Karnataka High Court
V Sreedhara Murthy vs Bramhanara Sangha (R) on 11 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11 TH
DAY OF JULY, 2025
R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR SECOND APPEAL NO.238/2021 (DEC)
BETWEEN:
V. SREEDHARA MURTHY
S/O V VENKATARAM
AGE ABOUT 60 YEARS
ADVOCATE
FOSTER SON OF LATE V.SUBAMMA
R/AT NO.994, SREE NIVASA
BRAHMINS STREET
KOLAR - 563 101.
... APPELLANT
(BY SRI. Y.R.SADASIVA REDDY, SENIOR COUNSEL FOR
SRI. SURESH BABU B.N., ADVOCATE)
AND:
BRAMHANARA SANGHA (R)
GAYTHRI PRARTHANA MANDIRA
P.C.EXTENSION, KOLAR CITY
KOLAR - 563 101
REP. BY ITS SECRETARY.
... RESPONDENT
(BY SRI. S.N.PRASHANTH CHANDRA, ADVOCATE)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 20.10.2020
PASSED IN R.A.NO.99/2017 ON THE FILE OF THE I ADDITIONAL
2
DISTRICT JUDGE, KOLAR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 28.04.2017
PASSED IN O.S.NO.61/2012 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE, KOLAR AND ETC.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 02.07.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard learned counsel for the appellant and learned
counsel for the respondent.
2. This second appeal is filed against concurrent finding
of the Trial Court and the First Appellate Court and the Trial
Court granted the relief of declaration declaring that plaintiff is
the absolute owner of the suit schedule property by virtue of
Ex.P3-Will deed and defendant is directed to deliver vacant
possession of suit schedule property to the plaintiff-Sangha
within three months and if defendant fails to deliver possession,
then the plaintiff is at liberty to recover possession under the
process of Court and the said judgment has been confirmed in
R.A.No.99/2017 dismissing the appeal.
3. The factual matrix of case of the plaintiff before the
Trial Court is that plaintiff is a Sangha registered under
Karnataka Societies Registration Act, 1960. It was formed and
registered on 04.10.1980 with an object of doing social and
charitable work in the community. Its Secretary is authorized to
represent the Sangha and also to institute the suit against the
defendant. It is the case of the plaintiff in the suit that one
V. Subbamma, daughter of late V. K. Venkateshaiah was the
absolute owner in possession of the suit schedule property by
virtue of a registered sale deed dated 06.04.1971. She has
purchased the same from its earlier owner T. Thimmarayappa,
son of T. Ramaiah. The municipal records were standing in her
name and she was paying taxes to the government. The said
V.Subbamma was a retired government employee and she is a
divorcee having no issues. She was a member in the plaintiff's
Sangha, who used to express her zeal and ambition to bequeath
the suit schedule property to the Sangha for the purpose of
providing required education and necessities to the poor
children. Hence, she has bequeathed the suit schedule property
in favour of plaintiff-Sangha through a registered Will dated
13.07.2005. It is also contented that she was in a sound
disposition of mind and health and also she has expressed her
desire that suit schedule property shall go to the plaintiff-Sangha
and its income should be used for the purpose of its
development. It is also the case of the plaintiff that she died
testate on 11.09.2010 and the said Will deed was acted upon. It
is also contended that suit schedule property devolved upon the
plaintiff and the Secretary of the Sangha has applied to CMC,
Kolar for transfer of khatha. The khatha was also transferred in
favour of Sangha, but the D.C., Kolar has set aside the same in
Municipal Appeal No.8/2011-12 by restoring the khatha in the
name of V. Subbamma till the order is passed by a Civil Court. It
is contented that said V. Subbamma was living in the suit
schedule property by collecting rents from two shopkeepers.
After her death, the suit schedule property came to the control
and management of the plaintiff by way of testamentary
succession. The defendant has no manner of right, title or
interest over the suit schedule property, but he has trespassed
into the same on 12.10.2010 by breaking open the lock. The
defendant remained unauthorisedly in the suit schedule property
by taking advantage of absence of office bearers of plaintiff-
Sangha. The defendant has not delivered possession of the suit
schedule property, inspite of making efforts by the office
bearers. Hence, the plaintiff-Sangha has requested the Court to
grant the decree with possession.
4. In pursuance of the suit summons, the defendant
has appeared and filed the written statement denying all the
averments. The defendant contended that he is the absolute
owner in actual possession and enjoyment of the suit schedule
property, as the same is his ancestral property. The said
V. Subbamma died intestate on 11.09.2010 leaving behind him
as her only legal heir. He was in joint possession and enjoyment
of the suit schedule property along with said V. Subbamma.
After her death, he continued his possession and enjoyment of
the suit schedule property. The plaintiff by using influence has
got changed khatha in favour of Sangha and an appeal was filed
and the same was set aside and he is in actual possession and
enjoyment of the suit schedule property as its absolute owner.
5. It is also his contention that he has taken care and
protection of V. Subbamma till her death, who is his paternal
aunt and he has performed her funeral ceremonies and he is also
performing annual ceremonies of deceased V. Subbamma as per
Hindu Brahmin customary rites. He is the only legal heir of
V. Subbamma, who became absolute owner of the suit schedule
property. The plaintiff has no manner of right, title or possession
over the suit schedule property and there is no cause of action
for the plaintiff to file this suit. The plaintiff has not properly
valued the suit and the Court fee paid is insufficient. The suit
schedule property is worth more than Rs.15,00,000/- and the
plaintiff has undervalued the suit schedule property. It is also
contented that the property originally belongs to one
Gowramma, who is the mother of late V.K. Venkateshaiah, who
is none other than the father of V. Subbamma and
V. Venkatarama. The said Gowramma has acquired the suit
schedule property through a registered sale deed dated
06.03.1920. She has executed a registered settlement deed
through which the said V.K. Venkateshaiah has acquired the suit
schedule property under a registered settlement deed dated
13.04.1943. It is also contended that V.K. Venkateshaiah and his
wife Seethamma are the parents of V. Subbamma and
V. Venkatarama and all of them were living together in the suit
schedule property. On 12.12.1969, the thread ceremony of
defendant and also the marriage of V. Subbamma was
performed. Later on the said V. Subbamma has obtained a
divorce decree from the Court. He started residing with
V. Subbamma due to love and affection from the age of six
months. His grand parents and also V. Subbamma have brought
him from his parents and gave education. The said
V. Subbamma has performed his marriage on 07.12.1992 and all
of them were living together in one family in the suit schedule
property. His grandfather V.K. Venkateshaiah has executed a
nominal sale deed in favour of T. Thimmarayappa on 25.11.1969
for meeting marriage expenses of V. Subbamma. As such, the
said Thimmarayappa has reconveyed the suit schedule property
in favour of V.K. Venkateshaiah through a registered
reconveyance deed dated 05.04.1971. Even though
V. Subbamma has purchased the suit schedule property, it has
not lost the character of joint family property. His grandfather
V.K. Venkateshaiah and his children have got legitimate right
over the suit schedule property. The said V. Subbamma had no
exclusive right to encumber the suit schedule property by way of
any conveyance deed. The plaintiff has created the said
document which is a forged one. One K.S. Ramasheshaiah, who
is the maternal uncle of V. Subbamma, has signed as a witness
to the nominal sale deed in favour of Thimmarayappa and also to
the reconveyance deed executed by said Thimmarayappa. The
deceased V. Subbamma has no issues, who has fostered him
since from his childhood. His name is entered in ration card and
voter's list. The deceased V. Subbamma has suffered heart
attack for two times and during the said period, he has taken
care of her health. She has taken treatment from Dr. V.S.
Krishna Murthy and by taking undue advantage of the situation,
the said Doctor, in order to deceive the defendant has created
the alleged Will deed by active collusion with the members of the
plaintiff-Sangha. The alleged Will deed is a false, forged,
concocted, fabricated and created document. The plaintiff has
not acquired any right, title or interest over the suit schedule
property and he is not entitled for the suit reliefs.
6. The Trial Court having considered the pleadings of
the parties, framed the following issues and additional issues:-
"(i) Whether plaintiff proves that plaintiff is the
absolute owner of the suit schedule property
by virtue of the suit schedule property by
virtue of the registered Will dated 13.07.2005
executed by V. Subbamma in favour of plaintiff
Sangha?
(ii) Whether the plaintiff proves the alleged
interference and trespass on 12.10.2010 by
the defendant into the suit schedule property?
(iii) Whether the defendant proves that he is the
absolute owner in actual possession &
enjoyment of the suit schedule property as
contended in the written statement?
(iv) Whether the defendant proves that the plaintiff
Sangha by colluding with Dr. V.S. Krishna
Murthy has forged and created the Will dated
13.07.2005 as contended in the written
statement?
(v) Whether the Court fee is sufficient?
(vi) Whether the plaintiff is entitled for decree as
prayed for?
(vii) What order or decree?
Additional issues dated 16.03.2017:
1. Whether the defendant proves that the suit is
not maintainable in law without producing
probate?"
7. In support of the claim of the plaintiff, the plaintiff-
Sangha examined the Secretary of the Sangha as P.W.1 and got
marked the documents as Exs.P1 to P10. The plaintiff has also
examined two witnesses as P.Ws.2 and 3. On the other hand,
the defendant examined himself as D.W.1 and got marked the
documents as Exs.D1 to D39. The defendant also examined five
witnesses as D.Ws.2 to 6.
8. The Trial Court having considered the material
available on record, answered issue No.1 as 'affirmative' that
plaintiff is the absolute owner of the suit schedule property by
virtue of the registered Will dated 13.07.2005 and answered
issue No.2 as 'partly affirmative' that defendant is interfering
with the property of the plaintiff and the contention of the
defendant that he is the absolute owner was negatived and so
also negatived issue No.4 regarding allegation of collusion of
Dr. V.S. Krishna Murthy in creating the document and answered
other issues as 'affirmative' and additional issue framed by the
Court regarding maintainability was answered as 'negative' and
granted the relief as sought in the plaint declaring the plaintiff as
owner and directed the defendant to deliver possession.
9. Being aggrieved by the said judgment and decree,
an appeal is filed before the First Appellate Court in
R.A.No.99/2017. The First Appellate Court having reconsidered
the grounds urged in the appeal as well as the arguments of
respective counsel, formulated the following points:
"1. Whether the Suit filed by Sangha without
obtaining a probate in respect of the Will dated
13.07.2005 (Ex.P3) is maintainable?
2. Whether the Sangha has proved the due
execution of the said Will dated 13.07.2005
(Ex.P3) by late V. Subbamma?
3. Whether the impugned Judgment & Decree of
the Trial Court calls for any interference by this
Court in exercise of Appellate jurisdiction?
4. To what Order?"
10. The First Appellate Court having considered the
grounds urged in the appeal, answered point No.1 as
'affirmative' in coming to the conclusion that suit is maintainable
without obtaining any probate and comes to the conclusion that
Sangha has proved said execution of the Will dated 13.07.2005
(Ex.P3) and answered point No.2 as 'affirmative' and answered
point No.3 as 'negative' in coming to the conclusion that it does
not require any interference and affirmed judgment of the Trial
Court in coming to the conclusion that very execution of Will is
proved and the same does not suffer from any suspicious
circumstances. Being aggrieved by the judgment and decree of
the Trial Court and confirmation made by the First Appellate
Court, the present second appeal is filed before this Court.
11. The main contention of learned counsel for the
appellant in this second appeal is that though appellant has
taken the contention that Gowramma has acquired the suit
schedule property under the registered sale deed dated
06.03.2020 and subsequently, Smt. Gowramma has executed
registered settlement deed in favour of her son
V.K. Venkateshaiah dated 13.04.1943. It is admitted that
V.K. Venkateshaiah had two children namely V. Subbamma and
V. Venkatarama. It is specifically contended that in view of
marriage of his daughter V. Subbamma and for the thread
ceremony of this appellant, he executed a nominal sale deed in
favour of Thimmarayappa on 25.11.1969 and received
Rs.4,000/- in order to spend for her marriage. Subsequently,
V. Subbamma obtained the sale deed from Thimmarayappa on
05.04.1971 even during the life time of V.K. Venkateshaiah. It is
also contended that V. Subbamma had no valid right title to sell
the property as the appellant is the son of her brother
Venkatarama and the property in question is the joint family
property and he also had a share in that property. In respect of
this aspect, the Trial Court has not framed any issue and without
framing an issue, the Trial Court comes to the conclusion that
V. Subbamma had a valid title over the property which is illegal
and improper. Hence, the judgment and decree is erroneous. It
is also contended that Courts below failed to appreciate the
evidence of defendant and his witnesses regarding execution of
the Will and regarding succession of the property and passed the
impugned judgment and decree. It is also contented that Courts
below comes to the conclusion that Will vide Ex.P3 cannot be
held as a suspicious circumstances as contended by the
defendant. But, the defendant has strongly relied upon the
circumstances that the original Will was in the custody of the
Sangha since 2005 itself and the person, who has executed the
said Will died during the year 2010. That itself proves that Will is
a suspicious document. There are various judgments of this
Court as well as First Appellate Court regarding custody of Wills
and this fact was not appreciated by both the Courts below while
passing the impugned judgment and decree.
12. It is also contented that defendant has taken a
contention that Dr. V.S. Krishna Murthy, who was treating
deceased V. Subbamma, taking undue advantage obtained the
Will in the name of Sangha and also got his influence to include
his name as a nominee of deceased V. Subbamma, who is not at
all a relative of V. Subbamma and he is a stranger to that family.
The defendant has produced several documents to prove that
Dr. V.S. Krishna Murthy has received certain amounts from post
offices which are standing in the name of V. Subbamma. This
fact was also not appreciated by both the Courts. It is also the
contention that property is a joint family property and the
defendant and his foster mother are in joint possession and both
the Courts failed to take note of the very averments made in the
written statement and he is a foster son and he has taken care
of V. Subbamma throughout her life. The First Appellate Court
ought to have remanded the matter to the Court below for
framing fresh issues, but not done the same and erroneously
confirmed the judgment of the Trial Court and failed to take note
of validity, genuineness and authenticity. But, the Courts below
failed to consider the evidence of P.W.3, who is the alleged
attester of Will and his conduct has not been considered and it is
conclusively proved that he is a stock witness and a close aid of
P.W.2-Kittappa and he was having interest in the Sangha and his
evidence has not been considered by both the Courts properly. It
is further contended that both the Courts failed to take note of
the fact that document of Ex.D15 is a nominal sale deed and also
failed to see the contents of document Ex.D16 reconveyance
deed, wherein the contents of the document clearly says that
Ex.D15 is a nominal sale deed. During the lifetime of
Venkateshaiah, he paid the amount of Rs.5,000/- to
V. Subbamma, in order to get back the sale deed from
Thimmarayappa. Accordingly, she paid the amount, but obtained
the sale deed in her name vide Ex.P9 and this fact was not
appreciated by both the Courts.
13. This Court having considered the grounds urged in
the second appeal during the course of admission, admitted the
second appeal and framed the following substantial questions of
law for consideration in this second appeal:
"i) Whether the Courts below failed to consider
the effect of Ex.D16 on the rights of
Smt. Subbamma in respect of the suit schedule
property?
ii) Whether there were any suspicious
circumstances that surrounded the execution
of Ex.P3?
iii) Whether the defendant had any undivided
share in the suit schedule property and was
therefore entitled to resist the suit for
declaration and possession?".
14. Learned counsel for the appellant in his arguments
he reiterated the grounds which have been urged in the second
appeal and contented that when the suit is filed for the relief of
declaration and possession, ought to have taken note of contents
of Ex.D15 and also ought to have taken note of Ex.P9 original
sale deed dated 05.04.1971 under which V. Subbamma had
purchased the property. Learned counsel would vehemently
contend that the property originally belongs to Gowramma, who
had purchased the same in the year 1920 and it is not in dispute
that there was settlement deed and property was settled in
favour of her son V. K. Venkateshaiah and nominal sale deed is
dated 25.11.1969 in favour of T. Thimmarayappa and contents
of said nominal sale deed has not been taken note and the fact
that reconveyance deed was also executed in favour of
V. Subbamma on 05.04.1971 is not in dispute, but failed to take
note of recitals of nominal sale deed as well as reconveyance
deed. Learned counsel would vehemently contend that
V. Subbamma had not executed the Will and the same is a
created document and description mentioned in Ex.P3 is in the
handwriting and no attestation of mentioning the description of
property in the alleged Will. It is contended that once it is in the
manuscript, it should have been attested by the attester and
also in the Will, nowhere it is stated that testator having read
the papers signed the same and subscribed her signature having
had the knowledge of contents of documents. Learned counsel
would vehemently contend that the very document is doubtful.
15. It is further contended that P.W.2, who is a scribe
categorically admits during the course of cross-examination that
on each and every dates of hearing, he was visiting the Court
and had the knowledge of Will and he is an interested witness,
who came before the Court and gave the evidence as a scribe of
the document. Learned counsel also brought to notice of this
Court that he is an interested witness, since he is also member
of the Sangha. Learned counsel also brought to notice of this
Court the document of Ex.P3 and contend that corrections are
admitted, but there is no shara and also it is elicited that
whenever any correction is made, the same ought to have been
signed, but there is no signature. Learned counsel would
vehemently contend that photo which is available in Ex.P3 not
belongs to V. Subbamma and categorically admitted that photo
is not that of V. Subbamma and to that effect, there is an
admission on the part of the witness. Learned counsel would
vehemently contend that the document is disputed and she was
not having sound state of mind while executing the same and
the document is created with the aid of the Doctor, who was
treating V. Subbamma and the said Doctor is not examined with
regard to her mental status and specific allegation is attributed
against him and inspite of said contention, the Doctor is not
examined before the Court.
16. It is contended that P.W.1, who has been examined
before the Court has not stated as to how the Sangha got
possession of the property and only contend that they were
dispossessed and once they have not proved the fact that
possession was not delivered, question of dispossession does not
arise. Learned counsel also brought to notice of this Court the
procedure for depositing of Wills under Sections 42 and 43 and
also brought to notice of this Court Section 20 of the Registration
Act, 1908 and contend that there is no signature of the
executant and scribe on the corrections and the very Will which
is accepted by the Trial Court and the First Appellate Court is
surrounded by suspicious circumstances. Learned counsel would
vehemently contend that both the Courts considered the effect
of Ex.D16 on the rights of V. Subbamma in respect of suit
schedule property and the same was executed only the ground
that earlier sale deed was only a nominal sale deed and the
same was reconveyed. Learned counsel would vehemently
contend that defendant had undivided share in the suit schedule
property and he is entitled to resist the suit for declaration and
possession and the rights of the defendant was not considered.
17. Learned counsel for the appellant in support of his
argument, he relied upon the judgment in D.R. RATHNA
MURTHY VS. RAMAPPA reported in 2010 6 SUPREME 769.
The counsel referring this judgment brought to notice of this
Court discussion made in paragraph No.12 i.e., Rule 42 of Rules,
Manner of noting interlineations, etc. - Each important
interlineations, erasure or alteration occurring in a document
shall, whenever possible, be caused to be noted or described at
the foot of the document and to be signed by the executant
before the document is accepted for registration. Therefore, Rule
42 mandatorily requires that if there is any interlineations,
erasure, alteration etc., it must be mentioned and described at
the foot of the document and must be duly signed by the
executant before the document is accepted for registration.
Hence, learned counsel would contend that when there are
insertions, particularly while describing the property, no such
attestation of the testator is found and the same is admitted
during the course of evidence.
18. Learned counsel also relied upon the judgment in
SMT. JASWANT KAUR VS. SMT. AMRIT KAUR AND OTHERS
reported in 1977 1 SCC 369. Learned counsel referring this
judgment would vehemently contend that when suspicious
circumstance is found, the Court has to examine the same and
brought to notice of this Court the proposition laid down in the
case of R. VENKATACHALA IYENGAR VS. B.N.
THINMMAJAMA reported in AIR 1959 SC 443, wherein
discussion was made in respect of Section 63 of Succession Act
and Section 68 of Evidence Act and brought to notice of this
Court proposition laid down in paragraph No.4, wherein it is
observed that cases in which the execution of the Will is
surrounded by suspicious circumstances stand on a different
footing. A shaky signature, a feeble mind, an unfair and unjust
disposition of property, the propounder himself taking a leading
part in the making of the Will under which he receives a
substantial benefit and such other circumstances raise suspicion
about the execution of the Will. That suspicion cannot be
removed by the mere assertion of the propounder that the Will
bears the signature of the testator or that the testator was in a
sound and disposing state of mind and memory at the time when
the Will was made, or that those like the wife and children of the
testator who would normally receive their due share in his estate
were disinherited because the testator might have had his own
reasons for excluding them. The presence of suspicious
circumstance makes the initial onus heavier and therefore, in
cases where the circumstances attendant upon the execution of
the Will excite the suspicion of the Court, the propounder must
remove all legitimate suspicions before the document can be
accepted as the last Will of the testator. The counsel referring
this judgment would vehemently contend that in the case on
hand, Ex.P3 is very clear that description of the property is
mentioned in handwriting and the same is not attested by the
testator. The counsel would contend that the document of
Ex.D16 is very clear that the same is only a reconveyance and
V. Subbamma was not having exclusive right over the property,
since her father executed a nominal sale deed and the same was
also not taken note of by both the Trial Court and the First
Appellate Court and there are suspicious circumstances, since
document was created and even very execution was not properly
proved and P.W.2 is an interested person and a member, who is
working in the Sangha and he prepared the document and also
not examined the Doctor, who treated V. Subbamma and specific
allegation is made that document was created at the instance of
the Doctor and all these suspicious circumstances are not
removed by the propounder of the Will.
19. The counsel also relied upon the judgment in J.T.
SURAPPA & ANOTHER VS. SRI SATCHIDHANANDENDRA
SSPCT & OTHERS reported in 2008 0 SUPREME (KAR) 267.
The counsel referring this judgment brought to notice of this
Court paragraph Nos.24 and 25, wherein the Apex Court has
observed with regard to careful path regarding enquiry to be
conducted with regard to Will i.e., five steps "PANCHAPADI"
required to be proved, when the Will is propounded. The counsel
also brought to notice of this Court that in the judgment
discussion was made regarding Section 63 of Indian Succession
Act and also Section 68 of the Indian Evidence Act and also
definition of Will under Section 2(h) of the Indian Succession Act,
1925 i.e., Will means the legal declaration of the intention of the
testator with respect to his property which he desires to be
carried into after his death. Learned counsel also brought to
notice of this Court that in the judgment held that Court need
not make any further enquiry, insofar as due execution, but take
note of first step and once legal requirements are satisfied, the
second step would be to find out whether under the Will, the
testator has disinherited the persons, who would have inherited
or succeeded to his property in the absence of a Will. It is quite
natural, if anybody is disinherited, if under a Will, the testator
were to disinherit a legal heir, in particular his wife and children
and then it would be improbable or unnatural but not invalid. In
such circumstances, it is necessary for the Court to find out
reasons for disinheritance. The counsel referring this judgment
would vehemently contend that the defendant is a son of brother
of V. Subbamma and originally property belongs to
Venkateshaiah and Venkateshaiah had two children i.e.,
Subbamma and her brother i.e., the father of the defendant and
when the document of sale deed executed in favour of
Thimmarayappa is a nominal document and the same was
reconveyed in the name of V. Subbamma and the defendant also
inherit the property and both the Courts failed to take note of
the same and in the judgment, detailed discussion was made
about steps for proving the Will and also suspicious
circumstances which were found in the execution of Will.
20. Per contra, learned counsel for the respondent, in
respect of the contentions of the appellant and principles laid
down in the judgments would vehemently contend that it is not
in dispute that plaintiff-Sangha was registered. The counsel
would vehemently contend that the defendant is a foster son and
also contend that the defendant is the son of brother of the
testator. The counsel would vehemently contend that when the
property was purchased by V. Subbamma in the year 1971, the
said property becomes the absolute property of V. Subbamma
under Section 14 of the Hindu Succession Act. The counsel would
vehemently contend that the main contention of the appellant is
in respect of Ex.D16 and the same does not create any right in
favour of the defendant. The counsel also would vehemently
contend that when defendant is not a natural heir of
V. Subbamma and question of disinheriting the property also
does not arise. The counsel would vehemently contend that in
Ex.P3, it is categorically mentioned that she is a divorcee and
not having any issues and she is the member of the Sangha and
only with an intention to educate the poor people belonging to
the particular community, the Will was executed and the same
was registered before the Sub-registrar. The counsel would
vehemently contend that the document is not attested, wherein
boundary is described writing in the pen and the very Will cannot
be doubted. Though the date is mentioned in the Will as
03.07.2005, correction was made in the pen as 13.07.2005. But,
in words, categorically mentioned the particular date and the
same cannot be doubted. The counsel would vehemently
contend that the pen which was used for description of the
property was used by the attester while signing the document
and when the Will was prepared, the description of the property
was kept in blank and the same is inserted before registration of
the Will. The counsel would vehemently contend that both the
Courts have taken note of admission and also the evidence
available on record i.e., both oral and documentary evidence and
not committed any error in appreciation of material on record
and the Court has to consider third substantial question of law at
the first instance, since the defendant was not having any right
of inheriting the property and then answer other substantial
questions of law and there are no suspicious circumstances as
contended by the appellant and in the findings of both the
Courts, there is no perversity.
21. In reply to this argument of learned counsel for the
respondent, learned counsel for the appellant brought to notice
of this Court cross-examination of P.W.1 regarding handing over
of documents and also brought to notice of this Court document
of Ex.P3 regarding insertion of date as well as description of the
property. P.W.2 is also a member of Sangha, who played the
role in execution of the Will and he is also an interested witness
to have the document of Will. The counsel also would contend
that Will is surrounded with suspicious circumstance and the
same is not met by both the Trial Court and the First Appellate
Court.
22. In reply to this argument of learned counsel for the
appellant, learned counsel for the respondent would contend that
there is no right to the appellant on the property which was
bequeathed by V. Subbamma and also contend that though he
claims that he is a legal heir, but not arrayed other legal heirs of
his father. The counsel also brought to notice of this Court
admission on the part of D.W.1 and also suggestion made to the
witnesses about the Will. The counsel also brought to notice of
this Court page No.52 of the judgment of the Trial Court and
also contend that not questioned the earlier sale made by
Venkateshaiah and also subsequent purchase made by
V. Subbamma at any point of time and property is exclusive
property of V. Subbamma. Hence, she has bequeathed the
property and reason also assigned in the Will while disposing of
the property and the same is for public cause.
First Substantive Question of Law:
23. Having considered the case of the appellant which
has been urged in the appeal and also the submission of the
respective counsel during the course of arguments and also
considering the substantive questions of law framed by this
Court, this Court has to analyse the said substantive questions of
law and also principles laid down in the judgments referred
supra.
24. Now, this Court intends to consider first substantive
question of law that whether the Courts below failed to consider
the effect of Ex.D16 on the rights of Smt. Subbamma in respect
of the suit schedule property.
25. Having perused the document of Ex.D16, no doubt,
this document was executed on 25.11.1969 by the father of
Subbamma in favour of T Thimmarayappa and there was a
condition of reconveyance and the same is having paid the
consideration to V K Venkateshaiah and the sale consideration is
shown as Rs.4,000/-. There is also a recital in the said document
as separate tenancy agreement agreeing to pay the amount
inclusion of any arrears of rent and to execute the document in
favour of the vendor Sri V K Venkateshaiah. It is important to
note that in the said agreement, time was stipulated for a period
of five years. If payment was not made within the said
stipulated period, absolute right is conveyed in favour of the
purchaser.
26. This Court also considered the document of Ex.P9
i.e., reconveyance deed of the property in favour of Subbamma.
It is important to note that in this document it is stated that the
property was reconveyed and earlier there was an agreement
dated 26.12.1970 and having received the amount of Rs.5,000/-
reconveyed the property by executing the sale deed in favour of
Subbamma. On perusal of this document, there is a reference to
the condition which was stipulated in the earlier document of
reconveyance and also reference of earlier registered agreement
dated 05.01.1970 and also reference was made that agreed to
reconvey the property in favour of her father V K Venkateshaiah
and also there is a reference of consent of V K Venkateshaiah to
reconvey the property in favour of Subbamma.
27. Having considered this substantive question of law
framed by this Court, this Court has to read both the documents
i.e., Ex.P9 and D16 conjointly. Having read the same conjointly,
it is clear that in terms of Ex.D16, there is a reconveyance
clause. The fact that sale consideration was passed while
executing the document is not in dispute for having received
Rs.4,000/- while executing the document in terms of Ex.D16.
The very contention of the counsel for the appellant that the
document is only a nominal sale deed, cannot be accepted since
the same is a sale deed for passing of sale consideration. But
there is a reconveyance clause and accordingly, the property is
also reconveyed within the time stipulated as per Ex.P9. The
Court has to take note of the fact that the sale consideration was
paid by Subbamma and for having reconveyed the property in
favour of Subbamma, there was consent of earlier vendor - V K
Venkateshaiah, who is none other than the father of Subbamma
and the same is not disputed.
28. The very contention of the appellant counsel that
when such reconveyance clause is made, the property was
purchased by Subbamma, thus, the same is joint family
property, cannot be accepted. It is not the case of the
defendant that Venkateshaiah got the reconveyance deed in the
name of his daughter paying the sale consideration and he gave
the consent while repurchasing the property by his daughter
Subbamma. If really, the Venkateshaiah has got money to
repurchase the same, he would have repurchased the same in
his name, but sale consideration was paid by Subbamma. Merely
because there was a clause for reconveyance, it cannot be held
that the property is a joint family property as contended by the
defendant counsel.
29. It is also important to note that there is no dispute
that originally the property belonged to Gowramma who had
purchased the same in the year 1920. It is also not in dispute
that the very Gowramma executed the settlement deed in favour
of her son - V K Venkateshaiah on 13.04.1943. It is important
to note that when the property belonged to Gowramma, the
same was her absolute property and during her lifetime she
executed a settlement deed in favour of her son. On the
execution of the said document, the property became as
separate property of Venkateshaiah. No doubt, it is the claim of
the defendant that he is the son of the brother of Subbamma
that is Venkataramu. But the fact is that when the property is a
separate property of Venkateshaiah, he had sold the property
during his lifetime in favour of T Thimmarayappa for
consideration but there was a reconveyance clause. But the fact
is that the said Venkateshaiah had not repurchased the property,
but allowed his daughter to repurchase the property and his
daughter paid the sale consideration and obtained the sale deed
on 05.04.1971. In view of Section 14 of Hindu Succession Act,
the same become absolute property of said Subbamma and
Subbamma also executed the registered Will in favour of
Sangha. Having considered the flow of title of property and also
considering the conjoint reading of documents of Ex.P9 and D16,
no doubt, there is a reconveyance clause, but the same is not a
nominal sale deed as contended by the appellant counsel during
the course of his argument and both the properties are outright
sale and sale consideration was passed while executing the
document. When such being the case, only on the ground that
there was a reconveyance clause, the defendant got right over
the property cannot be accepted and hence, I answer this
substantive question of law as negative.
Second Substantive Question of Law:
30. The second substantive question of law is that
whether there were any suspicious circumstances that
surrounded the execution of document of Ex.P3. This Court has
to consider the same in the light of the arguments of the
appellant counsel. The appellant counsel mainly relies upon the
judgment in the case of D R RATHNA MURTHY referred supra
and also brought to notice of this Court the documents
containing interlineations, erasure or alteration and Rule 42
which has been discussed in paragraph 12. No doubt, a
discussion was made regarding Rule 42 mandatorily requires
that if there is any interlineations, erasure, alteration etc., it
must be mentioned and described at the foot of the document
and must be duly signed by the executant before the document
is accepted for registration. But in the case on hand, there is no
dispute with regard to the attesting of signature.
31. The main contention of the counsel is that the
correction made on the top of the document at Ex.P3 in changing
the date is not counter signed. No doubt, on perusal of Ex.P3,
there is no any counter signature. But the fact is that the date
of execution of the document is mentioned in the words and
there is no any correction in the words. But there is only
correction in mentioning the date as '3' instead of '13' wherein it
appears that earlier it is put as '3' and thereafter corrected as
'13'. But the document clearly discloses the date is mentioned in
words as '13' and if both are corrected, then there would have
been force in the contention of the appellant counsel that there
is an interlineations and alterations and same has been
discussed by both the Courts regarding the date of Will is
concerned and taken note of date mentioned in the words.
32. The other contention of the learned counsel for the
appellant is that in the boundary description, the same is
mentioned in the handwriting. But no doubt, Ex.P3 is a typed
copy and the same was also got typed through the job typist and
explanation is given by PW2 that at the time of preparing Ex.P3,
the document was not in the hands of the scribe. Hence, the
same was mentioned in hand writing. On perusal of Ex.P3, it
discloses that the pen which was used for mentioning the
property description is in the same ink and also with the same
pen the attestor who has been examined as PW3 also signed the
same. Hence, it cannot be contended that same is an insertion,
but description of the property is written in handwriting before
signing the same. Having perused the document at Ex.P3 also,
it discloses that the signatures of the testatrix are one and the
same in all three pages including before the Sub-Registrar and
there is no any shaky signature.
33. The other contention of the counsel for the appellant
is that a witness has admitted that the photo was not that of
Subbamma. It is important to note that regarding the said
aspect also, very suggestion was made to PW3 during the cross-
examination that Subbamma brought papers on that day and the
same was got typed and all of them went to the Sub-Registrar
office and photo of Subbamma was taken and she also signed
the same and thereafter also all of them have signed and except
that nothing was happened and the said suggestion was
extracted by the Trial Court while discussing the evidence of
PW3 in paragraph 19 wherein the very presence of Subbamma
was admitted and defendant himself has admitted the procedure
adopted on the date of registration of the alleged document
before the Sub-Registrar by making such suggestion. Hence,
the stray admission on the part of one of the witness that photo
is not of Subbamma cannot be accepted.
34. The other contention is that Ex.P3-Will is fabricated
and no recital for having read the document to the executrix and
subscribed her signature. PW2 and PW3 are the interested
witnesses since PW2 is also a member of the Sangha and PW3 is
a staff witness and the same also have been take note of by the
Trial Court while discussing the evidence. No doubt, in some of
the documents, PW2 is the scribe and PW3 is the witness even
other than Ex.P3. At the same time, the Trial Court also taken
note of other documents which have been marked by the
defendant that is Exs.D7, D28, D29, D33 which are the copies of
registered documents which does not bear the signatures of PW2
and PW3 either as a scribe or attesting witness.
35. It is important to note that the evidence reveals that
the PW2 is a document writer who is the scribe and he also
prepared the document in respect of some other property also.
But in that document also, Chowdappa has signed, but the same
discloses that both of them are having acquaintance with each
other. But in all the documents he was not the scribe and he
was not the witness to the document. But it is clearly deposed
by PW3 that in his presence only Subbamma had signed at
Ex.P3. It is important to note that the Will was executed by
Subbamma in the year 2005 and Subbamma passed away in the
year 2010. It is important to note that even after execution of
Ex.P3, the same was handed over to Sangha and records also
reveals that Sangha is only paying the tax in respect of the said
property.
36. The main contention of the appellant is that doctor
who was treating the Subbamma was not examined inspite of
the Will was disputed and also an allegation is made that in
collusion with the doctor and PW2, document came into
existence. No doubt, some of the documents are placed before
the Court to show that Subbamma was taking treatment with
the doctor - V S Krishnamurthy. But the same is not a serious
ailment and she was having acquaintance with the doctor.
Having perused the Will also, it is clear that she was having
belief in him and hence, in the Will, made the provision for
withdrawal of the amount after her death and the same is also
complied in terms of the Will. When such being the case, the
very contention of the counsel that Will is surrounded with
suspicious circumstances cannot be accepted.
37. It is important to note that Subbamma is a divorcee
and not having any issues. I have already pointed out that the
property was purchased by her and she was also working in the
Government department. DW1 categorically admitted that
Subbamma was actively participating in the affairs of the Sangha
till her death. When such being the case, the Court has to take
note of the intention of the executrix in executing the Will in
favour of the Sangha and same is also for the benefit of the
particular community to make use of the property and get the
income and run the educational institution. Having taken note of
the intention of the executrix while executing the Will in favour
of the Sangha, it discloses that the same is for public use and to
help the community. When such being the case, the very
contention that Will is surrounded with suspicious circumstances
cannot be accepted.
38. No doubt, the counsel for the appellant relied upon
the judgment in the case of JASWANT KAUR referred supra and
brought to notice of this Court the proposition laid down in the
judgment of THIMMAJAMMA wherein in proposition No.4,
discussion was made that cases in which the execution of the
Will is surrounded by suspicious circumstances stand on a
different footing. A shaky signature, a feeble mind, an unfair and
unjust disposition of property, the propounder himself taking a
leading part in the making of the will under which he receives a
substantial benefit and such other circumstances raise suspicion
about the execution the Will.
39. But in the case on hand, having perused Ex.P3, there
is no any shaky signature and also no any feeble mind since Will
was executed in the year 2005 and she was alive for a period of
five years and she passed away in the year 2010. Here also
there is no any unfair and unjust deposition of property and
propounder himself taking a leading part and the same is
executed in favour of Sangha and there is no any substantial
benefit in favour of the particular person and the same is given
in favour of Sangha for the public cause. Hence, the very
contention of the counsel for the appellant that there are
suspicious circumstances and it makes the initial onus heavier on
the propounder of the Will cannot be accepted. No doubt, it is a
settled principle of law that if there is any such suspicious
circumstances, the propounder of the Will must remove the
same. I do not find any such suspicious circumstances having
perused the material on record.
40. No doubt, the counsel for the appellant also relied
upon the judgment in the case of J T SURAPPA referred supra
delivered by this Court, wherein this Court pointed out
PANCHAPADI for proving of Will. In the case on hand, with
regard to the disinheritance is concerned, no question of
disinheritance since testatrix is not having any legal heir and
also not excluded any family members and property is the
absolute property of testatrix. When she was not having any
issues, the question of exclusion does not arise. The third step
is also with regard to a sound mind is a dominant question in a
Court of probate and whether the executrix was having a sound
state of mind. I have already pointed out that Will was executed
in the year 2005 and she was alive a period of five years and
there was no any medical evidence before the Court to show that
she was seriously ill or not having sound of mind. The fourth
step is with regard to suspicious when it is not normal or is not
normally expected in a normal situation. Here also, Will is not
unnatural or unreasonable or improper since the same is made
in favour of Sangha. I have already pointed out that same is for
the purpose of public cause. The fifth step is also with regard to
proving of Will under Section 63 of Indian Succession Act and
Section 68 of the Evidence Act. No doubt, PW2 is a scribe who is
also a member of the Sangha, but that does not mean that he
cannot prepare the document and document which has been
produced by the defendant itself discloses that in respect of
other property also he was a scribe.
41. I have already pointed out that PW3 was also a
witness to some of the documents, which have been relied upon
by the defendant. But here both of them have deposed before
the Court that she was having mental capacity and not suffering
from any ill-health and all of them went to the Sub-Registrar
office and affixed their signatures and photo of the executant
also taken in the Sub-Registrar office. Hence, the fifth step of
proving of document under Section 63 of Indian Succession Act
and also Section 68 of Evidence Act is also complied. When such
material is available on record, I do not find any error on the
part of both the Courts in discussing in detail with regard to the
suspicious circumstances is concerned. Hence, the judgment
relied upon by the counsel for the appellant with regard to the
proving of factum of PANCHAPADI also will not come to the aid
of the appellant. Having reassessed the material on record, in
view of substantive question of law framed by this Court with
regard to suspicious circumstances in respect of Ex.P3 is
concerned, this Court does not find any such suspicious
circumstances to come to a conclusion that Ex.P3 came under
suspicious circumstances. Hence, this substantive question of
law is answered as negative.
Third Substantive Question of Law:
42. The third substantive question of law framed by this
Court is whether the defendant had any undivided share in the
suit schedule property and was therefore entitled to resist the
suit for declaration and possession. This substantive question of
law is also interconnected with first substantive question of law
and this Court in detail discussed the first substantive question
of law with regard to the effect of Ex.D16 on the rights of
Subbamma in respect of suit schedule property is concerned.
This Court already pointed out that originally property belongs to
Gowramma who had purchased the same in the year 1920 and
the very Gowramma settled the property in favour of her son
Venkateshaiah vide settlement deed dated 13.04.1943. There is
no doubt, with regard to this aspect is concerned. But dispute is
with regard to very execution of sale deed on 25.11.1969 by
Venkatesahaiah. This Court already pointed out that same was
not a nominal sale deed and sale deed is executed for
consideration. But there was a reconveyance clause. I have
already pointed out that while selling the property, a condition
was put that if the same is not reconveyed within a period of five
years, it would be a absolute sale deed and in terms of the
reconveyance, the property also reconveyed in favour of
Subbamma.
43. It is important to note that while reconveying the
property in favour of Subbamma, the very Venkateshaiah who is
the father of Subbamma was a consenting party and he gave the
consent to sell the property in favour of Subbamma. The said
sale deed is also based on the payment of sale consideration of
Rs.5,000/- and same has been paid by Subbamma. The same
has been in detail discussed by this Court while considering first
substantive question of law that there was a sale deed dated
05.04.1971 and there was a reference in the document of sale
deed dated 05.04.1971 that earlier there was an agreement of
sale to reconvey the property and accordingly, reconveyed the
same for the consideration. This Court also taken note of the fact
that the property become the absolute property of Subbamma
having purchased the same by making sale consideration. The
said Subbamma during her lifetime executed the Will which is
propounded by the plaintiff and the same has been proved by
examining the witnesses PW2 and PW3 and both the Courts have
accepted the evidence of PW2 and PW3. Though several
contentions were taken by the defendant wherein he contend
that he has inherited the property, but this Court having dealt
with in detail that the Will is propounded in terms of Ex.P3,
comes to a positive conclusion that the Will was proved in
compliance of Section 63 of the Indian Succession Act also under
Section 68 of Indian Evidence Act. The question of any undivided
share in the suit schedule property is acquired by the defendant
and he is entitled to resist the suit for declaration and possession
does not arise since the very absolute owner Subbamma
executed the Will in terms of Ex.P3 and the same is accepted by
both the Courts and analysed in detail both question of fact and
question of law. Though this Court has framed the substantive
question of law regarding the defendant/appellant is having any
undivided share, I do not find any such undivided share
consequent upon the Will which is marked as Ex.P3. The
judgments which relied upon by the counsel for the appellant
would not comes to the aid of the appellant since no such any
suspicious circumstances to comes to the other conclusion.
Hence, this substantive question of law is also answered as
negative.
44. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
ST/SN
