Karnataka High Court
H G Kashinath vs H G Ashwathanarayana on 21 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2025 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR FIRST APPEAL NO.123/2008 (RES)
BETWEEN:
1. H.G. KASHINATH
S/O LATE H.K.GUNDU RAO
SINCE DECEASED BY LRS
1(a) SMT. H.K.NAGAMANI
AGED ABOUT 55 YEARS
1(b) SMT. H.K.KAVITHA
D/O LATE KASHINATH
AGED ABOUT 28 YEARS,
1(c) SRI. H.K. VINAY KUMAR
S/O LATE KASHINATH
AGED ABOUT 26 YEARS
1(a) TO 1(c) ARE
R/AT SOUTHERN PARTITION
OF HOUSE NO.86/132,
SURVEYOR'S STREET,
BASAVANGUDI,
BENGALURU-560 004. ... APPELLANTS
(BY SRI. C.M.NAGABUSHANA, ADVOCATE)
2
AND:
1. H.G. ASHWATHANARAYANA
S/O LATE H.K. GUNDU RAO
1(a) MRS. AKHILA ASWATH
AGED ABOUT 50 YEARS
D/O LATE H.G.ASHWATHANARAYANA
W/O MADUSUDAN
1(b) MS. ANITHA ASWATH
AGED ABOUT 47 YEARS
D/O LATE H.G.ASHWATHANARAYANA
BOTH ARE R/AT NO.132/1,
SHANTHA SAI SADAN,
SURVEYORS STREET,
BASAVANAGUDI,
BENGALURU-560 004.
(AMENDED VIDE COURT ORDER DATED 09.06.2023)
... RESPONDENTS
(BY SRI. K. SRIRAM, ADVOCATE FOR R1[a & b])
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 07.11.2007
PASSED IN O.S.NO.3163/1990 ON THE FILE OF THE XV ADDL.
CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH-3),
DECREEING THE SUIT FOR DECLARATION, POSSESSION, MESNE
PROFITS ETC.,
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 04.02.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
3
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
1. Heard the learned counsel for the appellant and
also the learned counsel for the respondent.
2. This appeal is filed against the judgment and
decree of the Trial Court dated 07.11.2007 in
O.S.No.3163/1990 granting the relief of declaration and
possession in favor of the plaintiff.
3. The factual matrix of case of the
plaintiff/respondent before the Trial Court while seeking the
relief of declaration and possession it is contended that the
plaintiff himself and defendant are full blood brothers. It is
contended that the plaintiff is the owner of the property
bearing No.86/132, Surveyor Street, Basavanagudi,
Bangalore-4 and out of the said property, a portion of it
measuring 25 north-south and 17.5 east to west, morefully
described in the schedule to the plaint is under the
occupation and use of the defendant. The father of the
plaintiff and the defendant one Sri late H.K.Gundu Rao who
expired in the year 1956 was the adopted son of one
Sri.H.Kashi Rao who was the absolute owner of the above
said entire property bearing No.86/132, Surveyor Street,
Basavanagudi, Bangalore. He had purchased the said
property for valuable consideration from T.Subba Rao Padke
in the year 1918. The said Kashi Rao, in respect of the said
self acquired property, executed a duly attested will and
registered the same on 15/4/1936. He has bequeathed the
said property to one of his grandsons i.e., the plaintiff. The
wife of the executant of the will
Smt.Bhageerathamma and plaintiffs mother
Smt.Gowramma were granted life interest in the said
property and absolute interest was created in favour of the
plaintiff, said Kashi Rao died intestate in the year 1941
when the plaintiff was of 11 years of age. A portion of the
suit property was sold by the plaintiff's mother for the
purpose of plaintiffs education and maintenance of the
family on 22/10/1952 in favour of one Sri.V.Venkatesha
Sastry. In the suit schedule property there was a tenant
who was evicted around 1974 and as the defendant was in
difficult circumstances, he was provided shelter in the said
suit schedule property. Thus, the possession of the suit
schedule property by the defendant is only permissive in
nature, under the title and ownership of the plaintiff. It is
further contended that that the revenue records with
respect to the entire property was made in the name of the
plaintiff. The defendant was paying Rs.30/- per month to
the plaintiff, which was to be treated as damages for the
use and occupation of the suit schedule premises. The
plaintiff being pressed for additional accommodation, filed
an eviction petition bearing No.2653/1983 against the
defendant. The said HRC petition came to be dismissed,
directing the parties to approach a competent civil court, as
the defendant had taken a stand of absence of relationship
or landlord and tenant. The plaintiff took the contention
that being a legatee, he is the absolute owner of the suit
schedule property and that the suit schedule property is
required for his bonafide use and occupation, the plaintiff
has sought for a judgment and decree for declaration that
he is the owner of the suit schedule property and for a
decree of possession, directing the defendant to vacate
from the premises and also for past mesne profit of
Rs.1080/- and for damages at the rate of Rs.30/- per
month.
4. In pursuance of suit summons the defendant
appeared and filed written statement admitting the
relationship with the plaintiff, but denied the contention of
the plaint and he contend that the property is the property
of Hindu joint family, wherein he is a coparcener, having a
share equal to that of the plaintiff in the property. He is in
possession of the suit property in his own right and title and
the entire property bearing No.86/132 is not partitioned. It
is contended that the said property was belonging to Kashi
Rao, as an absolute owner. On the other hand, he has
stated that the said property was ancestral property of
Kashi Rao and after Gundu Rao was adopted, he became
the coparcener. It is contended that the said Kashi Rao had
purchased the property from T.Subba Rao Padke with the
help of the ancestral property and entirely denied the claim
of the plaintiff. The averment that as a good gesture, he
was put in permissive possession also denied. It is
contended that both parties were residing together and
after the tenant had vacated, the joint family was extended
so as to include the house occupied by the said tenant and
he has been in possession. He also denied the question of
payment of damages of Rs.30/- as contended by the
plaintiff. The defendant also took the contention of other
alternative plea of perfection of his title by adverse
possession.
5. The Trial Court considering the pleadings of the
plaintiff and defendant, framed the following issues:
1) Does the plaintiff prove will in his favour?
2) Does the defendant prove this suit property is
ancestral property?
3) Whether Kashi Roa had no power to dispose by
Will in favour of plaintiff?
4) Does the plaintiff prove his title and possession
of the suit property?
5) Whether the defendant perfected his title by
adverse possession?
6) Does the defendant prove his title or joint
enjoyment of the suit property?
7) Whether the plaintiff is entitled for the
possession of the suit property?
8) Whether the plaintiff is entitled for part mesne
profits of Rs.1080/- at Rs.50/- per month?
9) To what relief's the parties are entitled?
6. In order to substantiate the contention of the
plaintiff and defendant, allowed the parties to lead evidence
and earlier there was a decree vide judgment and decree
dated 24.11.2003 and the same was challenged before this
Court in R.F.A.No.185/2004 and the same was allowed by
setting aside the judgment and decree and remanded the
matter for fresh consideration permitting the defendant to
amend their written statement and to lead additional
evidence. After such remand of the matter, due to the
death of the defendant, his legal heirs brought on record
and amended the written statement and filed their
additional written statement re-iterating that entire
property including suit schedule property is a joint family
property and the plaintiff and deceased are coparceners.
The plaintiff also filed re-joinder to the additional written
statement. After the remand, D.W.1 was permitted to lead
further evidence. The plaintiff himself examined as P.W.1
and got marked Ex.P1 to Ex.P8 and two witnesses are
examined on behalf of the defendant that is D.W.1 and
D.W.2 and got marked Ex.D1 to Ex.D6.
7. The Trial Court having considered both oral and
documentary evidence placed on record answered the issue
No.1 as affirmative in coming to the conclusion that plaintiff
has proved the Will in his favour and the very contention of
the defendant that suit property is a ancestral property is
answered as negative, so also Trial Court comes to the
conclusion that Kashinath had power to dispose of the
property by Will in favour of the plaintiff and also comes to
the conclusion that plaintiff has proved his title and
possession by answering the issue No.4 as affirmative and
contention of the defendant that he perfected the title by
adverse possession and answered the same as negative and
also comes to the conclusion that defendant fails to prove
his title or joint enjoyment of the suit property by
answering issue No.6 as negative. The Trial Court comes to
the conclusion that plaintiff is entitled for the relief of
possession and partly answered the issue No.8 as
affirmative in coming to the conclusion that plaintiff is
entitled for mesne profits 3 years prior to the date of filing
of the suit and future mesne profits from the date of filing
of the suit till the delivery of vacant possession. Being
aggrieved by judgment and decree, the present appeal is
filed. The learned counsel for the appellant also not
disputes the relationship between the parties but counsel
would vehemently contend that when the property was
purchased to an extent of 40 x 108, sold ½ of the portion
and retained ½ of the portion. It is the contention of the
plaintiff that defendant was permitted to occupy the
defendant and also filed H.R.C and the same was dismissed
as there was no tenant and relationship and approached the
High Court and this Court also dismissed the same.
8. The counsel would vehemently contend that Will
was not proved and counsel would vehemently contend that
portion of the property was sold by both the plaintiff and
defendant including the mother. The counsel also would
vehemently contend that khata was transferred by consent
only. The evidence of DW1 and DW2 has not been
considered properly and document of sale deed is marked
as Ex.D6. It is also the contention that the original
purchaser Kashi Rao was not having any source to purchase
the property. The counsel also would vehemently contend
that defendant has got ½ share and the property was
purchased only out of joint family income. The plaintiff also
not lead any evidence after the remand. The counsel would
vehemently contend that Will has not been proved. Even
the Kashi Rao was not having absolute right to execute the
Will, only he can execute the Will in respect of his share.
The burden is on the plaintiff to prove the Will and also
counsel would vehemently contend that Will cannot be
looked into when the Will was not proved. The counsel also
would vehemently contend that even when the Will was not
disputed, he is bound to prove the same. The counsel would
vehemently contend that the defendant is also a
co-parcener and also counsel would vehemently contend
that in the year 1952 when the property was sold, this
appellant was also one of the vendor and prior to that there
was a Will in the year 1936 as claimed by the plaintiff and
also Will was not acted upon. If really there was a Will, no
need to sell the property joining all the family members.
9. The counsel also would vehemently contend that
even if the Court holds that there was a Will in existence
and the same was not acted upon. There was no any
reference of Will while changing the khata. The counsel also
would vehemently contend that when the family was having
the properties, plaintiff cannot claim the same as self
acquired property and even not proved the same as a self
acquired property. The defendant is also entitled for
partition and also contend that when he relied upon the
Will, ought to have examined the attestor of the Will and
even if there is a admission, but the same has to be proved.
10. The counsel in support of his argument, he relied
upon the judgment reported in (2010) Supreme Court
Cases 274 in case of S.R.Srinivasa and others V/s
S.Padmavathamma. The counsel referring this judgment
would vehemently contend that legal position with regard to
admissions and evidentiary value thereof in respect of Will
is concerned, admission about making of Will does not
amounts to admission of due execution and genuineness of
Will. The counsel also brought to notice of this Court in this
judgment discussed proving of Will, mode and manner of
proof and legal provisions of governing it and examination
of scribe of Will who had not signed the Will with intention
to attest, held, not sufficient to satisfy the statutory
requirement of examination of atleast one attesting witness
for proving the Will. The counsel brought to notice of this
Court detailed discussion was made in respect of Section 63
of Succession Act and also Section 68 of Evidence Act and
held that none of the attesting witnesses have been
examined and also held that signature of the scribe could
not be taken as proof of attestation and the execution of
Will can be held to have been proved when the statutory
requirements for proving the Will are satisfied. Thus, it is
evident that Will has not been duly proved.
11. The counsel also in support of his argument, he
relied upon the judgment of reported in (2022) SCC
Online Mad 1289 in case of Malliga V/s P.Kumaran and
counsel referring this judgment brought to notice of this
Court discussion made in the judgment that if by any rule
of law or of pleadings, such proof is not required, Section
68 cannot operate to insist on-formal proof by calling an
attesting witness. Section 58 has to be read as overriding
Section 68 and as obviating the necessity for calling an
attesting witness, unless the execution of the Will or the
attestation is in dispute. In the absence of any such plea in
the written statement, it will be the height of technicality
and waste of judicial time to insist on examination of an
attesting witness, before a Will could be examination of an
attesting witness, before a Will could be used as evidence
and considering the said discussion brought to notice of this
Court, paragraph No.19 a closed look at judgments makes
it very clear that examination of attesting witness is
mandatory only where genuineness or the validity of the
Will is questioned. In cases where the Will has not been
specifically denied or it has been admitted, it has been held
that examination of attesting witness to a Will is
unnecessary and further discussion, the counsel brought to
notice of this Court in the judgment of Apex Court in case of
Ramesh Verma (dead) by Legal representatives V/s
Lajesh Saxena (dead) by Legal representatives
reported in (2017) 1 SCC 257 paragraph No.13 has
been extracted in the judgment and brought to notice of
this Court that wherein categorically held that this is
mandate of Section 68 of the Evidence Act and this position
remains the same even if the opposite party has not
specifically denied the execution of the document in the
written statement and further brought to notice of this
paragraph No.21 discussion was made that law laid down
that law to the effect that a Will shall not be used as a
evidence until it is proved in the manner prescribed under
Section 68 of the Evidence Act and this position cannot be
diluted even if the opposite party has not denied the
execution of the Will and contend that Hon'ble Supreme
Court also held that mandatory nature of Section 68 of the
Evidence Act has categorically held that proviso to the
section provides for a relaxation of the requirement only for
a document other than a Will. The counsel referring this
judgment would vehemently contend that there is no
occasion for this Court to consider any other alternative
source of right in the absence of pleading and evidence
available on record. It therefore goes without saying that
the main issue that was taken into consideration revolved
around the proof of Ex.A6 Will and hence, it Will be left
open toe the plaintiff to initiate fresh proceedings and
agitate his rights in the manner known to law.
12. The counsel also relied upon the judgment of
Kerala High Court reported in 2017 SCC Online Ker
41632 in case of Sarada V/s Radhamani the counsel
referring this judgment would vehemently contend that the
Keral High Court also taken note of the judgment of the
Ramesh Verma's case and approved the dictum in Poulose
A.V.'s cast as well as Vadakkayil Gopalan's case (supra)
referring paragraph No.19 as regards the necessity to
examine one attesting witness atleast in evidence. The
decisions in Thayullathil Kunhikannan's case, Princelal G's
case and Maya Siva Sankar's case which have been referred
in the judgment to the extent it obviated such necessity are
declared per incuriam. The counsel referring this judgment
would vehemently contend that judgment which have been
discussed above held that as per incuriam and referring this
division bench judgment the counsel would contend that
necessity of examination of attesting witness to prove the
same.
13. Per Contra, the counsel appearing for the
respondent in his argument, he vehemently contend that
the Trial Court considered the material on twice and earlier
also there was a decree and subsequently also there was a
decree.The fact that Kashi Rao had purchased the property
in the year 1980 in terms of Ex.P2 is not in dispute. The
counsel would vehemently contend that on the date of
execution of the Will, this appellant was not born but
plaintiff was 6 year old. The counsel would vehemently
contend that when the tenant was got evicted by the
plaintiff in the year 1974, this appellant was not having any
house and hence he was given permissive possession to
occupy the house. It is contended that when the notice was
given in the year 1983 itself, categorically stated about the
Will and suit was also filed in the year 1990. The counsel
also would vehemently contend that in the rejoinder also
specific pleading of Will was made and the same was not
denied and none of the grounds urged regarding validity of
the Will. The counsel would vehemently contend that
plaintiff was examined in the year 1998 itself and there was
a decree earlier and the same was challenged and matter
was remanded.
14. The counsel would vehemently contend that in
paragraph No.10(b) pleaded regarding adverse possession,
but not admitted the ownership in the absence of admitting
any ownership, question of considering law of adverse
possession does not arise. The counsel also would
vehemently contend that adverse possession was not set-
up when the notice was issued and also not lead any
evidence about adverse possession. The Trial Court in detail
discussed the material on record and finding was given.
Though family tree was narrated and claimed that female
members have not disclosed even not proved the family
tree. In order to prove the contention that property was
ancestral property also the same has not been proved. The
Trial Court in detail discussed both the pleadings of the
plaintiff and defendant and also the evidence and even
considered the document of Ex.D5-Quit rent register. The
counsel would vehemently contend that Will was executed
in the year 1936 itself and the same was not denied and
question of attestation does not arise and Will was admitted
and Trial Court also given the finding in respect of the Will
in detail.
15. The counsel in support of his argument, relied
upon the judgment reported in Manu/KA/0185/1989 in
case of Danappa Revappa Kolli V/s Gurupadappa
Mallappa Pattanashetti passed in R.S.A.NO.589/1989
wherein held that apart from actual and continuous
possession which are among other ingredients of adverse
possession, there should be necessary animus on the part
of the person who intends to perfect his title by adverse
possession. The counsel also brought to notice of this Court
section 68 of Law of Evidence, proof of execution of
document required by law to be attested is very clear if a
document is required by law to be attested, I shall not be
used as evidence until one attesting witness atleast 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 and also brought
to notice of this Court proviso that it shall not be necessary
to call an attesting witness in proof of execution of any
document, not being a Will, which has been registered in
accordance with the provisions of the Indian Registration
Act, 1908 unless its execution by the person by whom it
purports have been executed, he specifically denied. The
counsel referring this judgment would vehemently contend
that when there is no any specific denial, question of
examination of attesting witness does not arise. The
counsel also would contend that if the execution of a
registered document required by law to be registered, he
specifically denied then an attesting witness must be called
to prove it, but if the execution is not specifically denied,
then it is not necessary to call an attesting witness to
prove.
16. The counsel also relied upon the judgment
reported in LAWS(KER)-1989-9-16 in case of
Thayyullathil Kunhikannan V/s Thayyullathil Kalliani
and brought to notice of this Court wherein discussion was
made in paragraph No.34 in the absence of any such plea in
the written statement, it will be height of technicality and
waste of judicial time to insist on examination of attesting
witness, before a Will could be used as evidence and
examination of attesting witness is therefore unnecessary
when the parties have not joined issue on the validity and
genuineness of the Will.
17. The counsel also relied upon the judgment of the
Apex Court MANU/SC/0819/2005 in case of Pentakota
Satyanarayana and Ors. V/s Pentakota Seetharatnam
and Others wherein discussion was made with regard to
Section 68 onus to prove undue influence, fraud or coercion
on person alleging same.
18. In reply to this argument, the counsel for
appellants would vehemently contend that citation of Kerala
High Court has already been held as per incuriam in the
judgment of division bench already has been referred. The
counsel would vehemently contend that Ex.D6 clearly
discloses that there are 336 acres of land and 1/3rd was
sold. In order to prove that the property is a self acquired
property, no material is placed on record and Will has not
been proved by attesting witness and entitled for ½ share
and there cannot be declaration without proving the Will.
19. Having heard the learned counsel for the
appellants and the learned counsel for the respondents and
also the principles laid down in the judgment referred
supra, the points that would arise for consideration of this
Court are:
1) Whether the Trial Court committed an error
in coming to the conclusion that the
plaintiff has proved the Will?
2) Whether the Trial Court committed an error
in coming to the conclusion that defendant
fails to prove that it is an ancestral
property?
3) Whether the Trial Court committed an error
in coming to the conclusion that plaintiff
has proved his title?
4) Whether the Trial Court committed an error
in coming to the conclusion that Kashi Rao
had power to dispose of the property by
way of Will?
5) Whether the Trial Court committed an error
in decreeing the suit for declaration and
possession and for mesne profits as
ordered by the Trial Court?
6) What Order?
20. Having considered the points for consideration,
this Court is also First Appellate Court and this Court has to
analyze evidence of both the parties and also the question
of law as a statutory appeal including the pleadings of the
respective parties. The plaintiff in order to prove his case
while seeking the relief of declaration and possession,
examined himself as PW1 and he re-iterated the averments
of plaint in his evidence that there was a Will in favour of
him and the same was executed in the year 1936 and
description of the property was also given and also stated
that the defendant is living in the portion of the said
property in permissive possession.
21. It is also his case that his grand father by name
Kashi Rao was owner of the entire property and the same
was purchased from T.Subba Rao Padke in the year 1918
and also got marked the sale deed as Ex.P2. The hand
sketch is marked as Ex.P1 and also it is his contention that
grand father expired in the year 1941 and he had executed
a Will wherein life interest was created in favour of his
grand mother and also his mother. Thereafter, entire
property was vest with him as owner. The certified copy of
Will also produced as Ex.P3 and the same is marked subject
to the admissibility. He claims that original registered Will
was delivered to Venkatesha Shastry when the portion of
the property was sold and certified copy of the sale deed
executed in favour of Venkatesh Shastry is marked as
Ex.D4. It is also his case that tenant was in occupation in
the portion in which defendant is in occupation till 1974 and
when his brother that is defendant desired to live
separately allowed him to reside in the same portion
vacated by the tenant in the year 1976. It is also his case
that he is paying damages of Rs.30/- and when he did not
vacate, notice was issued in the year 1983 and office copy
of the legal notice was also marked as Ex.P5 and he gave
the reply in terms of Ex.P6. He also filed H.R.C case and the
same was dismissed and filed C.R.P and the same was also
dismissed. The copy of the objection statement was filed in
H.R.C.No.2653/83 also produced and marked as Ex.P7 and
also endorsement given by K.E.B is marked as Ex.P8. It is
also his case that defendant never filed objections opposing
transfer of khata in his favour and his mother was paying
tax during her life time and after the death, he is paying the
tax. The contention of the defendant that he is entitled for
½ share is false and also not established the joint
ownership as claimed by the defendant.
22. It is also his case that he sold the portion of the
property to Venkatesh Shastry and never opposed the same
in favour of the Venkatesh Shastry and hence sought for
declaration. He was subjected to cross-examination and he
contended that defendant is the only brother and both of
them lived together with their parents and there was no
partition in their joint family. He admits that the schedule
property was in occupation of a tenant and he evicted him.
He also admits that there is no documentary evidence to
show that defendant is his tenant. He admits that total
extent of earlier property was 100 x 40 feet and he sold the
portion in the year 1952. He admits that he himself, his
mother and defendants have signed the said sale deed.
23. It is suggested that grand father having
ancestral property and the same was denied that he does
not know the same. Further suggestion was made that his
grand father was not holding any employment and the
same was denied. He claims that his grand father retired as
Head Clerk at Taluka office, Malur. It is suggested that out
of the profits of the joint family property, his grand father
had purchased the schedule property at Bengaluru.
24. It is suggested that grand father had no
competence to execute the Will and the same was denied.
Now, this Court has to consider the evidence of DW1 who is
the legal heir of defendant No.1 and in his evidence he says
that suit schedule property is their joint family property and
suit schedule property earlier belongs to his great grand
father by name Sri.Kashi Rao and Sri.H.K.Gundu Rao who is
his grand father. It is also his evidence that his ancestors
were living in a village in Hassan District and they sold all
the joint family properties in that village and came to
Bangalore. They purchased the suit schedule property along
with entire building from out of the sale profits of the earlier
joint family properties in the village. This witness was
subjected to cross-examination and in the cross-
examination, he admits that he does not know the details of
the property owned by Gundu Rao at Hassan and also he
does not know who purchased the property, which is now in
occupation of his senior uncle and also which was in
occupation of his father. He admits that he does not know
when the said property was purchased, but he contends
that suit schedule property was purchased by his great
grand father. In the cross-examination also he admits that
soon after when N.Krishna Rao vacated the premises they
occupied the same and also admits that great grand father
had executed a Will in favour of Ashwathanarayana. He also
admits that one portion was sold in favour of Venkatesha
Shastry. He also admits that the said transaction had taken
place prior to 27.08.1980 and the same was told to him by
his father and also he says that his father told him that
others have also signed the sale deed along with his father
while executing the sale deed in favour of Venkatesha
Shastry. He also admits that in Ex.D1, the name of the
owner is shown as Kashi Rao and Gowramma. The witness
also further examined by filing an additional affidavit and
had produced the certified copy of the registered sale deed
dated 22.02.1920 executed by his great grand father Kashi
Raya @ Kashi Rao in favor of Srikantaiah and
Ramaswamaiah under which he had sold inam rights in
respect of ancestral lands. The documents are also marked
through him Ex.D5 and Ex.D6 that is certified copy of quit
rent register and also the sale deed. This witness was
subjected to cross-examination and in the cross-
examination he admits that his grand father Gundu Rao was
adopted son of Kashi Rao and he enquired the same with
aunt Mahalakshmi about the details of the family and their
property and admits that except the quit rent register at
Ex.D5, he has no any other documents and he want to
show that there were two sons by name Subbaraya,
Sri.Nanjappaiah. He admits that according to his
knowledge, Gundappa had only one issue that is only one
son Kashiraya and the same was told to him even by his
aunt Mahalakshmi and also admits that the name of the
said Mahalakshmi is not shown in the family tree of
Nagappaiah in his written statement and based on the quit
rent register, he has given the alias name of his great
grand father Kashiraya. He also admits that they had filed a
suit for partition in O.S.No.7335/2000 with respect to the
suit schedule property and the said suit came to be
dismissed recently. However, he admits that suit schedule
property was purchased in the year 1918 and also admits
that Ex.P6 is of the year 1920, but he claims that property
was purchased in the year 1918 out of the income earned
in the property which was sold under the sale deed of the
year 1920. However, he admits that he has not produced
any document to show the details of the income from the
property under Ex.D6. He is deposing based on the
information given by his aunt Smt.Mahalakshmi, but he
says that his father has not told him that his grand father
Kashiraya had lands to an extent of 363 acres in Hassan
District. It is suggested that suit schedule property was self
acquired property of his great grand father Kashiraya and
the same was denied.
25. The other witness is DW2 claiming that plaintiff
in the above case is her elder brother and she also
re-iterates that family was having 363 acres of land and
other lands at Sakaleshpur in which he had 1/3rd share in a
house property from it and he was deriving good amount of
income and making use of it, he had purchased the
property bearing No.86. This witness was also subjected to
cross-examination and in the cross-examination admits that
she does not know the survey numbers of the lands at
different places at Hassan District and also does not know
whether her grand father sold the property in Hassan
District in the year 1920, but claims that her mother was
regularly getting income in cash from it.
26. Having re-analyzed both oral and documentary
evidence placed on record and also considering the material
on record, the main case of the plaintiff is that Kashiraya
had executed a Will in his favour and he is having title and
possession over the suit schedule property and claims the
possession of the suit schedule property on the ground that
he has given the possession of the property to the
defendant and the defendant was in possession as
permissive possession.
27. Having perused both oral and documentary
evidence placed on record, it is clear that there was a Will
which is marked as Ex.P3 and it is the claim of the
defendant that suit property is an ancestral property and
though contend that family was having 363 acres of land
belongs to the family and nothing is placed on record to
show that family was having that much of property and
hence, the Trial Court comes to the conclusion that in order
to prove that family was having joint nucleus before the
purchasing the property in the year 1918 and no doubt
Ex.D6 is produced before the Court and the same is of the
year 1920 and the same is sold subsequent to the purchase
of the property and no material what was the income
derived from the sale of the property in the year 1920 and
the same is admitted by the witnesses. In order to prove
the factum of the suit schedule property is an ancestral
property, no such material is placed before the Court.
28. The other contention that defendant perfected
his title by adverse possession is concerned and unless the
ownership is admitted, question of claiming adverse
possession also does not arise.
29. The judgment relied upon by the counsel
appearing for the respondent is aptly applicable to the case
on hand when the adverse possession is claimed firstly the
party should admit the title of ownership and then to plead
for animus with regard to the possession is concerned.
Hence, the Trial Court taken note of the said fact into
consideration.
30. The judgment relied upon the counsel for the
respondent in Danappa Revappa Kolli V/s
Gurupadappa Mallappa Pattanashetti referred above
passed in R.S.A.No.589/1989 that actual and continuous
possession which are among other ingredients of adverse
possession, there should be necessary animus on the part
of the person who intends to perfect his title by adverse
possession and the same is aptly applicable to the case on
hand, question of considering the adverse possession does
not arise unless ownership is admitted and animus or
possession is proved.
31. The other contention that the defendant is
having the title or joint enjoyment of the suit property is
concerned, nothing is placed on record and all the revenue
records are stands in the name of the plaintiff and only it is
the contention of the plaintiff that permissive possession
was given to the defendant and also it is the contention that
entitled for mesne profits of Rs.1,080/- at the rate of
Rs.50/- per month. In order to prove the factum of getting
Rs.50/- per month or Rs.30/- as claimed, nothing is placed
on record.
32. Now, the question before this Court is
concerned, whether the plaintiff proves the Will in his
favour and admittedly there is a Will and the same is
marked subject to admissibility, the same is certified copy,
it is the case of the plaintiff that original Will was given
while selling the property in favour of one Venkatesh
Murthy that is portion of the property. The counsel
appearing for the appellant also relied upon the judgment
of the Apex Court referred supra in case of S.R.Srinivasa
and others V/s S.Padmavathamma and having referred
this judgment the counsel also brought to notice of this
Court legal position with regard to admission and
evidentiary value thereof in respect of Will is concerned,
admission about making of Will does not amounts to
admission of due execution and genuineness of the Will. In
this judgment discussed with regard to the proving of Will,
mode and manner of proof and legal provisions of
governing it and examination of scribe of Will who had not
signed the Will with intention to attest, held, not sufficient
to satisfy the statutory requirement of examination of
atleast one attesting witness for proving the Will. In this
judgment also discussion was also made with regard to
Section 63 of Succession Act and also Section 68 of the
Indian Evidence Act and held that none of the attesting
witnesses have been examined and also held that signature
of the scribe could not be taken as proof of attestation and
the execution of Will can be held to have been proved when
the statutory requirements for proving the Will are satisfied.
Thus, it is evident that Will has not been duly proved in the
absence of examining the attesting witness. It is also
admitted fact that as per the statute, statutory
requirements of proving of the Will under Section 63 of
Succession Act and Section 68 of Evidence Act. This Court
would like to extract Section 63 of Indian Succession Act
and Sections 68 and 69 of Indian Evidence Act which reads
as hereunder:
"Section 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.
(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
acknowledgment of his signature or mark, or
of 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. "
Section 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 document, not being a Will, which has
been registered in accordance with the
provisions of the Indian Registration Act, 1908
(16 of 1908), unless its execution by the person
by whom it purports to have been executed is
specifically denied. "
Section 69- Proof where no attesting witness found
" If no such attesting witness can be found,
or if the document purports to have been
executed in the United Kingdom, it must be
proved that the attestation of one attesting
witness at least is in his handwriting, and that
the signature of the person executing the
document is in the hand writing of that person."
33. The Madras High Court also in the judgment
reported in 2022 SCC Online Mad 1289 in case of
Mallliga V/s P.Kumaran also held that any rule of law of
pleadings, such proof is not required, Section 68 cannot
operates to insist on formal proof by calling an attesting
witness, but held that Section 58 has to be read as
overriding Section 68 and as obviating the necessity for
calling an attesting witness, unless the execution of the Will
or attestation is in dispute. In the absence of any such plea
in the written statement, it will be the height of technicality
and waste of judicial time to insist on examination of an
attesting witness before a Will could be used as evidence
and considering the said discussion, the counsel also
brought to notice of this Court that the examination of
attesting witness is mandatory only where genuineness of
the Will of the validity of the Will is questioned.
34. The counsel also relied upon the judgment of
Ramesh Verma (dead) by Legal representatives V/s
Lajesh Saxena (dead) by Legal representatives
reported in (2017) 1 SCC 257 wherein also in paragraph
No.13 extracted the judgment and brought to notice of this
Court Section 68 is mandate of Section 68 of the Evidence
Act and this position remains the same even if the opposite
party has not specifically denied the execution of the
document in the written statement and further brought to
notice of this Court paragraph No.21 wherein discussion
was made that law laid down that law to the effect that a
Will shall not be used as a evidence until it is proved in the
manner prescribed under Section 68 of the Evidence Act
and this position cannot be diluted even if the opposite
party has not denied the execution of the Will and contend
that Hon'ble Supreme Court also held that mandatory
nature of Section 68 of the Evidence Act.
35. This Court also would like to rely upon judgment
repo (2023) 2 S.C.R 237 in case of Ashutosh Samanta
(D) by LRs and Ors V/s SM.Ranjan Bala Dasi and Ors
wherein also discussion was made with regard to Wills
cannot be proved only on the basis of their age,
presumption under Section 90, Evidence Act as to the
regularity of documents more than 30 years of age is
inapplicable when it comes to proof of Wills, which have to
be proved in terms of the ss.63(c), Succession Act and
Section 68, Evidence Act. It is also important to note that
when the often situations when Wills which otherwise may
have satisfied the requirements of being attested, as
provided by law, cannot be proved in terms of the said two
provisions, for the reason that attesting witnesses are not
available, or if one of the witnesses denied having attested
the Will. Even Apex Court also discussed with regard to
Section 69 and Section 71 of the Evidence Act, 1872 then
come to the aid of the propounder in the event where
attesting witnesses may have died, or cannot be found, the
propounder is not helpless, as Section 69 of the Evidence
Act, 1872 is applicable. The Apex Court also taken note of
the fact that attesting witnesses have died, two sons of the
testator deposed about their presence when the Will was
signed by him and also identified the signature of a person
who drive and signed the Will and discussion was made
with regard to Section 69 that person who is acquaintance
with the signature of attesting witness can come and
depose proving of the factum of execution of the Will. The
detail analysis was made even considering Section 90
presumption as to documents which are 30 year old also
discussed in paragraph No.11 and also discussed the
judgment of M.B.Ramesh (D) by L.Rs' V/s K.M V/s
K.M.Veeraje Urs (D) by L.Rs' and others wherein
discussion was made with regard to applicability of Section
19 and held in paragraph No.13 that Wills cannot be proved
only on the basis of their age, the presumption under
Section 90 as to the regularity of documents more than 30
years of age is inapplicable when it comes to the proof of
the Wills, which have to be proved in terms of the Section
63(c) of Succession Act, 1925 and Section 68 of the
Evidence Act, 1872 and also discussion was made with
regard to the there are often situations and taken note of
the Section 69 and Section 71 of Evidence Act and same
was also extracted.
36. The Apex Court also discussed the judgment in
case of Babu Singh and Ors. V/s Ram Sahai alias Ram
Singh in Civil Appeal No.3124/2008 dated 30.04.2008
wherein also held that in a case where the attesting witness
is either dead or out of the jurisdiction of the Court or kept
out of the way the adverse party cannot be traced despite
diligent search. Only in that event, the Will may be proved
in the manner indicated in Section 69 that is examining
witnesses who are able to prove the handwriting of the
testator or executant, but held that burden of proof may be
shifted to others. The Apex Court also to that effect
discussed Section 69 which was considered in case of
K.Laxmanan V/s Thekkayil Padmini and others case
held that signature and handwriting as contemplated under
Section 69 must be proved. Even discussion was made the
judgment of the V.Kalyanaswamy (D) by L.Rs & Ors
V/s L.Bakthavatsalam (D) by L.Rs & Ors wherein also
considered the effect of Section 68 and 69 referring the
paragraph No.70 of the judgment and in the said paragraph
it is held that in the event where the attesting witnesses
may have died, or cannot be found, the propounder is not
helpless, as Section 69 of the Evidence Act, 1872 is
applicable. In the case on hand, first of all no witnesses
have been examined proving of the Will and as discussed
above, statutory requirement under Section 63 and 68 is
very clear and even if any person not disputes the Will, the
same has to be proved and the same is a statutory
requirement of proving of the Will. The counsel appearing
for the appellant brought to notice of this Court the
judgment reported in (2010) Supreme Court Cases 274
in case of S.R.Srinivasa and others V/s
S.Padmavathamma which is referred supra, even in the
absence of disputing the Will, the same has to be proved.
No doubt in the case on hand, Will is of the year 1936 and
facts are also very clear that at the time of execution of the
Will, the plaintiff was aged about 6 years and defendant
was not born at that time. No doubt the Will was
propounded long back and also it has to be noted that even
subsequent to the Will also portion of the property was sold
in favour of Venkatesh Shastry, the plaintiff and defendant
and other family members are also party to the said sale
deed. It is the contention of the defendant the said Will
though is in existence, but the same is not acted upon, it is
settled law that even if the Will is not disputed, burden is on
the propounder of the Will to prove the same and it requires
the statutory requirement of attestation as well as proving
of the same by examining the attesting witness. It is also
important to note that law is settled that even if attesting
witnesses are no more, then the propounder can avail the
benefit of Section 69 proving of the same. When such being
the case, Trial Court committed an error in coming to the
conclusion that the plaintiff has proved the Will even though
either the attesting witnesses or any of the persons who are
having acquaintance with the handwriting, signature and
attestation have not been examined. Hence, the Trial Court
committed an error in answering the issue No.1 that
plaintiff proved the Will.
37. No doubt the defendants have not proved the
fact that the property is an ancestral property and other
contention that Kashi Rao had no power to dispose of the
property by Will in favour of the plaintiff also subject to
proving of the Will only but he was having a right to
execute the Will since he had purchased the property in the
year 1918 itself. This Court and also the First Appellate
Court comes to the conclusion that to show that family was
having ancestral property, nothing is placed on record
before purchasing the said property even though document
Ex.D6 is produced and the same is subsequent to the
purchase of the property. If the plaintiff proves that there
was a Will and the same has been proved by statutory
requirement of proving of the Will then plaintiff is entitled
for the possession of the suit property and the relief as
sought.
38. Having considered the principles laid down in the
judgments relied upon by this Court referred supra and also
the judgment relied upon by the counsel for the appellant
with regard to the proving of fact is concerned, matter
requires to be remitted back to the Trial Court to consider
the issue for limited purpose with regard to proving of the
Will is concerned which is marked subject to admissibility
by the Trial Court when the document was marked before
the Trial Court and in respect of other aspect is concerned,
the Trial Court has not committed any error in discussing
the pleadings as well as the evidence available on record.
The statutory and mandatory requirements has to be
complied under Section 63 of Indian Succession Act and
Section 68 of the Indian Evidence Act as discussed above.
Hence, I answer the point No.1 as 'Affirmative' in coming to
the conclusion that the Trial Court committed an error in
coming to the conclusion that the plaintiff has proved the
Will and answer the point No.2 as 'Negative' since the Trial
Court has not committed any error in coming to the
conclusion that defendant fails to prove that it is an
ancestral property. The Trial Court also to consider the
aspect that the plaintiff has proved his title and same is
subject to the answer in point No.1 as whether the plaintiff
proved the Will as required under the Statute. The Trial
Court has not committed any error in coming to the
conclusion that Kashi Rao had power to dispose of the
property by way of Will since the property exclusively
belongs to him and the same was purchased in the year
1918 and this Court also comes to the conclusion that same
is not an ancestral property and the same is a self acquired
property. Hence, I answer the point No.4 as 'Negative'. The
other points for consideration whether the Trial Court
committed an error in decreeing the suit for declaration and
possession and for mesne profits and the same is also
subject to finding to be given by the Trial Court with regard
to the proving of the Will is concerned, if the Will has been
proved, then automatically plaintiff is entitled for the
declaration and possession and for mesne profits.
39. In view of the discussions made above, I pass
the following:
ORDER
i) The Appeal is allowed-in-part.
ii) The impugned judgment and decree of the Trial
Court dated 07.11.2007 passed in
O.S.No.3163/1990 is set-aside only for the limited
purpose and remitting the matter for fresh
consideration with regard to the proving of the Will
in view of the observation made by this Court in the
light of the principles laid down in the judgments
referred supra. The Trial Court is directed to give a
finding on that within four months from
25.03.2025.
iii) The parties are directed appear before the Trial
Court on 25.03.2025 without expecting any notice.
The parties are also directed to assist the Trial
Court to give a finding on this aspect within the
time bound period four months.
iv) The Registry is directed send the records to the
Trial Court forthwith to enable the Trial Court to
take up the matter on 25.03.2025.
Sd/-
(H.P. SANDESH)
JUDGE
RHS
