Research › Search › Judgment

Karnataka High Court · body

2010 DIGILAW 233 (KAR)

Ramani R. Shetty v. Saku Shetty

2010-02-24

ANAND BYRAREDDY

body2010
Judgment Heard the counsel for the appellants and the respondents. 2. The parties are referred to by their rank before the trial court for the sake of convenience. 3. The appellants were the defendants before the trial court. The suit was filed by the respondents for a declaration that the will executed one Raghu K. Shetty dated 14.5.1978 in favour of the plaintiffs and the first defendant, the widow of the said Shetty was valid and genuine and for a permanent injunction restraining the defendants from alienating or dealing with the assets of the testator contrary to the terms of the will and for a further declaration that the gift deed dated 27.1.1983 executed by the first defendant in favour of the second defendant as invalid. It was the case of the plaintiffs that the properties described in the Plaint Schedule A as well as other lands and assets belonged to Raghu K. Shetty as his absolute property and they were all his self-acquired properties. He had no children in his marriage with the first defendant. He had a religious bent of mind and had dedicated a temple constructed by him and provided for its maintenance. The plaintiffs claimed that the first defendant was a person of simple habits with meagre needs and was of weak intellect. The second defendant was her younger sister. The first defendant was totally under the influence of the second defendant, even more so, after the death of her husband Raghu Shetty. The plaintiffs further contend that Raghu Shetty had made sufficient provision for the maintenance of the first defendant while bequeathing other assets in favour of his near and dear ones, apart from providing for maintenance of the temple under a will dated 14.5.1978. Plaintiffs 1 and 2 claimed that they were Shetty's nieces and had been looked after by him as his own daughters. Similarly, the other plaintiffs claimed to have been very closely attached to Shetty during his life time and therefore, there are bequests made in their favour. The first defendant has been granted a life interest in the residential house which was under her occupation and that after her death, the said property would devolve upon plaintiffs 1 and 2. The will detailed the manner in which the temple was to be maintained. It is stated that Raghu Shetty died on 17.11.1978. The first defendant has been granted a life interest in the residential house which was under her occupation and that after her death, the said property would devolve upon plaintiffs 1 and 2. The will detailed the manner in which the temple was to be maintained. It is stated that Raghu Shetty died on 17.11.1978. The terms of the will were acted upon, in that, the named trustees assumed management of the Shri Rama temple, which had been constructed by the testator. There was change of registration of the Jaihind Hotel at Mumbai in favour of Shekar Shetty, the husband of the first plaintiff and the third plaintiff was authorized to collect rents from certain tenants who were occupying buildings which belonged to the testator. However, the second defendant who could not stomach the course of events, according to the plaintiffs, had pursuaded defendant no.1 to seek Succession Certificate in respect of the assets of the deceased and the first defendant initiated probate proceedings in P & SC no.5/1991 before the Court of the Civil Judge at Udupi and the plaintiffs are said to be contesting those proceedings. The third plaintiff has also initiated probate proceedings before the Munsiff Court at Karkala in P & SC 3/1982 which was also pending decision as on the date of the suit. The third plaintiff claimed to have instituted suits for possession and arrears of rent in several civil suits filed against the tenants who had failed to pay the rents. In this background, the second defendant is said to have brought undue influence on the first defendant to execute a registered gift deed in her favour in respect of various properties, in respect of which she had no right and therefore, the present suit, since the will is disputed. The defendants entered appearance and filed separate written statements. The first defendant contended that she would adopt the written statement of the second defendant and denied that she was a woman of simple habits, meagre needs and that she is a person of weak intellect nor that she was under the control of the second defendant and she also denied the will sought to be set up by the plaintiffs. The second defendant had filed her written statement admitting that the property described in the plaint belonged to late Raghu Shetty, the husband of the first defendant and that it was his self acquired property and she denied that she had any control or dominance over the first defendant and denied that Raghu Shetty had executed any will as claimed by the plaintiffs. While she asserted that the gift deed executed by the first defendant was valid and enforceable. It is contended that the will is apparently a got-up document as is evident from the circumstance that there is no adequate provision made for the first defendant, who was the sole immediate legal representative of late Raghu Shetty. He was a person of liberal disposition and it is not the characteristic of him to have deprived the first defendant of material comforts which she was accustomed to during his life time as his wife, who was a successful hotelier and land owner. It would be unnatural for him to keep his wife out of the management of the properties and bequeathed the same in favour of the plaintiffs. It was also contended that the value of the assets both moveable and immoveable of late Shetty, on a reasonable estimate, was more than Rs.10,00,000/-and the same are situated not only in Karnataka State, but in the state of Maharashtra as well and therefore, the court had no jurisdiction to entertain the suit as it was beyond its territorial and pecuniary jurisdiction. It was further claimed that there was a registered will executed by Raghu Shetty dated 10.3.1960 and which has not been revoked. Therefore, the claim made under the alleged will dated 14.5.1978 was not maintainable and in a further additional written statement, in response to the amended plaint, it was contended that when the plaintiffs had claimed the relief against the whole estate of Raghu Shetty, the description of only one property has been given in the plaint schedule. Therefore, the suit of the plaintiffs is bad for non-description. It was contended that the court fee paid was only in respect of a portion of the suit properties and therefore, it was not properly valued. 4. The trial court on the basis of these pleadings, framed the following issues: "1. Do the plaintiff's prove that the Will dated 15.5.1978 is the genuine and last Will of late Raghu K. Shetty. 4. The trial court on the basis of these pleadings, framed the following issues: "1. Do the plaintiff's prove that the Will dated 15.5.1978 is the genuine and last Will of late Raghu K. Shetty. 2. Do the defendants prove that the gift deed dated: 27.1.1983 executed by the 1st defendant is valid and supported by consideration? 3. Do the defendants prove that the 1st defendant was competent to execute the alleged gift deed dated: 27.1.1983? 4. Do the defendant prove that this court has no jurisdiction to try the suit? 5. Do the defendants prove that the frame of the suit is not proper? 6. Do the defendants prove that the court fee paid is not proper and correct? 7. Do the plaintiffs prove that they are entitled to any of the declarations claimed in the suit? 8. Do the plaintiffs prove that they are entitled to the permanent injunction claimed? 9. What reliefs? Additional Issue: Whether the suit is bad for non-description of the properties in dispute?" The trial court held that the will dated 14.5.1978 was proved as the genuine and the last will of Raghu Shetty. It was further declared that the first defendant had no competence to execute the gift deed in respect of the Suit A Schedule properties in favour of the second defendant. The objection as regards jurisdiction was rejected. The trial court also rejected other contentions as regards the frame of the suit and the adequacy of the court fees and decreed the suit of the plaintiffs as prayed for. 5. An appeal having been filed by the defendants, the points for consideration framed by the first appellate court are as follows:- "1. Whether the issues framed by the trial court are not in accordance with law? 2. Whether the Will dated 14.5.1978 was the product of the free volition of the executant? Is there any suspicious circumstance about the execution of the Will in question? 3. Whether the findings recorded on Issue No.2 and 3 are not correct and the reasons given in support of the same are wholly wrong and untenable? 4. Whether the court fee paid is not sufficient? 5. Whether the Judgment and decree impugned are highly improper, wrong and not in accordance with law or facts of the case? 6. 3. Whether the findings recorded on Issue No.2 and 3 are not correct and the reasons given in support of the same are wholly wrong and untenable? 4. Whether the court fee paid is not sufficient? 5. Whether the Judgment and decree impugned are highly improper, wrong and not in accordance with law or facts of the case? 6. What order or decree?" The appellate Court upheld the finding of the trial court that the will was valid and proved, but held that the first defendant had competence to execute the gift deed in favour of the second defendant and accordingly, reversed the findings of the trial court insofar as the gift deed is concerned and therefore, allowed the appeal in part holding that the will executed by Raghu Shetty was genuine. While also holding that the gift deed executed by the first defendant in favour of the second defendant could not have been declared as invalid and hence, refused the relief of injunction against defendants 1 and 2. It is this which is sought to be challenged in the present appeal. 6. The court framed the following substantial question of law while admitting the appeal: "Whether the court below were justified in decreeing the suit of the respondents – plaintiffs when prima facie the courts did not have the jurisdiction to entertain the suit in view of Section 276 of the Indian Succession Act?" 7. The Counsel for the appellants was heard at length. Though the appeal is admitted only to be heard on the above substantial question of law, the counsel for the appellants has addressed this court on several aspects and the grounds urged in the appeal, which are briefly referred to hereunder before proceeding to address the substantial question of law. It is contended that the subject matter of the suit namely, the will of Raghu K. Shetty dated 14.5.1978 pertains to valuable properties situated both in the State of Karnataka, namely in Udupi and Mangalore Taluks and the City of Mumbai in the State of Maharashtra respectively. The testator has named executors under the will. It is the contention of the counsel that the executors were the competent persons to seek grant of probate of the will and the suit by the plaintiffs seeking declaration of the will as genuine is incompetent. The testator has named executors under the will. It is the contention of the counsel that the executors were the competent persons to seek grant of probate of the will and the suit by the plaintiffs seeking declaration of the will as genuine is incompetent. It is the complaint of the appellants that the plaintiffs had originally instituted the suit at Karkala as beneficiaries under the will. The said suit was incompetent as it was an indirect attempt to obtain relief in the nature of probate of the will without having been instituted as proceedings for probate. Notwithstanding that the suit was transferred to the court of Civil Judge at Udupi, the same was yet without jurisdiction. It is the contention of the appellants that it would not be within the jurisdiction of the courts below to declare the will as genuine. It is the prerogative of a probate Court to address the genuineness of the will and to declare that the same has been proved under the provisions of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act' for brevity). The trial Court, in the case on hand, was not the designated Court for issuance of probate and it was only the court of the District Judge who could have granted the probate. It is contended that the plaintiffs as beneficiaries under the will, were not competent to present the suit and it was only the executor, who could have approached the court for grant of probate. It is further contended that in terms of Section 273 of the Act, that probate and letters of administration could be granted even by a District Judge, who ought to certify that the value of the property and estate affected beyond the limits of the State does not exceed Rs.10,000/- and therefore, since the plaintiffs had failed to obtain probate and in the absence of any Certificate as contemplated under section 273, the judgment and decree of the courts below are wholly ineffective and a nullity. It is submitted that no right, as an executor or a legatee, can be established in any Court of Justice, unless a Court of competent jurisdiction has granted probate of the will, under which, the right is claimed, or has granted letters of administration with the will annexed thereto, in terms of Section 213 of the Act. It is submitted that no right, as an executor or a legatee, can be established in any Court of Justice, unless a Court of competent jurisdiction has granted probate of the will, under which, the right is claimed, or has granted letters of administration with the will annexed thereto, in terms of Section 213 of the Act. Assuming that a will by a Hindu does not require probate within the State of Karnataka, this is a will in respect of which Section 57(b) would be attracted since one of the valuable properties of the testator was situated within the jurisdiction of Mumbai City and though the will was made within the State of Karnataka, since it related to immovable property in Mumbai City, Section 213 read with Section 57 disabled the plaintiffs from relying upon the said will to claim as beneficiaries thereunder and therefore, the Courts below were without jurisdiction. The counsel for the appellant has also canvassed at length as regards genuineness of the will in contending that the same is a got up document and even it if were said to have been executed it is vitiated on account of the suspicious circumstances surrounding the same namely, the feeble state of health and mind of the testator immediately before the execution of the said will – when he was admittedly hospitalized, when the same was sought to be executed and the further circumstance that the testator has chosen to confer the better part of his wealth on the plaintiffs, while seeking to exclude his wife, who is left with nothing especially when there are no other legal representatives who could support and care for the first defendant during her life time. In this regard, the counsel has made a fervent plea to consider the case of the appellants and has relied upon a large number of decisions to demonstrate that in the case on hand, the principles laid down in addressing, whether or not, a will is genuine and whether or not, allegations of suspicious circumstances have been made out, would squarely apply and therefore, seeks interference of this court on the finding of fact in this regard. The following authorities are cited in support of the above contentions: 1. Bharpur Singh & Others vs. Shamsher Singh, AIR 2009 Supreme Court 1766, 2. Fatema vs. Jafri Syed Husain (Parvez), AIR 2009 Supreme Court 1773 3. The following authorities are cited in support of the above contentions: 1. Bharpur Singh & Others vs. Shamsher Singh, AIR 2009 Supreme Court 1766, 2. Fatema vs. Jafri Syed Husain (Parvez), AIR 2009 Supreme Court 1773 3. N. Kamalam (dead) and Another vs. Ayyaswamy and Another, AIR 2001 Supreme Court 2802 4. Vishwa Jagriti Mission vs. Central Government and Others, AIR 2001 Supreme Court 2814 5. State of U.P. vs. Jhinkoo Nal vs. State of Uttar Pradesh, AIR 2001 Supreme Court 2815 6. Clarence Pais and others vs. Union of India, AIR 2001 Supreme Court 1151 7. Commissioner of Income-Tax, Bihar-II, Ranchi vs. Smt. Sandhya Rani Dutta, AIR 2001 Supreme Court 1155 8. Chiranjilal Shrilal Goenka (Deceased) through Legal representatives. vs. Jasjit Singh and Others, 1993 AIR SCW 1439 9. Bhojaalias Bhoja Ram Gupta vs. Rameshwar Agarwala and others, 1993 AIR SCW 1451 10. John Guruprakasan vs. Yovel Nesan and others, AIR 1979 Kerala 96 11. Deputy Commissioner of Sales Tax, Ernakulam vs. Raja Oil Mills and Others, AIR 1979 Kerala 99. 8. Per contra, the counsel for the respondents would contend that the basic premise as to the suit being incompetent on the ground that the will in question required probate is not the correct position of law as it is not a will made by a Hindu covered under clauses (a) and (b) of the Section 57 of the Act. Therefore, a probate of the will was not compulsory. The plaintiffs no doubt were beneficiaries under the will, could establish their claim only by recourse to a suit in the light of defendant no.1 having proceeded to dispose of the property in favour of defendant no.2 contrary to the terms of the will. In any event, the grant or otherwise of the probate to the will does not establish title to the property and it is in that context, a suit was filed for a declaration as regards the properties on the basis of a will. Insofar as the genuineness of the will having been challenged, both the courts below have found as a fact that the same is proved as being genuine and that the suspicious circumstances pleaded were not established. In this view of the matter, the concurrent findings of fact cannot be questioned in the present second appeal. The only point for consideration is the substantial question of law framed by this court. In this view of the matter, the concurrent findings of fact cannot be questioned in the present second appeal. The only point for consideration is the substantial question of law framed by this court. It is contended firstly, that the will did not require probate. Even if it could be said that the properties which were the subject matter of the bequest, included the properties in the City of Mumbai and therefore, any claim in respect of the property situated in Mumbai in terms of Section 57 could be enforced in a Court of law, only on production of probate in respect of the will which is set up. It is pointed out that from a plain reading of Section 57(b), it is only when a claim is sought to be made in respect of an immoveable property situated within the territory of Mumbai City that the will need be probated. As the suit does not pertain to the property at Mumbai, the question of seeking probate is not relevant as no right is sought to be established in respect of the property at Mumbai. Therefore, this argument does not advance the case of the appellant that the suit was not competent without having sought for probate of the will in question. 9. To address the substantial question of law, it would be useful to extract Section 213 which is the basis for the appellants' case that the will could not have been set up by the plaintiffs without having obtained probate of the same. Section 213 reads as follows: "213. Right as executor or legatee when established:- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in (India) has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed. (2) This section shall not apply in the case of wills made by Muhammadans (or Indian Christians) and shall only apply. (2) This section shall not apply in the case of wills made by Muhammadans (or Indian Christians) and shall only apply. (i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of classes specified in clauses (a) and (b) of Section 57, and (ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, where such wills are made within the local limits of the ordinary (original) civil jurisdiction of the High Courts of Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits)" From a reading of the above, it can be said that it would apply in the case of any Hindu, who has executed a will of the classes specified in clauses (a) and (b) of Section 57. Here it would be necessary and also useful to extract Section 57 which reads as follows: "57. Application of certain provisions of Part to a class of wills made by Hindus, etc, - The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply – (a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and (b) to all such wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and (v) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b): Provided that marriage shall not revoke any such will or codicil". In the instant case, it is an admitted fact that the will in question is in respect of a certain property at Mumbai City apart from other properties within the State of Karnataka. The will has been executed within the State of Karnataka. In the instant case, it is an admitted fact that the will in question is in respect of a certain property at Mumbai City apart from other properties within the State of Karnataka. The will has been executed within the State of Karnataka. The probate of a Hindu will not being compulsory for a legatee, to establish his right in a court of law, within the State of Karnataka, the question remains whether Section 213 read with Section 57 would yet require the plaintiffs to have obtained probate of the will, since it pertains also to a property at Mumbai. If the wording of clause (b) to Section 57 is seen, that the will would have to be probated insofar as it relates to the immovable property within Mumbai City. The plaintiffs admittedly were not concerned with the property in Mumbai. Hence, it cannot be said that the suit was incompetent on account of probate not having been obtained in respect of the properties covered under the will. The question would then arise – if the property in Mumbai was also involved, was it then would then be possible to state that the plaintiffs were required to obtain probate? In such a contingency when a testator has left behind properties in more than one State is concerned, it is contemplated under Sections 273 and 274 of the Act. Since this is not an issue that has directly arisen either before the trial court or the first appellate court and since the suit does not include the property at Mumbai, the embargo as to the legatee being precluded from claiming any right under the will in terms of Section 213 read with 57 cannot be pressed into service and therefore, the substantial question of law would require to be answered in favour of the respondent. The question of lack of jurisdiction of the courts below on the ground that the plaintiffs could not place reliance on the will without the same being probated is not tenable. Accordingly, the appeal is dismissed.