Karnataka High Court
Smt.Indiramma W/O Karibasappa vs Smt.Hampamma W/O Late Kumarappa on 20 November, 2024
-1-
NC: 2024:KHC-D:16936
RFA No. 100008 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 20TH DAY OF NOVEMBER, 2024
R
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 100008 OF 2019 (DEC/POS)
BETWEEN:
1. SMT.INDIRAMMA
W/O. LATE SRI. KARIBASAPPA,
AGE: 62 YEARS, OCC: HOUSHOLD
2. HOOGAR MANJUNATH
S/O: LATE KARIBASAPPA
AND SMT. INDIRAMMA,
AGE: 32 YEARS, OCC: AGRICULTURE
3. SMT. HEMAVATHI @ VEDAVATHI
D/O: LATE KARIBASAPPA,
AGE: 27 YEARS, OCC: HOUSEHOLD
ALL ARE R/AT: OLD DOOR NO.170,
PRESENT NO.135, WARD NO.IV,
KUDUTHINI VILLAGE, DIST: BALLARI.
...APPELLANTS
(BY SRI. RAJASHEKAR R. GUNJALLI, ADVOCATE)
GIRIJA A
BYAHATTI
AND:
1. SMT. HAMPAMMA DIED BY HER LRS
Location:
HIGH 1a. SMT. YERRAMMA
COURT OF
KARNATAKA W/O. LATE JEER ERANNA,
AGE: 55 YEARS, OCC: HOUSEHOLD
1b. VISHWA S/O. LATE JEER ERANNA,
AGE: 40 YEARS,
BOTH ARE R/AT URAKUNDI,
TQ: ALLUR, DIST: KARNUL.
1c. JEER CHANDR S/O. LATE KUMARAPPA
BHEVENHALLI, VILLAGE & POST
TQ & DIST: BALLARI.
-2-
NC: 2024:KHC-D:16936
RFA No. 100008 of 2019
1d. JEER ERAMMA W/O. SHIVAPPA
AGE: 55 YEARS,
R/O. DODDASHIDDAVANAHALLI POST
TQ & DIST: CHITRADURGA.
1e. SMT. JEER LAKSHMI W/O. SHANKARAPPA
AGE: 52 YEARS, O/C. KOTRESHGOUDA
R/O. DOOR NO.17, WARD NO.18,
NEHARU COLONY, BALLARI.
1f. JEER MALLAMMA W/O. THIPPESWAMY
AGE: 50 YEARS,
R/O. DODDASHIDDAVANAHALLI POST
TQ& DIST: CHITRADURGA.
1g. JEER UMMADEVI W/O. CHELAVAIAH,
AGE: 48 YEARS, R/O. MALEGELI POST,
TQ: ALLUR DIST: KARNUL A.P
2. SRI. RAMALINGAPPA,
H/O. LATE GOURAMMA,
AGE: MAJOR, OCC: FLOWER MERCHANT,
BALLARI ROAD,
KUDUTHINI VILLAGE,
TQ & DIST: BALLARI.
...RESPONDENTS
(BY SRI. H.R. DESHPANDE AND SMT. USHA H. DESHPANDE,
ADVOCATES FOR R1 (A-G); R2 SERVED BUT UNREPRESENTED)
--------
THIS RFA IS FILED UNDER SECTION 96 OF THE CODE OF
CIVIL PROCEDURE, PRAYING TO CALL FOR RECORDS AND SET
ASIDE THE JUDGMENT AND DECREE PASSED BY THE LEARNED PRL.
SENIOR CIVIL JUDGE & CJM, AT BALLARI IN O.S.NO.187/2016
DATED 29.09.2018 DISMISS THE SUIT IN THE INTEREST OF JUSTICE
AND EQUITY.
-3-
NC: 2024:KHC-D:16936
RFA No. 100008 of 2019
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
1. This appeal under Section 96 of the Code of Civil
Procedure, 1908, is against the decree for partition.
The plea of self-acquisition of some of the properties
by defendant No.3 and claim of defendant No.4,
based on a registered Will dated 09.05.2005, are
rejected.
2. The genealogy furnished by the plaintiff, though
initially disputed by the defendants, later it is
admitted. The Trial Court relied on the genealogy
marked at Ex.P1. Learned Counsel for both sides in
this appeal, did not dispute Ex.P1. Hence, the Court
would refer to the genealogy at Ex.P1, extracted as
under:
NC: 2024:KHC-D:16936
Sri. Karabasappa (Dead)
Wife - Smt. Parvathamma (Dead)
Hampamma/ Plaintiff Smt. Sarvamangalamma
(Dead) (Dead)
Husband Sri. Kumarappa Husband- Nyanappa
(Dead) (Dead)
Children 1. Sri. Eranna
2. Smt. Eramma
3. Sri. Chandranna
4. Smt. Mallamma
5. Smt. Lakshmi
6. Smt. Umadevi
Son Karibasappa/D3 Daughter-Smt. Gowaramma
(Dead) (Dead)
Husband-Sri. Ramalingappa/ D-6
Wife-Smt. Indiramma/D-4 Son-Sri. Manjunath (D.5)
Smt. Hemavathi
3. The brief facts of the case are;
3.1. Karabasappa @ Vaddatti Basappa (Henceforth
referred to as Vaddatti Basappa, as there is one
more person by name Karibasappa) was the
propositus. Vaddatti Basappa and Parvathamma
lived together as husband and wife for a
considerable length of time, though there was
no formal marriage ceremony. Parvathamma
NC: 2024:KHC-D:16936
had two daughters, Hampamma and
Sarvamangalamma from her first marriage.
Later, after her husband's death, Parvathamma
lived with Vaddatti Basappa.
3.2. Since both of them lived for a considerable
length of time as husband and wife, this Court
is of the view that Vaddatti Basappa and
Parvathamma should be considered as husband
and wife, though there is no proof of marriage
ceremony.
3.3. Though Hampamma and Sarvamangalamma
are not the children of Vaddatti Basappa,
Hampamma filed a suit for partition, claiming ½
share contending that the suit belonged to
Karabasappa @ Vaddatti Basappa. In the said
suit, her sister Sarvamangalamma's heirs were
arrayed as parties. Defendant No.3 -
Karibasappa, is the son of Sarvamangalamma,
Defendant No.4 - Indiramma, is the wife of
NC: 2024:KHC-D:16936
Defendant No.3 Karibasappa, Defendant No.5 -
Hoogaru Manjunatha, is the son of Defendants
No.3 and 4, Defendant No.6 is the husband of
Gowramma, the daughter of
Sarvamangalamma.
3.4. Defendants No.1 and 2, the State and
Tahasildar who were formal parties did not
contest the suit. Defendant No.3 filed a written
statement and Defendants No.4 and 5 adopted
the written statement filed by Defendant No.3.
3.5. The contesting defendants contended that
Vaddatti Basappa was unmarried and issueless.
It is also urged that Parvathamma is not his
wife.
3.6. Defendant No.3 also took a stand that,
Karabasappa alias Vaddatti Basappa
bequeathed items No.3 and 4 of the suit
properties and also in respect of property
NC: 2024:KHC-D:16936
bearing assessment No.2052 and 1954 in favor
of defendant No.4, though no specific reference
is made to the registered Will dated
09.05.2005.
3.7. As far as item No.5 property is concerned, it is
contended that this property was granted to
Defendant No.3 by the Land Tribunal, as that
was Inam land and Defendant No.3 was
Inamdar.
3.8. The Trial Court did not frame any issue relating
to the proof of Will pleaded by Defendant No.3.
However, the Trial Court framed issue relating
to the proof of joint family of the plaintiff and
Defendants No.3 to 6 and also framed issue
whether the suit schedule properties are the
joint family properties.
3.9. Defendant No.4 produced the registered Will
dated 09.05.2005. One attesting witness was
examined.
NC: 2024:KHC-D:16936
3.10. The Trial Court concluded that the plaintiff has
established the relationship and that the
properties are joint family properties and
decreed the suit. However, the finding is not
given on the Will on the premise that the
particulars of the Will are not forthcoming in the
written statement.
3.11. Aggrieved by the aforementioned judgment,
Defendants No.3 to 5 are in appeal.
4. Learned counsel for Defendants No.3 to 5/appellants
would contend that:
4.1. The Trial Court could not have held that the Will
cannot be considered on the premise that there
is no pleading relating to the Will. Written
statement filed by Defendant No.3, contains an
averment in paragraph No.8 relating to the Will
of Vaddatti Basappa. Despite the evidence
being led in proof of the Will, and despite
pleadings regarding the Will, the Trial Court
NC: 2024:KHC-D:16936
erred in holding that there is no pleading
regarding the Will.
4.2. The plaintiff has not acquired any right over the
properties, as the properties belonged to
Vaddara Basappa @ Karabasappa @ Vaddatti
Basappa. The plaintiff Hampamma, not being
the daughter of Vaddatti Basappa, is not
entitled to succeed to his properties.
4.3. Merely because Vaddatti Basappa and
Parvathamma lived together as husband and
wife, Hampamma, the daughter of
Parvathamma, from her first husband does not
acquire any right over the properties of
Vaddatti Basappa, as Hampamma, at the most,
can be a stepdaughter of Vaddatti Basappa.
4.4. Defendant No.3 is the absolute owner of item
No.5 property, which was granted to him by the
Land Tribunal, as the said property was the
- 10 -
NC: 2024:KHC-D:16936
Inam land, and Defendant No.3 was the
Inamdar.
5. Learned counsel appearing for the plaintiff/contesting
respondents would contend that the Will is not
properly pleaded in the written statement and even if
it is presumed that the Will is pleaded and evidence
is led, the evidence is not good enough to uphold the
due execution of the Will. It is also his further
contention that, suit properties are jointly acquired
by Karabasappa @ Vaddatti Basappa and
Parvathamma. Thus, Vaddatti Basappa could not
have executed the Will with respect to the entire
properties. Even if the execution of the Will is
proved, Parvathamma's ½ share in the suit
properties would devolve upon her heirs, namely
Hampamma and Sarvamangalamma. It is urged
that grant in respect of item No.5 property is a grant
in favour of the joint family of Hampamma and
Sarvamangalamma, and Hampamma will have ½
- 11 -
NC: 2024:KHC-D:16936
share in the said property. Thus, he would pray for
the dismissal of the appeal.
6. This Court has considered the contentions raised at
the Bar. The following points arise for consideration:
i. Whether the Trial Court justified in not
considering the evidence led in support of
the Will on the premise that date of the
Will is not pleaded in the written
statement?
ii. Whether the Trial Court justified in holding
that the suit properties are the joint
family properties of Hampamma and
Sarvamangalamma?
7. In paragraph No.8, in the written statement the
relevant portion reads as under:
"This defendant and his wife Indramma took
care of him in old age. During his lifetime,
Vaddatti Basappa made a Will in favour of
Indiramma out of love and affection. On his
death, the properties of the testator devolved
upon Indiramma, the fourth defendant and she
is the absolute owner".
- 12 -
NC: 2024:KHC-D:16936
The defence is based on the Will is raised in the
written statement. However there was no specific
issue framed relating to the proof of the Will.
Nevertheless the parties went to the trial
understanding the respective contentions. The
parties led evidence in support of their contention on
the disputed Will dated 09.05.2005.
8. This being the position, this Court is of the view that
no prejudice is caused to the parties by not framing a
specific issue relating to proof of the alleged Will
dated 09.05.2005. The Trial Court could not have
held that the Will cannot be considered for not
mentioning the date of the Will in the written
statement when Defendant No.3 pleaded that Will is
executed in favour of Defendant No.4.
9. This Court has perused the evidence relating to the
Will. The original Will dated 09.05.2005 is produced
and marked as Ex.D3. Will is registered on the same
day. Vaddatti Basappa was 85 years old at that
- 13 -
NC: 2024:KHC-D:16936
time. He died in the year 2009. He survived four
years after the execution of the Will. One of the
attesting witnesses is examined to prove the
execution and attestation. The witness was cross-
examined.
10. The attesting witness to the Will has stated that the
Will was executed in his presence and the presence
of other attesting witness. In the examination-in-
chief, the witness has identified the signature of
Vaddatti Basappa as well as his signature. In the
cross-examination, the signature of Vaddatti Basappa
on the Will was not disputed.
11. The attesting witness is an illiterate. He signed the
Will on 09.05.2005. He was examined in the year
2018. Minor discrepancy, if any, in the evidence of
the attesting witness has to be ignored as 13 years
had elapsed since the Will was registered. The
testator survived for more than four years after the
execution of the Will. The signature of the testator on
- 14 -
NC: 2024:KHC-D:16936
the Will is not in dispute. The Testator's sound health
at the time of the execution of the Will is also not
disputed.
12. The attesting witness has also stated that Vaddatti
Basappa was hale and healthy while executing the
Will. The said statement is not disputed in the cross-
examination. As already noticed Vaddatti Basappa
survived for four years after the execution of the
Will. That would also indicate the fact that he was
quite healthy while executing the Will. Though in the
cross-examination, the attesting witness in one
sentence has said that he does not know anything
about the Will; it has to be construed as a stray
sentence. By considering the entire evidence led in
support of the Will, and attending circumstances, it
can be concluded that the execution of the Will is
duly proved.
13. Prior to the Will dated 09.05.2005, Karabasappa @
Vaddatti Basappa had executed another Will in favor
- 15 -
NC: 2024:KHC-D:16936
of Gowramma and Indiramma, defendants No.6 and
4. However, Vaddatti Basappa canceled the said Will
on 01.10.2024 stating that Gowramma and
Indiramma had shown a hostile attitude towards him.
14. Indiramma, the legatee has led evidence as DW.1
and has stated that she was taking care of Vaddatti
Basappa in his old age. The signature on the Will is
not disputed and no other suspicious circumstances
are brought out. It is also relevant to note that
plaintiffs do not contend that the Will in question is
the outcome of fraud, misrepresentation, or undue
influence. This Court is of the view that the execution
of the Will dated 09.05.2005 is proved. However,
what is required to be considered is whether
Karabasabba @ Vaddatti Basappa had right over the
properties covered under the Will.
15. In the Will itself, Karabasabba @ Vaddatti Basappa
stated that he had purchased property bearing
Survey No.330C/1b measuring 6 acres described in
- 16 -
NC: 2024:KHC-D:16936
item No.3 of the schedule properties along with his
wife Parvathamma. The sale deed in respect of the
property marked at Ex.D1 is in the joint name of
Vaddatti Basappa and Parvathamma. This being the
position, this Court is of the view that the Will though
proved, is valid only in respect of ½ share held by
Vaddatti Basappa. Remaining ½ share in the said
property bearing Sy.No.330c/1b belongs to
Parvathamma who predeceased Vaddatti Basappa.
Thus, half share of Parvathamma would devolve
equally upon three persons i.e., her two daughters
Hampamma and Sarvamangalamma, and the
husband Vaddatti Basappa. Thus, Hampamma will
have 1/6th share, and Sarvamangalamma will have
1/6th share from Parvathamma. Vaddatti Basappa
apart from his half share will also succeed 1/6th share
of Parvathamma. Consequently, Vaddatti Basappa
will have half share plus 1/6th share which comes to
2/3rd share. After the death of Vaddatti Basappa, his
- 17 -
NC: 2024:KHC-D:16936
2/3rd share will devolve upon the legatee Indiramma
under the Will dated 09.05.2005.
16. Thus Indiramma will acquire 2/3rd share. 1/6th share
devolves upon Hampamma, and 1/6th share would
devolve upon Sarvamangalamma. Thus, Hampamma
is entitled to 1/6th share in item No.3 property.
17. As far as item Nos.1, 2 and 4 properties are
concerned, there is no evidence to show that they
are the joint family properties.
18. With respect to item No.5 is concerned, it is evident
from Ex.D6, the re-grant order that the property is
granted to Defendant No.3. Since no records are
produced to show that this property was in the name
of mother Parvathamma, or the re-grant is made for
the benefit of the joint family, and also given the fact
that Defendant No.3 and plaintiff belong to different
families, this Court has to hold that the said property
is the self-acquired property of Defendant No.3.
- 18 -
NC: 2024:KHC-D:16936
19. As far as the property bearing Survey No.260
measuring 6 acres 20 guntas is concerned (item
No.6), the property record stands in the name of
Defendant No.3. Defendant No.3 has produced RTC.
The plaintiff has not produced any records showing
that this property was in the name of Parvathamma.
Hence, this Court has to hold that this property also
belongs to Defendant No.3 alone. Hence the suit is
not maintainable in respect of the said property.
20. For the reasons recorded, the impugned judgment
and decree are to be set aside. The plaintiff will have
1/6th share in item No.3 property. Defendant No.4
will have 2/3rd share in the suit properties at item
No.3.
21. A discussion on law relating to proof of Will.
21.1. Quite a few disputes concerning the Will, land
up in Courts. This is one such case. Here, the
Court is called upon to decide on the validity of
the registered Will dated 09.05.2005, in a suit
- 19 -
NC: 2024:KHC-D:16936
filed in 2016. Defendant No.4 legatee, to prove
the Will, examined the attesting witness on
01.08.2018, 13 years after the execution of the
Will.
21.2. Will or the testament is a sacred document. It
contains the last wish of a testator when it
comes to the disposition of the testator's
property. In our culture, lot of significance is
attached to the last wish of a person.
21.3. The law enables a person to decide the course
of succession, in respect of his estate, through
a Will. Duly executed Will overrides the
personal law relating to intestate succession
and fulfills the last wish of the testator in so far
as succession to his estate. This signifies the
sanctity attached, by the lawmakers, to the last
wish of a testator.
21.4. The law is also in place governing execution
and proof of a Will. Law requires that a Will
must be attested by at least two attesting
- 20 -
NC: 2024:KHC-D:16936
witnesses and at least one must be examined
to prove it. The word "Attestation" is defined in
the Transfer of Property Act. In Abdul Jabbar
vs Venkata Sastri1 the Apex Court dealt with
the requirement of attestation defined in
Section 3 of the Transfer of Property Act.
Though ignorance of the law is no excuse,
many a times a person called upon to prove the
attestation of a Will, may not know the nitty-
gritty of "attestation" or importance of the
"evidence of an attesting witness" to a Will.
21.5. The experience of life tells us that in many
cases where a dispute surrounding the
execution of a Will is tried in Courts, the
attesting witness will be deposing before the
Court many years after the execution of the
Will. The witness may not be in a position to
give the correct account of what transpired
AIR 1969 SC 1147
- 21 -
NC: 2024:KHC-D:16936
when the Will was executed or when he signed
as an attesting witness. At times, a witness
may predecease the testator. Though the law
provides for a different mode of proof in such a
situation, the fact remains that the best witness
is no more.
21.6. During the trial, where at times, a high
premium is placed on the accuracy of the
statement, the evidence led in support of the
Will may fall short of the standard expected.
When a Will is tested in a Court, the testator
who expressed his last wish, and the best
person to speak about his intention is not there
to confirm his act.
21.7. Under the existing law, proof of Will and the
fulfillment of the last wish of the testator is
entirely dependent on the ability of the
attesting witness to withstand the cross-
examination by a skilled and trained lawyer.
Sometimes, if not all times, the atmosphere in
- 22 -
NC: 2024:KHC-D:16936
the Court, the presence of a judge, lawyers,
and the parties to the proceedings, may infuse
a sense of fear or anxiety in the mind of a
witness while deposing before the Court. In
such a scenario, the witness may fumble, even
if the Will is genuine. In the process, it is quite
possible that the last desire/wish of the testator
may not get fulfilled at all.
21.8. Lack of awareness as to the significance and
importance of being an attesting witness to a
Will and lack of awareness as to what
attestation means may also result in a verdict
rejecting the claim based on the Will. More
often than not, when the evidence on both
sides appears to be somewhat evenly balanced,
the Court finds (at least speaking for myself) it
bit difficult to decide which version is true.
21.9. The concept of Will and proof of Will introduced
in the colonial regime through the Indian
Succession Act, 1925 and Indian Evidence Act,
- 23 -
NC: 2024:KHC-D:16936
1872 has not witnessed any change. Even in
Bharatiya Sahkshya Adhiniyama 2023, there is
no change in the mode of proof of a Will.
21.10.Technology in the last two decades has
advanced beyond comprehension. There is a
need to make good use of the technology in
documenting the Wills. The office of the Sub-
Registrar is now equipped with computer
systems and web cameras. Video recording
and storing the data is quite simple and
inexpensive. The process of registration can be
suitably amended to facilitate video recording of
the statement of the testator and attesting
witnesses. There is a need to embrace the
technology to ensure that there is an
unambiguous, credible, and clinching record
relating to proof of execution of documents,
more particularly the documents such as Will
where the author of the instrument will not be
- 24 -
NC: 2024:KHC-D:16936
available to admit or prove its execution when
its execution is disputed.
21.11.Suitable provision in law, facilitating an option
to record the statement by the testator and the
attesting witnesses in a Court, testifying about
the execution of a Will, with necessary
measures or safeguards to ensure the
confidentiality, will go a long way in assisting
the Courts in discharging its function where the
Courts have to adjudicate the dispute
surrounding the execution of the Will.
21.12.A Will containing the last wish of the testator
should last as per his wish, and should not be
lost in a complex procedure of proof where
when the testator has no voice and the proof of
a Will depends on the evidence of attesting
witnesses or other witnesses recognized under
law.
21.13.The issue is discussed only to invite the
attention of the stakeholders for meaningful
- 25 -
NC: 2024:KHC-D:16936
deliberation and to find a solution to ensure
that a genuine Will never fails or a fake Will
never succeeds in a Court of law.
22. In the instant case this Court has concluded that the
Will dated 09.05.2005 is duly proved. However, the
testator was not the absolute owner of the
properties. The testator had only ½ share in item
No.3 property. The plaintiff has not produced any
records to hold that item No.1, 3 and 4 properties
are the joint family properties. Thus, plaintiff is not
entitled to any share in the said properties.
23. For the aforementioned reasons, the impugned
judgment and decree of the Trial Court are to be
modified. Hence the following:
ORDER
i. The appeal is allowed in part.
- 26 -
NC: 2024:KHC-D:16936
ii. Impugned judgment and decree dated 29.09.2018
passed by the Principal Senior Civil Judge at
Ballari, in O.S.No.187/2016, are modified.
iii. The suit of the plaintiff is decreed in part.
iv. The plaintiff is entitled to 1/6th share in item No.3
(as numbered in the original plaint) property
bearing Survey No.330C/1b measuring 6 acres.
v. The suit is dismissed in respect of remaining
properties.
vi. It is stated that final decree proceedings are
pending before the Court. The Final Decree
Proceedings shall be continued in terms of the
decree passed by this Court.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
gab
CT:ANB
List No.: 1 Sl No
..
