Karnataka High Court
Chandregowda vs Sri V S Mahanthe Gowda on 9 October, 2025
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NC: 2025:KHC:39912
RSA No. 1773 of 2013
C/W RSA No. 1774 of 2013
RSA No. 1775 of 2013
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 9TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO. 1773 OF 2013 (DEC/INJ)
C/W
REGULAR SECOND APPEAL NO. 1774 OF 2013 (DEC/INJ)
REGULAR SECOND APPEAL NO. 1775 OF 2013 (DEC/INJ)
IN RSA NO.1773/2013:
BETWEEN:
SMT GOWRAMMA
W/O LATE MALALI GOWDA
SINCE DEAD BY LRS
1. CHANDREGOWDA
AGED ABOUT 70 YEARS
S/O LATE SRI PUTTEGOWDA
R/O VEERAPURA VILLAGE
SALAGAME HOBLI
HASSAN TALUK - 573 219
SINCE DEAD BY HIS LRS
1(a) SMT MOHANAKSHAMMA,
Digitally signed by
CHANDRASHEKAR
LAXMAN
AGED ABOUT 60 YEARS,
W/O LATE CHANDREGOWDA,
KATTIMANI
CHANDRASHEKAR
LAXMAN Location: HIGH
KATTIMANI COURT OF
KARNATAKA
DHARWAD BENCH
Date: 2025.10.15
10:05:30 +0100
1(b) SRI CHIDANANDA,
AGED ABOUT 37 YEARS,
S/O LATE CHANDRE GOWDA,
1(c) SRI NANDISHA,
AGED ABOUT 35 YEARS,
S/O LATE CHANDRE GOWDA,
ALL ARE RESIDENTS OF VEERAPURA VILLAGE,
HASSAN TALUK, HASSAN DISTRICT - 573219.
...APPELLANTS
(BY SRI A RAVISHANKAR, ADVOCATE FOR APPELLANTS (A TO C))
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RSA No. 1773 of 2013
C/W RSA No. 1774 of 2013
RSA No. 1775 of 2013
HC-KAR
AND
SRI V S MAHANTHE GOWDA,
AGED ABOUT 45 YEARS,
S/O SRI SHETTI GOWDA,
R/O VEERAPURA VILLLAGE, SALAGAME HOBLI,
HASSAN TALUK - 573 219.
...RESPONDENTS
(BY SRI A V GANGADHARAPPA, ADVOCATE FOR
SMT K T PREMALATHA, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 1.8.2013 PASSED IN
R.A.NO.6/2008 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE, HASSAN, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DTD 28.11.2007 PASSED IN
OS.NO.448/1991 ON THE FILE OF THE II ADDL. CIVIL JUDGE
(JR.DN) & JMFC., II COURT, HASSAN.
IN RSA NO.1774/2013:
BETWEEN:
1. CHANDREGOWDA
SINCE DEAD BY HIS LRS
1(a) SMT MOHANAKSHAMMA,
AGED ABOUT 60 YEARS,
W/O LATE CHANDREGOWDA,
1(b) SRI CHIDANANDA,
AGED ABOUT 37 YEARS,
S/O LATE CHANDRE GOWDA,
1(c) SRI NANDISHA,
AGED ABOUT 35 YEARS,
S/O LATE CHANDRE GOWDA,
ALL ARE RESIDENTS OF VEERAPURA VILLAGE,
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RSA No. 1773 of 2013
C/W RSA No. 1774 of 2013
RSA No. 1775 of 2013
HC-KAR
HASSAN TALUK, HASSAN DISTRICT - 573219.
...APPELLANTS
(BY SRI A RAVISHANKAR, ADVOCATE)
n
AND
1. SRI V S MAHANTHE GOWDA
S/O SRI SHETTI GOWDA
AGED ABOUT 45 YEARS
2. SMT VEDAVATHI
D/O SHETTI GOWDA
AGED ABOUT 43 YEARS
3. DEVI
D/O SHETTI GOWDA
AGED ABOUT 41 YEARS
4.SMT JAYAMMA
W/O SHETTI GOWDA
AGED ABOUT 75 YEARS
ALL ARE R/O VEERAPURA VILLAGE, SALAGAME HOBLI
HASSAN TALUK - 573 219
...RESPONDENTS
(BY SRI A V GANGADHARAPPA, ADVOCATE FOR
SMT K T PREMALATHA, ADVOCATE FOR R1
R2 TO R4 SERVED)
THIS RSA IS FILED U/S. RSA FILED U/S. 100 OF CPC.,
AGAINST THE JUDGEMENT & DECREE DATED 01.08.2013
PASSED IN R.A.NO.7/2008 ON THE FILE OF THE PRL. SENIOR
CIVIL JUDGE, HASSAN, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DTD 28.11.2007
PASSED IN OS.NO.136/1992 ON THE FILE OF THE II ADDL.
CIVIL JUDGE (JR.DN) & JMFC., II COURT, HASSAN.
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RSA No. 1773 of 2013
C/W RSA No. 1774 of 2013
RSA No. 1775 of 2013
HC-KAR
IN RSA NO.1775/2013:
BETWEEN:
1. CHANDREGOWDA
SINCE DEAD BY HIS LRS
1(a) SMT MOHANAKSHAMMA,
AGED ABOUT 60 YEARS,
W/O LATE CHANDREGOWDA,
1(b) SRI CHIDANANDA,
AGED ABOUT 37 YEARS,
S/O LATE CHANDRE GOWDA,
1(c) SRI NANDISHA,
AGED ABOUT 35 YEARS,
S/O LATE CHANDRE GOWDA,
ALL ARE RESIDENTS OF VEERAPURA VILLAGE,
HASSAN TALUK, HASSAN DISTRICT - 573219.
...APPELLANTS
(BY SRI A RAVISHANKAR, ADVOCATE)
AND
SRI V S MAHANTHE GOWDA
S/O SRI SHETTI GOWDA
AGED ABOUT 45 YEARS
R/O VEERAPURA VILLAGE, SALAGAME HOBLI
HASSAN TALUK-573219
...RESPONDENTS
(BY SRI A V GANGADHARAPPA, ADVOCATE FOR
SMT K T PREMALATHA, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 1.8.2013 PASSED IN
R.A.NO.6/2008 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE, HASSAN, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DTD 28.11.2007 PASSED IN
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RSA No. 1773 of 2013
C/W RSA No. 1774 of 2013
RSA No. 1775 of 2013
HC-KAR
OS.NO.448/1991 ON THE FILE OF THE II ADDL. CIVIL JUDGE
(JR.DN) & JMFC., II COURT, HASSAN.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 03RD SEPTEMBER, 2025 AND COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
CAV JUDGMENT
RSA No.1773/2013 arises from judgments and
decrees in O.S. No.448/1991 on the file of II Additional Civil
Judge (Jr.Dn), Hassan and RA No.6/2008 on the file of the
Principal Senior Civil Judge, Hassan.
2. RSA No.1774/2013 arises from judgments and
decrees in O.S. No.136/1992 on the file of II Additional Civil
Judge (Jr.Dn), Hassan and RA No.7/2008 on the file of the
Principal Senior Civil Judge, Hassan.
3. RSA No.1775/2013 arises from judgment and
decrees in O.S. No.117/1994 on the file of II Additional Civil
Judge (Jr.Dn), Hassan and RA No.8/2008 on the file of the
Principal Senior Civil Judge, Hassan.
4. Since the parties to the aforementioned proceedings
are same, all three appeals are clubbed together. All three
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suits referred to above and all three First Appeals referred to
above were disposed of by common judgment.
5. RSA No.1773/2013 was admitted on 30.07.2014 to
resolve the following substantial questions of law
"i) Whether the courts below are justified in
ignoring the pleading of Smt. Gowramma since
deceased that she had executed a Will dated
28.11.1990 bequeathing the properties to Sri. Chandre
Gowda which fact would dispense with the suspicious
circumstance if any on the execution of the Will?
ii) Whether the courts below are justified in
holding that Chandre Gowda who came on record to
prosecute the case establishing that the right to sue
survives on him, ought to have pleaded specifically
about the manner of his right?
iii) Have not the courts below committed an error
in law in not noticing that in view of un disputed fact
that Shetti Gowda pre-deceased Malali Gowda, Smt.
Gowramma would acquire right in the property as wife
of Malali Gowda and as mother of the adopted son?
Alternatively, the question of law would be,
Whether the courts below are right in holding that
the claim of adoption advanced on behalf of Setti Gowda
that he was adopted on 06.03.1952 by a registered
Deed of Adoption on 27.05.1952 is proved?"
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6. RSA No.1774/2013 was admitted on 02.08.2014 to
resolve the following substantial questions of law
"(i) Whether the courts below were justified in
granting decree of declaration to the plaintiffs when
admittedly Shetti Gowda pre-deceased Malali Gowda
and upon the death of the said co-parceners of a Joint
Hindu Undivided family, the widow of Malali Gowda
would also get a share being Class-I heir?
(ii) Whether the Courts below were justified in
ignoring the pleadings of Smt. Gowramma that she had
executed a Will duly registered and held that the Will is
brought up in suspicious circumstances:
(iii) Whether the Courts below were justified in
granting decree of declaration ignoring the rights of
daughter Giddamma of Malali Gowda through his first
wife Dyavamma?
(iv) Whether the Courts below were justified in
holding that the Adoption Deed dated 06.03.1952
stands proved when admittedly the same is not proved
in the manner know to law?"
7. RSA No.1775/2013 was admitted on 30.07.2014 to
resolve the following substantial questions of law
"(i) Whether the courts below were justified in
ignoring the fact that a co-owner of a joint family
property is not entitled to seek the relief of declaration
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of title of a joint family property as against another co-
owner?
(ii) Whether the courts below were justified in
granting the relief of declaration to the sole plaintiff
when he himself had sought for the same relief along
with his siblings in O.S.No.136/1992, ignoring the force
of Order II Rule 2 of CPC?"
8. Heard Sri A.Ravishankar, learned counsel appearing
for the appellants in all three appeals and Sri A.V.
Gangadharappa, learned counsel appearing for Smt.
K.T.Premalatha, learned counsel for the respondents in all
three appeals.
9. Certain facts are admitted. One Malali Gowda was
the propositus. He died on 12.06.1981. Malali Gowda had two
wives - Dyavamma and Gowramma. Both marriages took place
before 1955, as such both the marriages are valid.
10. First wife - Dyavamma died on 02.09.1987 and
second wife - Gowramma died on 31.12.1992.
11. Second wife - Gowramma filed O.S.No.448/1991
against one Mahanthegowda, son of Shettygowda. The plaintiff
Gowramma in the said suit sought a declaration that she alone
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is the owner of the suit schedule properties and sought
permanent injunction against sole defendant Mahanthegowda,
s/o Shettygowda.
12. The plaintiff in O.S.No.448/1991 alleged that
defendant Mahanthegowda asserted that the plaintiff's husband
Malaligowda adopted Shettygowda - the father of the
defendant. The plaintiff - Gowramma disputed the said
adoption.
13. Defendant Mahanthegowda, son of Shettygowda
opposed the plaintiff's claim and claimed absolute right over the
properties as a successor of his father Shettygowda. The
defendant claimed that on 06.03.1952, Malaligowda adopted
his father Shettygowda and on 27.05.1952, the adoption deed
was registered and after Malaligowda's demise, Shettygowda
inherited all the properties of Malaligowda.
14. O.S.No.136/1992 is filed by the children and wife of
late Shettygowda. In the said suit, the plaintiffs claimed that
the Will dated 28.11.1990 said to have been executed by first
defendant Gowramma, 2nd wife of Malaligowda in favour of
second defendant is illegal and also sought for a relief of
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cancellation of the said Will on the premise that first defendant
has no right to execute the Will.
15. Defendant No.1 Gowramma, and Defendant No.2,
Chandregowda, s/o Puttegowda contested the plaintiffs' claim
in O.S.No.136/1992 and defendant No.1 asserted that she
executed the Will dated 28.11.1990 in favour of defendant No.2
and prayed for dismissal of the suit.
16. O.S.No.117/1994 is filed by Mahanthegowda
against Chandregowda, the legatee under the alleged Will
dated 28.11.1990 said to have been executed by Gowramma.
In the said suit, the plaintiff has challenged the order dated
04.03.1994 passed by the Assistant Commissioner, wherein
Assistant Commissioner, has directed the entry in the name of
Gowramma as well as Shettygowda. Said suit is also contested
by Chandregowda based on the Will dated 28.11.1990 executed
by Gowramma.
17. During the pendency of O.S.No.448/1991,
Gowramma died and Chandregowda came on record as the
legal representative of Gowramma under the Will dated
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28.11.1990. Thereafter, common evidence was led by clubbing
all three suits.
18. Since Gowramma died during the pendency of
O.S.No.448/1991 and the trial Court concluded that the
execution of Will is not proved, O.S.No.448/1991 is also
dismissed.
19. Suit in O.S.No.136/1992 is decreed.
O.S.No.117/1994 is also decreed holding that the order of the
Assistant Commissioner is illegal.
20. R.A.No.6/2008 challenging the aforementioned
judgment and decree in O.S.No.448/1991 is dismissed.
21. Appeal against the judgment and decree in
R.A.No.7/2008 is dismissed confirming the judgment and
decree in O.S.No.136/1992.
22. The appeal in R.A.No.8/2009 is allowed in part. The
decree setting aside the order of the Assistant Commissioner is
set aside and remaining part of the decree in O.S No.117/1994
confirmed.
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23. Learned counsel appearing for the appellants raises
the following contentions:-
(i) Admittedly, the properties belonged to Malaligowda
and he died on 12.06.1981. After his demise, under Section 8
of the Hindu Succession Act, 1956 (for short, "Act, 1956"), the
properties would devolve upon Dyavamma - first wife,
Gowramma - second wife. In case, the adoption of
Shettygowda, is proved, the properties will devolve equally on
Shettygowda, Dyavamma and Gowramma.
(ii) The adoption is not established inasmuch as the
witnesses to the alleged adoption are not examined. The
alleged signature/thumb impression of Gowramma on the
adoption deed is disputed even by Gowramma and this being
the position, the Trial Court and First Appellate Court could not
have held that adoption is proved by referring to Section 90 of
the Indian Evidence Act. Since the adoption and the signature
on the adoption deed were disputed, it was incumbent upon the
defendants/respondents to establish the adoption by leading
evidence.
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(iii) Evidence on record would indicate that Shettygowda
who claims to be the adopted son, was living in a different
village and not with Malaligowda - the alleged adoptive father.
(iv) In the alternative, even if it is assumed that the
adoption dated 06.03.1952 is established still after the demise
of Malaligowda, Dyavamma and Gowramma would inherit the
share of Malaligowda along with Shettygowda. Thus, children of
Shettygowda cannot seek a declaration that they are the
absolute owners of the suit schedule properties inherited after
the demise of Malaligowda.
24. On the proof of due execution of Will dated
28.11.1990, learned counsel for the appellants raised following
contentions:
(i) Will is challenged during the lifetime of the testator-
Gowramma. Gowramma contested the suit and asserted the
execution of the Will in her written statement. Even in her
plaint in O.S.No.448/1991, Gowramma has asserted the
execution of the Will dated 28.11.1990. The Will is duly
registered and the attesting witnesses to the said Will have
been examined and both the attesting witnesses though have
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turned hostile, the scribe is examined to prove the execution of
the Will.
(ii) Even if the attesting witnesses have not supported
the case of the appellants on the execution of Will, the Trial
Court and First Appellate Court should have attached weightage
to the pleadings and the contention of Gowramma - the
testator who asserted that she executed the Will in favour of
Chandregowda.
25. In support of the contention, learned counsel for the
appellants would place reliance on the judgment in Pentakota
Satyanarayana and Others vs. Pentakota Sita Ratnam
and Others1 and the judgment in Smt. Sarojini and another
vs. Yellappa Kempanna2 rendered by the Co-ordinate Bench
of this Court. In addition, reliance is also placed on the
judgment in Ramabai Padmakar Patil and others vs.
Rukminibai Vishnu Vekhande and others3.
2005 (8) SCC 67
2003 (8) SCC 537
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26. Learned counsel for the respondents defending the
adoption and registered adoption deed dated 06.03.1952 raised
the following contentions.
(i) The adoption deed dated 06.03.1952 was duly
registered on 27.05.1952.
(ii) Gowramma is also a witness to the said adoption.
(iii) No dispute is raised relating to adoption during the
life time of adoptive father Malaligowda.
(iv) Original adoption deed is produced and the
document being a 30 year old document, the presumption is in
favour of due execution and the appellants have not led any
evidence to rebut the presumption.
(v) Both Courts have concurrently held that adoption is
duly established and no grounds are made out interfere with
the concurrent findings relating to proof of adoption.
27. The Court has considered the contentions on the
alleged adoption deed dated 06.03.1952 said to have been
registered on 27.05.1952.
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"Discussion on the adoption deed dated
06.03.1952."
28. Both Courts have concurrently held that the
adoption is duly established. Admittedly, the alleged adoption is
before the commencement of the Hindu Adoption and
Maintenance Act, 1956. Thus, the provisions of the said Act of
1956 are not applicable.
29. The respondents claim that Gowramma has signed
the adoption deed as a witness. Gowramma has disputed her
signature. Both Courts have appreciated the evidence of PW1
to PW3 to come to the conclusion that the adoption is proved.
Both Courts have concluded that 'giving and taking' ceremony
took place when Shettygowda was adopted in 1952 and there
was no challenge to the adoption during life time of
Malaligowda.
30. Admittedly, the original adoption deed produced in
the Court was 30 years old. It carried the presumption that it is
signed by Malaligowda. Said presumption, though rebuttable is
not rebutted.
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31. Trial Court has held that, suit without a prayer for
cancellation of adoption deed, is not maintainable. The plaintiff
- Gowramma is not the executant of the adoption deed.
However, she is said to be a witness to the said document and
if her signature/thumb impression is established, it implies her
consent for adoption. In such an event, the plaintiff should seek
cancellation of adoption.
32. Even if there is no formal declaration sought to
cancel the adoption deed, the person asserting adoption is also
required to prove the same as the adoption is not admitted in
specific terms.
33. The Court has to consider whether there is
evidence to hold that the adoption is valid.
34. On considering the reasons assigned by the Trial
Court and First Appellate Court, this Court is of the view that
both the Courts have rightly held that, the giving and taking
ceremony is established and adoption has taken place as per
the custom prevailing in their community and no case is made
out to interfere with the concurrent findings relating to adoption
deed dated 06.03.1952, registered on 27.05.1952. The
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presumption as to the thumb impression/signature of
Malaligowda certainly is in favour of the respondent. No
evidence is led to rebut the presumption. The adoption deed is
duly registered. Fact that Malaligowda did not have male issues
from both wives also suggests that he might have opted to
adopt a male child.
35. Assailing the Will dated 28.11.1990, the learned
counsel for the respondents raised the following contention.
(i) Attesting witnesses to the Will have not supported
alleged execution of the Will.
(ii) Scribe's evidence led in support of the alleged
execution of the Will not sufficient to uphold the execution of
the Will, more particularly when the attesting witnesses have
not supported the execution of alleged Will.
(iii) The signature/thumb impression of Gowramma -
the alleged testator is not proved.
(iv) Gowramma - the alleged testator was aged,
illiterate and did not posses sound disposing state of mind at
the time of alleged execution of the Will.
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(v) The beneficiary has taken active part in the
execution of the alleged Will and the details of the Court
proceedings in the Will speak abundantly about the active
participation of the beneficiary
(vi) Suspicious circumstances surrounding the Will are
not dispelled by the propounder who was also the power of
attorney holder of Gowramma and who was prosecuting cases
on behalf of Gowramma against the respondent.
(vii) The beneficiary under the Will is a stranger and no
reasons are assigned to disinherit the natural heirs.
36. This Court has considered the contentions and
perused the records.
"Discussion on the Will dated 28.11.1990."
36.1 Certain facts are admitted. Gowramma did not have
any issue from the marriage. The Will dated 28.11.1990 is
registered. Gowramma died on 31.12.1992.
36.2 During the life time of Gowramma, respondents
along with family members filed the suit, in O.S.No.136/1992
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challenging the Will dated 28.11.1990 said to have been
executed by Gowramma.
37. Following relevant facts are borne out from the
records.
37.1 Gowramma in her plaint in O.S.No.448/1991 has
averred that she has executed a Will on 28.11.1990 in favour of
Chandregowda and said Will is registered.
37.2 In the written statement filed in O.S.No.136/1992,
where the plaintiff in O.S.No.136/1992, disputed the alleged
execution of Will dated 28.11.1990. Gowramma/defendant
No.1, did not dispute the execution of Will dated 28.11.1990
but asserted the execution of Will dated 28.11.1990 in favour
of Chandregowda - defendant No.2 in the said suit.
37.3 Gowramma was not alive when the aforementioned
suits went for trial.
37.4 Attesting witnesses to the alleged Will dated
28.11.1990 have not supported the execution of the Will in
their chief examination and have been treated as hostile and
have admitted their signatures on the Will dated 28.11.1990.
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38. Learned counsel for the respondents in first place
urged that there is concurrent finding that the Will dated
28.11.1990 is not proved and there is no scope to interfere
with the concurrent findings on the alleged Will dated
28.11.1990.
39. The Trial Court has disbelieved the Will mainly on
the following reasons:
(a) Gowramma died during the pendency of
O.S.No.448/1991 and Chandregowda came on record as
testamentary heir of Gowramma and there is no independent
pleading by Chandregowda to claim right over the properties
based on the Will of Gowramma and evidence on the Will
without pleading cannot be looked into.
(b) Gowramma has not established ownership over the
properties
(c) Attesting witnesses have not supported the
contention relating to proof of the Will
40. First Appellate Court confirmed the finding on the
following reasons.
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(a) Gowramma was not the absolute owner of the
properties and thus could not have executed the Will
(b) Gowramma in her plaint in O.S.No.448/1991 has
not stated to whom she handed over the Will after alleged
execution.
(c) Legatee/appellant has not stated that when and
how PW2 - his brother came in custody of the Will.
(d) It is not stated that who accompanied Gowramma
to the office of the sub-registrar when she was aged around 75
years.
(e) Respondent - DW1 stated that Gowramma lived
along with him. Thus, the Will in favour of appellant by
Gowramma disinheriting respondent is highly suspicious.
41. As far as the contention that the concurrent finding
relating to proof of Will cannot be disturbed in an appeal under
Section 100 of the Code of Civil Procedure, is concerned, suffice
to say that it cannot be applied like a thumb rule. It is equally
settled that concurrent finding of facts, contrary to the evidence
on record and without noticing/reference to acceptable
evidence or applicable provision of law, can be interfered in
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exercise of jurisdiction under Section 100 of the Code of Civil
Procedure.
42. The Trial Court as already noticed held that there is
no independent pleading by the appellants on the execution of
Will. This observation is erroneous. In O.S.No.117/1994,
Chandregowda is the defendant and his defence is based on the
Will dated 28.11.1990 as can be seen from paragraph No.8 of
the written statement.
43. Moreover, the issue is framed based on the said Will
in all three suits namely, O.S.No.448/1991,
O.S.No.136/1992 and O.S.No.117/1994 and both sides have
led evidence on the issue.
44. Thus, the finding that the propounder has led
evidence on the Will without pleading is untenable.
45. The finding that Gowramma is not the absolute
owner of the property cannot be faulted. However, the finding
that Gowramma not being the owner cannot execute the Will is
erroneous. If Gowramma is not the absolute owner, and if she
is found to be joint owner, the Will though executed for entire
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property, if otherwise proved to be valid, will operate to the
extent of the share held by the testator. Both Courts erred in
holding that Gowramma cannot execute the Will on the premise
that she is not the absolute owner.
46. First Appellate Court has held that the plaint in
O.S.No.448/1991 filed by Gowramma does not contain a recital
that Gowramma handed over the Will to legatee of PW2. That is
not the requirement of law.
47. This is a peculiar case, where the testator
Gowramma in her life time files a suit against a person who
claimed to be the adopted son of her husband. In the suit,
Gowramma challenged adoption and asserted execution of the
Will in favour of husband's relative.
48. In another suit (O.S.No.136/1992), Gowramma's
Will is questioned on the premise that she has no right to
execute the Will. Said suit is filed against Gowramma and her
legatee. Gowramma in her written statement asserts the
execution of Will dated 28.11.1990.
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49. Gowramma during her lifetime never denied the
execution of the Will. Thus, the contention relating to valid
execution of the alleged Will dated 28.11.1990 or otherwise has
to be addressed keeping in mind the pleading of Gowramma.
50. Unfortunately both Courts have not analysed the
effect of Gowramma's pleading in O.S.No.448/1991 and
O.S.No.136/1992.
51. In the light of the peculiar facts of the case, more
so in a situation where the Will is registered, the contention
urged by the respondents as to who handed over the Will to the
propounder, or why no pleading in the plaint as to what
Gowramma did after executing Will, may not have much
significance.
52. Since the finding on the Will dated 28.11.1990 is
recorded without analysing the testator's pleading and also not
noticing the position of law, that even the joint owner can
execute the Will to the extent of undivided share, the Court has
to consider whether the evidence on record is sufficient to
uphold the execution of the Will dated 28.11.1990 and whether
both Courts erred in not considering the testator's pleading
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relating to the Will in question. This is precisely one of the
substantial questions of law in RSA No.1773/2013.
53. As already noticed, alleged Will dated 28.11.1990 is
registered. The signature of Gowramma does not appear to be
in dispute. In paragraph No.18 of the cross examination of
PW.1, it is suggested that Gowramma's signature obtained (on
a document) on account of her old age is misused as a Will.
Even in paragraph No.3 of the cross examination of PW3
(scribe), it is suggested that Gowramma's signature is taken on
Ex.P.32 - the Will without informing Gowramma that it is a Will.
In paragraph No.5 of the cross examination, it is suggested to
PW-3 - the scribe, that Gowramma has not signed in the
presence of the scribe. To the same witness in paragraph No.6,
it is suggested that on ExP32 - Will, Gowramma's thumb
impression is taken without informing her about the contents of
the document.
54. In the cross examination, DW1 - respondent has
disputed the thumb impression of Gowramma on the Will. It is
also noticed that he has disputed Gowramma's thumb
impression in her pleading and vakalat though it is not his case
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that Gowramma has not signed the pleadings (Plaint in
O.S.No.448/1991 and written statement in O.S.No.136/1992)
and vakalat.
55. On considering overall materials placed on record, it
appears that Gowramma's signature/thumb impression on the
Will is not in dispute. What is disputed is act of Gowramma
putting her thumb impression in the presence of the scribe.
These aspects are completely ignored by the Trial Court and
First Appellate Court.
56. The law mandates that to prove the execution of
the Will, the propounder must examine at least one attesting
witness on attestation.
57. Appellants examined both attesting witnesses who
were before the Court pursuant to the warrant issued by the
Court. Both witnesses have not supported the propounder. Both
witnesses pleaded ignorance about the Will and are treated as
hostile and were cross examined by the propounder. In the
cross-examination, both admitted their respective signature on
the disputed Will.
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58. The witnesses though have categorically stated that
they have not witnessed the execution of Will by Gowramma,
have admitted their signatures on the Will. Why the said
witnesses have signed the Will is not satisfactorily explained by
them.
59. However, to prove the attestation, the scribe is
examined. The scribe has deposed that the testator signed in
the presence of witnesses and in his presence. The scribe has
also deposed that witnesses signed the Will in his presence and
the presence of the testator. Scribe further stated that he
signed in the presence of testator and attesting witnesses.
60. From the evidence placed on record, it can be
concluded that the alleged Will dated 28.11.1990 is duly
registered. It bears the signatures/thumb impressions of
Gowramma, two persons alleged to be the witnesses to the said
Will, and also the signature of the scribe.
61. The question is whether evidence on record is
sufficient to hold that attesting witnesses have turned hostile
and have deposed contrary to attestation made by them, as
alleged by the propounder.
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62. Sections 70 and 71 of the Indian Evidence Act,
1872, are relevant in the context of the case.
"70. Admission of execution by party to attested
document.-The admission of a party to an
attested document of its execution by himself
shall be sufficient proof of its execution as against
him, though it be a document required by law to
be attested.
71. Proof when attesting witness denies the
execution.-If the attesting witness denies or
does not recollect the execution of the document,
its execution may be proved by other evidence."
63. Section 70 provides that if the executant admits
execution of a compulsorily attestable document, then it is
sufficient proof of execution as against the party admitting it.
64. Section 71 provides that in case, the attesting
witness do not support attestation and do not recollect
execution of a document, the document can be proved by other
evidence.
65. Thus, even if the attesting witnesses do not support
the case of the propounder of the Will, it can be proved by
other evidence.
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66. So far as execution of Will dated 28.11.1990, the
testator Gowramma has admitted the execution in her pleading
in O.S.No.448/1991 and O.S.No.136/1992. Thus, the said
admission binds Gowramma. Since this Court has held that
adoption of Shettygowda is valid, the respondents can claim
right over the portion of the suit property only through
Gowramma. Thus, respondents cannot take a stand contrary to
the stand of Gowramma. The respondents have not placed any
materials to hold that Gowramma, signed the plaint in
O.S.No.448/1991 and written statement in O.S.No.136/1992
without being unaware of it. In fact, this is not the contention
raised in the pleading. Thus, Gowramma's statement or
admission or assertion relating to execution of the Will does
bind the respondents.
67. Assuming that Gowramma's admission does not
bind the respondents, under Section 71 of the Indian Evidence
Act, 1872, the Will can be proved even if the attesting
witnesses do not support the attestation. However, there must
be evidence to prove such execution.
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68. In the instant case, the scribe has proved
attestation of the Will dated 28.11.1990. The reason he states
is that he has witnessed the testator signing the Will in the
presence of attesting witnesses and the attesting witnesses
have signed the Will in the presence of the testator. The Court
does not find any reason to disbelieve the evidence of the
scribe relating to attestation and proof of the Will.
69. Following circumstances according to the Court
strongly point towards the execution of the Will dated
28.11.1990.
(a) Gowramma - the testator in her pleadings (plaint in
O.S.No.448/1991 and written statement in
O.S.No.136/1992) has asserted the execution of the Will
dated 28.11.1990.
(b) Gowramma's relationship with the respondents was
strained and it is established from the fact that both
prosecuted various proceedings against each other since
1990. If Gowramma died intestate, her estate would
devolve on the respondents. Thus, Gowramma had a
reason to execute the Will.
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(c) Thumb impressions of Gowramma on the Will dated
28.11.1990 are established.
(d) Gowramma lived almost two years after the execution
and registration of the Will dated 28.11.1990 and it
speaks about reasonably good health of Gowramma at
the time of execution of the Will. This is more so when
there is no other acceptable evidence to hold that
Gowramma did not possess sound state of disposing
mind.
(e) Attesting witnesses who have denied the attestation of
the Will dated 28.11.1990 in the cross-examination have
admitted their signatures on the said Will dated
28.11.1990. One of the attesting witnesses has not
offered any explanation as to why he has signed the
document dated 28.11.1990 and another attesting
witness tried to explain the signature on the Will stating
that his signature is taken on the assurance that he will
be allotted a site by the propounder. Attesting witnesses
appear to be untrustworthy. Considering the fact that the
testator herself has admitted the execution of the Will in
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two readings namely; the plaint in O.S.No.448/1991 and
O.S.No.136/1992, this Court has to hold that evidence
who has testified about the execution of the Will is more
credible.
70. This being the position, the Court has to come to
the conclusion that the propounder has proved the Will keeping
in mind Sections 70 and 71 of Indian Evidence Act, 1872.
71. Learned counsel for the respondents has relied on
the judgment of the Hon'ble Apex Court in Randhir Kaur vs.
Prithvi Pal Singh & Others4 to contend that the High Court
has no jurisdiction to entertain a second appeal on the ground
of erroneous finding of fact. In the aforementioned judgment,
the High Court has observed as under:
"As the two courts approached the evidence from a
correct perspective and gave a concurrent finding of fact,
the High Court had no jurisdiction to interfere with the said
finding.
To the same fact, in another decision of this Court in
the case of R. Ramachandran Ayyar vs. Ramalingam
Chettiar, (AIR 1963 SC 302; 1963 (3) SCR 604) where the
Court observed as follows:-
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"But the High Court cannot interfere with the conclusions
of the fact recorded by the Lower Appellate Court, however,
erroneous the said conclusions may appear to be to the High
Court, because, as the privy council has observed, however,
gross or inexcusable the error may seem to be, there is no
justification under Section 100 to correct that error."
72. It is to be noticed that if the judgment is delivered
by referring to the evidence and both Courts concurrently take
a view while interpreting the evidence on record, then the
Court may not have the jurisdiction under Section 100 of the
Code of Civil Procedure to interfere with the said finding.
73. If the finding on fact is without reference to the
evidence or provision of law or the binding precedent, then said
omission to notice and analyse the relevant evidence or
provision of law is a substantial question of law within the
meaning of Section 100 of Code of Civil Procedure and the
Court has the jurisdiction to reverse the concurrent finding.
74. As already noticed, the effect of pleading in
O.S.No.448/1991 where the testator herself pleaded and
asserted the execution of Will dated 28.11.1990 and the
pleading in O.S.No.136/1992 where the testator defended the
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challenge to the said Will dated 28.11.1990 are two vital
documents which have been completely ignored by the Trial
Court. Effect of said pleadings is not analysed with reference to
Section 70 of the Indian Evidence Act, 1872.
75. In addition, the admission of the thumb impression
of the testator on the Will is also not taken into consideration
by the Trial Court and First Appellate Court.
76. Learned counsel for the respondents has also relied
on the judgments of the Hon'ble Apex Court in S.R. Srinivasa
and Others vs. S. Padmavathamma5 and H. Venkatachala
Iyengar vs. B.N. Timmajamma and Others6, to contend
that burden is heavy on the propounder to prove the execution
of the Will and to dispel the suspicious circumstances.
77. In the judgment of the S.R. Srinivasa and Others
supra, the Apex Court has also held that the scribe cannot be
an attesting witness unless he has put the signature with an
intention to attest. This Court has considered the contentions
with reference to the judgments cited above.
AIR 1959 SC 443
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78. As already noticed, this case stands on a different
footing given the fact that the testator herself has asserted the
execution of the Will dated 28.11.1990 in her pleadings in
O.S.No.448/1991 and O.S.No.138/1992. This being the
position, the degree of proof that is required to prove the
execution of the Will reduced to a larger extent.
79. The evidence of the scribe if not treated as the
evidence of an attesting witness can certainly be used to
uphold the contention that two attesting witnesses named in
the Will indeed attested the Will though they did not speak
about attestation when they were brought before the Court
pursuant to the warrant issued by the Court. This Court has
already discussed reasons as to why the attesting witnesses
denying the attestation.
80. At this juncture it is relevant to notice the ratio in
Savithri and Others vs. Karthyayani Amma7 where the
Hon'ble Apex Court has held that the scribe can prove the
attestation if he has seen the testator and attesting witnesses
signing the Will in his presence.
(2007) 11 SCC 621
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81. Learned counsel for the respondents urged that the
testator's claim in the Will that she is the absolute owner of the
properties covered under the Will is erroneous, and details of
all proceedings in Court referred to in the Will are the
suspicious circumstance. It is to be noticed that the testator
filed a suit disputing adoption. Thus, testator's claim that she is
the absolute owner of the property is in line with her claim in
the suit. If ultimately in the suit (after the execution of the
Will), it is found that the said claim relating to absolute
ownership is incorrect, same does not invalidate the Will as
long as testator owns any part of the property covered under
the Will.
82. Likewise, meticulous details in the Will relating to
various Court proceedings cannot be said to be unnatural
merely because the testator is illiterate. On account of
testator's illiteracy, someone, may be even the beneficiary
might have assisted the testator in narrating the facts or giving
instructions to the scribe. That by itself will not make the Will
suspicious. May be those aspects need to be explained by the
propounder. Since testator has asserted about the execution of
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Will dated 28.11.1990 in her pleadings, the degree of proof has
reduced to a great extent and that being the case, even if the
beneficiary has provided instructions about various
proceedings, in the facts of the present case will not render the
Will invalid.
83. For the reasons already recorded above, this Court
is of the view that impugned judgments and decrees passed by
the Trial Court and First Appellate Court to the extent of
holding that the Will dated 28.11.1990 is not proved have to be
set-aside and accordingly set-aside.
84. It is also noticed from the genealogy furnished by
the parties to the proceeding that the propositus had a
daughter by name Giddamma from his first wife Dyavamma. It
is stated that both Dyavamma and Giddamma are no more.
There is no positive statement that Giddamma died before
marriage or that she died issueless. The respondents have not
raised a contention that the suit is bad for non joinder of heirs
of Giddamma. In the suit filed by legal representatives of
Shettygowda also, there is no reference to Giddamma.
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85. In the aforementioned circumstances, this Court
would assume that Giddamma died intestate and issueless.
Thus the properties of Malaligowda would devolve on
Gowramma and children of Shettygowda. Since suit in
O.S.No.136/1992 is filed by all the legal representatives of
Shettygowda, this Court instead of driving the parties to one
more suit for partition and separate possession, would mould
the relief for partition and separate possession.
86. Chandregowda will have ½ share in the suit
properties and plaintiffs No.1 to 5 in O.S.No.136/1992 will have
½ share in the suit properties described in O.S.No.136/1992.
87. Hence the following:
ORDER
(i) The appeals are allowed in part.
(ii) Judgment and decrees in R.A.No.6/2008,
R.A.No.7/2008 and R.A.No.8/2008 dated
01.08.2013 on the file of Principal Senior Civil
Judge, Hassan are set-aside in part.
(iii) Judgment and decrees dated 28.11.2007 in
O.S.No.448/1991, O.S.No.136/1992 and
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O.S.No.117/1994 by II Additional Civil Judge,
Junior Division, Hassan are set-aside in part.
(iv) The Will dated 28.11.1990 executed by
Gowramma is declared as valid to the extent
of ½ share in the suit properties.
(v) Shettygowda is declared as adopted son of
Malaligowda under the registered adoption
deed dated 06.03.1952.
(vi) Since the suit in O.S.No.136/1992 on the file
of the Civil Judge (Junior Division), Hassan
covers all the parties having right over the
suit schedule properties, the relief is moulded
and decree for partition and separate
possession is passed as under:
(a) Chandregowda son of Puttegowda - the
plaintiff in O.S.No.448/1991 is entitled to ½
share of Gowramma in the suit schedule
properties.
(b) The plaintiffs in O.S.No.136/1992
(represented by legal representatives of
deceased plaintiff, if any) are entitled to ½
share in the suit properties.
(c) Since there are only two branches, one of the
branches, (either the appellants or
respondents) shall be given the option to
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propose the division, and the other branch
shall have first option to choose the
properties so proposed to be divided. If
division takes place as aforesaid, the officer
from the Revenue Department be directed to
prepare the sketch and fix the boundaries of
the properties so divided.
(d) If the parties do not agree on the procedure
contemplated in paragraph (c), the Court
Commissioner shall be appointed to effect the
division of the properties.
(e) After the division of the properties, the Final
Decree Court shall issue necessary direction
to change the property records to the
jurisdictional Deputy Commissioner as
contemplated in Section 132(3) of the
Karnataka Land Revenue Act.
(f) The suit schedule properties referred to in the
operative portion are the properties described
in O.S.No.136/1992 on the file of II Additional
Civil Judge (Junior Division), Hassan.
(g) Since both parties before the Trial Court in
their respective suits asserted exclusive
possession over the suit schedule properties,
no order is passed on mesne profits.
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(h) In case either the appellants or the
respondents intend to give up claim relating
to exclusive possession and seek mesne
profits, are entitled to claim mesne profits
from the date of initiation of Final Decree
Proceeding till the date of actual delivery of
the possession of the properties.
(i) It is made clear that adjudication relating to
mesne profits if any, required in a situation
referred to in Clause (h), the enquiry/
adjudication relating to mesne profit from the
date of initiation of Final Decree Proceeding
till the date of delivery of possession shall
take place only after possession of the
properties are delivered to the respective
sharers.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
GVP
CT:VN
