Karnataka High Court
Devaraj S/O H R Doreswamy vs Viswanath S/O H R Thippeswamy on 31 May, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A.NO.3024/2006 (DEC/INJ)
BETWEEN:
1. DEVARAJ,
S/O H.R.DORESWAMY,
AGED ABOUT 30 YEARS.
2. SHOBA RANI,
D/O H.R. DORESWAMY,
AGED ABOUT 27 YEARS.
3. H.R.DORESWAMY,
S/O RUDRAPPA,
AGED ABOUT 54 YEARS.
APPELLANTS NO.1 TO 3 ARE
RESIDENTS OF HOLALKERE ROAD,
NEAR RAGIMURIGEPPA CHOULTRY,
CHITRADURGA-577 501.
(APPELLANT NO.3 IS DEAD VIDE ORDER DATED
02.06.2023, APPELLANT NOS.1 AND 2 ARE THE
LRS OF THE DECEASED APPELLANT NO.3 WHO ARE
ALREADY ON RECORD AS APPELLANT NO.1 AND
APPELLANT NO.2)
4. K.S. SHANKARAPPA,
S/O SIDDAPPA,
AGED ABOUT 54 YEARS,
R/AT DASIKATTE VILLAGE,
RAMAGIRE HOBLI, HOLALKERE TALUK,
CHITRADURGA DISTRICT-577 501.
SINCE DEAD BY LRS.
2
4(a). SUMITHRAMMA,
W/O LATE K.S.SHANKARAPPA,
AGED ABOUT 50 YEARS.
4(b). K.S.VIJAYKUMAR,
S/O LATE K.S.SHANKARAPPA,
AGED ABOUT 31 YEARS.
4(c). K.S.DEVRAJ,
S/O SHANKARAPPA,
AGED ABOUT 28 YEARS.
ALL ARE R/AT DASIOKATTE VILLAGE,
RAMAGIRE HOBLI, HOLALKERE TALUK,
CHITRADURGA-577 501.
... APPELLANTS
(BY SRI R.S.RAVI, SENIOR COUNSEL FOR
SRI AKARSH KUMAR GOWDA, ADVOCATE)
AND:
1. VISWANATH,
S/O H.R.THIPPESWAMY,
AGED ABOUT 29 YEARS.
2. DEEPAK,
S/O H.R.THIPPESWAMY,
AGED ABOUT 27 YEARS.
3. RATHNAMMA,
W/O SHANKARAPPA,
AGED ABOUT 53 YEARS.
4. LALITHAMMA,
W/O THIPPESWAMY,
AGED ABOUT 50 YEARS.
H.R. THIPPESWAMY,
S/O RUDRAPPA,
SINCE DEAD BY LRS.
3
5. SHARADAMMA,
W/O LATE THIPPESWAMY,
AGED ABOUT 43 YEARS.
6. SHANKARAPPA,
S/O PARAMESHWARAPPA,
AGED ABOUT 58 YEARS.
7. MALLIKARJUNA,
S/O MAHADEVAPPA,
AGED ABOUT 31 YEARS.
8. MAHADEVAPPA,
S/O RUDRAPPA,
AGED ABOUT 63 YEARS.
ALL ARE R/AT HALIYUR VILLAGE,
HIREGUNTANUR HOBLI,
CHITRADURGA TALUK AND DISTRICT.
9. N. SHIVASHANKARAPPA,
S/O LINGAPPA,
AGED ABOUT 73 YEARS,
R/AT HOLALKERE ROAD,
CHITRADURGA.
... RESPONDENTS
(BY SRI B.S.VISWANATH, ADVOCATE FOR R1 TO R5;
SRI R.V.JAYAPRAKASH, ADVOCATE FOR C/R6;
R7 AND R8 - SERVED
NOTICE TO R9 IS DISPENSED WITH
VIDE ORDER DATED 06.02.2009)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED 22.08.2006
PASSED IN R.A.NO.117/2004 ON THE FILE OF THE ADDL.
DISTRICT JUDGE, FAST TRACK COURT, CHITRADURGA,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT
AND DECREE DATED 18.03.1998 PASSED IN O.S.NO.1212/1990
ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.) CHITRADURGA.
4
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 22.04.2024, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This second appeal is filed praying this Court to set aside
the judgment and decree of reversal order passed in
R.A.No.117/2004 dated 22.08.2006, on the file of the Additional
District Judge, Fast Track Court, Chitradurga.
2. The parties are referred to as per their rankings
before the Trial Court for the convenience of the Court and to
avoid the confusion.
3. The factual matrix of the case of the plaintiffs before
the Trial Court in O.S.No.1212/1990 filed for the relief of
declaration and permanent injunction against the defendants is
that one Rudrappa S/o Mahadevappa of Haliyur Village had five
children by name, Mahadevappa defendant No.7, Rathnamma
defendant No.4, Lalithamma defendant No.5, H.R. Doreswamy
plaintiff No.3 and H.R. Thippeswamy defendant No.6. The
plaintiff Nos.1 and 2 are the son and daughter of the plaintiff
No.3 Doreswamy. The plaintiff No.4 is a close relative of the
deceased Rudrappa. The defendant Nos.1 and 2 are the sons of
defendant No.6 Thippeswamy. The defendant No.3 is the son of
Mahadevappa defendant No.7. The defendant No.8 is the
husband of defendant No.4 Rathnamma. The defendant Nos.9
and 10 are the tenants in the suit item No.2 property.
4. It is also contended that defendant No.7
Mahadevappa got divided and taken his share from the joint
property under a registered partition deed effected in the year
1968. The remaining members namely, Rudrappa, H.R.
Doreswamy and H.R. Thippeswamy continued to live as the
members of the undivided family till 1983 when a partition took
place in the family of the said Rudrappa. Under the said
partition, the deceased Rudrappa acquired certain properties and
he enjoyed the same during his lifetime. The said Rudrappa died
on 03.10.1990 at Chitradurga. The said Rudrappa after the
partition effected in the year 1983 was residing at Chitradurga
along with plaintiff No.3 H.R. Doreswamy and his family
members. The said Rudrappa was having much love, affection
and attachment towards plaintiff No.3 and his family for the
reason that he was looked after by them with great love,
affection and care in his age old days.
5. It is contended that in the second week of
September 1990, defendant No.8 Shankarappa and defendant
No.6 Thippeswamy were able to take the aged and ailing
Rudrappa to Haliyur Village from the house of plaintiff No.3
Doreswamy on the pretext of intending to look after the said
Rudrappa for some time in their house with love and affection
and accordingly they took Rudrappa on the said pretext and kept
him upto 14.09.1990 in the house of defendant No.6
Thippeswamy. During the said period, by misusing and
misleading the ailing and aged Rudrappa, defendant Nos.6 and
8, namely, Thippeswamy and Shankarappa were able to obtain a
registered Will dated 13.09.1990 from the said Rudrappa in
favour of Viswanath and Deepak, who are the sons of
Thippeswamy and defendant Nos.1 and 2 herein and
Rathnamma defendant No.4, who is the wife of Shankarappa in
respect of the properties of Rudrappa.
6. It is also contended that after obtaining the
execution of the above said Will, the defendant Nos.6 and 8
brought and left the said Rudrappa in the house of plaintiff No.3
at Chitradurga. The aged and ailing Rudrappa realized the
tactful beneficial, malafide and calculated act of the said
Shankarappa and Thippeswamy and therefore executed another
last Will dated 25.09.1990 by canceling the registered Will dated
13.09.1990 and bequeathed his properties to all his
grandchildren and his relative Shankarappa for the reasons
stated in the Will dated 25.09.1990. The details of the earlier
Will and cancellation and execution of the said Will is also
narrated in the averments of the plaint. It is also the case of the
plaintiffs that after the execution of the last Will dated
25.09.1990, the said Rudrappa became seriously ill and for the
said reason, the plaintiff No.3 Doreswamy on 02.10.1990 got
admitted Rudrappa to the District Hospital, Chitradurga, but he
died on 03.10.1990. Therefore, from the date of death of
Rudrappa, the beneficiaries under the Will dated 25.09.1990
became the owners to their respective shares in the properties
mentioned in the Will and the said facts are within the
knowledge of all the plaintiffs and the defendants. The plaintiff
No.1 became the owner in possession of the property which was
bequeathed in his favour and so also plaintiff No.2. Plaintiff No.4
Shankarappa became the owner in respect of the property which
was bequeathed to him and so also plaintiff No.3. All of them
are put in their respective possession. The defendant No.10 by
name Hanumanthappa is in occupation of front portion of suit
item No.2 as a tenant on a monthly rent of Rs.250/-. The
plaintiff No.4 after the death of Rudrappa is in actual and
constructive possession of suit item No.3 from 03.10.1990.
7. It is also contended in the plaint that though the
defendants knew all the said facts, but in collusion with each
other during the first week of October 1990, demanded the
plaintiff No.3 to give major shares to them in the said properties
of Rudrappa and also issued legal notice and reply was given and
claimed based on the registered Will dated 13.09.1990 and
made an attempt to change the khatha based on the said Will.
Hence, the plaintiffs filed a suit for declaration and injunction.
8. The defendant Nos.1 to 6 and 8 appeared through
counsel and filed their written statement claiming their right
based on the said registered Will and all the averments made in
the plaint are denied. Based on the pleadings of the parties, the
Trial Court framed the following issues:
1. Whether the plaintiffs prove that deceased
Rudrappa S/o Mahadevappa had executed his
last Will dated 25.09.1990 cancelling the
registered will dated 13.09.1990 and
bequeathed his properties to all his sons and to
his relative K.S. Shankarappa (plaintiff No.4)?
2. Whether the plaintiffs No.1, 2 and 4 prove that
in the Will dated 25.09.1990 they have been
given the suit schedule properties respectively?
3. Whether the plaintiffs prove that they are in
lawful possession and enjoyment of the suit
schedule property on the date of the suit?
4. Whether the interference is true?
5. Whether the plaintiffs are entitled for a relief of
declaration and permanent injunction?
6. To what order or decree?
9. During the pendency of the suit, defendant No.10
vacated the premises in occupation of him as a tenant and hence
the suit was not pressed as against him by the plaintiffs for
having handed over the possession. The defendant No.9 is
depositing the rent in the Court as per the Court order.
10. The plaintiffs in the present case examined plaintiff
No.3 as P.W.1 and plaintiff No.4 as P.W.5. In total they
examined P.W.1 to P.W.5. The plaintiffs have also got marked
the documents at Exs.P.1 to 36 and also examined some of the
witnesses. The defendants also got examined defendant No.6 as
D.W.2 and defendant No.4 as D.W.5 and got examined some of
the witnesses on their behalf. In total examined D.W.1 to D.W.7
and got marked the documents at Exs.D.1 to 7.
11. The Trial Court having considered the material
available on record, accepted the case of the plaintiffs and
answered issue No.1 in the affirmative that the subsequent Will
dated 25.09.1990 canceling the earlier registered Will is upheld
and also comes to the conclusion that plaintiff No.1, 2 and 4
have proved the Will and the plaintiffs are also in lawful
possession and enjoyment of the suit schedule property on the
date of the suit and also comes to the conclusion that the
defendants are interfering with the possession of the plaintiffs
and the plaintiffs are entitled for the relief.
12. Being aggrieved by the judgment and decree of the
Trial Court, an appeal is filed in R.A.No.117/2004. The First
Appellate Court having considered the grounds urged in the
appeal and also on re-appreciation of both oral and documentary
evidence placed on record comes to the conclusion that the
impugned Will dated 25.09.1990 is not genuine one and
answered point No.2 partly in the affirmative that the deceased
Rudrappa was staying with him in Haliyur Village since 1988
upto the date of his admission to the hospital in Chitradurga and
comes to the conclusion that the judgment of the Trial Court
requires interference and set aside the judgment of the Trial
Court and hence the second appeal is filed before this Court.
13. This Court having considered the grounds urged in
the second appeal, admitted the second appeal since there is a
divergent finding and framed the following substantial question
of law:
"Whether in the facts and circumstances of the
case, the Appellate Court was justified in holding
that the appellants have not proved Ex.P.2 and
reversing the judgment and decree passed by the
Trial Court?"
14. The learned counsel for the appellants in his
arguments would vehemently contend that the First Appellate
Court has committed an error in reversing the well reasoned
order passed by the Trial Court. The learned counsel would
contend that the scribe of the Will is examined as P.W.2 and the
attesting witnesses are examined as P.W.3 and P.W.4. The
earlier Will is marked as Ex.P.1 and in terms of the said Will only
the properties of the deceased Rudrappa are bequeathed in
favour of defendant Nos.1 and 2 and one of the daughter and no
reason has been assigned in the said Will for the execution of the
said Will in favour of only three persons. The learned counsel
submits that the second Will Ex.P.2 dated 25.09.1990 is also
marked. The learned counsel contend that in the second Will it
is stated that the said Rudrappa was having cordial relationship
with all the family members and hence executed the Will in
favour of his grandchildren and also relative. In order to prove
the same, the scribe and the witnesses have been examined and
their evidence is consistent and the Trial Court accepted the
evidence of the attesting witnesses and also the scribe and
rightly comes to the conclusion that Ex.P.2 is a genuine
document. The learned counsel contend that the First Appellate
Court committed an error in coming to the conclusion that the
second Will is not genuine and the reasoning given by the First
Appellate Court is not correct. The approach of the First
Appellate Court is erroneous and not inconformity with the
evidence available on record and hence it requires interference
of this Court.
15. The learned counsel for respondent No.6 would
contend that the findings of the First Appellate Court cannot be
reversed and scope of Section 100 of CPC is very limited and
when there is no any error in the judgment and decree of the
First Appellate Court, the question of entertaining the second
appeal does not arise. The learned counsel contend that the
findings of the Trial Court are erroneous and the original Will has
to be considered and the document is also registered.
16. The learned counsel appearing for respondent Nos.1
to 5 would contend that the suit is filed for declaration and the
same was decreed and the health condition of Rudrappa is not
disputed. The learned counsel contend that the earlier Will was
cancelled and while cancelling the Will, in page No.2 reason was
given. The learned counsel contend that the properties were
equally distributed in terms of the second Will and not cheated
anyone. The learned counsel contend that the Will is executed in
favour of grandchildren and also one of the daughter of
Rudrappa. It is not in dispute that one of the son of Rudrappa
had partitioned earlier and he went out from the family. The
evidence of the witnesses is clear regarding attestation and the
document is also proved beyond reasonable doubt.
17. In reply it is contended that the second Will is an
unregistered Will and in paragraph No.39 of the judgment of the
First Appellate Court, it is clearly discussed with regard to the
findings of the Trial Court and also reasons assigned while
reversing the finding.
18. Having considered the material on record and also
the reasoning given by the Trial Court as well as the First
Appellate Court and also the grounds urged in the second appeal
and also keeping in view the substantial question of law framed
by this Court, this Court has to analyze the material on record,
since divergent findings are given.
19. It is not in dispute that all the properties belong to
the joint family. It is also not in dispute that one of the son of
Rudrappa i.e., Mahadevappa defendant No.7, took his share in
the year 1968 itself vide partition deed dated 07.05.1968, which
is marked as Ex.P.8. It is not in dispute that after defendant
No.7 separated himself from the family of the deceased
Rudrappa, the deceased Rudrappa, plaintiff No.3 and defendant
No.6, who have continued as members of joint family have got
partitioned the property on 30.05.1983 through a registered
partition deed. The deceased Rudrappa got some of the
property in the said partition deed is not in dispute. The very
contention of the plaintiffs is that defendant Nos.6 and 8 by
misusing and misleading Rudrappa, got executed the registered
Will. It is also the claim of the plaintiffs that in the said Will, the
entire property of the deceased Rudrappa was got bequeathed in
favour of defendant Nos.1 and 2, who are the children of
defendant No.6 and also in favour of defendant No.4, who is the
wife of defendant No.8 and defendant No.4 is none other than
the daughter of the said Rudrappa. It has to be noted that the
claim of the plaintiffs in the suit is that when Rudrappa having
noticed misusing and misleading him, he executed one more
unregistered Will on 25.09.1990 cancelling the earlier Will dated
13.09.1990 and bequeathed his properties to all his
grandchildren and plaintiff No.4. Having considered these
material on record, it is clear that plaintiff No.4 is the relative of
Rudrappa. It is also an averment in the plaint that when the
revenue records were changed in their name, defendant Nos.6
and 8 tried to interfere with their possession and hence suit was
filed.
20. The main contention urged in this appeal is that the
First Appellate Court committed an error in not accepting the
document Ex.P.2 as genuine document. The main contention of
the learned counsel is that the First Appellate Court while
reversing the finding of the Trial Court comes to the conclusion
that P.W.1 has given two versions. He has stated that the
existence of the Will Ex.P.1 was not within his knowledge and
also he says that his father had told him that defendant Nos.6
and 8 had obtained the Will by misleading him. The First
Appellate Court comes to the conclusion that P.W.3 to P.W.5
have stated that the testator was not healthy at the time of
execution of the Will. The other reason is that the attesting
witnesses have not put their signature on the second page of the
Will Ex.P.2. The other reason is that the evidence of P.W.1 to
P.W.5 does not inspire the confidence for the reason that the
paper used is green paper and normally attesting witnesses sign
all the pages, but it is strange that second page was not signed
by the attesting witnesses. The learned counsel contend that
under Section 68 of the Evidence Act, the propounder of the Will
is required to examine one of the attesting witness to prove the
Will. The learned counsel contend that the plaintiffs have
examined the scribe as P.W.2 and two witnesses as P.W.3 and
P.W.4 since the signature of the testator has not been disputed.
The propounder has proved the due execution of the Will by
examining two attesting witnesses. The learned counsel contend
that in paragraph No.11 of the written statement, only
contention was taken that the Will has been created on the
signed blank papers. When such defence was taken, the
defendants have to prove the same and the same was not
proved by adducing any evidence that plaintiff No.3 had obtained
the signature of Rudrappa on blank paper. The learned counsel
contend that P.W.1 has denied the suggestion of having blank
papers with signature of deceased Rudrappa. The First Appellate
Court has given more credence with regard to folding of the Will
paper and it is on record that business was being looked after by
the deceased Rudrappa, as plaintiff No.3 was suffering from
paralysis stroke. Both the Courts have held that the deceased
Rudrappa was residing in the house of plaintiff No.3, but finding
of the First Appellate Court is erroneous that he was residing
along with defendant No.6. The Trial Court has taken note of
Exs.P.17 and 18 voter's list, which evidence the fact that the
deceased Rudrappa was staying with plaintiff No.3. The
document Ex.P.19 endorsement issued by the hospital is also
very clear. The learned counsel brought to the notice of this
Court Ex.P.26 retirement of defendant Nos.6 and 8 from the
partnership firm and the same was executed in the year 1986.
21. Having considered these material and also the
contention of the learned counsel for the respondents,
admittedly it is not in dispute that the first Will dated 13.09.1990
is a registered document and the second document is an
unregistered Will dated 25.09.1990. There is no any law for
compulsory registration of the Will and the same is also taken
note of by the Trial Court while considering the material on
record. Now the question before this Court is whether the
document of Ex.P.2 can be accepted or not as against the
document of Ex.P.1. On perusal of Ex.P.1, no doubt the
document of Will was registered and the beneficiaries under the
document Ex.P.1 are defendant Nos.1 and 2 and also one of the
daughter of Rudrappa. In terms of Ex.P.2, beneficiaries are the
grandchildren and also the daughter of the said Rudrappa. It is
pertinent to note that in terms of Ex.P.1, no reasons are
assigned for restricting the beneficiaries i.e., defendant Nos.1
and 2 and daughter of Rudrappa. While executing the Will, the
reason has to be assigned as to why the provision is made only
for those persons. Having read the said document of Ex.P.1, no
such reason is assigned.
22. It is important to note that the main contention of
the defendants, particularly in paragraph No.11 of the written
statement is that the alleged Will propounded by the plaintiffs
are created on old papers in which signatures were taken for
affidavit. For what purpose those signatures were taken for
affidavit has not been explained by the defendants. It is
emerged in the evidence that plaintiff No.3, who was residing
along with his father i.e., the deceased Rudrappa, had suffered
paralysis stroke. It is also emerged in the evidence that he was
under the care of the deceased Rudrappa. The same has been
discussed in paragraph No.24 of the judgment of the Trial Court
that plaintiff No.3 is a person who is ailing in view of he has
suffered the paralysis stroke to the entire left part of his body
and was not in position to move and walk property. When the
defendants took the specific defence that Ex.P.2 was prepared
on the blank papers and for what purpose all of them have
signed has not been explained. It is important to note that
defendant No.6 is examined as D.W.2. D.W.2 admits that
plaintiff No.3 had suffered paralysis, but he did not mention the
year in which he had suffered paralysis. He admits that there
was a partition in the year 1983 amongst the family members.
D.W.2 says that plaintiff No.3 had personally appeared before
the Sub-Registrar in the year 1983 while registering the
partition. He says that at the time of partition itself, may be
plaintiff No.3 had suffered paralysis. But the fact is that the said
Rudrappa, during the ailment of plaintiff No.3 between 1981 to
1989, took care of plaintiff No.3 and he was treated for paralysis
stroke is not in dispute.
23. It is important to note that D.W.5 in his evidence
categorically admitted that Rudrappa was living along with
plaintiff No.3 Doreswamy and his family members and he used
to visit Chitradurga. Hence, it is clear that the deceased
Rudrappa was always residing along with plaintiff No.3 and the
same is also taken note of by the Trial Court. But the First
Appellate Court committed an error in answering point No.2 in
coming to the conclusion that the defendants/appellants have
proved that the deceased Rudrappa was staying with him in
Haliyur village since 1988 upto the date of his admission to the
hospital at Chitradurga. The evidence of D.W.5 is contrary to
the findings of the First Appellate Court. The fact that the
deceased Rudrappa was living along with his son plaintiff No.3
who had suffered paralysis is emerged in the evidence. These
factors are taken note of by the Trial Court while accepting the
document of Ex.P.2. No doubt, in Ex.P.2, in one page there is no
signature of the attestors, but the fact is that the said Rudrappa
had bequeathed his properties to all his kith and kin in the
second Will. It is important to note that on perusal of Ex.P.2,
the reasoning is also given for executing the second Will. Apart
from that, Ex.P.26 is very clear that after the partition of the
year 1983, retirement deed was executed by defendant Nos.6
and 8 in favour of plaintiff No.3 and Rudrappa. Though
defendant Nos.6 and 8 disputed the said document, but did not
dispute the signature available in the document Ex.P.26 i.e.,
signature of defendant No.6 Thippeswamy and defendant No.8
Shankarappa and the deceased signature are marked as
Ex.P.26(a) to (c). In order to prove that the said document is
concocted, no material is placed before the Court.
24. It is important to note that there are two versions in
the evidence of P.W.1 with regard to having knowledge of
Ex.P.1. He says that he came to know only on production of
document of Ex.P.1 and the same will not take away the case of
the plaintiffs. It is important to note that the evidence of the
witnesses, who have been examined as P.W.2 to P.W.4 i.e., the
scribe and the attesting witnesses, is consistent and credible
with regard to the execution of the document is concerned. It is
also important to note that already there was an earlier partition
in respect of first son in the year 1968 and also no dispute with
regard to the subsequent partition of the year 1983 and also it is
not in dispute that the subject matter of the Will properties are
allotted to the share of Rudrappa. It has to be noted that when
the said Rudrappa was residing along with his son plaintiff No.3
who had suffered the paralysis stroke, he was taking care of the
business subsequent to the partition also and there is no any
reason to exclude the other family members while executing the
Will. It is the specific case of the plaintiffs that during
September 1990, defendant Nos.6 and 8 took the deceased
Rudrappa to their house to take care of him. It is important to
note that the document of Will dated 13.09.1990 was a
registered document and on the very next day, Rudrappa was
brought back and left in the house of plaintiff No.3 and the same
is evident from the records. Hence, the reason for taking him
and getting the document registered is clear.
25. It is important to note that the deceased testator
was not an ordinary man, as he had rich experience in the
business since he was taking care of the business. These factors
are taken note of by the Trial Court while accepting the
document of Ex.P.2, though it is disputed. Though the said
document was not registered, reason has been assigned in the
said document of Ex.P.2 for executing the subsequent Will. The
beneficiaries of Ex.P.1 have not explained the reason for
bequeathing the property in their favour, since they have not
taken care of the father. The admission of D.W.5 is very clear
that the deceased Rudrappa was residing in the house of plaintiff
No.3 and he used to visit the house of plaintiff No.3 and no
reason has been assigned to exclude him and his children while
registering the Will in terms of Ex.P.1 and reason has been
assigned in Ex.P.2. The evidence of scribe as well as the
attesting witnesses are very clear though they are not villagers
of particular village. It is important to note that the Trial Court
also taken note of the subsequent conduct of the parties after
Ex.P.2 came into existence since the revenue entries are also
made in terms of Ex.P.34 and so also the possession is vest with
plaintiff Nos.1 to 3 in respect of item Nos.1 and 2 properties.
The defendants by their own conduct have got mutated the half
portion of the properties, namely house, site, godown and site
which are bequeathed in their favour under the document of Will
dated 25.09.1990. They have failed to explain as to why they
got partial property mutated in their name for which a different
sub-assessment is given. The Trial Court also observed that the
conduct of the defendants by itself is sufficient to hold that the
defendants did accept the Will dated 25.09.1990 and if the
document dated 13.09.1990 was within the knowledge of all the
family members, what made them to transfer the properties in
terms of the subsequent Will has not been explained and the
same is taken note of.
26. It is important to note that though the defendants
have examined the attesting witnesses of the document of
Ex.P.1, it does not inspire the confidence of the Court and the
said fact has not been considered by the First Appellate Court
while reversing the finding of the Trial Court. The Trial Court has
given the reasons while accepting the document of Ex.P.2 dated
25.09.1990 and the same was duly executed by the deceased
testator Rudrappa out of his free will. Though there are certain
admissions on the part of the plaintiffs witnesses with regard to
hearing and vision problem of Rudrappa, the Court has to take
note of that both Exs.P.1 and 2 came into existence in the same
month on 13.09.1990 and 25.09.1990 and within a span of 12
days the other document came into existence. When such being
the case, the First Appellate Court committed an error in
accepting the earlier document and declining to accept the
second document, which has been proved by examining the
attesting witnesses including the scribe. The First Appellate
Court failed to discus the evidence of D.W.2 and D.W.5, wherein
specific admission was given that Rudrappa was residing along
with plaintiff No.3. The detailed reasoning are given by the Trial
Court from paragraph Nos.24 to 29 of its judgment while coming
to the conclusion. Hence, the judgment and decree of the Trial
Court has to be upheld and the reasoning given by the First
Appellate Court is not based on the material available on record.
The First Appellate Court committed an error in appreciating
both oral and documentary evidence placed on record and also
the factual aspects of considering the beneficiaries, who have
taken care of the deceased were left out in the earlier Will, which
was registered and though the same was registered, the same
came into existence in a suspicious circumstance.
27. This Court would like to refer to the judgment of the
Apex Court in the case of MAHESH KUMAR (DEAD) BY LRS. v.
VINOD KUMAR AND OTHERS reported in (2012) 4 SCC 387,
wherein it is held that once execution of subsequent Will is
proved, former will be automatically rendered redundant. Hence,
no categorical recital regarding cancellation of the former Will is
needed in subsequent Will. Hence, it requires interference of
this Court by answering the substantial question of law that the
First Appellate Court is not justified in not accepting the
document of Ex.P.2.
28. In view of the discussions made above, I pass the
following:
ORDER
(i) The second appeal is allowed.
(ii) The judgment and decree of the First Appellate
Court dated 22.08.2006 passed in
R.A.No.117/2004 is set aside and consequently
the judgment and decree of the Trial Court
dated 18.03.1998 passed in O.S.No.1212/1990
is restored.
(iii) The Registry is directed to send the records to
the concerned Court.
Sd/-
JUDGE
MD
