore, it is indicated that the property had been
bequeathed by Nanjegowda in favour of Rajamma, the
wife of the defendant.
19. These statements made in a subsequent Will dated
10.12.2001 are corroborated by earlier Will of
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2.05.1986 executed by Nanjegowda. Since if the
defendant was taking care of the family members and
was acting as part of the family, there was no reason
for Nanjegowda to have not bequeathed any property
to the defendant, but to the contra having bequeathed
the property to the wife of the defendant, more so
when the defendant is the grandson of Nanjegowda.
The fact that the grandfather has bequeathed the
property to the granddaughter-in-law rather than the
grandson also speaks volumes of the conduct of the
grandson which has been taken into account by
Boramma @ Jayamma when she executed the Will in
question.
20. It is contended that the father, Ningegowda, is
inimically disposed towards the defendant and his
wife, this aspect is also sought to be buttressed by
referring to the cross examination of the father where
the father has stated that Boregowda @ Raju was not
aware of the execution of the Will, when in fact he is
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also an attestor to the Will. This, to my considerable
opinion, has rightly contended by the counsel for the
respondent is a stray statement. There was no need
for the father to have set up a Will to spite the
defendant son.
21. On the expiry of Boramma @ Jayamma, her property
would have been succeeded to by the father, the
plaintiff, the defendant and the other son, Boregowda
@ Raju. The fact that Boregowda @ Raju has signed
the Will as an attesting witness, the property has been
bequeathed to the plaintiff and that father
Ningegowda has supported the claim of the plaintiff,
would indicate that Ningegowda would not have any
right over the property, so also, Boregowda @ Raju
would not have any right over the property and the
entire property would come to the share of the
plaintiff. Thus, by way of supporting the Will, said to
be executed by Boramma @ Jayamma, Ningegowda
and Boregowda @ Raju have given up their right in
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the property in favour of the plaintiff. It cannot be
accepted that they would give up their rights only to
spite the defendant on account of the alleged inimical
disposition that the father has towards the son.
22. One another aspect which I would have to consider is
that the defendant had set up a Will in terms of
Exhibit-D1 which was disbelieved by the trial court.
However, the defendant did not choose to challenge
that finding by filing a separate appeal. It was only the
plaintiff who filed the appeal challenging the finding as
regards Exhibit-P1 propounded by the plaintiff.
Defendant has therefore given up his claim as regards
Exhibit D1 and has accepted the claim under Exhibit
D1 to discredit Exhibit P1.
23. Insofar as the proving of the Will is concerned, in
terms of Section 63 of the Indian Succession Act, 1925
['ISA' for short] reliance is placed by Sri.Bhagat on
Clause (c) of Section 63 to contend that evidence
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ought to have been led by the plaintiff to establish the
sequence in which the signatures were made by the
attesting witnesses and it is only because of that not
having been placed on record that he submits that the
execution of the Will is suspicious and in this regard
he relies upon the evidence of PW-2 who has stated
that himself, Boregowda @ Raju and Ningegowda
have signed the Will, when in fact the sequence of
event is Ningegowda followed by Boregowda @ Raju
followed by PW-2. Therefore, his submission was that
Section 63 has not been complied with. Section 63 of
the ISA is reproduced hereunder for easy reference:
63. Execution of unprivileged Wills.--
Every testator, not being a soldier employed in an
expedition or engaged in actual warfare, or an airman so
employed or engaged, or a mariner at sea, shall execute
his Will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the Will,
or it shall be signed by some other person in his
presence and by his direction.
(b) The signature or mark of the testator, or the signature
of the person signing for him, shall be so placed that it
shall appear that it was intended thereby to give effect
to the writing as a Will.
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(c) The Will shall be attested by two or more witnesses,
each of whom has seen the testator sign or affix his
mark to the Will or has seen some other person sign the
Will, in the presence and by the direction of the testator,
or has received from the testator a personal
acknowledgement of his signature or mark, or the
signature of such other person; and each of the
witnesses shall sign the Will in the presence of the
testator, but it shall not be necessary that more than
one witness be present at the same time, and no
particular form of attestation shall be necessary.
24. The entire reading of the said provision does not
support the contentions raised by Sri.Bhagat in as
much as Section 63 by itself does not lay down the
manner and methodology of leading of evidence to
establish the sequence of signing of the attesting
witnesses. What Section 63 only requires is that there
is to be an attesting witness who would have to be
examined to establish that it is the signature of the
testator and the said signature has been affixed in the
presence of the attestor and only requires that the Will
has to be signed by the testator, attested by two or
more witnesses, each of whom should have seen the
testator sign or affix his mark on the Will and each of
the witnesses shall sign the Will in the presence of the
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testator, but it shall not be necessary that more than
one witness be present at the same time and no
particular form of attestation shall be necessary. At
the most the defendant could have contended that the
order of signature is not as per the testimony and not
that the order of signatures is required to be
established in terms of Section 63 of the ISA. In the
present case, the defendant has not cross-examined
PW-2, furthermore, the defendant has not cross-
examined the other witnesses as regards the order of
signatures having been affixed. There is no
discrepancy which has been made out by defendant
during the cross-examination of the plaintiff's
witnesses as regards the order of signature. Thus,
there is no violation or infringement of the
requirement of Section 63 of ISA.
25. Lastly, the contention of Sri.Bhagat in regard to
Section 63 is that the Will does not bear an
endorsement with the signature affixed in the
presence of all the witnesses by the attestor or the
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attesting witnesses have attested the Will in the
presence of the testator. These are again not aspects
which have been cross examined and put across
during the cross-examination of the plaintiff in the
present matter. There is no dispute as regards the
attestor having attested to the Will. PW-3-husband
has stated that Boramma @ Jayamma has signed the
Will in his presence. PW-2 also has stated to the
similar effect. The signature of PW-2 has been
identified and certified by his children PWs-4 and 5.
Thus, this aspect also does not hold this Court any
longer.
26. Insofar as Section 68 of Indian Evidence Act, 1872
['IEA' for short] is concerned, the said provision is
reproduced hereunder for easy reference:
68. Proof of execution of document required by law
to be attested.
If a document is required by law to be attested, it shall
not be used as evidence until one attesting witness at least
has been called for the purpose of proving its execution,
if there be an attesting witness alive, and subject to the
process of the Court and capable of giving evidence
:[Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
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document, not being a Will, which has been registered in
accordance with the provisions of the Indian Registration
Act, 1908 (XVI of 1908), unless its execution by the
person by whom it purports to have been executed is
specifically denied.]
27. Section 68 only requires that the documents required
by law to be so attested and evidence of atleast one
attesting witness alive has to be provided for
ascertaining the veracity of such a document. In the
present case, two attesting witnesses have been
examined viz., PW-2 and PW-3, both of them have
spoken of their attestation of the Will and the
signatures of the testator, as such, requirement of
Section 68 of IEA has also been complied with.
28. Thus, I answer substantial question No.2 by holding
that the first Appellate Court is justified in reversing
the Judgment and decree of the trial Court holding
that Ex.P1 Will dated 10.12.2001 has been proved
and that the plaintiff has complied with the
requirement of Section 63 of ISA and Section 68 of
IEA.
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29. In view of my answer to substantial question No.2
above, the substantial question No.1 framed would
not be required to be further answered since
admittedly the property succeeded to by Boramma @
Jayamma upon the death of her son, she being the
sole legal heir and therefore, she had all right, title
and interest in the property to bequeath the same to
whomever so she wanted.
30. Insofar as the RTC standing in the name of
grandchildren concerned, they have not raised any
dispute as regards the title of the plaintiff nor has the
plaintiff sought for any relief against the
grandchildren. The relief sought for is one against the
defendant since according to the plaintiff it is the
defendant who had sought to interfere with the
peaceful possession of the plaintiff and who was
disturbing the plaintiff. The declaration which has
been granted by the first Appellate Court and by this
Court would enure to the benefit of the plaintiff insofar
as defendant is concerned or anybody claiming
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through or under the defendant and shall not in any
manner affect the grandchildren who are not parties
to the suit. Thus, even these contentions raised by
learned counsel for the defendant are rejected.
31. In the above circumstances, I pass the following:
ORDER
i. The above appeal stands dismissed.
ii. The Judgment and decree dated 25.09.2012
passed by the Fast Track Court,
Channarayapatna in R.A. No.111/2011 stands
confirmed.
Sd/-
JUDGE
LN
